U.S. GOVERNMENT PRINTING OFFICE

45–227 CC WASHINGTON : 1998

S. HRG. 105–315

SUPERFUND REFORM AND REAUTHORIZATION

HEARING

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

S. 8

SUPERFUND CLEANUP ACCELERATION ACT OF 1997, AS AMENDED BY

THE PROPOSED SUBSTITUTE AMENDMENT, DATED AUGUST 27, 1997,

SPONSORED BY SENATORS CHAFEE AND SMITH OF NEW HAMPSHIRE

SEPTEMBER 4, 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

JIMMIE POWELL, Staff Director

J. THOMAS SLITER, Minority Staff Director

(II)
(III)

CONTENTS

Page

SEPTEMBER 4, 1997

OPENING STATEMENTS

Allard, Hon. Wayne, U.S. Senator from the State of Colorado ............................ 9

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 13

Bond, Hon. Christopher S., U.S. Senator from the State of Missouri ................. 8

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 10

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island ................. 1

Graham, Hon. Bob, U.S. Senator from the State of Florida ................................ 18

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 16

Kempthorne, Hon. Dirk, U.S. Senator from the State of Idaho ........................... 4

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 6

Reid, Hon. Harry, U.S. Senator from the State of Nevada .................................. 18

Sessions, Hon. Jeff, U.S. Senator from the State of Alabama ............................. 17

Smith, Hon. Robert, U.S. Senator from the State of New Hampshire ................ 3

Thomas, Hon. Craig, U.S. Senator from the State of Wyoming .......................... 8

Wyden, Hon. Ron, U.S. Senator from the State of Oregon .................................. 19

WITNESSES

Browner Hon. Carol, Administrator, Environmental Protection Agency ............ 20

Article, Love Canal Superfund at Work ......................................................... 44

Fact sheet, Love Canal, New York State Department of Health ................. 48

Letters, Superfund issues ................................................................................ 37

Prepared statement .......................................................................................... 69

Responses to additional questions from:

Senator Allard............................................................................................ 37, 92

Senator Boxer ............................................................................................ 87

Senator Graham ........................................................................................ 91

Senator Moynihan ..................................................................................... 42, 89

Burt, Robert N., chairman and chief executive officer, FMC Corporation on

behalf of the Business Roundtable ..................................................................... 148

Eckerly, Susan, director for Federal Government relations, National Federation of Independent Business .............................................................................. 146

Response to additional question from Senator Inhofe ................................... 148

Florini, Karen, senior attorney, Environmental Defense Fund; accompanied

by Jacqueline Hamilton, senior project attorney, National Resources Defense Council ........................................................................................................ 153

Johnson, Gordon, J., Deputy Bureau Chief, Environmental Protection Bureau,

New York State Attorney General’s Office, on behalf of the National Association of Attorneys General ............................................................................... 61

Article, Federal Sovereign Immunity and CERCLA, Journal of Natural

Resources and Environmental Law ............................................................. 134

Letters:

Responding to questions from Senator Moynihan .................................. 68

Re: Waiver of sovereign immunity by the Federal Government on

certain environmental laws, several State Attorneys General .......... 128

Prepared statement .......................................................................................... 116

Resolution, National Association of Attorneys General, adopted summer

meeting, June 22–26, 1997, Jackson Hole, WY .......................................... 123

Responses to additional questions from:

Senator Moynihan ..................................................................................... 125

Senator Wyden .......................................................................................... 126
Page

IV

Mannina, George J., Jr., executive director, Coalition for NRD Reform ............. 163

Responses to additional questions from Senator Moynihan ......................... 166

Nelson, E. Benjamin, Governor, State of Nebraska, on behalf of the National

Governors’ Association ......................................................................................... 52

Prepared statement .......................................................................................... 104

Responses to additional questions from:

Senator Chafee .......................................................................................... 108

Senator Moynihan ..................................................................................... 108

Senator Wyden .......................................................................................... 107

Perron, James P., Mayor, Elkhart, IN., on behalf of the U.S. Conference

of Mayors .............................................................................................................. 55

Prepared statement .......................................................................................... 108

Responses to additional questions from Senator Inhofe ............................... 112

Subra, Wilma, president, Subra Company, New Iberia, LA ................................ 59

Prepared statement .......................................................................................... 114

ADDITIONAL MATERIAL

Amendment to S. 8, draft substitute bill (Chairman’s mark), sponsored by

Senators Chafee and Smith of New Hampshire, dated August 27, 1997,

Superfund Cleanup Acceleration Act of 1997 .................................................... 232

Articles:

Federal Sovereign Immunity and CERCLA, Journal of Natural Resources

and Environmental Law ............................................................................... 134

Hazardous Waste: Human Health Effects, Barry Johnson, Toxicology and

Industrial Health .......................................................................................... 191

Letters:

Advocates for Professional Judgment in Geoprofessional Practice .............. 228

CSX Transportation ......................................................................................... 94

State Attorneys General .................................................................................. 128

Report, Superfund: Summary of the Chairman’s Mark of S. 8, Amendment

to the Superfund Cleanup Acceleration Act of 1997, Congressional Research

Service ................................................................................................................... 168

Statements:

American Petroleum Institute ......................................................................... 180

American Public Health Association and the National Association of

County and City Health Officials ................................................................ 184

American Water Works Association ................................................................ 186

Association of Metropolitan Water Agencies .................................................. 188

Hazardous Waste Coalition ............................................................................. 214

National Association of Manufacturers .......................................................... 230

National Oceanic and Atmospheric Administration, Department of Commerce, submitted by Terry D. Garcia, Acting Assistant Secretary for

Oceans and Atmosphere, .............................................................................. 97
(1)

SUPERFUND REFORM AND

REAUTHORIZATION

THURSDAY, SEPTEMBER 4, 1997

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC.

The committee met, pursuant to notice, at 2 p.m. in room 406,

Senate Dirksen Building, Hon. John H. Chafee (chairman of the

committee) presiding.

Present: Senators Chafee, Smith, Kempthorne, Bond, Thomas,

Allard, Inhofe, Sessions, Baucus, Boxer, Lautenberg, Reid, Graham,

Wyden, and Moynihan.

OPENING STATEMENT OF HON. JOHN H. CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. I want to welcome everyone here this afternoon.

This hearing before the full Committee on Environment and Public

Works is to consider Superfund legislation.

We are under somewhat of a time constraint today. There have

been objections posed by the Democratic leader to our meeting beyond—I believe it’s 4:30. So we have a host of excellent witnesses.

I want to urge everybody to make their statements crisp and their

questions to the point, and the answers, similarly.

Now, Senator Baucus has to introduce a constituent of his State

before the Foreign Relations Committee, and he will not be here for

a few minutes. I know that Senator Lautenberg had a press conference over in the Cannon Building at 1:45, so he will be a few

minutes late. So I will make a brief opening statement, and then

ask Senator Smith if he chooses to make a statement, and Senator

Kempthorne and others who might be here, and we’ll go right to

the witnesses.

First I want to thank our witnesses, some of whom have come

a considerable distance, and I appreciate that. I am delighted that

each of you have lent your energies to these efforts. And, of course,

we want to welcome the Administrator of EPA, Administrator

Browner, here, once again.

From the beginning of this Congress I have believed that the

Senate could pass legislation to reauthorize Superfund this year.

By ‘‘this year,’’ I mean this calendar year. I still believe it. Today

is another important step toward fixing a program which every person in this room has found fault with at one time or another. Our

goal is to keep the process moving.

We will be hearing from witnesses today about the revisions to

S. 8, which was the bill that Senator Smith and I introduced last
2

January. The draft changes were released last week. These

changes were made in response to testimony we received in hearings, and then we had a series of 11 stakeholder meetings, and

subsequent to that negotiations have taken place. This has all occurred over the past 6 months, so it has been a very industrious

effort.

What we need to do now, it seems to me, is to keep at it. The

President, Administrator Browner, the Senators here today from

both sides of the aisle, and our counterparts in the House have all

indicated support for reforming the program. Now the players in

this, the Senate, the majority, the minority members, and the Administrator must join together to finish the task in the Senate.

That’s what I’m concentrating on, the Senate; what happens in the

House is out of our jurisdiction, clearly, but we can provide leadership in the Senate.

Substantial efforts have been made in past Congresses to do this.

All of this work has led us to being, I believe, very close to a finished product.

I would like to thank everyone who has participated in our process during the past 6 months—Senator Smith, who spent so much

time on it; Senator Baucus; Senator Lautenberg; Administrator

Browner. All your staffs have worked hard with one another and

with me and my staff, likewise, so I thank you. I appreciate the

time and energy of everyone who has participated in the stakeholder meetings. Those were very well-attended and, I thought,

fruitful.

I want to talk briefly about the process we have been through.

As I mentioned, since March we have had more than 220 hours of

discussion and negotiation that touched on every title of S. 8. After

the stakeholder process, we began to negotiate changes to the bill.

On some issues, the gaps were narrowed considerably. Those areas

where the discussions were most productive are reflected by many

of the changes in the new draft. On other sections, clearly, less

progress was made.

We still need to address many elements of the bill. I will continue to work toward a bill that most Senators in this committee

can support. I will continue to work with Senators to find the best

way to keep the process moving. I want to stress the need to keep

going. The first session is nearly over, and although we’ve done a

lot, we still have a long way to go to pass a bill.

I want to note briefly some of the areas that, to my mind, underscore the progress that we’ve made.

The remedy selection title of the bill now says more plainly what

I believe was always intended, that remedies must always protect

human health and the environment. There’s no argument with

that.

It accounts for future land use in deciding ‘‘how clean is clean’’

and will result in faster cleanups.

The bill has been made more flexible regarding the Federal-State

relationship. States can assume various degrees of responsibility

for site cleanups, and the Federal Government can step in if the

Governor asks for help, or if the remedies used by the State are

not sufficiently protective.
3

Each of these issues was raised in testimony and discussions

about the bill. We have made a great effort to resolve them. It is

in that cooperative and productive spirit that I ask my colleagues

not to let the hard work of past months go to waste. It is time to

finish the bill.

I want to thank you.

Senator CHAFEE. Now, Senator Smith.

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

FROM THE STATE OF NEW HAMPSHIRE

Senator SMITH. Thank you very much, Mr. Chairman, and good

afternoon, Administrator Browner. It’s nice to see you here.

Let me just make a couple of brief remarks and submit a statement for the record in the interest of time.

This, I believe, is the tenth hearing we have had on this issue

over the past 3 years, and hopefully this will be the final one before

we finally get some action.

Cleaning up toxic waste sites is not an issue for talk; it is one

for action I think, as you can see by the interest in the audience

here today, as well as those watching—there is a great amount of

interest in getting this program fixed. The American people deserve

no less.

We’ve talked long enough. I sincerely hope that as a result of the

hearing and discussions between now and the time that we go to

markup, that we will be able to resolve our differences.

There have been 200 hours of formally-scheduled discussions

with the minority alone this year, either at the Member level of at

the staff level, and that’s just this year. We’ve been talking for the

past three Congresses, and there is unanimous agreement, I believe, that at the minimum the program should be fixed, and certainly overhauled, and I don’t think there’s any better time to do

it than now.

One of the interesting numbers that we hear in the debate about

Superfund is that one out of four Americans lives near one of these

toxic waste sites. This is unacceptable. I think there isn’t anyone

who would disagree with that.

The interesting thing, as far as I am concerned, is that not only

is it unacceptable, it is unnecessary. There is no need to have this

situation there. We have the technology and the resources to do

one of two things: either clean it up, or contain it so that it is not

a human health threat. We have the technology and the resources;

let me repeat that. But what we have not done is prioritized those

resources or applied that technology, for a vast array of reasons.

We have to make sure that the valuable and somewhat limited

resources that we have are not wasted on bureaucracy and lawyers

and other items that really are not contributing to the cleanup.

And that’s been the focus of our program reform. It’s been the focus

of the discussions that we’ve had. I believe it is the focus of S. 8.

We have spent over $50 billion on this program over the last 17

years. Some would argue about how many sites we’ve cleaned up,

but at the most it’s one-third, and that’s not good enough. We can

do better; we should do better; we must do better. And this bill, although not perfect, will make better, safer, and faster cleanups possible. We move the ball forward.
4

You will find, as you find in many issues, that everyone is not

going to get everything they want. But we have tried very hard—

all the individuals that represent every aspect, pro and con, on this

issue that I know of, we’ve had a dialog with. I want to thank those

who have participated in that dialog, especially Ms. Browner, with

whom we’ve had a great working relationship over the past 3

years. Even where we disagree, we do it respectfully of each other.

Senator Chafee and I have tried very hard to incorporate a number of the concerns that you have raised, Administrator Browner,

and others, into the bill. This, as you know, is not the original S. 8

as introduced; this is an amended S. 8. So we’ve tried to incorporate

a lot of those reforms because we believe that’s the way to get a

bill and to improve the program.

However, we also know that one of the positions that the Administration has taken, and specifically that Administrator Browner

has taken, is that administratively they’ve made a lot of changes

over there, and they have been positive. I have said that publicly

and privately to Administrator Browner. We feel that many of the

administrative changes that you’ve made have been positive. However, there is some dispute as to how effective some of these

changes are, whether they are being executed or carried out in

every community.

But be that as it may, our goal here is to try to reach consensus

on a bill that moves the ball down the field. Those of you who have

followed the progress of the debate realize how far we’ve come.

We’ve come a long way since the so-called ‘‘Earth Program’’ of 3

years ago. This bill, where we are now, is the result of hundreds

of hours of discussions among staff, stakeholders, and constituents.

We have included the concerns of many; some, we have not been

able to agree on. But I hope that perhaps between now and the

time we mark up, Mr. Chairman, we will be able to reach some accommodation.

Let me just close on this point. If we can’t agree on every single

specific item—whether it’s liability or remedy—I would just make

an appeal to my colleagues on the other side of the aisle to let the

process work. Let the bill go to the Senate floor and let the Senate

work its will. I think that is better and fairer than to kill a bill

by not allowing it to go forward to the Senate floor. If it dies because the President vetoes it or because the Senate rejects it, so

be it; but let’s not let it die simply because we refused to bring it

to the floor. We’ve all worked too hard and too long to see that happen.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you very much, Senator Smith.

Senator Kempthorne.

OPENING STATEMENT OF HON. DIRK KEMPTHORNE,

U.S. SENATOR FROM THE STATE OF IDAHO

Senator KEMPTHORNE. Mr. Chairman, thank you very much. I

want to commend you for holding this hearing. This is critical; it’s

time for the Nation to deal with Superfund. It is time for the Nation to have results with regard to the Superfund sites. I want to

commend you, and I also want to commend Senator Smith. I don’t

know of a Senator who is more dedicated to getting this resolved
5

than Senator Smith of New Hampshire, who has worked diligently

to try to make this a reality.

I also appreciate that Administrator Browner is here, and I look

forward to her comments, as I also do.

May I also acknowledge James Perron, who is the mayor of Elkhart, IN. James and I were mayors together; I appreciate seeing,

you, Jim. And also Ben Nelson, who is the Governor of Nebraska,

who is very helpful in our efforts to stop these unfunded Federal

mandates. I believe he will be testifying today, also.

Mr. Chairman, I would just note that I will be leaving shortly,

unfortunately, because I will be chairing with the House—we have

a conference going on in the Armed Services Committee on personnel matters, so I will be leaving. I hope to come back so that I can

discuss the natural resource damages issue. I think that’s a critical

one that has a key role to play in this whole legislation.

I am pleased that the bill generally recognizes the need to reform

and improve the NRD program, but we need to get to the heart of

the fundamental problems with the program. In my opinion, the

problem with the current program is that it isn’t being used to restore resources, as it was intended to, but instead has become more

like a second cleanup program and a second litigation opportunity,

and one that can be very expensive and very time-consuming. The

State of Idaho now has the largest natural resource damages lawsuit in the country. Together, the Federal Government and the

Coeur d’Alene Tribe are asking for over $2 billion. Only half of that

is to actually restore natural resources. The rest is for so-called

‘‘compensation for nonuse or lost use’’ damages. These compensatory damages have nothing to do with the actual restoration of

the Coeur d’Alene Basin. Instead, they are used to inflate lawsuit

claims, and ultimately drive up the cost of settling a lawsuit.

Litigation on natural resource damages is just beginning, but if

we don’t do something now, we run the risk of merely shifting the

costly litigation and delay from the cleanup program to the natural

resource damages program. That’s a risk that we simply cannot afford to make if we want to restore damaged natural resources in

a timely manner, and that ought to be the goal. Let’s restore the

resources.

For that reason I strongly support meaningful reform to the natural resource damages program. I want to work with the chairman

and the committee to include that reform in this bill.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you.

In order of arrival, while Senator Lautenberg is getting organized—he’s the chairman of the subcommittee—do you want to go

now, Frank?

Senator LAUTENBERG. That’s the nicest thing you’ve said to me.

[Laughter.]

Senator LAUTENBERG. You just made me chairman of the subcommittee——

[Laughter.]

Senator CHAFEE. All right. Don’t get used to it.

[Laughter.]

Senator LAUTENBERG. I like it. I like it.

[Laughter.]
6

Senator CHAFEE. I’ll try not to make it a habit.

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. John is really bipartisan, I must say.

Mr. Chairman, before the summer recess there was a new mood

in Congress, one of cooperation. The best example of that spirit was

our negotiation on the budget, on the bill where we had daily Member input, worked together in a way of consensus that showed respect for the views of all of our colleagues. By working cooperatively we forged an historic agreement that both balanced the

budget and gave tax relief, and that’s the way the American people

wanted to see us work. That’s the way we started this Superfund

reauthorization process. Our negotiations during the first part of

this year, I thought, yielded positive benefits. And I think we

should continue down that same road, Senator Chafee, that you

and I traveled together during the budget negotiations when we

worked out a bipartisan bill.

Today I offer my personal commitment to work hard and to cooperate with my Republican colleagues to reach a bipartisan Superfund reform. Unfortunately, with what I see here——

Senator CHAFEE. We always have these nice statements, but

then there follows ‘‘but’’ or the dropping of the other shoe. You do

that so well.

[Laughter.]

Senator LAUTENBERG. One was a reflection of the past, and the

other is a contemplation of the present. And I hope that the future

will hold out more hope.

Unfortunately, Mr. Chairman, with the partisan markup, it

seems to me we’re moving toward a different kind of atmosphere.

I hope that that will not doom Superfund reform once again. We

can’t forget the importance of the legislation. Superfund is, first

and foremost, a matter of public health. That issue at times seems

to have gotten lost in the swirl of litigation and controversy that

surrounds Superfund. For instance, data from the Agency for Toxic

Substances and Disease Registry shows troubling trends in my

home State of New Jersey. The data show that in all but one of

21 counties, cancer rates in areas around hazardous waste sites exceed the national average. Studies from other parts of the country—Idaho, Illinois, Kansas, Missouri, Pennsylvania, California—

also suggest that those living near toxic waste sites, particularly

children, suffer disproportionately from serious health problems,

and the health of our families cannot be a partisan issue. I hope

that we don’t lose site of that.

I oppose a quick hearing and markup. I reviewed the mark laid

down before the committee last Thursday, and while I note that

there are some changes and improvements over S. 8, overall I am

still disappointed. The mark sets us back substantially. On cleanups, by codifying a cancer risk range without a point of departure,

the mark would let Superfund cleanups satisfy the law but be 100

times weaker than they are today. By giving only lip service to a

preference for treatment, the mark shifts this program from one

where poisons are treated to one where poisons are merely fenced

off.
7

On liability, the so-called ‘‘co-disposal carve-out’’ really offer a

bail-out for shady polluters, but soaks the taxpayer. Where is the

fairness in a scheme that rewards Fortune 100 companies who poison the neighborhood landfill or, worse yet, own the landfill but

leaves responsible corporate citizens—who paid more to send their

waste to hazardous waste landfills—still on the hook?

On States, I am entirely in favor of dividing the labor between

EPA and qualified States, but the mark hands off Federal responsibility. It actually prevents the Feds from stepping in in a way

that is unheard of in any other environmental statute in this country, and does not adequately protect the public.

On natural resources damage, by precluding recovery of nonuse

of damages, the mark deprives the public of complete compensation

for natural resource damages. My colleagues from New York and

California and Oregon out to be particularly outraged that the

mark seems to undermine their years of litigation efforts.

On small businesses and cities, the mark actually hurts small

business and other sympathetic parties who can’t survive the costs

of Superfund litigation. By making relief prospective only, and only

for NPL sites, the mark does nothing for the municipalities and

small businesses who need help right now, those who have been

sued by Fortune 100 companies.

Mr. Chairman, all of these problems are solvable, I believe, if we

reopen bipartisan negotiations on this crucial legislation. I want to

do that; honestly, I do. The American people want us to work together, and it struck me as rather unusual that one of the things

that they like best about the budget bill that we finally put to rest

was that we worked together. Even some who didn’t like the bill

complimented us on the fact that we worked together to get something done.

The health of our families is at stake. I don’t have to remind everyone here that I think we’re duty-bound to honor the wishes of

the American people, and I hope we will be able to do that.

[The prepared statement of Senator Lautenberg follows:]

STATEMENT OF SENATOR FRANK LAUTENBERG, A U.S. SENATOR FROM THE

STATE OF NEW JERSEY

As you all know, I was opposed to this quick hearing and markup because I

thought we were making significant strides that would have lead to a bi-partisan

bill.

After reviewing the draft bill of Senators Chafee and Smith, I must say I am very

disappointed. Provisions in this bill weaken our commitment to clean up some of

these poisoned sites and put us in the business of warehousing toxic waste.

This won’t make sense to most Americans. What we’re saying is that while we

can’t find money to help rebuild our Nation’s schools, we will spend millions to create environmentally-dangerous museums to our polluting past.

Other problems in the Chafee/Smith bill—. In 1993 and 1994, we agreed to give

communities greater input in cleanup decisions and greater access to critical health

information. This bill weakens those provisions.

In addition, sites that took household garbage and toxic wastes are now Federal

responsibilities. That lets corporate polluters off the hook and sticks the taxpayer

with the bill. For instance, in a site in my home State of New Jersey, called Lipari

Landfill, corporate polluters who would have been forced to pay millions of dollars

in clean up costs because they mixed their cafeteria garbage with industrial wastes.

Some will have argue that this change is fair because these sites were poisoned

by so many entities—from large corporate polluters to single individuals—that it is

impossible to assign blame and cost. This bill does give some needed relief to small

business, municipal and county governments and certain small polluters.
8

And I agree that we should give relief to some of the small fish who did the least

of the damage. But ultimately the parties helped the most by this bill are the large

polluters who caused the most damage. Why are we letting them off the hook?

In fact, I think the relief for small business, for instance, in the bill seems very

inadequate. Their relief is only for what they do in the future. They are still liable

for past damages.

Mr. Chairman, as the public tells us it wants greater environmental protection,

what does S. 8 provide? It provides less. It provides for fewer cleanups. It makes it

easier for polluters to saddle the taxpayer with the bill. It will leave pollution onsite

and call the cleanup complete.

If the goal is to draft a bill that will become law, I would urge the reopening of

bipartisan negotiations that will lead to a signing ceremony in the Rose Garden and

a victory for our environment. Let’s fight for more. Not less.

Senator CHAFEE. Thank you.

I’m not sure I will agree with the characterization of any markup

as being a ‘‘partisan markup.’’ Certainly no markup I’ve ever run

around here has ever been a partisan markup.

Senator LAUTENBERG. I don’t know, Mr. Chairman, since you’ve

mentioned it, whether there’s been any real Democratic input on

this.

Senator CHAFEE. We haven’t gotten to the markup yet.

Senator Bond.

Senator SMITH. Incredible. Unbelievable.

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND,

U.S. SENATOR FROM THE STATE OF MISSOURI

Senator BOND. Mr. Chairman, based on your request that we get

on with the hearing and let people have comments from the witness table on the mark rather than arguing about something that

hasn’t even come up before a markup, let me just say that the current law is broken. I commend you and Senator Smith for putting

forward a draft. I look forward to hearing the comments and criticisms and praises on it, and I am hopeful that consensus can be

reached on a reauthorization that will result in real reform which

will, No. 2, lead to more money for Superfund, and No. 3, provide

speedier cleanups, lest costly approaches, incentives for redevelopment, and an eventual end to the program.

Senator CHAFEE. Thank you, Senator. We appreciate the interest

you have shown as a member of the Appropriations Committee in

connection with this program.

Senator Thomas.

Senator THOMAS. I got your note, Mr. Chairman.

Senator CHAFEE. Thank you. Thank you very much.

[Laughter.]

OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR

FROM THE STATE OF WYOMING

Senator THOMAS. I composed a little poem for you.

‘‘There was a young man from the West/who tried to make his

statement the best/but he failed at that sport/because his time was

too short.’’

[Laughter.]

Senator CHAFEE. You go to the head of the class.

[Laughter.]

Senator CHAFEE. Senator Allard, from the West.
9

OPENING STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR

FROM THE STATE OF COLORADO

Senator ALLARD. Mr. Chairman, I want to thank you for holding

today’s hearing and I look forward to moving forward with the

Superfund legislation. I want to see it move forward. I know that

you and Senator Smith have both shown a lot of perseverance in

trying to work with all the parties.

You know, I happen to be of the feeling that we could move a

lot further, a lot quicker, if we could make Federal agencies live

under the same laws as local officials. We’re going to have some

local officials to hear from, as well as private entities. We’ve got

some examples in the State of Colorado, for example, where the

Environmental Protection Agency is actually a party to a Superfund site, along with a private entity, and yet the Environmental

Protection Agency is held to a different standard than that private

party. That’s not only happened once; it has happened three other

times, and I think it’s important that we make sure that Federal

agencies have to comply with the same rules as local governments

and private parties.

My colleague over there from New Jersey mentioned the ‘‘shady

polluter.’’ Well, if you look at a report from the National Governors’

Association, as well as the State Attorneys General Association,

that ‘‘shady polluter’’ is the Federal Government. They are characterized as the largest polluter in this country.

So I think that we need to look very seriously, to make sure that

if we really want to clean up the environment and we really want

to make this a cleaner and better place for our children and grandchildren, we make the Federal Government an equal partner in resolving Superfund problems.

Thank you, Mr. Chairman.

[The prepared statement of Senator Allard follows:]

OPENING STATEMENT OF SENATOR WAYNE ALLARD, A U.S. SENATOR FROM THE

STATE OF COLORADO

Mr. Chairman, thank you for holding today’s hearing to examine the latest Superfund reform legislation. I know this has been a long process for many and I admire

Mr. Smith’s and your perseverance. One of these days, perhaps, you will receive

some cooperation from the executive branch and we can bring this saga to a close.

However, as long as this Administration refuses to play by the same rules they enforce against private entities, I have no reason to believe they are serious about

Superfund reform.

Specifically, I am speaking about how they handle clean up of Federal facilities.

In Colorado we have several examples of lengthy enforcement delay, inaction, or different cleanup standards for Federal agencies. Take for example, a Superfund site

located in Leadville, CO. At the site the EPA is one PRP and a mining company

another. There is no difference in the actions they are taking, but there is significant difference in the cost of cleanup. While the private party is forced to have a

water treatment facility that is clearly overdesigned, the EPA’s water treatment facility is built at much lower spec’s despite the fact it is performing the same function.

Judging by the different standards applied, I can only guess that the EPA forgot

an important caveat when they were touting their philosophy of ‘‘polluter pays’’—

‘‘polluter pays unless it is the Federal Government’’ is clearly what they meant. Obviously, one of two things need to happen, this Administration needs to hold themselves to the same standard they hold private parties, or they should show more

common sense and flexibility in dealing with reform legislation.

There are other examples that point out the difference in the executive branch’s

treatment of Federal entities and private entities. At the Federal Center in Colorado

contamination caused by the Federal Highway Administration was migrating into

a residential area. It took too long for cleanup to begin because the State had to
10

negotiate with the Federal Government and the EPA simply didn’t act. Had this

been a private entity, no negotiation would have occurred, cleanup would have

begun as soon as the problem was discovered. Judging by the Administration’s

Superfund reform principle that states, ‘‘The Administration does not support legislative amendments specifically for Federal facilities’’, they have no desire to fix this

problem.

In conclusion Mr. Chairman, this Administration either needs to determine they

are going to live by the rules that everyone else has to live by, or they should recognize that the Superfund law they find too difficult to comply with causes the same

problems for private parties. However, we should make clear that their philosophy

of, ‘‘do as I say not as I do’’ is unacceptable. In order to achieve that end, I will

be introducing legislation to ensure that if the Federal Government won’t hold

themselves environmentally accountable, other levels of government will.

Thank you Mr. Chairman, I look forward to the rest of the hearing.

Senator CHAFEE. Thank you, Senator.

Senator Boxer.

OPENING STATMENT OF HON. BARBARA BOXER, U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Senator BOXER. Thank you, Mr. Chairman. I also received your

note, and I can’t top what Senator Thomas did and therefore I will

not abide by what he did.

[Laughter.]

Senator BOXER. But I will only speak for about 3 minutes.

We do have 97 Superfund sites in our State of California, the

fourth highest after New York, New Jersey, and Pennsylvania, so

we have major concerns. And because a lot of my concerns were not

included in the bill, I think it is important that I lay them out.

Having said that, I want to perhaps do the same type of ‘‘good

news, bad news’’ approach, but I do so enjoy working with the full

committee chairman and very much with the subcommittee chair,

and I really do hope I’ll have that chance, more than I’ve had, because I think that the concerns that I will lay out here are important to the people of the country. So let me try to lay them out

briefly.

I ask unanimous consent that my full statement be made part

of the record.

I think there are three principles we must adhere to in any bill,

whether it is a Democratic bill, a Republican bill, or, hopefully, a

bipartisan bill.

First, Superfund must include appropriate and carefully crafted

guidelines that will guarantee that the public health is protected,

now and in the future.

Second, parties responsible for polluting a site must be held responsible for site cleanup and restoration.

Third, Superfund must ensure expeditious and efficient cleanups.

Mr. Chairman, there are key areas in the draft proposal before

us today that do not meet these principles, in my view, and let me

quickly explain some of these concerns.

First, I am concerned with the fact that there is no explicit requirement in the bill that cleanup standards be set at levels that

protect the health of children, the elderly, and other vulnerable

subpopulations. Now, I am very proud to say that this committee,

when we drafted the Safe Drinking Water Act and we worked so

closely together, did accept an amendment that would set the

standards to our most vulnerable populations. I think we should do
11

no less. As a matter of fact, I think we should do that in all of our

environmental laws. I have authored the Children’s Environmental

Protection Act, and I hope that we can incorporate that into this

bill. We did it in Safe Drinking Water. I think it is very appropriate.

If we’re going to allow a lower cleanup standard, we should only

do so if we can assure that it will protect children, and we haven’t

done it.

Second, I am concerned with provisions in the draft bill concerning ‘‘hot spots’’ and how these provisions could short-circuit ongoing

‘‘hot spot’’ cleanup efforts. For example, in the San Gabriel Valley

in California, the San Gabriel Water Quality Authority, together

with a few potentially responsible parties, are working on the

treatment of three local ‘‘hot spots.’’ This bill, as it is drafted, could

jeopardize ‘‘hot spot’’ treatment projects in the San Gabriel Valley

because it removes the preference for treatment in favor of containment of contamination, and I think that this is another very important point.

Mr. Chairman, 92 percent of the National Priority List sites in

California involve groundwater contamination. Over 3.2 million

people get their drinking water from aquifers below which a site

is located. Half-assurances are not adequate for my constituents.

Third, I am concerned that the natural resource damages—

NRD—title in the bill, which provides for restoring natural resources that have been damaged by a polluter, is not strong

enough. In southern California we have an NRD site called

Montrose. The Montrose site involves the discharge of tons of DDT

off the coast of Palos Verdes, near Los Angeles, which nearly decimated the area’s bald eagles, peregrine falcons, brown pelicans,

and other birds, and caused many species of fish to become unfit

for human consumption. Strong NRD provisions will ensure the

restoration of these resources for future generations.

Fourth, I am concerned about provisions in the bill that would

exempt hazardous waste generators and transporters from any liability at co-disposal sites. This would exempt every large polluter

from liability at these sites, and clearly goes against the ‘‘polluter

pays’’ principle.

Mr. Chairman, I have other areas of concern, including the role

that communities have in developing cleanup plans; the expanded

role that States will have in administering cleanups at National

Priority List sites; and the general limits of public participation in

decisionmaking.

Again, I just have to say I do enjoy working with my colleagues

who are in charge of this whole venture of rewriting this law. Absolutely, we need to do better here, but I really believe that the

points I have made are significantly disturbing because I think it

goes against what we really need to do with Superfund, which is

to make sure that we can restore these sites to protect the most

vulnerable populations.

Thank you very much.

[The prepared statement of Senator Boxer follows:]
12

STATEMENT BY SENATOR BARBARA BOXER, A U.S. SENATOR FROM THE

STATE OF CALIFORNIA

Mr. Chairman, as you know Superfund reauthorization is of critical importance

to the people of California. My State has 97 Superfund sites—the fourth highest

after New York, New Jersey and Pennsylvania. Superfund activities to clean our

water, restore our soils, and eliminate potential exposure to hazardous materials affect the majority of the citizens of my State. Californian’s want and deserve a strong

Superfund.

When considering reauthorization of Superfund, there are three principles that we

must adhere to.

First, Superfund must include appropriate and carefully crafted guidelines that

will guarantee that the public health is protected now and in the future.

Second, parties responsible for polluting a site must be held responsible for site

cleanup and restoration.

Third, Superfund must ensure expeditious and efficient cleanups.

Mr. Chairman, there are key areas in the draft proposal before us today that do

not meet these principles. Let me explain what some of my concerns are.

First, I am concerned with the fact that there is no explicit requirement in the

bill that cleanup standards be set at levels that protect the health of children, the

elderly, and other vulnerable subpopulations. By lowering remediation standards

from 10¥6 (Ten to the minus six) to a range of between 10¥6 and 10¥4, this bill

specifically endorses a lower standard which may not protect children. If we are

going to allow a lower cleanup standard, we should only do so if we can ensure that

it will protect children and other vulnerable subpopulations.

Second, I am concerned with provisions in the draft bill concerning ‘‘hot spots,’’

and how these provisions could short circuit ongoing ‘‘hot spot’’ cleanup efforts.

For example, in the San Gabriel Valley in California, the San Gabriel Water

Quality Authority, together with a few Potentially Responsible Parties (PRP’s) are

working on the treatment of three local ‘‘hot spots.’’ This bill could jeopardize ‘‘hot

spot’’ treatment projects at South El Monte, because it removes the preference for

treatment in favor of containment of contamination. It is not enough to say that

treatment will be the preferred method of cleanup only when ‘‘contaminants cannot

be reliably contained . . . and present substantial risk . . . because of high toxicity

. . . and there is a reasonable probability of actual exposure . . .’’ .

Mr. Chairman, 92 percent of the National Priority List sites in California involve

groundwater contamination. Over 3.2 million people get their drinking water from

aquifers over which a site is located. Half assurances are not adequate for my constituents. We must ensure that highly toxic and mobile contaminated groundwater

be treated to avoid migration and further groundwater contamination.

Third, I am concerned that the Natural Resources Damages (NRD) Title in the

bill, which provides for restoring natural resources that have been damaged by a

polluter, is not strong enough.

In southern California we have an NRD site called Montrose. The Montrose site

involves the discharge of tons of DDT off the coast of Palos Verde near Los Angeles,

which nearly decimated the area’s bald eagles, peregrine falcons, brown pelicans,

and other birds, and caused many species of fish to become unfit for human and

wildlife consumption. Strong NRD provisions will ensure the restoration of these resources, for future generations.

Fourth, I am concerned about provisions in the bill that would exempt hazardous

waste generators and transporters from any liability at ‘‘co-disposal’’ sites (where

hazardous waste was disposed together with municipal waste). This would exempt

every large polluter from liability at these sites and clearly goes against the polluter

pay principle.

Mr. Chairman, I have other areas of concern including the role that communities

have in developing cleanup plans, the expanded role that States will have in administering cleanup at National Priority List sites, and the general limits of public participation in decisionmaking.

Mr. Chairman, because of the scope and importance of this bill, I hope that following this hearing we will work together to shape a bill all of us can support and that

is worthy of the people we serve.

Senator CHAFEE. Next will be the ranking member of the full

committee. After that, I just have to restrict all statements to no

more than 2 minutes. We have nine witnesses here; we’re restricted to 4:30, and these witnesses have come a long way.
13

So, Senator Baucus, you are on your own, but after that it will

be 2 minutes.

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

FROM THE STATE OF MONTANA

Senator BAUCUS. Thank you, Mr. Chairman. I also apologize for

my delay. The President has nominated Mr. Peter Scher to a new

position, to be Ambassador for Agriculture. It’s a very important

position. Chairman Helms is holding his confirmation hearing at

this moment, and that’s the reason for my delay. I might say that

Mr. Scher is my former chief of staff.

Senator CHAFEE. Is Will’s name on that list?

Senator BAUCUS. Mr. Scher is taking a different tack.

[Laughter.]

Senator BAUCUS. Mr. Chairman, I don’t know about everybody

else, but when I return to Washington, I always have trouble adjusting to remembering all those odd Superfund acronyms that

were being tossed about so frequently before the August recess, like

RODS and RAPS, ROARS and RACS and TAGS and CAGS—I

mean, there’s just no end to this stuff.

But I do want to tell you what I did hear when I was on the recess break in Montana this last August, and that is that people

want us to go on with the Nation’s work. They are basically quite

proud of us in putting together a bipartisan budget agreement; that

makes a big difference to the vast bulk of the American people.

And I think that’s how they want us to approach our work. Essentially, do what’s right: ‘‘We sent you people back there to get the

job done. Be fair. Don’t stray too far off in one direction or the

other, but just do the right thing and get it done.’’ I think that’s

basically what the American people want. It’s basic American common sense, that’s what it is, not going too far to one extreme or

the other.

I think that the Superfund mark before us is a good step in that

direction. It’s not all the way there yet. I must say, Mr. Chairman,

that I am very proud of the efforts that you and Senator Smith

have made to help reach bipartisan agreement here because, in my

judgment, there will be no Superfund reauthorization unless it is

done on a bipartisan basis. That means both of us, Republicans and

Democrats, have to think a little more deeply, a little more creatively; not dig in our heels quite so much, but rather work in the

people’s interest.

I know that you, Mr. Chairman, very much want a bill. I can say

for all of us on our side that we, too, very much want a bill to

progress, and I compliment you for the efforts that you and Senator

Smith have made. We are close.

Let me give an example of some of the areas where I think we’ve

made a lot of progress. One is that we’re pretty close to an agreement in giving local citizens a greater role in Superfund cleanup

decisions. We’re getting there; we’re close. We are also making

progress in making it easier to return land to productive use as socalled ‘‘brownfields.’’ That’s progress, and also to improve Superfund cleanup standards. That’s the good news.

But all the news is not good. From my perspective, Mr. Chairman, I still think there are some areas where we have to do some
14

more work. Some provisions of the proposal would, regrettably,

weaken the protection of public health and the environment rather

than strengthening the protection of the public health and environment. Some would generate more litigation and delay, not less, and

I think some provisions of the bill would let some responsible parties off the hook without good justification.

Let me be a bit more specific. The first is whether we should prefer cleanup plans that treat hazardous waste rather than just covering it up and leaving it there. Current law requires treatment in

some cases where it doesn’t really make sense; I agree with that,

and I think the Administrator would very much agree with that as

well, so we ought to fix that. This bill attempts to move in that direction.

In Superfund lingo, we should narrow the preference for treatment. But in some other cases, there are very good reasons to prefer treatment in order to protect public health fully. The mark before us contains a preference for treatment in certain situations;

that is an improvement, but I am concerned that the preference is

too narrow.

Another case where the bill would weaken protection is natural

resource damages. Again, the mark makes some improvements, but

among other things there is still the questions of how to take the

inherent or intrinsic value of a resource into account. It’s a very

important issue. If we preclude the consideration of what the bill

calls ‘‘nonuse value,’’ you will undermine the whole point of Superfund’s provision for restoring natural resources.

Take a remote wilderness area that has been damaged by pollution for many years. It can be restored. We can remove the waste,

revegetate hillsides, and replant streambanks. It takes time and

money, but it can be done. However, if we are only allowed to consider the uses that the wilderness actually provides specifically to

humans, we do much less. Maybe we’ve just put in some hiking

trails near town, or expanded the parking lots near some fishing

holes. After all, that would replace the lost human uses of hiking

and the fishing base. But if we take that approach, we completely

overlook the intrinsic value of a remote mountain wilderness area.

The same would be true of a damaged river or of a seacoast, and

the public, including future generations, will be badly shortchanged. After all, this is an ethics issue; it is a morality issue; we

should leave this place in at least as good a condition as we—our

generation—has found it and has used it.

The third issue relates to the so-called ‘‘co-disposal sites,’’ the

large landfills that handle both household garbage and industrial

waste, and that may involve hundreds of potentially liable parties.

We all agree that the pizza parlors and the Boy Scout troops and

similar groups should be eliminated from the Superfund system.

That’s clear. But I am not convinced that, having done that, we

also need to eliminate the liability of financially viable companies

that generated large amounts of hazardous waste. I just don’t understand why taxpayers should pick up their tab—or, alternatively,

why we should shift money away from cleanups in order to provide

relief for these companies.

There are other issues, like reopening settled cleanup decisions,

and how we create an appropriate State-Federal partnership. I
15

hope we can address those issues at this hearing, Mr. Chairman.

But let me say again, you’ve made a lot of progress; I compliment

you for that, but we still have a way to go.

My hope is that we can resume our bipartisan negotiations in

order to resolve our remaining differences. I continue to believe

that this approach is the one that is most likely to produce a bill

that is good for the economy and good for the environment. That’s

what we did in the last Congress when we wrote a bipartisan bill

reforming the Safe Drinking Water Act, and that bill passed the

Senate by a vote of 99 to 0. I am very confident that under your

leadership, Mr. Chairman, we can do that here.

[The prepared statement of Senator Baucus follows:]

STATEMENT BY SENATOR MAX BAUCUS, U.S. SENATOR FROM THE STATE OF MONTANA

Thank you, Mr. Chairman. I don’t know about everybody else. But I’m having a

little trouble adjusting to Washington after the long recess. For one thing, I’ve been

struggling to remember all of those odd Superfund acronyms.

Believe it or not, when I was in Bozeman, and up at Flathead Lake, I didn’t hear

a single thing about RODs, RAPs, RARs, or RACS. Not even TAGs or CAGs.

I’ll tell you what I did here, again and again.

People want us to get on with the Nation’s work. To shift from confrontation to

cooperation. To listen to each other’s point of view, and strive for bipartisan agreements that reflect common-sense balance.

The budget agreement is a great example.

This committee can provide another great example, by writing a solid, bipartisan

Superfund bill.

The Democratic members of the committee want a Superfund reform bill.

And we know that you, Mr. Chairman, and our subcommittee chairman want a

bipartisan bill.

We’ve made progress. The draft chairman’s mark makes significant improvements, in part reflecting the bipartisan negotiations that occurred in June and July.

We are pretty close to an agreement on several important sections of the bill, including provisions:

• to give local citizens a greater voice in Superfund cleanup decisions,

• to make it easier to return land to productive use at so-called ‘‘brownfields,’’

• and to improve Superfund cleanup standards.

That’s good news.

But the news is not all good. From my perspective, the chairman’s mark still falls

short, in several important respects.

Some provisions of the proposal would weaken the protection of public health and

the environment, generate more litigation and delay, and let some responsible parties off the hook without good justification.

Let me be more specific, about a few important issues.

The first is whether we should prefer cleanup plans that treat hazardous waste,

rather than just covering it up and leaving it there.

Current law requires treatment in some cases where it doesn’t really make sense.

We ought to fix that. In Superfund lingo, we should narrow the preference for treatment.

But in some other cases, there are very good reasons to prefer treatment, in order

to fully protect public health.

The chairman’s mark contains a preference for treatment in certain situations.

That’s an improvement. But I am concerned that the preference is too narrow.

Another case where the bill would weaken protection is natural resource damages.

Again, the chairman’s mark makes some improvements.

But, among other things, there is still the question of how to take the inherent,

or intrinsic, value of a resource into account.

It’s an important issue. If we preclude the consideration what the bill calls ‘‘nonuse value,’’ we will undermine the whole point of Superfund’s provision for restoring

natural resources.

Take a remote wilderness area that’s been damaged by pollution over many years.

It can be restored. We can remove the waste, revegatate hillsides, and replant

stream banks. It takes some time and money. But it can be done.

However, if we’re only allowed to consider the uses that the wilderness provided,

to humans, we’d do much less. Maybe we’d just put in some hiking trails near town,
16

or expand the parking lots near some fishing holes. After all, would replace the lost

human uses—the hiking and fishing days.

But if we take that approach, we completely overlook the intrinsic value of a remote mountain wilderness area. The same would be true of a damaged river or seacoast.

And the public, including future generations, would be badly shortchanged.

The third issue relates to the so-called ‘‘codisposal’’ sites, the large landfills that

handled both household garbage and industrial hazardous waste and that may involve hundreds of potentially liable parties.

We all agree that the pizza parlors, boy scout troops, and similar entities should

be eliminated from the Superfund system.

But I’m not convinced that, having done that, we also need to eliminate the liability of financially viable companies that generated large amounts of hazardous waste.

I just don’t understand why taxpayers should pick up their tab. Or, alternatively,

why we should shift money away from cleanups in order to provide relief for these

companies.

There other issues, like reopening settled cleanup decisions, and how we create

an appropriate State/Federal partnership.

I hope we can address those issues in the hearing.

Let me say again: we’ve made a lot of progress. But we still have a long way to

go.

My hope is that we can resume our bipartisan negotiations in order to resolve our

remaining differences.

I continue to believe that this approach is most likely to produce a bill that’s good

for the economy and good for the environment.

That’s what we did last Congress, when we wrote a bipartisan bill reforming the

Safe Drinking Water Act that the Senate passed by a vote of 99–0.

I remain confident that, under our chairman’s leadership, we can do it again.

Senator CHAFEE. Thank you very much.

Senator Inhofe.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. Thank you, Mr. Chairman. I will adhere to your

time schedule and be very, very brief.

I would only want to say one thing in regard to something that

Senator Lautenberg said.

I know through my staff, Senator Lautenberg, that Senator

Smith has worked some 200 hours with your staff, with our staff—

I would call in and get reports quite often; I wouldn’t want anyone

within listening range to think that he was being partisan during

the development of the starting point that we’re addressing here

today.

There are a lot of things in this bill that I was going to address

in an opening statement. Instead of that, of course, I will submit

my statement for the record. But I do believe that we’ve made some

progress in joint and several liability; not, in retroactive liability,

in my opinion. I agree with Senator Kempthorne in terms of the

NRD. I believe that we have a lot more to do.

But one thing that I would like to bring out that hasn’t really

been addressed is that we need to be considerate of the oil and gas

industry during the course of these deliberations. Right now we are

more than 50 percent dependent on foreign oil for our ability to

fight a war. I serve on this committee, as well as the Intelligence

Committee and the Armed Services Committee; I consider this to

be something very, very serious. Right now, the oil and gas industry pays over 50 percent of the taxes that go into this, and I think

this needs to be addressed during these discussions.

Thank you, Mr. Chairman.
17

[The prepared statement of Senator Inhofe follows:]

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

STATE OF OKLAHOMA

Mr. Chairman, thank you for holding today’s hearing on S. 8, the Superfund Bill.

I would like to commend both you and Senator Smith for moving the Superfund

process forward. You both deserve a lot of credit for getting us to the point we are

today. This committee has been working through the Superfund mess for years, including the last 21⁄2 years under your leadership. After months and even years of

negotiations I am happy that we are finally moving forward.

I know that members on the other side of the aisle are not happy with all parts

of the chairman’s draft, to them I would say that this is not what we will be voting

on next week. There will be amendments from both sides and I hope when all is

said and done we can come together and report out a bipartisan Superfund Bill.

Personally I am disappointed with several areas of the Bill, and I hope to work

with my colleagues over the next week to improve the legislation. I would like to

outline a few of my concerns.

First on the liability section, while the bill goes a long way in addressing the joint

and several liability problem innocent parties are still responsible for unattributable

waste, which would best be left to the orphan share.

In addition, last Congress I raised several specific cases during the Superfund

hearings, I would like to remind my colleagues of two of those. The first involved

the auto dealers in Oklahoma City who sent their used oil to a registered dealer

and were held liable even though they did nothing wrong. The second case involved

the Mill Creek Lumber Company who sent their used crank case oil to a licensed

recycling and disposal center. In both of these cases we have innocent parties who

did nothing wrong, the problems occurred later in the process. Unfortunately under

the liability provisions of the Bill they would still be liable. They don’t fall under

the small business exclusion or the recyclers provision.

I think both provisions need to be amended. The small business provision needs

to use the same definitions of other Federal programs and the recycling provision

should include the generation and transportation of oil and solvents.

Under Natural Resource Damages, the bill makes many improvements over current law but I believe some areas need to be clarified and amended. We have to

be sure that non-use and lost-use damages are not collected, no matter what they

might be called. In addition, we need to be careful how we treat record review. We

must ensure that all important information will be considered in a judicial hearing.

Finally, I am concerned how the oil and gas industry are affected by Superfund.

Our country now imports more oil than we produce. This is a national security

issue. As a subcommittee chairman on Armed Services and a member of the Intelligence Committee, I know first hand how important our oil supply is to our national defense and our Nation’s economy. I want to make sure we are not creating

problems in this committee that will need to be solved in my other committees.

Every time the Federal Government imposes more regulations on the oil industry,

we start importing more oil and producing less. Superfund already hits the oil industry the hardest through the taxes. They pay over 50 percent of the Superfund

taxes. This Bill does not address their recycling or waste issues, even though their

wastes have low toxicity. I hope to join my colleagues in addressing these concerns.

I thank the chairman for calling today’s hearing and I look forward to the witnesses’ testimony.

Senator CHAFEE. Thank you very much, Senator.

Senator Sessions.

OPENING STATEMENT OF HON. JEFF SESSIONS, U.S. SENATOR

FROM THE STATE OF ALABAMA

Senator SESSIONS. Mr. Chairman, I would just say that I recall

that at the first hearing we had, Senator Baucus said that he could

think of no other area in which we could do more for cleanup and

save money at the same time than maybe reforming the Superfund

laws. I have a lot of complaints about it. I think we have already

reached bipartisan agreement that a number of things need to be

changed. The brownfields changes are important. We need to con-
18

tinue to work on the liability provisions and the remedy requirements.

I think we are making progress, but I feel very strongly that it

is our duty, our responsibility, to see that we get the most cleanup

for the taxpayers’ dollar and the citizens’ dollar, and I think we

need to make sure that our legislation further cleanup rather than

excessive and unnecessary costs.

Senator CHAFEE. Thank you, Senator.

Senator Reid.

OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR

FROM THE STATE OF NEVADA

Senator REID. Mr. Chairman, when I first got here there was a

lot of talk about a note going around. I never got one. Finally when

I got one, it was unsigned.

[Laughter.]

Senator REID. So I figured——

Senator CHAFEE. It was from me.

Senator REID. Oh, I see.

Mr. Chairman, I have worked with Senator Smith on the Ethics

Committee. He and I are the two ranking, Democrat and Republican, on that committee, and I have worked well with him. But I

also want to say a word for my friend from New Jersey.

Senator Lautenberg is one of the reasons we were able to get a

bipartisan budget bill. But for his ability to cross party lines and

work with both Democrats and Republicans, we would not have

gotten a budget bill. We looked to Senator Lautenberg for leadership in that.

I have to say, Mr. Chairman, I am looking to Senator Lautenberg

for leadership in this issue, also. He has had a lot of experience in

working with Superfund. He has spent his entire life in the Senate

working on that one issue. We need to have him as a player in this

legislation, and I am confident and hopeful that that would come

to be.

I would also say that I have worked with a lot of people on the

Federal level over the years, but I have found no one who has

worked better with me and has been any better for the country

than Administrator Browner. She is always available. She works

with the most difficult issues, and Superfund is an example. If

there is a bad law, you can’t take care of it through administrative

reform. We all acknowledge that Superfund has some problems,

and she and her office are getting a lot of the complaints that

aren’t her fault. It’s simply that she is following the law as best she

can. She has tried administratively on a number of occasions to do

things, but you can only carry the administrative aspect of the law

so far, and I think she’s done a good job on that.

I look forward to this hearing. I look forward to our coming up

with a bill. I hope we can do that. It’s not going to be easy.

Senator CHAFEE. Thank you.

Senator Graham.

OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR

FROM THE STATE OF FLORIDA

Senator GRAHAM. Thank you, Mr. Chairman.
19

Mr. Chairman, I wish to echo the comments that have just been

made by my friend and colleague, Senator Reid, about both Senator

Lautenberg and about my fellow Floridian, Carol Browner. They

both bring a great deal of commitment and experience to this issue,

and I know they will be extremely helpful to each of us individually

and collectively on this committee in analyzing the proposal that

is before us, and hopefully moving us toward the bipartisan consensus that, as Senator Baucus has said, will be critical in order to

actually accomplish reform of this program—a program which, in

my opinion, very much needs that reform in order to achieve its intended public purpose.

Senator CHAFEE. Thank you, Senator.

Senator Wyden.

OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR

FROM THE STATE OF OREGON

Senator WYDEN. Thank you, Mr. Chairman. I, too, will be very

brief.

I think it is possible to have real reform of the Superfund program and real cleanup of Superfund sites. I don’t think it has to

be one or the other.

There are two areas that I am especially interested in tackling

on a bipartisan basis. The first is ensuring the protection of all

beneficial uses of water. This should include drinking water, agricultural uses, industrial uses. My sense is that we are going to

have water shortages all across this country. I am very much looking forward to working with my colleagues on a bipartisan basis to

addressing the water issue in this debate.

The second area that I hope we will focus on is the issue of preventing innocent parties from becoming ensnared in the Superfund

net, without letting responsible parties off scot-free. I know a number of my colleagues have mentioned that, as well. I think we are

making some progress in this regard. We have a ways to go.

Finally, Mr. Chairman, my home State of Oregon offers a possible roadmap for bipartisan reform. In 1995, a Republican-controlled legislature passed an important bill, signed by a Democratic

Governor, which contains a number of the principles that I think

this committee is looking at. So I think that not only is it important to have bipartisan reform, but my home State shows that it

can be done and it can be done expeditiously.

I yield back, Mr. Chairman.

Senator CHAFEE. Thank you, Senator.

Now, I think, Administrator Browner, let me just say that the interest in this subject shown by 18 members of this committee—14

have been here today—so we are all very, very concerned about

this program. You have heard the statements from both sides.

We’re very glad you came here today, and we want to welcome you,

Administrator Browner, so if you would proceed, we would appreciate it.

Thank you.
20

STATEMENT OF HON. CAROL BROWNER, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

Administrator BROWNER. Thank you, Mr. Chairman, for the opportunity to appear here today.

I think this is the second time this year that I have testified before the Environment and Public Works Committee on Superfund

reform legislation, and I will say to you, Mr. Chairman, and all the

members of this committee, I will gladly come back here a third,

fourth, fifth time, whatever it takes to get a Superfund bill that we

all can agree on, a bill that will build on the progress that the Clinton Administration has made through a series of administrative reforms to make the Superfund program work faster, fairer, and

more efficiently.

Mr. Chairman, I want to be very, very clear about the Clinton

Administration’s position. We are strongly committed to working

with this committee, with other Members of Congress, to enact responsible Superfund reform legislation this year. And as you said,

by ‘‘this year,’’ we would hope that that is this calendar year.

Mr. Chairman, I have to say that the recent trade press reports

notwithstanding, I think you and I both know that we have made

progress toward common ground, that we have actually narrowed

some of the gaps that have existed, that we can continue to narrow

those gaps. In the end, I believe we will deliver on our shared responsibility to protect public health and the environment by ridding America’s neighborhoods of toxic waste dumps.

I am optimistic that, working together, we can achieve our common goal of a Superfund program that cleans up more toxic waste

sites faster, protects the health of our citizens, and returns land to

communities for productive use. At the same time, we must be

careful not to undermine the significant progress we have already

achieved in changing and improving the program. We undertook a

series of administrative reforms over the last 5 years that have resulted in a program that today provides significantly faster cleanups at a lower cost than it did several years ago. 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 achieving our goal

of saving even more time.

We are making historic progress on a major goal of this Administration and this committee: reducing litigation and transaction

costs; working more cooperatively with responsible parties; increasing the fairness of the liability system; getting the little guys out

of the litigation web that surrounds many hazardous waste sites.

The Clinton Administration has acted to remove more than 9,000—

9,000—small parties from Superfund litigation over the past 4

years. That is within the context of a law that we all agree needs

to be rewritten. We are doing it administratively, and we are expanding that effort.

Thanks to our administrative reforms, the Superfund program is

faster, fairer, and more efficient than it used to be. We have completed construction of a total of 292 Superfund cleanups over the

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

than 80 percent of all Superfund sites are construction either complete or are in the midst of cleanup construction. Eighty percent

were either done or we’re in the process of completing the cleanup.
21

We recognize that resources are an important part of how we go

about giving these communities back these sites. The President has

committed to doubling the current pace of cleanup by cleaning up

900 toxic waste sites through the year 2000. This was a subject of

discussion during the budget negotiations, and obviously we all

need to work together to ensure that the funds are supplied so that

we can meet this goal of 900 sites by the year 2000.

We have been achieving all of this progress while keeping faith

with the original promise of the Superfund law: protecting public

health and the environment first, and ensuring that wherever and

whenever possible, those responsible for polluting a site—and not

the taxpayers—are held responsible for the cost of cleaning up that

site. We believe that Superfund reform legislation can and should

build on this progress.

Mr. Chairman, the bill that is now before us does show considerable improvements over earlier drafts. It would require cleanups to

meet certain Federal and State standards. It would provide increased opportunity for the public to participate in the cleanup of

toxic waste sites. It would require that groundwater around Superfund sites be cleaned up under the same standards used for drinking water. And it would provide a settlement process for those parties that contribute small amounts of hazardous waste to Superfund sites. These are some of the improvements. This is real

progress. It is real progress toward consensus.

Provisions in the bill about which we continue to have significant

concerns include, for example, failure to provide for adequate treatment of highly toxic or highly mobile hazardous waste. We are concerned that the bill would not ensure the containment and reduction of these sources of groundwater contamination. It would relieve large polluters from liability at landfills, even where they are

a major contributor of hazardous waste. It would allow States to

assume complex cleanup responsibilities without guarantees of

public review or public comment, and without ensuring adequate

legal authority to protect public health and the environment. And

it would fail to ensure that public natural resources are restored

as part of the Superfund process.

Mr. Chairman, I think what has happened is that in those areas

where our staffs have engaged in lengthy discussion—perhaps discussions that we would all hope could go more quickly—we have,

in fact, made progress. We have narrowed our differences; in some

instances we have found common ground.

In the areas where we have not had that kind of opportunity for

dialog, for in-depth discussion, we need to. We have differences;

they may not be insurmountable, but until we begin the task, until

we direct our staffs, until we take the time to talk through those

differences, it will be hard to find the kind of consensus we all are

striving for.

Mr. Chairman, in closing, I want to be very clear. This Administration wants to see Superfund reform passed into law. We want

to see the program further strengthened along the principles we

have previously submitted to this committee: protect human health

and the environment; promote cost-effectiveness; foster the return

of contaminated sites to productive use by their communities; hold

polluters responsible, while at the same time allowing parties to re-
22

solve their liability as efficiently and as fairly as possible; encourage and support citizens in their efforts to participate in the cleanup decisions that affect their lives; and support a continued working relationship among all levels of Government in cleaning up the

toxic waste sites.

The bottom line, Mr. Chairman, is that we want to fulfill our 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. We know that is your goal, too. Can we

work together on this? Can we get back to the table and hammer

out a bill that all of us can support? Can we do what is necessary

to make Superfund reform happen in this Congress? I believe we

can; I hope that we will.

Senator CHAFEE. Well, Madam Administrator, I want to thank

you for that statement. That was a very fine statement, and there

is little in it that I can disagree with in what you said. As you said,

we have narrowed our differences. There is an opportunity there

for further discussion, and we would invite you to—and we certainly will be present at such a gathering as soon as we can set

it up.

I know Senator Smith feels that way. I do; I’m sure that you

heard Senator Baucus’ statements, and Senator Lautenberg’s, likewise.

Obviously, to have this succeed, all of us have to give some

ground. I’m not saying that what we’ve submitted here in the revisions is in concrete, but we certainly hope those on the other side

come to the table recognizing that they have to make some concessions, likewise.

One of the problems that we always get into here—and you and

I discussed this the last time you were here—is, who gets excused?

As you know, we all agree that the de minimis contributors should

indeed be excused. But then, pretty soon the rhetoric comes up that

what we’re proposing, or what somebody is proposing, is letting polluters off the hook. And that, of course, is an expression that could

be used for anybody, the de minimis contributors.

As you know, in our bill we made special provisions for co-disposal sites where, at the time that the disposal was made in that

site, it was legal. It was not illegal. I know that you are opposed

to that provision. I wonder if you could say a few words on that?

Administrator BROWNER. Mr. Chairman, I think we have long articulated——

Senator CHAFEE. If I might add one thing, the objective being to

get on with it. The belief that, yes, we could bicker over these

things, but there comes a point where it’s really worthwhile to just

get it done with. And maybe somebody on the sidelines can harp

that we’re letting a polluter off the hook; obviously that’s not our

intention, but the principal objective is to get the thing done with.

Administrator BROWNER. First of all, we don’t disagree with the

need to get the thing done with. We also don’t disagree with the

need and the appropriateness of taking certain parties out of the

liability net. I think all of us would agree that when Superfund

was originally passed, no one who voted for it and no one who

sought to develop the rules implementing it ever believed these
23

small parties would find themselves trapped in the way in which

they have.

Where we have, I think, had some disagreement is how to best

do that. And what we have continually said is, let’s do it by party,

not by site type. Let’s make a public policy decision that if a party

fits a particular definition—there have been various definitions offered over the last several years in terms of small business—we are

more than happy to have that discussion. I think we have tremendous flexibility on what that definition should be. But let’s do it by

party, not by site.

We thought it might be helpful, Mr. Chairman, to just show you

one of these co-disposal sites where we think discussions could take

place, and where lines might appropriately be drawn. We’re not

saying we’re wedded to this; we’re saying it’s something that needs

to be discussed.

Oh, we’re not allowed to put up the chart? I apologize.

Senator CHAFEE. Sure. Go ahead.

Administrator BROWNER. We do have handouts.

Senator CHAFEE. What’s the problem?

Administrator BROWNER. I thought we had cleared it.

Senator CHAFEE. Well, how many do you have here?

Administrator BROWNER. We do have handouts for all of the

members. We only want to put up one chart.

Senator CHAFEE. That’s all right. Put your chart up.

We haven’t received these in advance, so I’m not sure we can respond to them very well, but if it’s part of your presentation, go

ahead.

Administrator BROWNER. Well, it is an example of a co-disposal

site. It’s one that has received some amount of attention, the Keystone site. And I think it’s helpful to understand the three

groupings of parties at these sites.

First are the large owner-operators, major industrial generators.

Those are the ones that EPA went to and asked for them to contribute to the cleanup costs. There were 11 at this site. Those 11,

unfortunately, did turn around and seek contribution for cleanup

costs from 168 other parties; those other 168 turned around and

sought contribution from 589. EPA did not do this; we want to be

very clear about this, EPA sought contribution for the cleanup costs

from the 11 parties where we had documentation that the lion’s

share of the hazardous waste at this site had come. And I think

within this chart you see here, deciding which parties are in and

out makes absolute sense, and we will be more than happy to work

with you on where to draw those lines. Our only objection is saying

that all sites of this nature are automatically out of the requirement that any of the parties to that site pay their fair share. That

is our only objection.

Beyond that, we are more than happy to talk to you about how

to divide out the parties and how to define the parties so that everyone knows up front that you may be part of an allocation system, you may have a responsibility, or you absolutely have no responsibility.

Senator CHAFEE. OK. My time is up, but there will be further

discussion, perhaps, on this same subject.

Senator Baucus.
24

Senator BAUCUS. Yes. That’s a good point, Mr. Chairman. Let’s

stay on this subject for a while because I think it’s one of the key

points of this bill—that is, co-disposal.

I wonder, Administrator Browner, if I might echo the points that

other Senators have made. I also know how hard you have worked,

and particularly what progress you have made in administratively

coming up with reforms to Superfund despite a statute which in

some ways is very helpful, but in other ways very much gets in the

way.

Could you just briefly State your concerns about the co-disposal

provisions in the mark, and then give us some suggestions on how

we might resolve some of that? Some of the concerns that I have,

frankly, are that it’s not fair to those companies that did not use

municipal landfills, for example, but there are other thoughts that

I’m sure you are going to have, too.

Can you just tell me the Administration’s concerns, and then list

some suggested solutions as to how we might bridge this gap?

Senator CHAFEE. What does this apply to, though? What are

we——

Senator BAUCUS. The co-disposal provisions of the bill, the municipal landfills which received a lot of hazardous waste from

PRPs.

Senator CHAFEE. The assumption being that all this took place—

it was not done illegally?

Senator BAUCUS. Well, your concerns about that, Madam Administrator, as well as your suggestions.

Administrator BROWNER. Just for background information, there

are approximately 250 of these type sites of which we are currently

aware. There may be more. They are generally referred to as landfills; you had a lot of different things going there. In the case of

this one, you had 11 companies sending a very large amount of

hazardous and toxic waste, and you had others sending garbage,

municipal solid waste.

Senator Baucus, our concerns are, No. 1, the cost to the fund. If

you take this site as an example and say, ‘‘Nobody pays anything

to cover the cleanup costs, nobody pays their fair share, including

the very large contributors of hazardous waste, and that cost comes

to the taxpayers,’’ it is quite significant. It could shift approximately $200 million to $300 million in cleanup costs annually to

the fund. These are costs that are currently being covered by the

responsible parties. If you carve all of these sites out rather than

saying that certain parties are taken out and other parties remain

in, responsible for their fair share, then you have a large cost to

the program.

Senator BAUCUS. We’re talking about parties that deposited hazardous and toxic wastes——

Administrator BROWNER. Yes.

Senator BAUCUS [continuing]. At municipal landfills, is what

we’re talking about here?

Administrator BROWNER. Yes. I don’t think any of us disagree

that someone who sent their garbage should just be clearly taken

out of the program. I don’t think any of us disagree that small

businesses that sent relatively small amounts should be taken out,
25

should not be subject to any of this. But for parties sending large

amounts——

Senator BAUCUS. So one concern is the cost.

Administrator BROWNER. The second concern would be increased

litigation. Everybody is going to want to get their site called a codisposal site because it means they don’t have any responsibility,

so we would envision increased litigation over which sites are codisposal and which sites are not, which sites are covered by the

carve-out and which——

Senator BAUCUS. Is that a legitimate concern?

Administrator BROWNER. Yes.

Senator BAUCUS. Because that’s not easily determined.

Administrator BROWNER. We actually spent a lot of time over the

last couple of years trying to understand how you might craft a definition, and have been unable to our——

Senator BAUCUS. So litigation is the second concern. My time is

running out.

Administrator BROWNER. OK. The third one is the one that you

raised, and it is a fairness issue. It is an issue of, ‘‘So if I sent my

waste to one type of site, I am responsible for cleanup costs, but

if I was fortunate to have chosen another type of site’’—same

waste, identical waste—‘‘I am not responsible for costs.’’

Senator BAUCUS. So if I am a big company, say, and I deposit my

hazardous waste at my own site, then I’m not off the hook——

Administrator BROWNER. Right.

Senator BAUCUS [continuing]. But if I am another company and

I put it in a municipal landfill, then I am off the hook?

Administrator BROWNER. Exactly. One of the companies in the 11

here is CSX, a very large operation. They were sending large volumes of hazardous waste to this landfill. They would be off the

hook, as you say, for any cleanup costs at this landfill under a

carve-out disposal. If they had sent it to their own site, if they had

kept it on their property and that had created a Superfund site,

they would be responsible for the cleanup cost.

Senator BAUCUS. Well, my time has expired. We haven’t gotten

to solutions yet, although you’ve certainly touched on a few.

Mr. Chairman, we’ll get that on the next round, I guess.

Senator CHAFEE. All right.

Senator Smith will give us the solution.

[Laughter.]

Senator SMITH. Don’t I wish.

Thank you, Mr. Chairman.

Ms. Browner, I felt that your comments as stated here were

much more amicable in terms of reaching out here, trying to reach

an accord, than perhaps your written statement was, so I appreciate that.

I just want to say that I think that based on the negotiations

that we’ve had over the past several months and years, frankly, as

I look down the nine titles of the bill, I don’t think it’s insurmountable. Without getting into a lot of detail in the short amount of

time that I have, I think that if you look at five sections of the

bill—community participation, State role, brownfields, Federal facilities, and funding, a part which we agree with, and then there

is a miscellaneous thing in there on NPL caps—I think that even
26

though we don’t have 100 percent agreement on those areas, I don’t

think there’s any reason why we can’t reach accommodation on

those areas. However, the other three, and they are a big three—

NRD, liability allocation, and remedy are big, and Senator Baucus

just got into it.

Let me propose, Mr. Chairman, and it’s your decision since you’re

the chairman, but I would be willing, if you feel in the interest of

getting some type of agreement that it would be reasonable, to

have a series of meetings, postpone the markup for another week,

and sit down with you and Senator Baucus and Senator Lautenberg and myself and Administrator Browner in a series of meetings, however many we need to have at whatever time you want

to have them, and try to work out an agreement. So I would certainly put that on the table for the chairman’s consideration.

Senator CHAFEE. Well, I think that’s an excellent idea, and I’m

certainly willing to do it and spend the time on it. We’ve got a lot

going on here with ISTEA, but I think we can work it in, if it is

agreeable with the Administrator and Senator Baucus.

Senator BAUCUS. Mr. Chairman, I would echo your thoughts. I

think if we’re going to get a bill, we’re going to have to work on

a bipartisan basis, and I very much appreciate that.

Senator CHAFEE. Thank you.

Senator SMITH. Well, I don’t want to argue the ‘‘more bipartisan

basis.’’ I feel that we’ve worked on a bipartisan basis, but I’m not

going to argue it because I don’t want to take the time to do it. I

don’t know what more we could do.

Let me just pick up on what Senator Baucus was just questioning you on, on this issue of liability. What is wrong with keeping

private owners liable for cleanup, but at the same time giving them

a clearly-defined statutory share? You don’t have that problem for

public owners and operators; why do you have the problem with

private owners and operators? You’re willing to exempt municipalities and not hold them to that standard, and I support that. But

I’m now trying to reach to the second level, which is the private

owners and operators, in the sense that—you keep saying, well,

we’ll have this party aspect to it, and you say that litigation is

going to increase, and so forth. The litigation that is going to take

place here is when you try to allocate, which is what the last proposal you sent to us on this proposed; I know this is the first time

we’ve been talking publicly about what we proposed, and I apologize for that. But in essence your position is, as you present that

you present this material, these parties should be responsible for—

well, let me go back.

I’m trying to synthesize this down. Your position is that the statutory share for a public owner and operator is OK, but it’s not OK

for the private individual. Now, if you look at the private individual, when you say to that private individual, ‘‘OK, 3 percent of this

is nontoxic, and 97 percent is solid waste,’’ or vice-versa, how are

you going to make that determination? Are we going to be going

through all that garbage? You talk about lawsuits, those are huge

lawsuits—or certainly, if not lawsuits, some attempt at allocation.

And I just don’t see how you would do it. I mean, if it’s a fairness

issue, the fairness issue is that it wasn’t against the law to do what
27

they did. And we’re not talking about people who deliberately polluted beyond what was legal at the time.

I’m trying to understand your position. I have been trying to understand it for months here, to try to get to some accommodation.

I don’t know how you do it.

Administrator BROWNER. Well, let me make a distinction within

the co-disposal universe, the 250 landfill sites. Some of them were

owned and operated by municipalities, and others were owned and

operated by private companies who were making money off of picking up and disposing of garbage, sometimes hazardous waste——

Senator SMITH. But it was legal.

Administrator BROWNER. I’m not getting into the question of

what was legal or not legal here. I’m just making a distinction between a municipality that might have owned a landfill, and a private company seeking to make a profit.

I would just submit to the committee that that is a reasonable

distinction to say, for a municipality who had to provide a service

to the businesses, who had to provide a service to their constituents

of picking up garbage, capping their liability is not unreasonable

public policy. For the private company who was making profit on

picking up garbage and disposing of it—and well-informed on what

they were doing—asking them to cover the fair share cost of cleanup, as does any other company who was engaged in the production

of hazardous waste, that strikes me as a reasonable place to make

a distinction. It is a public policy call, without a doubt, and we frequently say in our laws to cities of certain sizes, to municipalities

who perform certain services, ‘‘We’re going to treat you a little bit

differently than, perhaps, the for-profit company out there doing

the same thing,’’ and that’s all we’ve proposed, is to recognize that

a municipality may not have had a choice, and therefore to treat

them somewhat differently.

But then to say to the private company—Fortune 500, in some

instances—‘‘Because you had what was called a landfill as opposed

to a hazardous waste disposal site, you now get treated differently

than your competitor, who ran a hazardous waste disposal site,’’

that is troubling for us.

Senator SMITH. Mr. Chairman, I know my time is probably up,

but could I just take 30 seconds for a response? I apologize.

We do, though. I mean, owners and operators, we have a 10 percent cap of 100,000—in the municipalities, 10 percent on less than

100,000. We have a 20 percent cap on over 100,000, and for private

owners and operators, we have a 40 percent cap. So we do, and I

don’t know how you identify—maybe you could explain to us what

criteria you are going to use for this so-called ‘‘party’’ that you are

defining. What is the criteria? They have millions of dollars? They

have no money? I don’t know what the criteria is.

Administrator BROWNER. One that we have suggested previously—and we would be more than happy to talk about it, and

there may be changes to this, something that we can all agree on—

is a small business definition: 20 or fewer employees; $2 million in

revenues; 30 or fewer employees—I mean, I don’t know what the

right definition is of a party, but I can tell you, if you give us a

definition, if we can all agree in a bipartisan manner on a definition, we can take a site like this—do you know what’s happening
28

at this site today? EPA did not go after the 168. We did not go

after the 589. But they are caught in this, and we are doing our

level best to settle the matter, of a dollar a person. It is time-consuming. They are unhappy; we are unhappy; you are unhappy; everyone is unhappy.

Why not look at this? This is one where we can give you the information on 250, if you want, and say, ‘‘OK, fine. The 11, we think

they should pay their fair share. Of the 168, draw the line here.

The 589, draw the line there.’’ We can come to an agreement on

that and we can be done with these sites in a responsible and fair

manner.

Senator CHAFEE. All right, fine. Thank you.

Now, Senator Kempthorne, Senator Bond, Senator Thomas, Senator Allard.

Senator Allard.

Senator ALLARD. Do you believe that the Federal Government

has contributed any to the problems as far as some Superfund sites

are concerned?

Administrator BROWNER. The Federal Government? Absolutely. I

mean, as you well know, in your own State——

Senator ALLARD. Well, we agree on that.

Administrator BROWNER. We agree.

Senator ALLARD. But yet I can point to situations in my own

State where the Federal agency is treated differently than the local

government or the private parties. For example, in a community we

call Leadville, actually, EPA is a responsible party, as is the local

government. It is agreed that they are a responsible party. They

both are required to put in treatment plants, and they’re doing

that; but the treatment plant that is required of the local government is much, much more expensive than the Environmental Protection Agency right in your own back yard is doing. It seems to

me that there needs to be some fairness. I don’t think you should

judge liability based on whether they made a profit or not; I mean,

some of these guys may be bankrupt, as far as I know. But I think

we have to look at who is responsible, and I think the Federal Government is a major partner.

Would you agree with the National Governors’ Association assessment, as well as the State Attorneys General Association assessment, that the Federal Government is a major polluter, if not

the largest polluter in this country?

Administrator BROWNER. I am not familiar with either of those

assessments. As I said before, I certainly agree—and your State is,

unfortunately, an example, of where Federal agencies, not EPA at

the larger sites, but certainly other Federal agencies are the principal parties responsible for some very, very large sites.

Senator ALLARD. And do you feel they should be held equally responsible for that?

Administrator BROWNER. In terms of the cleanups?

Senator ALLARD. Yes.

Administrator BROWNER. We have always maintained that the

Federal facilities should be responsible for the problems they have

caused.

Senator ALLARD. So you would agree that everybody else would

be a responsible party——
29

Administrator BROWNER. I’m not familiar, if you’re asking me

just about the Leadville site. I don’t think we’re a PRP at that site.

I don’t think EPA is named a potentially responsible party. But I

am more than happy to look at that.

Senator ALLARD. Well, let me bring up an example of where you

are named a potentially responsible party. It’s at the School of

Mines in Golden, and this is State land that was managed by a research institute through the School of Mines. There was the Department of Defense, the Environmental Protection Agency, the Department of Energy and the Bureau of Mines that all had research

facilities on this piece of land, as well as some private companies,

as well as the State of Colorado through the School of Mines with

some of their programs.

Everybody is forced to clean that up, except for the Federal agencies, which is the Department of Defense and the Department of

Energy and your own agency, the Environmental Protection Agency, and the Bureau of Mines. In fact, the State of Colorado and the

private parties are the only ones that have put up any money at

all, and the Environmental Protection Agency refuses to do that.

It seems to me that in these situations where we have a hazardous waste problem, that the Federal agencies ought to be willing

to do their fair share. Now, you can stand up here and say, ‘‘Well,

let’s take care of the children,’’ and you are nodding your head, and

‘‘Let’s take care of all the vulnerable people out here,’’ but yet in

your own back yard you have a problem and you’re not doing your

job.

Administrator BROWNER. Well, if we are a responsible party, and

we have been a responsible party at sites—in fact, at the Leadville

site we are not a responsible party, but we are paying some money.

We run labs, we do generate waste, and we have been involved in

some of these sites, and we agree with you that we have a responsibility, as does any other party to those sites, to address the problem that we created. And we are doing that. If there is a particular

problem at this site, I am more than happy to work with you on

it to resolve it.

Senator ALLARD. I have been informed by my staff that you just

refused to admit that you are a responsible party at the School of

Mines, even though there was research and lab equipment that

was done there. We all know that in laboratories, there is a lot of

hazardous material involved with a laboratory.

But it seems to me that at least the Federal agencies ought to

be doing their fair share to clean this up, and I really do believe

that the Federal Government is a major polluter in this country.

You have directed all your comments just to one sector of our economy, and I think that we all have to take equal responsibility if

we really want to see the environment cleaned up. I want to see

a better environment for my kids and my grandchildren; I don’t

want to see my State polluted, and consequently I think the Federal Government ought to do its fair share, including your department, your agency.

Administrator BROWNER. We don’t disagree with the fact that we

are responsible parties——

Senator CHAFEE. We’ve got to move on to the next questioner.

Thank you.
30

Senator Kempthorne.

Senator KEMPTHORNE. Mr. Chairman, thank you very much.

Madam Administrator, I recognize that EPA is not a trustee

under the NRD program, but I would like to ask you about the relationship between the remediation program and the NRD program.

Would you agree that the NRD program should not duplicate the

cleanup side of the program?

Administrator BROWNER. I apologize, Mr. Chairman, I meant to

ask for your leave at the beginning, if there were questions of the

trustees, since EPA is not a trustee, if we could have the trustees—

we do have a representative here from the trustees to answer questions relevant to the trustees. We are not trustees; that is the way

the law is structured, and we do have the Acting Deputy Director

of NOAA, Terry Garcia, here with us to answer any trustee questions.

Senator KEMPTHORNE. I appreciate that. That’s why I led off by

saying that I recognize that EPA is not a trustee.

Administrator BROWNER. Right.

Senator KEMPTHORNE. So EPA is not a trustee. So because of my

respect for you and the role that you’re going to play in this, I’d

like to ask you the question, and let me repeat it.

I’d like to ask you about the relationship, Madam Administrator,

between the remediation program and the NRD program. Wouldn’t

you agree that the NRD program should not duplicate the cleanup

side of the program?

Administrator BROWNER. They have to work together, yes. We

would agree to that, they have to work together.

Senator KEMPTHORNE. All right, so you agree with that.

Wouldn’t you agree that a company shouldn’t be told that it must

do additional cleanup from a site under an NRD claim after EPA

has signed off on a cleanup action that protects human health and

the environment?

Administrator BROWNER. That is not a yes-or-no question. The

reason is that if you do the right kind of work on the front end in

terms of both the cleanup and the NRD concerns—and the trustees

are part of the process on the front end—then you shouldn’t have

any problems on the back end. I think, unfortunately, there have

been sites where that has not occurred, and there are also sites

where the NRD problem may be different than the traditional

cleanup problem which is the focus of EPA. So to simply say you

shouldn’t be able to come in ‘‘after the fact,’’ after a cleanup plan

has been agreed to on NRD, I don’t think is something we can

agree with you on. I think there is a way the process has to be

structured, and in some instances the two are really quite separate

and you have to allow for that.

Senator KEMPTHORNE. When you reference a process, do you fell

that that’s right, to say to a company, ‘‘These are now the requirements to clean up this site,’’ that company now cleans up that site,

and the EPA signs off, ‘‘You’ve done a good job,’’ you’ve stated that

80 percent of the sites are cleaned up, should they now be subject

to go another round of cleaning up the site based on NRD requirements?
31

Administrator BROWNER. The cleanup is focused on the hazardous materials. It is focused on ensuring that the problem doesn’t

get worse. Natural Resource Damages are focused on the restoration of the natural resources, the lost use, and it may well be—and

we can certainly find out for you examples of where companies

have felt like they first just wanted to get out and deal with their

cleanup responsibilities; for a variety of reasons that made sense

to them, and they wanted to delay agreement and whatever discussions needed to take place on their NRD responsibilities. But it is

not always going to be the case that by simply cleaning up the hazardous wastes, you have spoken to the NRD concerns. They may

be two separate issues.

So there is a second round; in some instances, that may be what

the parties choose. In other instances, you may be able to do them

together.

I think what you want to avoid, and this is something that I

think is true throughout Superfund, is sort of a ‘‘one-size-fits-all’’

type approach. It’s similar to what we talked about a lot on drinking water. None of these things are going to be identical, and you

need to allow for some flexibility to take into account the differences.

Senator KEMPTHORNE. All right. My time has expired. Thank you

very much.

Senator CHAFEE. Thank you.

Senator Bond, Senator Thomas, Senator Boxer, Senator Inhofe,

Senator Sessions—Senator Inhofe.

Senator INHOFE. Thank you.

Madam Administrator, I’m going to try to be kind of specific in

my questions because of the severe time limitations under which

we’re operating.

In your testimony you criticize the chairman’s draft regarding

brownfields, and at the same time you say that you want to encourage economic redevelopment of abandoned and contaminated properties. I recognize that since I am chairman of the Clean Air Subcommittee and we’re going through this ambient air thing, that I

don’t want to drag that subject into it, but we can’t really operate

in a vacuum. What we do in Superfund is going to have an effect

on what we do with ambient air standard changes that are totally

separate issues.

We had testimony from the chairman of the Black Chamber of

Commerce and the Mayor of Benton Harbor, MI, who testified that

the new air regulations would stop any new industrial development. They specifically cited brownfields, saying that they would

never be able to attract new businesses to brownfields areas because of the air regulations.

What would be your response to that?

Administrator BROWNER. We are extremely proud of our

brownfields work. We think it has been a tremendous success in

addressing the lightly contaminated, frequently urban sites, and in

no way do we think that providing public health protections under

the Clean Air Act will interfere with our brownfields program. We

are working—in fact, I spoke yesterday to a mayor at the U.S. Conference of Mayors about how to ensure that the mayors have the

kind of information that they think would be helpful to answering
32

those kinds of questions, but we don’t see a problem between public

health protections promised under the Clean Air Act and the redevelopment of brownfields.

Senator INHOFE. Well, Madam Administrator, you may have

talked to one of the mayors, but the U.S. Conference of Mayors is

on record on what they feel the results are going to be, and you

did say in your testimony that you wanted to encourage economic

redevelopment of abandoned and contaminated properties.

Again, I would say that in light of what they said very specifically in their testimony, would you say that they are wrong?

Administrator BROWNER. That somehow or another——

Senator INHOFE. They specifically cited brownfields, saying that

they will never be able to attract new business to brownfields areas

because of the air regulations. Are they wrong?

Administrator BROWNER. We absolutely disagree with that.

Senator INHOFE. So are you going to issue waivers?

Administrator BROWNER. They’re not necessary. There is a way

to have both redevelopment and cleaner air, and we are more than

happy to work with the committee to make sure that the members

understand that.

I will say, within S. 8, the brownfields provision included in S. 8

is something that we think is a demonstration of how the gaps can

be closed and how consensus-based progress can be made. I think

there were some technical changes we would like, but we think it

is an example of what happens when we all work together to talk

through how best to solve a problem. We think the provisions are

good.

Senator INHOFE. OK.

In your testimony you criticize this bill—and I’m going to read—

for offering a ‘‘confusing array of opportunities for States to implement the Superfund program, including authorization delegation

and limited delegation.’’ Governor Nelson, who is here today and

will be testifying before us in a few minutes, is going to say, according to his written testimony, ‘‘We appreciate the inclusion of

options for expedited authorization delegation and limited delegation.’’

It seems as though we’ve made the Governors happy and the

EPA unhappy. Is that so? Who is right and who is wrong in this

case?

Administrator BROWNER. We have no disagreement. In fact, we

worked very closely with virtually every State in terms of their accepting responsibility on a site-by-site basis, on a variety of sites.

I mean, I think it’s been very successful in terms of saying who can

best address a particular problem.

We also have instances where a State that is quite sophisticated

has come to us—New Jersey is one example—and said, ‘‘We can’t

handle this particular site. Will EPA’’——

Senator INHOFE. Is Oklahoma sophisticated?

Administrator BROWNER. We’ve had some very positive working

relationships with Oklahoma in terms of——

Senator INHOFE. Who is not sophisticated, then?

Administrator BROWNER. You have some States that don’t have

legislation. You have some States that have not provided funding

for programs, and that is our concern. We have no disagreement
33

with States doing everything they possibly can. Our disagreement

with S. 8 as currently written, No. 1, is the fact that a State can

apply to EPA to take over even the most complex sites within their

State, with no public comment, with no public review. We think

that’s a real problem. We think the people of a State should have

the right to participate in their State’s decision to take control of

sites that perhaps we had been managing.

Senator INHOFE. But your statement said, again, ‘‘the confusing

array.’’ You specifically said that we’re not really addressing this

properly in terms of how we are allowing the States to handle some

of these problems, while the witness that will be testifying on behalf of all the Governors says that they think it’s done a pretty

good job.

So one of you is right and one of you is wrong, and I’m just saying, who is wrong?

Administrator BROWNER. I don’t think it’s a question of who is

right or wrong. What we would suggest in terms of States is that

we be allowed and they be allowed the flexibility to determine, on

a State-by-State basis, and in some instances on a site-by-site

basis, who can best do the job of managing a cleanup. There will

be times when New Jersey wants us to take a site. There will be

times when Oklahoma asks us to take a site, as there have been.

There will be other times when, quite frankly, they are far better

suited to deal with it than we are. Allow us the flexibility to resolve

that.

Senator CHAFEE. Thank you very much.

Senator Lautenberg.

Senator LAUTENBERG. Thanks very much, Mr. Chairman.

First I want to clarify something that apparently was misunderstood. I don’t retract the principle of what I said, but our colleague

from Oklahoma asserted that Senator Smith and Senator Chafee

had done a lot of work, and there is no question about that. I

wasn’t impugning their schedules or their interests or otherwise.

My statement was really relevant to the fact that we were suddenly going to see a markup upon which there was no agreement

that included Democrats, and to me that suggests that it’s partisan.

But, listen, I work very closely with Bob Smith and with Senator

Chafee and I consider them friends. We share an agreement once

in a while; that’s how close we are.

[Laughter.]

Senator LAUTENBERG. So I meant no impugning of character, interest, or effort, I assure you.

In terms of the brownfields development, I can tell you of some

smashing successes, one in New Jersey that was turned into retail

space where people are employed. This field lay fallow for such a

long time in the middle of a community that really needs developing. It now has a very significant retail establishment with about

400 people working there in Hackensack, NJ. Thousands of customers weekly come there. They bring income into the community.

They have uplifted the life around there. I think it’s a very positive

program, and I believe there may be some misunderstanding about

definitions, and I respect what the Senator from Oklahoma said

about a disagreement. But there is no right and no wrong.
34

So I think we have to take it on kind of a case-by-case basis. I

know that the work I have done on brownfields has been one of the

more satisfying aspects of my focus on environmental issues, and

has had a lot of development, a lot of support.

I would ask you this, Ms. Browner. One of the things that I think

we disagreed with is carve-outs. What do we do if there is co-disposal? There was an allocation discussion and resolution at Old

Southington in Connecticut; are you familiar with that? My understanding is that it worked very well, and in very short order the

parties settled the liability and moved on with their lives; indeed,

the settlement was fair to the municipalities and the homeowners.

So wouldn’t it seem that S. 8’s exemption for sites like this is

kind of an overkill? We can use the process, and that is what we

wanted to do together, and that is to provide another method for

resolving these disputes. Has it worked well at other places?

Administrator BROWNER. We certainly agree that an allocation

system is an important tool. Under the existing law we have piloted about a dozen allocation efforts to see what might make

sense.

The one short piece of information I would leave you with is that

at some sites it works well, and at other sites the parties want to

do it themselves. Just make sure that if you do anything on allocation in legislation, to allow for flexibility. I think we would be concerned that we are mandated at every single site. There are just

times, as you can well imagine, getting four people in a room and

being done with it in an afternoon is how it can go, and there are

other times where you have to bring in an outside party and wade

through a couple of months.

So our experience on allocation is that it’s a great tool; it should

be part of Superfund. We are piloting it, but let’s not turn around

and say that every single site should have an allocator, because

that may create its own problems.

Senator LAUTENBERG. Thanks.

Thanks, Mr. Chairman.

Senator CHAFEE. Thank you.

Senator Reid.

Senator REID. Mr. Chairman, we continually hear all the bad stories about Superfund. We in Nevada have had a great experience

with Superfund involving a thing called the Helms Pit, which was

a big gravel pit that started collecting water. I’m not going to go

into a lot of detail, but there was an emergency Superfund site declared in Sparks, and it led to the resolvement of issues very quickly. And had the EPA not come in there with the expedited powers

that they have under the act, it could have destroyed the entire

water supply of Reno and everything downstream including Fallon

and Fernley and the Indian reservation at Pyramid Lake.

So there are examples that could be cited, if we would take the

time, where this law—as bad as it is—has worked quite well. That

pit now is going to be used as a recreational site. At one time there

was an estimated 14 million gallons of fuel in the ground at

Sparks; it’s determined that it’s probably only about 2 million gallons, but it still is very volatile and very dangerous.

I would like to go back to what Senator Baucus talked about, and

maybe one of the other members here. How do we handle these
35

large landfills, as an example, where people year after year put

stuff in that, and it wasn’t illegal at the time? How do we handle

a situation like that?

Administrator BROWNER. What we would like to do is have a discussion with members about which parties to those sites should be

automatically taken out in the statute. A homeowner who sent municipal waste is an obvious example of someone who I think we

would all agree——

Senator REID. But, Madam Administrator, let’s talk about businesses. Businesses who in good faith go out and dump their stuff

in a landfill—there was nothing illegal about it. People watched

them do it. They thought they were doing the right thing. And now,

15 years later, they come back and because of the legal costs alone,

businesses are destroyed.

Administrator BROWNER. Regardless of where you draw the line

in terms of parties, you should certainly use—if the parties agree—

an allocator to get you away from all the legal costs, to get you

away from all the delays. We would absolutely agree with that, and

these are the kinds of sites, I think quite frankly, where an allocator is going to be more helpful than not. We would absolutely

agree with the need to try to expedite resolution of who is responsible for what share.

We also agree, and there has been much discussion about this,

that there should be an orphan share fund that we should be able

to put on the table, dollars from the fund to cover that part of the

cleanup cost for which there is—perhaps we are exempting some

parties, perhaps some parties have gone bankrupt. But that’s an

appropriate use of the fund because it contributes to an expedited

settlement in terms of who pays what, and in ultimately getting

the cleanup done.

Senator REID. Mr. Chairman, let me just close by saying that I

think that the suggestion that Senator Smith had during his time

of questioning is very appropriate. We have had, I think, a good

discussion here today. There is going to be more before the day is

out, and I think it would be extremely appropriate for the whole

committee if there could be a little more work done on this so that

the next time we get together, maybe there is more input, as Senator Smith has suggested.

Senator CHAFEE. Thank you very much. I agree with you.

Senator Sessions.

Senator SESSIONS. Mr. Chairman, I yield my time.

Thank you, Ms. Browner, for being here and for your testimony.

Administrator BROWNER. Thank you.

Senator SESSIONS. I yield my time.

Senator CHAFEE. Aren’t you nice? And Senator Moynihan will be

very pleased.

Senator Moynihan.

Senator MOYNIHAN. Just to start at the beginning, if I may, Ms.

Browner, it was just 18 years ago that news came over the wire,

as it were, about the Love Canal situation in the Niagara County,

NY landfill, and a great alarm, such that the Congress enacted the

Superfund bill in a post-election session. And it is two decades. The

site is still not cleaned up, and I was wondering if the EPA has

ever been interested enough to find out, what is the evidence of any
36

health problems arising from the Love Canal? Are there any epidemiological studies?

Administrator BROWNER. There were ATSDR studies on the Love

Canal. Yes, there are studies done by the Agency for Toxics and

Disease Registry—I may have that backwards—and we would be

more than happy to provide them to you and for the record.

[Information to be supplied follows:]
37
38
39
40
41
42
43
44
45
46
47
48
49
50

Senator MOYNIHAN. What’s the agency?

Administrator BROWNER. ATSDR, Agency for Toxic Substances

Disease Registry. They are the people who are responsible at sites

for evaluating the health consequences——

Senator MOYNIHAN. What have they found? You’ve got a lot of

people behind you that you can ask.

[Laughter.]

Administrator BROWNER. At Love Canal there were studies that

monitored birth weights after cleanup, and we’d be more than

happy to provide those to you. I think there were other studies.

Senator MOYNIHAN. What have they found?

Administrator BROWNER. I think they did find—I’m doing this

from memory now——

Senator MOYNIHAN. What about all those fellows back there?

Administrator BROWNER. Well, I don’t know that any of them are

Love Canal experts, or ATSDR—maybe there is someone here from

ATSDR and I’m not aware. I don’t think there is.

Senator MOYNIHAN. Might I suggest, quite seriously, that from

the outset there has been an appalling absence of controlled inquiry. If ever you had a natural experiment in toxic waste, it was

the Love Canal, built on a grid, in which you have persons who

lived 100 yards away, 200 yards away, 300 yards away, for 40

years, and 30 years, and 50 years, and all that. And to my knowledge, Mr. Chairman, we have not learned a thing.

Administrator BROWNER. With all due respect, Senator, I think

there are studies that showed that there were low-birth

weights——

Senator MOYNIHAN. You think there were?

Administrator BROWNER. We would be more than happy to provide them to you. I do know that the State of New York—there are

studies on low-birth weights. The State of New York has also been

involved, and we would be more than happy to get this for you, in

conducting a long-term study of the health effects and following the

children who are now adults, in many instances, the people who

lived at this site, in terms of the long-term health consequences.

Senator MOYNIHAN. Could I suggest that it would be no harm for

the EPA to know this subject? This is where this legislation begins.

Administrator BROWNER. Well, we are very familiar with the

health effects associated with exposure. You had asked about a

particular site and I wanted to make sure that I had spoken to the

types of scientific studies that may have been done at that site.

When you look at toxic waste sites across the country and you look

at the studies—and there are many, many, many studies that have

been done—unfortunately, what the studies show is that there

have been very real health effects for people in those communities,

very real——

Senator MOYNIHAN. Is it unfortunate to have learned that?

Administrator BROWNER. I wasn’t suggesting that it was unfortunate to learn that. I was suggesting that it was unfortunate for the

people in the communities.

Senator MOYNIHAN. You have another note by your left hand.

[Laughter.]

Administrator BROWNER. I’ve already given you this. I knew this.

[Laughter.]
51

Senator MOYNIHAN. All right. Let’s hear from you, if we may.

Administrator BROWNER. Yes, certainly, and we will also contact

the State of New York about their long-term study.

Senator MOYNIHAN. Fine. Thank you.

Senator BAUCUS. Mr. Chairman, quickly, if I might, I do join my

colleague from New York in urging EPA to look into it, as discussed. But maybe even with all the good work that the EPA has

done in my State of Montana, this is the ‘‘Golf Journal,’’ a major

golf magazine, and this is a golf course. Montana is the largest

Superfund——

Senator MOYNIHAN. If that’s a golf course, where’s the President?

[Laughter.]

Senator BAUCUS. Senator, I must say that that’s a very fair question, because this golf course is—actually, it sits on top of a former

Superfund site in Montana, and I want to thank Administrator

Browner for working very creatively to figure out a way to allow

this course. It was designed by Jack Nicklaus, and I asked the

President to come out to play when Jack Nicklaus, and I might say

it’s one of the finer courses in the country, a former Superfund site.

The President did not accept my invitation to play.

[Laughter.]

Administrator BROWNER. A mining site, I might add, which is

one of the most difficult.

Senator CHAFEE. All right.

Madam Administrator, we thank you very much and we appreciate your coming.

Now I’m going to do something totally arbitrary. If Governor Nelson and Mayor Perron would please come up, we would have both

of those witnesses.

I would ask Ms. Wilma Subra, who is here from Louisiana, if she

also would come up. And Mr. Gordon Johnson from New York.

Now, it may well be—it is my belief that the rest of the witnesses

are here locally, and if we can, we’ll schedule another hearing, but

it just does not appear that we will be able to get everybody on.

I see Ms. Florini here, and I think you are available, are you not?

And Ms. Eckerly.

Now, we have to take seats quickly, please, because we are operating under a deadline.

Is Ms. Subra here? If you would sit down. You have come from

Louisiana, right?

Ms. SUBRA. Yes, sir.

Senator CHAFEE. Well, we’re going to give you a hearing.

Ms. SUBRA. Thank you.

Senator CHAFEE. And Mr. Johnson from New York.

Now, am I correct? Mr. Fields, have you come from Chicago?

[Voice, ‘‘He left the room.’’]

Senator CHAFEE. All right. We lost him. All right.

Now we are going to proceed with Governor Nelson.

Governor, if you could keep your statement—what we are really

interested in is what you propose, what your suggestions are for us,

what you think we ought to do. And we appreciate your coming,

and I know there’s some back-and-forth and you made particular

arrangements to come here, so we appreciate it.
52

STATEMENT OF HON. E. BENJAMIN NELSON, GOVERNOR,

STATE OF NEBRASKA, ON BEHALF OF THE NATIONAL GOVERNORS’ ASSOCIATION

Governor NELSON. Thank you very much, Mr. Chairman, members of the committee. As Senator Chafee mentioned, my name is

Ben Nelson and I am Governor of the State of Nebraska and chair

of the National Governors’ Association’s Committee on Natural Resources. I have submitted to you a lengthier statement for the

record, and I will try to summarize my remarks as briefly as I can.

It is important to point out that my testimony is presented on

behalf of the National Governors’ Association. It has also been developed in close consultation with the Environmental Council of

States and the Association of State and Territorial Solid Waste

Management Officials, which represents State officials who manage

the Superfund program on a daily basis.

The States have a strong interest in this Superfund reform, and

I believe that a variety of changes are needed to improve the

Superfund program’s ability to clean up the Nation’s worst hazardous waste sites quickly and efficiently. So we commend Environmental Protection Agency Administrator Carol Browner for many

of the administrative reforms that she has developed for this program. But we still believe that legislation is required, and if I leave

you with one message today, let it be our hope that the agreement

to work together in a bipartisan basis will continue and that you

have the support of the Governors on a bipartisan basis to commit

to do everything that we can to assist in this effort so that we can

continue to work cooperatively, both with the majority and the minority parties, to develop a final bill that enjoys both bipartisan

support and Presidential signature.

I want to commend you for developing a very good starting point

for the kind of bipartisan negotiations that are going to be required

here. I know that there are some important differences that remain, but we hope that the chairman’s mark is a significant step

toward resolving those concerns. Given the discussion and the

statement by Administrator Browner, I remain confident that we

will be able to work through these differences.

The overall assessment by the National Governors’ Association

really just suggests a few areas where we think that some improvements could be made.

As you know, one of our major concerns has to do with the cleanup of the so-called brownfields sites. The Governors believe that

brownfields revitalization is critical to the successful redevelopment

of many contaminated former industrial properties, and if we could

all be as successful as Senator Baucus in Montana has been in conjunction with that golf course, we would all be very, very happy.

We commend the committee for including brownfields language in

the bill.

We cannot overemphasize the importance of State voluntary

cleanup programs in contributing to the Nation’s hazardous waste

cleanup goals. States are responsible for cleanup at the tens of

thousands of sites that are not listed on the National Priority List.

In order to address these sites, many States have already developed highly successful voluntary cleanup programs that have enabled sites to be remediated quickly, and with minimal Govern-
53

ment involvement. It is important that the legislation support and

encourage these successful programs by providing clear incentives

and the much talked-about flexibility.

Frankly, we feel an increased need for congressional direction because the guidance on State voluntary programs that EPA is about

to finalize doesn’t seem to afford us the necessary and appropriate

flexibility. We intend to talk to Administrator Browner further on

this to see if there is an area where we can come to agreement.

We also strongly support the provisions in your mark that encourage potentially responsible parties and prospective purchasers

to voluntarily clean up sites and to reuse and redevelop contaminated properties. Among the most important incentives is a release

from Federal liability at a site that has been addressed by the

State. Your chairman’s mark takes an important step in that direction. I would note, however, that while the draft would preclude

Federal enforcement for sites in a State voluntary cleanup program, it does not provide a release from Federal liability. We believe that this would leave the PRPs, the potentially responsible

parties, vulnerable to third-party suits, and we ask that, to the extent possible, you clearly waive Federal liability for a site addressed under a State program.

And with respect to the State role title, the Governors strongly

support the efforts to provide us with options to enhance the role

of States in this program. We appreciate the inclusion of options

for authorization, expedited authorization, delegation, and limited

delegation by agreement in the draft. We feel that this allows for

maximum flexibility to meet State needs and objectives.

We especially support the authorization provisions that allow

States to operate their own programs in lieu of the Federal program. Where States are authorized to operate programs in lieu of

the Federal programs, States should receive adequate Federal financial support at no less than EPA would be supported for those

efforts.

But the States cannot support provisions allowing the EPA to

withdraw delegation on a site-by-site basis. EPA should periodically review State performance instead of involving itself in site-bysite oversight. In other words, evaluate the program being adopted

and the overall performance by a State with respect to all the sites

rather than picking and choosing on a site-by-site basis for oversight.

With respect to the selection of remedy, we support changes that

result in what we think will be more cost-effective cleanups, a simpler, more streamlined process for selecting remedies and a more

results-oriented approach. The bill moves significantly in this direction.

Many of these reforms seem to us to be codifications and improvements of EPA’s previous administrative reforms, and we applaud that.

One of the most important issues in selecting a cleanup remedy

is allowing State-applicable standards to apply at Federal cleanups,

as they do at State sites. We greatly appreciate and strongly support the provisions of the bill that allow State-applicable standards

and promulgated, relevant, and appropriate requirements to apply

to all site cleanups, Federal and private as well.
54

Another important remedy selection issue concerns the importance of considering different types of land uses when determining

cleanup standards, so we applaud the inclusion of provisions in

your bill that provide for State and local control in making determinations on foreseeable land uses.

In addition, we would like to ensure that land use decisions are

not second-guessed by EPA.

I can’t talk about remedy selection without mentioning groundwater, because in Nebraska groundwater provides the great majority of our drinking water supplies, about 90 percent, and we are

blessed with very clean groundwater resources. We want to keep

it that way, so we believe that groundwater is a critical resource

that needs to 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 do need to ensure that any

groundwater provision are appropriately workable and flexible.

Therefore, more State involvement is important.

And finally, as you know, liability reform is one of the most difficult issues in the bill. The Governors recognize that the current

liability system does some things very well and provides some important benefits, but it also carries some unfairness and contributes to unacceptably high transaction costs. In general, we support

the elimination of liability for de minimis and de micromus parties,

and believe the liability of municipalities also needs to be

addressed. But 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 will

provide adequate assurance in funding so that sites will continue

to be cleaned up and so that there will be no cost shifts to the

States. The downloading of that cost onto the States is not going

to be an adequate remedy, and we would certainly oppose that.

We also oppose the apparent preemption of State liability laws

when a facility has been released from Federal liability. Preemption of State liability laws at the NPL sites effectively creates an

inequitable situation in States because it creates an inconsistency

in an application of State law at sites throughout the States. We

want to avoid creating a scenario where there is a demand by potentially responsible parties to be added to the NPL, the Priority

List, because the Federal liability scheme is more favorable. We

can see that that could happen.

With respect to Federal facilities, the Governors urge and

support that the legislation will ensure a strong State role in the

oversight of Federal facility cleanups. The States appreciate the

provisions in the chairman’s mark allowing EPA to transfer responsibility for federally-owned facilities to States, and we question why

this is more limited than the authority that States can exercise at

private sites. We urge you to include a clear waiver of sovereign

immunity for Federal Superfund sites, to ensure that State applicable standards apply to Federal sites, and that a double standard

doesn’t exist for Federal facilities, at a standard that could be substantially lower.

We have enough concerns that have been raised about the States

having a race to the bottom when it comes to dealing with these
55

issues. We don’t want to meet the Federal Government on the way

to the bottom.

[Laughter.]

Governor NELSON. As you know, the natural resource damage

provisions of Superfund are also controversial. Although some reform is warranted, the program’s integrity needs to be maintained,

and I want to thank the committee for including the provision that

protects existing claims and lawsuits. I know it’s extremely important to my colleague and the vice chair of our committee, Governor

Marc Racicot of Montana, who serves as vice chair of our committee.

I also want to mention how strongly we support the provision to

require the concurrence of the Governor of the State in which a site

is located before it may be added to the NPL. We fought long and

hard to have this vitally important provision included in legislative

proposals. We are also worried about the placing of an arbitrary

cap on the number of sites that can be added to the NPL. We think

that will not be an appropriate limitation that could be placed on

new listings.

Well, in conclusion let me say that I really appreciate this opportunity to be here, and I thank you for your hard work on this. I

know, Mr. Chairman, that it is a difficult area on which to bring

together general agreement, but I commend you for your efforts

and offer to continue in any way we can to support your efforts to

bridge the gap and to bring parties together in any way that we

possibly can.

Senator CHAFEE. Well, Governor, I want to thank you very much

because you’ve been very specific in your recommendations here.

You get into a lot of matters that are of concern to us. For instance,

something that is not a burning issue, the so-called Record of Decisions, the RODs, you touch on that provision. Your statement has

been very helpful.

I didn’t get a chance to apologize enough to those witnesses who

came from, I believe, around in the Washington area that we

weren’t able to reach, and I want to thank you all. We’re going to

try to get all of you whom we missed back here again. Mr. Fields,

I know that you very kindly suggested that you could come back

from Philadelphia, if needed.

Now we will hear from Mayor Perron from Elkhart, IN. We welcome you on behalf of the U.S. Conference of Mayors.

STATEMENT OF HON. JAMES P. PERRON, MAYOR, ELKHART,

IN., ON BEHALF OF THE U.S. CONFERENCE OF MAYORS

Mayor PERRON. Good afternoon, Mr. Chairman and members of

the committee. I am Jim Perron, the mayor of Elkhart, IN. I am

pleased to be here this afternoon, and thank you for your leadership in the development of S. 8 and in moving the legislative process forward with this hearing.

Today I am testifying on behalf of the U.S. Conference of Mayors,

which represents over 1,100 cities with populations of 30,000 or

more.

Being Mayor of Elkhart for nearly 15 years has allowed me the

opportunity to deal directly with a variety of Superfund issues,

ranging from brownfield redevelopment to remediation of a
56

Superfund site that essentially covered our entire drinking water

system.

Mr. Chairman, the Nation’s mayors believe that Superfund has

been successful in meeting three national policy objectives: a dramatic reduction in the use of hazardous materials by industry; the

ability of our Nation to respond to emergency spills and contamination; and the creation of a much safer national hazardous waste

management system. These are major accomplishments of the

Superfund program, and we want to acknowledge them from the

outset. That’s the best of Superfund.

Alongside these tremendous public benefits are the unintended

negative consequences of the Superfund program, the fact that the

private sector will not invest in hundreds of thousands of non-NPL

contaminated sites for fear of being caught in the Superfund liability web. These so-called brownfields were not caused by local governments or the citizens who now must live with the consequences

of lost jobs and an eroded tax base in abandoned or underutilized

properties that denigrate communities.

In a Conference of Mayors survey, we found in only 39 cities, the

loss of local tax revenues from local brownfields ranged from $121

million to $386 million annually.

Finally, brownfields lead to additional negative environmental effects by encouraging urban sprawl in eating up prime farmland,

forest, and open spaces.

I would like to mention here, Mr. Chairman, that the State of Indiana has moved forward through a legislative committee—a task

force to which I was just recently appointed by Governor

O’Bannon—which is an Indiana Farmlands Preservation Task

Force, to try to address this issue, and I do believe the brownfields

issue is one area that we will be discussing.

I should say that in addition, the Superfund program has made

the cleanup of National Priority List sites expensive, bureaucratic,

time-consuming, and litigious. We want to commend the Administrator and the agency for the administrative reforms to improve the

Superfund program, but we believe these will not be enough to

structurally reform the program and put it on a sound footing for

the future.

Turning specifically to the proposals that we were asked to address for today’s hearing, I would like to start by saying that it is

extremely important for Title I on brownfields to provide local governments the greatest flexibility possible in the use of brownfield

site assessment, characterization, and cleanup funds.

The definition of brownfields should not require the site to currently have an abandoned, idle, or underused facility. Many former

industrial and commercial sites have been razed, but still contain

contamination that should qualify this site as a brownfield.

Likewise, the list of exclusions in the definition of brownfields

should be significantly eliminated so that local governments have

the flexibility to submit brownfield sites that are local priorities.

For example, the current list of exclusions would disqualify sites

where an emergency response action has been taken. Many emergency response actions remove the immediate emergency but do

not leave the property in a condition that would allow the private
57

sector to invest in it. Local governments should have the flexibility

to include them. A similar rationale holds for other exclusions.

On the issue of funding, we believe that the Superfund program

which helped to create brownfields should devote at least 10 percent of its funding annually to the brownfield cleanup program. We

ask the committee to include annual authorization levels in S. 8 to

reflect such a level. We have outlined in our written remarks why

this funding level is justified.

We are also extremely pleased that, with the Administration’s

support, the House and Senate have devoted increased funding for

fiscal year 1998 to EPA’s brownfields program. We want to thank

Senator Bond for his leadership in that arena.

Mr. Chairman, the policy which the mayors adopted in San Francisco at our annual meeting this year calls for Superfund reauthorization to include provisions that expedite the cleanup of co-disposal landfill sites by providing liability protections for generators,

transporters, and arrangers of municipal solid waste. The provisions of S. 8 clearly begin that process and go a long way toward

that end. We are concerned, however, that the bill does not provide

generators and transporters of municipal solid waste protection

from third-party contribution lawsuits, for cleanup costs incurred

prior to date of enactment at co-disposal sites. Because we believe

that Congress never intended municipal solid waste and sewage

sludge to be considered hazardous under CERCLA, we believe that

some form of liability relief should also be extended to pre-enactment costs.

We want to remind the committee that numerous studies have

indicated that municipal solid waste contains less than 1⁄2 of 1 percent of toxic materials.

Mr. Chairman, we also want to acknowledge and commend the

Administrator and the agency for the recent announcement of administrative reforms governing municipal liability for co-disposal

sites. The most important principle set forth in EPA’s policy is that

municipal solid waste has virtually never been the cause of listing

co-disposal sites under this proposal.

Finally, we agree with the chairman’s mark, which reflects the

view that the toxicity of municipal solid waste is so low that the

transaction costs of collecting funds for response costs incurred

after the date of enactment warrant a transfer of liability from individual parties to orphan share.

Mr. Chairman, I am also very pleased to note that on Tuesday

of this week President Clinton nominated one of our colleagues,

Mayor Cardell Cooper of East Orange, NJ, to be the Assistant Administrator of EPA for Solid Waste and Emergency Response. I am

aware that this committee has the formal responsibility to advise

and consent on this nomination, as does the full Senate. Mayor

Cooper has been one of the great leaders among the mayors in this

country on a very broad range of issues, including those concerning

Superfund, brownfields, and environmental cleanup. He will do an

outstanding job in moving these programs forward and in strengthening the partnership among the cities, the Congress, the Administration, and the private sector, to bring about the achievement that

we need in these areas. I hope that you will give swift approval to

this nomination at the appropriate time.
58

Mr. Chairman, it is almost impossible to talk about brownfields

and Superfund reform in 5 minutes. Our written comments cover

many other points.

Let me add that Mayor Helmke of Fort Wayne—he is the president of the U.S. Conference of Mayors—is meeting as we speak in

Rhode Island with the co-chairs of our Brownfields Task Force, and

will undoubtedly have further input into our comments on S. 8.

We encourage the Senate to move forward with Superfund reform and reach a bipartisan agreement on a bill. We believe that

S. 8 is a good starting point for those discussions, and we stand

ready to be of any assistance.

I would be pleased to answer any questions that you may have

at the appropriate time.

Senator CHAFEE. Mayor, thank you very much.

It has come to my attention that some here don’t understand

why we are under the gun at having to stop at 4:30. That’s not

something the committee wishes to do. I would stay here and hear

every witness. This came about because the Democratic leadership

is invoking the Senate rules which permit them to say that no committee can meet after 2 o’clock when the Senate is in session. The

majority leader, in order to give us time here to get on with what

we could, put the Senate into recess from, I presume, 2 o’clock until

4:30, but when 4:30 comes, it will then be obviously after 2 o’clock,

and so this committee cannot remain in session.

So again I want to apologize. We will take all the statements of

those whom we were not able to reach, and any of the witnesses

who had something further to add can submit further statements

for the record, and we will keep the record open for 1 week.

Senator BAUCUS. Mr. Chairman, if I might add, it is regrettable

that we cannot continue to meet, but I think it would be unfair to

characterize it as the Democrats that are holding us up. The fact

of the matter is that this is an internal Senate matter having to

do with still another matter which we have to resolve, and this is

regrettable, but that’s why we are not able to meet longer. It’s a

bipartisan problem that has caused this delay.

[Laughter.]

Senator CHAFEE. No one will argue with my bipartisan credentials——

[Laughter.]

Senator CHAFEE [continuing]. But this is not a bipartisan issue.

The committee is not able to meet because the Democratic leader

invoked the rules.

Senator BAUCUS. Well, we all know why he invoked them.

Senator CHAFEE. Well, that’s a separate subject.

[Laughter.]

Senator CHAFEE. Let’s not explore that any more.

Now, we are delighted to have Ms. Subra here, who has come

from New Iberia, LA. We are delighted to have you here, and if you

could present your statement in some 5 minutes, then we will have

Mr. Johnson, who is here from New York on behalf of the National

Association of Attorneys General, and then we’ll have questions of

the entire panel.

Can you stay, Governor?

Governor NELSON. Yes.
59

Senator CHAFEE. OK.

Ms. Subra.

STATEMENT OF WILMA SUBRA, PRESIDENT, SUBRA COMPANY,

NEW IBERIA, LA

Ms. SUBRA. Thank you. I would like to thank the committee for

giving us this opportunity to testify.

I have been involved in Superfund issues since Superfund began,

working with citizens who live around these hazardous waste sites.

I have also served as the technical advisor on the National Commission on Superfund, and I provide technical assistance to citizens’ groups at eight Superfund sites through the TAG process.

Karen Florini will present a lot of the issues that we have concerns about. We didn’t want to duplicate, so I just want to say that

I am in support of the issues that she will present to you at a later

time.

I would like to tell you why I have a problem with State delegation and give you an example. The transfer of authority to States

in order to perform Superfund programs may be appropriate for a

few States, but the wholesale transfer of Superfund programs to a

large number of States will have a negative impact on the overall

program. An example of a State that should not be granted Superfund authority is the State of Louisiana. The State lacks the financial resources, personnel, and political will to even implement their

own State program. The majority of the NPL sites in the State of

Louisiana were submitted by citizens’ groups, not by the State. The

State didn’t want the stigma of having hazardous waste sites being

on the Federal list. In 1995, the State Legislature removed almost

all the funding and personnel from the State program.

The current State program only has sufficient financial resources

to, No. 1, perform small emergency removal actions when a midnight dumper drops barrels along the side of the road, and No. 2,

to provide oversight at the 14 Superfund sites in the State. There

are little or no resources to evaluate the more than 500 potential

sites, or to perform remedial activities at confirmed sites. During

the past 2 fiscal years, 57 confirmed hazardous waste sites sit waiting for cleanup when and if resources become available. When sites

pose an imminent and substantial threat, the EPA has to step in

to perform financial and emergency removal actions for the State.

The most recent example of the need for Federal resources and

manpower was the Broussard Chemical Company site in Vermilion

Parish. The EPA has spent more than $2.5 million in investigating,

removing, and disposing at six separate locations operated by

Broussard Chemical. A number of additional sites operated by the

same person are currently being investigated further by EPA because of lack of resources on the part of the State.

If it were not for the EPA and the financial resources of the potentially responsible parties, little progress would be made in the

State of Louisiana in addressing hazardous waste issues.

At PRP-funded sites, the State is still responsible for oversight.

The lack of personnel resources has a major impact on that process.

In Louisiana, the lack of sufficient technical resources has resulted

in the State missing critical technical issues on the Shell-Bayou
60

Trepagnier site. One of the issues missed involved the diluting of

the contaminant levels by the PRP by including the control samples in both the site samples and the control samples, thus lower

contaminant concentrations were evaluated for that site.

The State of Louisiana and many other States that lack financial

and personnel resources should not even be given the opportunity

to request State delegation or feel pushed by Congress into having

to accept the delegation of the Superfund program.

In the treatment of hot spots, the preference for permanence in

Superfund remedies has been modified to only treatment of hot

spots. Attempts are made to justify the appropriateness of only

treating these hot spots by including containment for the other

hazardous substances. Reliance on containment is not a permanent

remedy and merely puts off addressing the hazardous contamination until a future date. During that period when containment

fails, public health and the environment will be impacted. The community members in the area of the site will once again be exposed

to the hazardous substances and bear the burden of health impacts. The preference for permanence should be expanded to include a larger portion of the hazardous contaminants than just the

hot spots.

A containment remedy is being proposed for the Agriculture

Street Landfill Superfund site in New Orleans. The landfill was operated by the city of New Orleans from 1909 to 1965. The city then

developed 47 acres of the 95-acre site on top of the landfill——

Senator CHAFEE. Ms. Subra, I tell you, this is kind of a specific

thing which we have in our record. Maybe you could move on to

your next principal point. I want to make sure we can reach Mr.

Johnson.

Ms. SUBRA. OK.

On the delisting, you are doing it too early. The initiation of a

delisting process after construction completion, rather than after

remedy implementation, is totally inappropriate. We have a site in

Vermilion Parish where the remedy is being implemented. It was

solidification after biotreatment. As it turned out, the Portland cement was contaminated with chromium, and when they solidified

the waste, the chromium leached, and now you have a larger expanse. There are needs to go back in and look at the remedy. If

you have delisted the site, you have cut the public out of the process, you have removed the TAG grant. After construction is much

too early in the process.

In the State concurrence, in the State of Louisiana the Governor

has only concurred at one site. That site was going to be an addon to one that already had an incinerator, already had local contractors. He did the concurrence because he wanted the contractors

to keep working. At the other sites, in fact, contamination of the

fish and the organisms that live in the estuaries resulted because

he did not concur and nothing is happening at those sites.

The limit on new sites will merely put the burden back on the

States, which don’t have enough money to address the sites. The

limit on the number of new sites has to be increased dramatically

or removed entirely.

We would be happy to continue this process of talking and

dialoging about the things that we have a problem with.
61

I would like to thank you for the opportunity to provide this

input.

Senator CHAFEE. Well, thank you very much, and again we want

to thank you for coming all the way. I am curious as to what Governor Nelson will have to say when we get to the questions.

Mr. Johnson from the State of New York. If you will go through

it, and if you could summarize your statement, we have your regular statement for the record because we want to be able to get in

a few questions.

STATEMENT OF GORDON J. JOHNSON, DEPUTY BUREAU

CHIEF, ENVIRONMENTAL PROTECTION BUREAU, NEW YORK

STATE ATTORNEY GENERAL’S OFFICE, ON BEHALF OF THE

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL

Mr. JOHNSON. Thank you very much, Senator Chafee. I am the

Deputy Bureau Chief of the Environmental Protection Bureau in

the office of New York Attorney General Dennis Vacco. I very much

appreciate the opportunity to appear before the committee, and I

thank you, Senator Chafee and Senator Baucus, as well as Senator

Moynihan from New York, for giving me time to present comments

with respect to the natural resource damage provisions of the bill.

I am appearing today on behalf of my office and on behalf of the

National Association of Attorneys General, NAAG. My office has

handled or is now counsel in more than 25 major natural resource

damage cases arising from the release of hazardous substances or

petroleum products.

At its summer meeting in late June of this year, the sole resolution adopted by NAAG addressed Superfund reauthorization. A

copy is attached to my written testimony. The resolution also addresses directly the natural resource damage issues which are the

subject of this panel. My Attorney General Vacco was among the

group of bipartisan sponsors of that resolution.

The resolution arose from the recognition by the State Attorneys

General of the critical importance of the Superfund program in ensuring protection of public health and the environment from releases of hazardous substances at thousands of sites across the

country. They also know firsthand the problems with the statutory

scheme, and the need to limit transaction costs and streamline certain processes required by Superfund today. In particular, the Attorneys General want to make the task of assessing natural resource damages and restoring injured or destroyed resources less

complicated, and reduce the amount of litigation that may result

when trying to accomplish those goals. In my brief oral remarks

today I will address some of the more significant issues.

First, judicial review. NAAG urges Congress to clarify that in

any legal proceeding, the restoration decisions of a trustee should

be reviewed on the administrative record, and be upheld unless arbitrary and capricious. S. 8, as introduced, contained provisions in

section 702 regarding the administrative record that appeared to

accomplish that goal. The chairman’s mark retained the provision

regarding the establishment of the administrative record, but removed language in the public participation section providing that

judicial review of the trustee’s restoration plan would be on the
62

record. S. 8 also removed the rebuttable presumption provided in

current law to a trustee who adheres to the regulations.

The deletion of the judicial review provision is unfortunate and

unwise, and likely will lead to greater litigation, increased expense,

and secretive and duplicative assessments. Unless the selection of

a plan and the assessment which led to that selection is entitled

to the usual administrative presumption of correctness, no trustee

could afford to conduct an assessment and select a plan on an open

record with full public input, knowing that responsible parties

would not be bound in any fashion by that determination.

Senator CHAFEE. Then you have some suggestions of language

there. Why don’t you move to your statute of limitations now, could

you?

Mr. JOHNSON. Fine.

The Attorneys General also ask that CERCLA be amended to

provide that claims for natural resource damages be brought within

3 years of the completion of a damage assessment. Currently,

CERCLA has a very complicated, two-prong statute of limitations.

These provisions often put often put a trustee in a difficult position

and result in much unnecessary litigation. The trustee may have

to bring suit before he or she has sufficient information to determine the scope of the injury or to quantify damages, often even before an RI/FS is completed. We urge Congress to adopt a statute

similar to that governing cases arising from the release of petroleum products under the Oil Pollution Act of 1990.

The third issue I would address is the availability of Superfund

moneys for assessment. When CERCLA was amended in 1986,

Congress provided that the trust fund could be used by State and

Federal trustees to conduct damage assessments, recognizing in

particular that many State trustees lacked the funds to pay for the

assessments themselves. In conference, that language was effectively removed through amendments to the IRS Code. NAAG has

long asked that the conflict between the IRS Code and CERCLA be

eliminated so that State trustees can draw on the fund to conduct

assessments, which they presently can do to conduct RI/FSs. This

will also promote the integration of the NRD program with the

cleanup program and lead to greater efficiencies and better cleanups.

Use of reliable assessment methodologies is another aspect addressed in the resolution. Just as Congress does not direct EPA to

use only certain scientific methodologies in the changing and developing area of remedial science, NAAG believes that Congress

should retain the ability of trustees to recover damages based on

any reliable methodology. S. 8, however, provides that assessments

may be conducted only in accordance with regulations not yet promulgated by the President, and forbids the use of one methodology,

the admittedly controversial ‘‘contingent valuation’’ methodology, in

the assessment process.

Senator CHAFEE. Why don’t you move to the liability cap and the

recovery of costs?

Mr. JOHNSON. We are pleased with respect to the liability

cap——

Senator CHAFEE. That’s what I wanted you to hear.

[Laughter.]
63

Senator CHAFEE. That’s very good. Now go to the next one.

[Laughter.]

Mr. JOHNSON. Recovery of enforcement and oversight costs, to

summarize that, S. 8 is silent on whether enforcement costs and

oversight costs by State trustees can be collected from responsible

parties as part of the process of conducting an assessment and implementing it. We believe they should.

The NAAG resolution is consistent with the general and

uncontroversial policy that persons responsible for the release of

hazardous substances have an obligation to make the public whole

in the event there is an injury to our natural resources. Well over

100 years ago, in cases on the abatement of nuisances and the public trust doctrine, the courts made clear several bedrock principles.

The States and the Federal Government are trustees for the people, and their trust corpus includes this Nation’s glorious natural

resources.

Senator CHAFEE. OK. Let’s see what else we have here.

All right. I would be interested in your ‘‘injury before 1980,’’ how

you handle that one.

Mr. JOHNSON. The language of S. 8, as originally introduced, substituted language in current CERCLA law, substituting the word

‘‘injury’’ for the word ‘‘damages.’’ Under current law, if damages

continued after 1980 and the public was harmed after 1980, a natural resource damage case may be brought.

S. 8 substituted for that word ‘‘damage,’’ ‘‘injury,’’ and a number

of courts have held that the injury occurs at the moment of release.

This would mean, under the revisions provided for under S. 8, that

if a release of hazardous substance occurred before 1980, there

could no longer be a natural resource damage case about that, even

though there are damages being incurred now, and the public was

suffering as a result of that release back before 1980. We don’t believe that that is appropriate and we ask that the committee return

to the original language of the statute.

Senator CHAFEE. All right, thank you very much. I would commend the non-use values to our members here, to read that portion

over, and I am sorry to cut you off a little bit.

We’re going to have a few questions before the witching hour

comes.

Governor Nelson, what do you say about what Ms. Subra had to

say? I thought that she had some pretty good points.

Governor NELSON. Well, I wouldn’t discount her points, but I

would say that——

Senator CHAFEE. I mean, what do we do if a State won’t step up

to the mark?

Governor NELSON. First of all, if they’re going to step up to the

mark and have either a delegation or an authorization, they’re

going to have to have a plan that passes the test of competence and

demonstrate their ability to perform to the EPA in order to get it.

If they don’t demonstrate it, then they don’t get it. That’s why we

said that they shouldn’t be on a site-by-site basis; it ought to be

on their overall performance in dealing with the sites.

The second thing is that I don’t think Federal legislation ought

to solve every local problem that can be solved at the local level.

If the State of Louisiana, in the minds of its people, is not doing
64

an adequate job in dealing with the non-Priority List sites, then

that ought to be a determination made, if there is a majority of the

people in Louisiana who feel that way, they can make their wishes

known. That’s what the elective process is about.

Senator MOYNIHAN. Governor, that’s why we’re having to stop at

4:30. Would you kind of avoid that subject?

[Laughter.]

Governor NELSON. I think I understand, Senator. Fewer elections

create fewer problems.

Senator CHAFEE. All right.

Senator Baucus.

Ms. SUBRA. Could I respond to his concerns briefly?

Senator CHAFEE. Yes, but I’ve cut the leave time for everybody.

Thirty seconds.

Ms. SUBRA. OK.

One of the things is the default provision in the mark bill, and

it says that if you don’t do an action from EPA on a State delegation, it is automatically delegated. So if EPA gets overburdened

and States apply, whether or not they are adequate, whether they

have the rules, whether they have the finances, under default they

are going to get the program.

Senator CHAFEE. I see.

All right, Senator Baucus.

Senator BAUCUS. Thank you, Mr. Chairman.

Ms. Subra, your views on the remedy selection provisions in S. 8?

Ms. SUBRA. They don’t go far enough.

Senator BAUCUS. Why?

Ms. SUBRA. They are not protective of human health and the environment. There is too much emphasis on the hot spots, too much

on containment. You are leaving the waste there to future impact

the citizens. In locations where we have tried containment, the containment has started to fail, especially in Louisiana where we get

60 inches of rainfall.

Senator BAUCUS. Would you agree that in the current law there

is too much of a preference for treatment?

Ms. SUBRA. I think there may be too much preferential treatment

at some locations, not all of them. But what we’re doing is moving

toward treating the part that exceeds the criteria, and not treating

the other part. In fact, that’s what we were doing at the one site,

and in fact we found out that we were contaminating it more when

we solidified with the Portland cement.

Senator BAUCUS. But you do say that the current provisions—in

S. 8, anyway—are too lenient with respect to the treatment?

Ms. SUBRA. Yes.

Senator BAUCUS. Mr. Johnson, with respect to non-use values,

there has been a lot of debate to what degree we should address

natural resource damage claims; do we address inherent value, intrinsic value, etc.? Do you think we should?

Mr. JOHNSON. Yes, I believe that we should.

Senator BAUCUS. Why?

Mr. JOHNSON. There are several reasons for that. Natural resources have values much beyond their value as simply being used

for certain things, and there are numerous natural resources that

have no use value whatsoever. The piping plover and endangered
65

species—they have no real uses, but we as a society spend a considerable amount of money to protect those species from harm because

we value them, because they just are.

If we are to eliminate non-use values from the calculus of determining when to restore natural resources, when to seek damages,

when to replace them of that, we will be ignoring all of those values and we will be ignoring those resources.

Senator BAUCUS. OK. I appreciate that. I see my yellow light is

about to turn red.

Governor, I understand that the Governors also support including recovery of resources at intrinsic value.

Governor NELSON. That’s correct. I should say that our goal

would be toward restoration, but we do support that.

Senator BAUCUS. OK.

Mr. Chairman, I might say that there is some suggestion that

the western position is in favor of dramatically limiting natural resource damages. I would like to include in the record a letter from

the western Attorneys General who say expressly, ‘‘We write to express our continuing concern about the potential impact of S. 8’s

natural resource damage positions, especially on western States.’’ I

would like that included in the record, please.

Senator CHAFEE. Senator Smith.

Senator SMITH. Thank you, Mr. Chairman.

I just want to say, in the very brief period of time that we have,

to thank you, Governor Nelson and Mayor Perron, especially for

coming today and your cooperation on behalf of your respective organizations for the input that you have provided us over the

months—years, I guess—as we have tried to put this legislation together. You’ve been very helpful.

I would just say in response to what the Governor said in response to his questions, and what Ms. Subra said, we make four

very clear points in the legislation regarding the State role. In

order for the State to receive this, it has to have adequate legal authority, financial and personnel resources; the State cleanup program must be protective of human health and the environment;

and the State has procedures to ensure public notice and, as appropriate, an opportunity for comment on remedial action plans. And

the State must agree to exercise its enforcement authority to require that persons that are potentially liable should, wherever

practical, pay for the response action.

So it’s not a case where a State would have this dumped on it

without the resources. So if there is a State, as was indicated by

you, Governor, that is not capable, then they’re not going to get the

program. So I think it’s important to clarify that, because that’s

been misrepresented.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you.

Senator Moynihan.

Senator MOYNIHAN. I believe Mr. Sessions is next.

Senator CHAFEE. All right, Senator Sessions.

Senator SESSIONS. Well, I won’t take but a minute. Maybe I’ll

just——
66

Senator CHAFEE. You can take 2 minutes, and Senator Moynihan

is going to have his time, and even if we all go to jail, we’re going

to get the time that we need.

[Laughter.]

Senator SESSIONS. OK. Senator Moynihan can talk to the Democratic leader, maybe, about that.

Let me say this. I will just ask briefly—you have the Mayors represented, and the Governors, and the Attorneys General. Is it the

consensus of you three governmental officials that the Superfund

bill as now written is in severe need of reform? Do you all agree

to that?

Governor NELSON. Yes.

Mayor PERRON. Yes.

Senator SESSIONS. Do you think there is any minority opinion

about that among your associations, or is that pretty universal

among your membership?

Mayor PERRON. Bipartisanly.

Governor NELSON. A bipartisan decision that needs to be reformed.

Mr. JOHNSON. I think the Attorneys General’s position is that the

present statute needs to be sharpened and streamlined, but its

basic, fundamental principles need to be preserved.

Senator SESSIONS. Governor, you are talking about a Federal release from liability. What you are saying is that once a site has

been completed, that land or property can be almost valueless unless someone will certify that they are not going to be subject to

additional liability claims?

Governor NELSON. That’s exactly right, Senator. I think the

State can be in a position to bring about a change for the use of

the land and get a restoration of the land for an appropriate use,

but if there is a question about second-guessing and/or continuing

Federal liability, it’s going to be very difficult to do some of these

projects that I think you could do otherwise.

Senator SESSIONS. Could be available for industrial development,

but could not be done because of that?

Governor NELSON. That’s right.

Senator SESSIONS. Well, I think that’s all.

Senator Moynihan, I’ll defer to you, or to you, Mr. Chairman. I

yield my time, what little I have left.

Senator CHAFEE. Senator Moynihan.

Senator MOYNIHAN. Yes, sir. I would simply want to thank the

witnesses, especially Governor Nelson and Mayor Perron.

I think there is a problem you were speaking of, Mr. Johnson;

if you served a long time on this committee, you would become

aware of it.

In 1978, sir, it was discovered that the General Electric Company

had dumped a very large amount of PCBs into the Hudson River

at Fort Edward—the Last of the Mohicans, Fort Edward. This committee enacted legislation which appropriated money, $20 million,

to clean up those PCBs. And, sir, they are still there. Twenty years

have gone by, and your department has done nothing; the Department of Environmental Conservation—I’m sorry, the Department

of Environmental Conversation——

[Laughter.]
67

Senator MOYNIHAN [continuing]. Has done nothing. And yet it

doesn’t seem to trouble people. You around, putting into place extraordinary proposals. I have a friend in Columbia County who

happened to have a lake that was a millpond at one point; he

wanted to restore the lake, and the department said, ‘‘Well, you

could do it for about a million and a half dollars.’’

This litigation pattern has become entropic and it defeats its purposes. Would you go back and ask the Attorney General whatever

happened to that money that this committee provided to get rid of

those PCBs?

Mr. JOHNSON. I would be happy to go back.

Just for clarification, I am with the Attorney General’s Office.

The Department of Environmental Conservation is a separate

State agency.

Senator MOYNIHAN. We have more than a few State agencies, I

assure you. We invented them.

[Laughter.]

Mr. JOHNSON. I can tell you that the Department of Environmental Conservation and the New York State Attorney General’s

Office have, in the past 5 years, issued a number of violations to

the General Electric Company with respect to the discharge and

the failure to clean up aspects of PCB contamination. As a result

of those actions, GE has spent in excess of $50 million in the last

several years to address that contamination.

Senator MOYNIHAN. As a result of those actions, GE is leaving

New York State. I’m quite serious. From the beginning of the Love

Canal to the PCB leaks, there is a lot of entropy in this system.

Mr. Chairman, we congratulate you on your statute.

Ms. Subra, I thank you, too.

Senator CHAFEE. Does anybody have a question for these fine

witnesses who have come so far?

[No response.]

Senator CHAFEE. Well, we want to thank all of you very much

for coming. I know that each of you came a long distance and——

Senator BAUCUS. Mr. Chairman, if I might—I’m sorry to interrupt you.

Senator CHAFEE [continuing]. We have your testimony, and it

was very constructive and helpful. We are going to go ahead as

Senator Smith has suggested. We will be meeting with Administrator Browner as soon as reasonably possible, Senator Baucus,

Senator Lautenberg, and myself. Your testimony has been very

constructive.

Senator MOYNIHAN. Can we submit questions?

Senator CHAFEE. Certainly, you can. Well, why don’t you ask it

now?

Senator MOYNIHAN. No, sir, they are questions that I think the

Governor would like to have some time for.

Senator CHAFEE. All right.

[The questions and the answers thereto follow:]
68

OFFICE OF THE ATTORNEY GENERAL,

New York, NY, September 9, 1997.

Hon. JOHN H. CHAFEE,

Chairman, Committee on Environment and Public Works,

U.S. Senate Washington, DC.

re: Committee Hearing of September 4, 1997.

DEAR CHAIRMAN CHAFEE: At the September 4, 1997, hearing on your revised version of S. 8, Senator Moynihan asked me the fate of $20,000,000 that had been appropriated for the use of the New York State Department of Environmental Conservation (‘‘NYSDEC’’) for a Hudson River demonstration project addressing PCB

contamination. I request that this letter responding to that question be included in

the hearing record.

In Public Law 96–483, § 10 (October 21, 1980), Congress provided that up to

$20,000,000 may be obligated by the United States Environmental Protection

Agency (‘‘EPA’’) Administrator for a Hudson River PCB Reclamation Demonstration

Project. The funds would be available to the extent that, as determined by the EPA

Administrator, there were not other funds available from ‘‘a comprehensive hazardous substance response and clean up fund.’’ Federal Water Pollution Control Act,

§ 116(b), 42 U.S.C. § 1266.

In early 1981, EPA granted New York $1.72 million of the Section 116 funds to

begin preparation of the project. By October 1982, NYSDEC had completed and EPA

had reviewed the necessary scientific studies and environmental reviews to select

a location known as Site 10 in Washington County, NY, as the site for an encapsulation facility, a secure landfill, to hold sediments to be dredged from the Hudson

River. However, on December 30, 1982, former EPA Administrator Ann Gorsuch

issued a decision denying release of the remaining Section 116 funds on the ground

that Superfund monies were available.

The State of New York, together with a number of environmental organizations

and others, filed suit against EPA in 1983 regarding Administrator Gorsuch’s determination. In May 1984, after a decision by then EPA Administrator William

Ruckelshaus to reconsider the availability of Section 116 funds, the lawsuit was settled. EPA agreed to grant New York the remainder of the Section 116 funds, approximately $18.2 million, provided that additional scientific work was performed

and that New York identify an appropriate encapsulation site for the dredged sediments and obtain the necessary permits to allow use of the site by 1988.

However, local opposition to the use of Site 10 resulted in a decision in March

1985 by the New York Court of Appeals invalidating the site’s selection on the

ground that the State did not have the authority to overrule local zoning provisions

that would prohibit such facilities. Washington County CEASE, Inc. v. Persico, 64

N.Y.2d 923 (1985). NYSDEC resumed efforts to identify an appropriate disposal site

for the dredged materials that met legal requirements, but was unable to do so before the expiration in 1989 of the funding authority. Consequently, the remainder

of the Section 116 funds was utilized for publicly-owned treatment plant construction as permitted by the statute. That same year, EPA began its Superfund reassessment remedial investigation and feasibility study of the Hudson River to determine whether additional remedial measures should be taken to address the continuing PCB contamination of the river. EPA is scheduled to reach a decision by December 1999.

While measures have been taken to reduce the flow of PCBs to the Hudson River,

the river remains contaminated by large quantities of contaminated sediments that

have affected river biota and its uses, both ecological and human, and have reduced

the value of this natural resource. The changes proposed to CERCLA’s natural resource damage provisions in S. 8 would radically alter the State’s ability to insure

restoration of the river and its environs. We urge that substantial modifications be

made to S. 8 to preserve a central principle of Superfund for our children: making

the public whole when chemical contamination degrades our resources.

In closing, I again thank you and the committee for the opportunity to testify.

Yours truly,

GORDON J. JOHNSON,

Deputy Bureau Chief.

Senator CHAFEE. We also have the testimony that has been submitted by the other witnesses, which we will review if we don’t get

a chance to get back to those witnesses.

Senator CHAFEE. Senator Baucus.
69

Senator BAUCUS. Mr. Chairman, I want to compliment you for

the way you have conducted this hearing, and also compliment

very much the witnesses, who I think have given very good testimony. It will help us in the deliberation and help us to follow up

on your suggestion as well, which originally came from Senator

Smith, that we get back on track, sit down and work this out so

that we come up with a resolution.

Senator CHAFEE. Thank you.

Thank you all again.

[Whereupon, at 4:35 p.m., the committee was adjourned, to reconvene at the call of the chair.]

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF CAROL M. BROWNER, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

INTRODUCTION

Good afternoon, Mr. Chairman, and members of the committee. I am pleased to

have this opportunity to appear before you to discuss the Superfund program and

the progress of legislative reform of Superfund in the 105th Congress.

With all the attention on how to fix Superfund, it is easy to forget what Superfund is all about. 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. Superfund site impacts are real. ATSDR

studies show a variety of health effects that are associated with some Superfund

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), infertility, and increases in chronic lymphocytic leukemia. 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. Earlier this year, in March, I gave you my commitment to participate

in a bipartisan process to build consensus on Superfund legislation. While original

expectations for consensus reform were high, I am disappointed that our shared goal

of enacting responsible Superfund reform legislation this year may not be realized.

I am afraid that the markup of the chairman’s mark of S. 8 scheduled for next week

will not produce a bill that enjoys the support of the Administration, Senate Democrats, or a broad range of Superfund stakeholders. Without this consensus, a Superfund bill cannot become law.

In order to enact such a consensus bill, we must reflect the current, fundamentally different Superfund program. In March, I stressed the need to evaluate statutory reform from the perspective of the Superfund program of today, not on the

basis of out of date problems now resolved. As implementation of the Administrative

Reforms progresses, we continue to appreciate the advantageous flexibility this administrative approach affords us to make adjustments as experience is gained, and

juggle our workload. A good example is the Remedy Update Administrative Reform,

which focuses on adjusting remedies to changing science and technology. Because

of administrative flexibility, in our implementation of this reform we have seized opportunities to make other remedy improvements, and have been able to pace our

updates, so as not to slow down overall cleanup progress.

Building on the progress of the Administrative Reforms, on May 7, 1997, the Clinton Administration provided you with its Superfund Legislative Reform Principles.

These Principles reflect the Administration’s vision for the future of Superfund—a

future that builds upon our progress over the past 4 years. In that time, we have

worked to make Superfund a fundamentally different program, and these Principles

reflect this change. The current Superfund program is faster, fairer and more efficient in protecting the nearly 70 million Americans, including 10 million children,

who live within four miles of a toxic waste site. These Principles were shared so

that you and the many stakeholders affected by these cleanups can understand our

vision for the future and for the legislative reforms that will help shape that future.
70

The Administration’s goals for Superfund reauthorization continue to be to: protect human health and the environment; maximize participation by responsible parties in the performance of cleanups; ensure effective State, Tribal and community

involvement in decisionmaking; and promote economic redevelopment or other beneficial reuse of sites. The Administration further believes that all of these goals

should be undertaken in a manner that: increases the pace of cleanups; improves

program efficiency and decreases litigation and transaction costs; and does not disrupt or delay ongoing progress.

I am encouraged to see some changes to S. 8 have been negotiated since I last testified. Unfortunately, the majority of the bill’s provisions do not reflect the current

state of the program and the Administration’s Principles, and are still troubling.

The Administration began this process ready to work with you to craft Superfund

reform legislation that could attract broad consensus support. We continue to support a consensus based legislative process, and if such a process can be reinstated,

we believe we can craft a proposal that meets our goals and delivers on our commitment to achieve Superfund reform in the 105th Congress.

My purpose today is threefold: (1) to update you on the continued 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 the Administration’s Superfund Legislative Reform Principles, which are

based on the current accomplishments of the Superfund program; and (3) to discuss

our concerns with the chairman’s mark of S. 8, which continues to fail to meet our

Administration’s Principles for responsible legislative reform.

Finally, the Administration remains concerned over the expiration of the authority to replenish the Superfund Trust Fund. It has been 2 years since the tax expired, leaving industry with a windfall while the Trust Fund diminishes. The Congressional Budget Office has projected that the Trust Fund will, at the end of the

next fiscal year, have less remaining than will be needed to keep the program operating, to keep site cleanups underway, in the following fiscal year.

In addition to the expiration of the tax, we are disappointed with the recent denial of-the President’s request for additional appropriated funds to address the backlog of Superfund sites that are currently awaiting cleanup. Without the availability

of these additional funds, many communities will simply have to wait for cleanups

in their neighborhoods, even though the studies are done, and the only thing preventing us from starting cleanup is a lack of funds.

A FUNDAMENTALLY BETTER SUPERFUND PROGRAM

Before discussing Superfund legislation, I’d like to provide an update to my testimony given in March on the current status of the Superfund program. To reiterate,

proof of a faster, fairer, more efficient Superfund program can be found in several

simple indicators. We have completed cleanup at 447 sites on the National Priorities

List, and 500 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 would have allowed us to double our cleanup goals over the next few years

and have 900 sites completed by the end of the year 2000. Our most recent analysis

make us optimistic that we can continue to accelerate the pace of cleanups and

achieve our goal of a 20 percent reduction, or 2 years, in the total cleanup process

time. Additionally, responsible parties are performing or funding approximately 70

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, 66 percent of these in the last 4 years. We offered orphan share

compensation of over $57 million last year to responsible parties willing to negotiate

long-term cleanup settlements, and continued the process this year at every eligible

site. Finally, costs of cleanups 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 to defining

objectives and methods for groundwater cleanups; and EPA’s 15-plus years of implementing the program providing greater efficiencies and lower costs when selecting

cleanup options.

Through the commitment of EPA, State, and Tribal site managers, and other Federal agencies, EPA has achieved real results protecting public health and the environment while experimenting with and instituting changes to our cleanup process

through its Administrative Reforms. EPA is committed to further administrative

and regulatory improvements in the Superfund program in the years ahead. Our objectives for administrative reform have been to:
71

• 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 December

1996 report, the Superfund Settlements Project (SSP), a private organization comprised of industry representatives, acknowledged 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.’’

Since the March hearing, the Administrative Reforms have continued to be evaluated by parties outside the Agency, such as the Chemical Manufacturer’s Association (CMA) and the United Stated General Accounting Office (GAO). In their April

1997 report, CMA, a non-profit trade association whose member companies account

for more than 90 percent of the productive capacity for basic industrial chemicals

in the United States, stated that ‘‘at sites where the reforms have been fully applied

so far, EPA’s reforms have produced benefits that otherwise would not have occurred.’’

GAO, the investigative arm of Congress charged with examining all matters related to the receipt and disbursement of public funds, found that ‘‘while EPA has not

evaluated the overall effects of the reforms, the Agency has reported quantifiable

accomplishments resulting from the implementation of 6 of the 45 reforms.’’ The

GAO report, however, did not attempt to measure the innumerable unquantifiable

benefits of the Administrative Reforms, such as the experience and knowledge

gained from pilot projects, or even the lawsuits not filed as a result of liability reforms for small parties.

For a detailed discussion of the Administrative Reforms, please refer to my testimony before this committee in March. Before discussing the Administration’s Legislative Reform Principles, however, I’d like to provide you with an update on some

of the many successes we have achieved since my last appearance before this body.

Providing Protective Cleanups at Lower Costs

EPA is continuing a number of administrative reforms which promote cleanups

that are technologically and scientifically sound, cost-effective and appropriately

consistent nationally. These reforms will lower cleanup costs, while assuring longterm protection of human health and the environment.

EPA’s National Remedy Review Board is continuing its targeted review of complex and high-cost cleanup plans, prior to final remedy selection without delaying

the overall pace of cleanup. Since the Board’s inception in October 1995, it has reviewed 19 cleanup decisions at 18 sites, resulting in estimated cost savings of approximately $23-$38 million. In addition, EPA has achieved great success in updating cleanup decisions made in the early years of the Superfund program. After 2

years of implementation, more than $500 million in future cost reductions are predicted as a result of the Agency’s review and update of remedies at more than 90

sites. It is important to stress, however, that these future cost reductions can be

achieved while still preserving appropriate levels of protection, and the current pace

of the program.

Increasing the Pace of Cleanups

The completion of 447 Superfund toxic waste site cleanups (as of August 29, 1997)

is a significant measure of the improved pace of cleanups. Currently, over 85 percent of the sites on the National Priorities List (almost 1,200 of 1,347) are either

undergoing cleanup construction (remedial or removal), or have been completed.

EPA is continuing the use of its Superfund Accelerated Cleanup Model (SACM) to

spark early cleanup action, and standardized or ‘‘presumptive’’ remedies, as well as

other reforms, to maintain and increase this pace.

Promoting Fairness in Enforcement

EPA’s ‘‘Enforcement First’’ strategy has resulted in responsible parties performing

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. Through Administrative Reforms, EPA has addressed the concerns of stakeholders regarding the fairness of the liability system. EPA has continued implementation of its 1996 ‘‘orphan share compensation’’ policy, under which EPA offers to

‘‘forgive’’ a portion of its past costs and projected future oversight costs during every
72

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 has encouraged

settlement, rather than litigation, and enhances the fairness and equity of settlements. Last year, the Agency offered over $57 million in orphan share compensation

to potential settling parties across the United States, and continued that practice

this year at every eligible negotiation.

In addition, EPA continues to use its settlement authority to remove small volume

waste contributors from the liability system, responding to the burden third-party

litigation can place on parties that made a very limited contribution to the pollution

at a site. To date, the Federal Government has completed settlements with over

14,000 small volume contributors at hundreds of Superfund sites, protecting these

parties from expensive private contribution suits. In addition, EPA continues to step

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. The real success of this approach is to be measured by the untold number

of potential lawsuits that we have discouraged.

Finally, EPA is continuing the successful use of site-specific special accounts to direct settlement funds toward cleanups (over $220 million in principal, and $35

million interest generated from more than 70 accounts), and is continuing implementation of its many pilot projects, such as the allocation pilot project, as well as

other reforms to the liability system.

Involving Communities and States in Decision Making

The Agency supports the principle that communities must be offered opportunities

for involvement in the cleanup process as early as possible and continue to be involved to the time the site is cleaned up. Our ‘‘consensus-based’’ approach to the

remedy selection process continues 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. In addition, our Regional Ombudsmen continue to serve as a direct point of contact for

stakeholders to address their concerns at Superfund sites, and our electronic lines

of communication and our Internet pages continue to provide information to our varied stakeholders on issues related to both cleanup and enforcement.

Additionally, EPA continues to acknowledge the successes that States are achieving conducting thousands of hazardous waste site cleanups under State and Federal

Superfund programs. Most of these sites are short-term, relatively inexpensive actions that address immediate hazards, and a growing number are conducted pursuant to State voluntary cleanup programs, as discussed below. EPA is continuing to

increase the number of sites where States and Tribes are taking a lead role in assessment and cleanup using the appropriate mechanisms under the current law.

Agreements such as those with the State of Minnesota and the State of Washington

are excellent examples of these efforts, which build upon a foundation of demonstrated State readiness, and provide clear State decisionmaking authority with

support from, but minimal overlap with EPA.

States are developing voluntary cleanup programs to speed up the cleanup nonNPL sites, which, generally speaking, pose a lower risk than those sites listed the

NPL. These voluntary cleanup programs pose an alternative to the conventions

CERCLA or State Superfund-like enforcement approach to cleaning up contaminate

sites. Through State voluntary cleanup programs, site owners and developers identify and cleanup sites by using less extensive administrative procedures. The site

owners and developers may then obtain some relief from future State liability for

past contamination. This approach encourages cleanup of sites, such as Brownfields,

that might otherwise not be cleaned up because of limited Federal and State resources.

In addition, financial and real estate sectors are sometimes reluctant to support

the redevelopment of brownfields and lower risk sites because they are concerned

about potential Superfund liability. Some developers have also expressed concern

the uncertainty arising from potentially overlapping Federal/State cleanup authority

can become a disincentive to clean up and redevelopment of these sites. EPA is addressing this concern by clarifying EPA and State roles and responsibilities, which

helps reduce such uncertainty and promotes the cleanup and redevelopment of lower

risk sites, such as Brownfields.

To encourage partnerships with States and Tribes, EPA recently announced issuance of draft guidance that promotes State voluntary cleanup programs, and encourages States to create such programs. The draft guidance sets out baseline criteria

that EPA will use to evaluate State voluntary cleanup programs. This evaluation

will be part of the negotiation of a Memorandum of Agreement (MOA), or planning
73

document providing roles and responsibilities between EPA and the State the cleanup of lower risk sites. For those sites included within the scope of the MOA, EPA

will not exercise cost recovery authority and does not generally anticipate taking

CERCLA removal or remedial actions at sites except under limited circumstances.

In addition, this draft guidance includes a draft site designation or screening process and proposes that this new process be used in conjunction with the guidance

to designate sites as either Tier II (lower risk sites that are eligible for inclusion

with the scope of an MOA concerning a State voluntary cleanup program) or Tier

I (high risk sites of the type that historically have been listed on the National Priorities List Tier I sites are not eligible for inclusion within the scope of an MOA concerning a State voluntary cleanup program. The Agency believes this is a unique

and valuable feature of the guidance because it will enable developers and other

parties to use the process outlined to make Tier I and Tier II designations. Understanding the potential for Superfund involvement enables stakeholders to make

more informed property cleanup, transfer and redevelopment decisions.

The guidance has been published in the Federal Register for review and comment.

In conjunction with the Brownfields Initiative, EPA also authorized financial assistance to such voluntary cleanup programs. EPA is providing $10 million, earmarked

in fiscal year 1997 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.

Promoting Economic Redevelopment

EPA is continuing to promote redevelopment of abandoned and contaminated

properties across the country that were once used for industrial and commercial

purposes (‘‘brownfields’’). Brownfields sites exist in this country, affecting virtually

every community in the Nation. The Administration believes strongly that environmental protection, public health, and economic progress are inextricably linked.

Rather than separate the challenges facing these communities, our brownfields initiative seeks to bring all parties to the table—and to provide a framework for them

to seek common ground on the whole range of challenges: environmental, economic,

legal and financial. The EPA brownfields pilot grants are forming the basis for new

and more effective partnerships. In many cases, city government environmental specialists are sitting down together with the city’s economic development experts for

the first time. Others are joining in—businesses, local residents, community activists.

EPA’s 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 is designed to further identify, strengthen, and improve the commitments EPA and its colleagues can make to brownfields.

The Brownfields Assessment Pilots form a major component of the Brownfields

Action Agenda. EPA has committed to fund 115 assessment pilots to date at up to

$200,000 each. We are also preparing to award a second stage of brownfields pilots

this year: The Brownfields Revolving Loan Fund (BRLF) Pilots are designed to enable eligible States, cities, towns and counties, Territories, and Indian Tribes to capitalize revolving loan funds to safely cleanup and sustainably reuse brownfields.

EPA’s goal is to select BRLF pilots that will serve as models for other communities

across the Nation. In the 1997 fiscal year, EPA’s budget for brownfields includes $10

million to capitalize BRLFs. Only entities that have been awarded National or Regional Brownfields Assessment Demonstration Pilots by September 30, 1995, will be

eligible to apply to EPA’s BRLF pilot program. Therefore, up to 29 BRLF pilots may

be awarded in fiscal year 1997. Fiscal year 1997 BRLF pilots will be funded at up

to $350,000. The BRLF will be awarded through an evaluation process. Eligible entities will be required to demonstrate evidence of a need for cleanup funds, ability

to manage a revolving loan fund, ability to ensure adequate cleanups, and a commitment to creative leveraging of EPA funds with public-private partnerships and

matching funds/in-kind services.

Another facet of the Brownfields initiative is also scheduled for implementation

this year. The Brownfields Showcase Communities project is an attempt to focus

Federal Government attention on selected communities across the United States.

Those communities selected through an application process will receive special technical, financial and targeted Federal assistance to address issues of contaminated

urban and rural properties.
74

EPA and 15 other Federal agencies are sponsoring the Brownfields Showcase

Communities project. Through a multi-agency panel, applications will be reviewed

and 10 Showcase Communities will be selected in 1997. These communities will be

models for Federal coordination and cooperation.

Finally, our recent work-together to enact the Brownfields Tax Incentive fully

demonstrates our shared commitment to responsible legislation on these issues.

This is a 3-year tax incentive plan that will reduce the cost of cleaning up thousands

of contaminated, abandoned sites in economically distressed areas. It is anticipated

that this $1.5 billion tax incentive will leverage more than $6 billion in private

funded cleanups at an estimated 14,000 brownfields.

SUPERFUND LEGISLATIVE REFORM PRINCIPLES

The Agency continues to implement 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 based its goals for Superfund legislative reform on the status of the current, reformed program.

Legislative reform must build upon the successes of the current Superfund program and the lessons learned through three rounds of Administrative Reform. We

believe legislative reform must be targeted to address critical issues in need of a

legislative solution. Our goals for legislative reform continue to be to: protect human

health and the environment; maximize participation by responsible parties in the

performance of cleanups; ensure effective State, Tribal and community involvement

in decisionmaking; and promote economic redevelopment or other beneficial reuse

of sites, all in a manner that increases the pace of cleanups, improves program efficiency and decreases litigation and transaction costs, and which does not disrupt or

delay ongoing progress.

Protection of Human Health, Welfare and the Environment

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, and restore groundwater to beneficial uses, wherever practicable.

In order to facilitate these goals, the Administration supports treatment for those

wastes that are highly toxic or highly mobile, in light of the continuing challenges

in ensuring the long-term reliability of engineering and institutional controls, as

well as the limitations that containment and institutional controls place on productive reuse or redevelopment of property. The Administration supports modifying the

current mandate for permanence to emphasize long-term protection and reliability.

The Agency continues to believe that treatment of highly toxic or highly mobile

waste offers advantages over containment or other measures. As a result, we are

currently striving to implement these goals today, using treatment where necessary,

at. such sites as the Bayou Bonfuoca Site in Louisiana. At this site, EPA determined

that incineration was necessary to treat creosote waste, including Benzo(a)pyrene,

that had leaked into a bayou. The creosote mixture was so potent, that divers received second degree chemical burns from contact with the contaminated sediments.

The contamination appeared to have killed all life in the bayou. Treatment was necessary at this site to permanently eliminate the threat from these materials.

Additionally, legislation should not alter our goal of restoring groundwater to beneficial uses, wherever practicable. Over half of this nation’s population relies on

groundwater at 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. As a result, we believe that Maximum Contaminant Levels under the Safe Drinking Water Act or more stringent applicable

State standards should be established as the cleanup standards for groundwater

whose beneficial use is, or is anticipated, to be a drinking water source, unless technically impracticable.

Under the current program, EPA is using ‘‘smart’’ groundwater remediation to

provide appropriate levels of protection at lower cost. 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
75

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. This flexibility conserves resources and should be retained in any future legislation.

Another important principle supported by the Administration requires the continued consideration of reasonably anticipated future land uses, based on consultation

with the affected community, site owners, and others, in the process of selecting

cleanup options. By involving the community in this manner, we can structure

cleanups that not only protect human health and the environment, but also meet

the needs of the local community.

Additionally, the Administration believes that cleanups should comply with the

applicable substantive requirements of other Federal environmental laws and State

environmental or facility siting laws applicable to clean up activities. It is important

to continue to protect theme strong State and Federal interests, especially where

these requirements directly relate to the cleanup activities being considered. However, the Administration does support some flexibility regarding requirements that

have been traditionally referred to as ‘‘relevant and appropriate.’’ As a result, the

Administration supports removing the statutory requirement to comply with these

requirements.

Finally, there are many components of Superfund cleanup provisions proposed by

various parties that the Administration would strongly oppose. Chiefly among them

are provisions that would mandate reopening of cleanup decisions; provisions that

would fail to discourage contamination of currently uncontaminated land, groundwater, or natural resources; provisions which would require prescriptive cost or risk

assessment requirements; and most importantly, provisions which would delay

cleanups or result in cleanups that are inadequately protective of human health,

welfare, and environmental and natural resources.

Fairness and Reduced Transaction Costs

In discussing any proposed legislative changes to the Superfund liability scheme,

it is imperative to retain the fundamental principle that those responsible for the

contamination must pay 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.

Within this bedrock principle, however, the Administration supports clearly defined exemptions or limitations on liability which reflect EPA’s experience with Administrative Reforms. As a result, the Administration would support liability reform

for certain generators or transporters of municipal solid waste, and for parties who

sent less than 110 gallons or 200 pounds 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.

EPA has continued its Administrative Reform policy of offering compensation for

the ‘‘orphan share’’ (the contribution for responsibility attributable to insolvent and

defunct parties) 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 supports legislation creating a separate mandatory spending account for orphan share, consistent with the

President’s Fiscal Year 1998 budget request, so that funds for orphan share do not

compete with cleanup dollars or reduce the funding available for response actions.

One of the major benefits of our Administrative Reforms was the ability to experiment administratively with provisions of proposed Superfund laws through ‘‘pilots.’’

Specifically, the consensus bill in the 103d Congress provided for an allocation process used to assess liability and distribute orphan share funding. While the Administration originally supported these provisions, and continues to support a process to

help resolve issues related to settling liability, EPA’s experience with several allocation pilot projects has informed our position and demonstrated some of the serious

drawbacks with a rigid and prescriptive process. As a result, the Administration

currently supports the use of a flexible, non-prescriptive process that makes effective use of available orphan share funding to reduce transaction costs by promoting

settlements and encouraging allocation of costs among settling parties.

We also support statutorily addressing the liability of generators and transporters

of municipal solid waste. EPA and the Justice Department recently issued a new

municipal liability policy. Preliminary comments are extremely favorable toward the

policy, which provides the opportunity for expedited final settlements for municipal

owners, and generators and transporters of municipal solid waste. The Administra-
76

tion would support statutory changes which are consistent with this new policy. In

addition, we believe that we should address the issue of bona fide 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 900 additional cleanups through

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 exactly alike.

In some communities, citizens are disinterested in some large-scale NPL cleanups,

and in other communities, citizens are keenly interested at some smaller scale

cleanups. As a result, the Administration supports continued efforts to enhance community involvement and development and provision of information to communities,

including the opportunity for formally established community advisory groups at

Superfund sites.

Consistent with our experience, we support making Technical Assistance Grants

(TAGs) available to citizens at non-NPL sites, in addition to NPL sites. Additionally,

the Administration would like to continue to ensure direct input from citizens into

the development of assumptions regarding reasonably anticipated land uses upon

which cleanups 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.

Given the importance of public health information, we also support the continued

protection of the health of people in communities impacted by Superfund sites

through efforts of public health assessments, health effects studies, and other public

health activities prescribed by law. In addition, the Administration also supports ensuring that communities have access to information about releases of hazardous

substances and other toxics.

Finally, the Administration is strongly opposed to any provisions in a new law

that would impair meaningful community input and involvement, or would disrupt

existing citizen advisory groups or use inappropriate, prescriptive membership requirements for such groups.

Enhanced State and Tribal Efforts

In addition to the many changes and accomplishments of 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; they have greatly expanded the number of hazardous waste sites cleaned up to protect human health and the environment. We

fully support better coordination between Federal agencies and the States and

Tribes.

As a result, the Administration supports Superfund legislation that provides

greater opportunities for States and Tribes to address a full range of hazardous

waste sites for which they have the necessary response capacity. EPA will provide

the financial and technical support needed to further improve existing programs. In

order to do this, we support the use of flexible ‘‘partnership agreements’’ between

EPA and States and Tribes, based upon demonstrated resources and capabilities, to

enable all parties to work together to determine which sites should proceed under

what authorities, and under whose lead, so that governmental resources are complementary, not duplicative.
77

Over the last 4 years, States, Tribes, and EPA have been implementing this process at many sites, and the results are encouraging. 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 on the CERCLIS inventory. However, the more

interesting story here is the tremendous variety of arrangements EPA and States

and Tribes have worked out to address waste sites.

Because of the widely divergent status of Superfund programs at the State level,

flexibility, as opposed to a ‘‘one-size-fits-all’’ approach, is crucial. We have seen the

success of partnership agreements with such States as Minnesota and Washington,

which have entered into Superfund program partnerships with EPA’s Regional offices. As stated previously, these partnerships build upon a foundation of demonstrated State readiness, and provide clear State decisionmaking authority with,

support, but minimal redundancy, from the Regions. Similar successes have been

achieved in agreements with Federal Facilities, such as the agreement between

EPA, the Department of Energy, and the State of Colorado at the Rocky Flats

Superfund site.

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

how we are succeeding today in our efforts to organize our collective resources to

achieve more protective cleanups. Within this context, we must recognize that the

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, for example, that the

Federal emergency prevention, preparedness, and response capabilities, which are

looked to as a model, and for support the world over, remain vital and effective.

Within the context of the flexible partnership, there are, however, several Staterelated concepts that the Administration strongly opposes, including: limitations on

the Federal ability to provide response or to enforce a response; preemption of State

and Tribal cleanup standards; State and Tribal waivers of Federal authority; a

transfer of responsibilities to States or Tribes in a manner that would disrupt or

delay cleanups or that would result in less protective cleanups; or default approvals

of State or Tribal programs.

Finally, the Administration strongly opposes limitations on EPA’s authority to list

sites on the National Priorities List, including a cap on further listings on the NPL

or premature or ‘‘default’’ deletion of sites from the NPL.

Economic Redevelopment

The Brownfields Economic Redevelopment Initiative has continued to achieve

much success. The continuing value of the Brownfields Initiative is its evolution and

promise for the future. To build upon 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 represents the Administration’s position regarding issues facing the current Superfund program. These Principles highlight

some of the major elements we believe should be addressed in order to achieve consensus based, responsible Superfund legislative reform. Other issues addressed in

the Administration’s Legislative Reform Principles include Natural Resource Damages issues and Federal Facility Issues. I hope that we will once again work together toward crafting a Superfund bill that embraces these principles so that we
78

might give the American people a Superfund law that is fully protective and delivers on our commitment to achieve Superfund reform in the 105th Congress.

THE SUPERFUND CLEANUP ACCELERATION ACT OF 1997

The Administration has evaluated the chairman’s mark of S. 8, the Superfund

Cleanup Acceleration Act of 1997, against the same criteria which have guided the

Administration’s Superfund Legislative Reform Principles.

I was pleased to see that since the early introduction of S. 8, several changes have

been made which fall within our Principles. However, the Clinton Administration

strongly opposes the chairman’s mark of S. 8 in its current form. Given the short

amount of time we have had to review the most recent draft, I have tried to identify

the most important concerns below.

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, the chairman’s mark of S. 8 does not embody the Administration’s Superfund Legislative Reform Principles, nor does it fully reflect the current status of the Superfund program.

Inadequate Protection

Remedies under the chairman’s mark of S. 8 would not assure protection of

human health and the environment over the long term because highly toxic, highly

mobile waste would probably not be treated, sources of groundwater contamination

would not be required to be contained and reduced, and levels necessary for protection might be waived on the basis of cost.

No Effective Treatment to Ensure Long-Term Reliability

While the chairman’s mark reflects bipartisan agreements with respect to a number of issues, and significant movement on others, the bill still lacks, what we believe to be, the provisions necessary to ensure that remedies will result in long-term

protection of human health and the environment. While the chairman’s mark contains a new preference for treatment, a substantial burden of proof must be met before the preference can even be applied: a site-specific analysis must demonstrate

that the material (1) cannot be reliably contained, and (2) is highly toxic, and (3)

is highly mobile, and (4) that there is a reasonable probability that actual exposure

will occur. In addition, the bill exempts landfills and mining sites from the preference.

While bills in the 103d Congress contained similar provisions, they were exceptions to a requirement to treat hot spots. As reflected in the chairman’s mark, treatment would probably never even be considered for many sites, that present a multitude of problems, some of which are amenable to treatment. Finally, the preference is neutralized by a conflicting provision, which states that institutional controls and engineering controls are to be considered on an equal basis to all other

remedial actions, regardless of the hazard of the material in question.

As you know, the Administration’s legislative reform principles support the idea

of eliminating the mandate to utilize permanent solutions and treatment to the

maximum extent practicable, in exchange for a new emphasis on long-term reliability, and retention of the preference for treatment of highly toxic or highly mobile

waste. We believe such changes would eliminate the potential for ‘‘treatment for

treatment’s sake,’’ but retain an appropriate presumption that materials posing the

‘‘principal threats’’ at sites due to the intrinsic hazards poked by their toxicity or

mobility should be treated, unless impracticable.

Treatment of highly toxic or 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. 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.

Groundwater Not Adequately Protected

The groundwater provisions of the chairman’s mark reflects substantial movement

from S. 8 as proposed. I am pleased to see that restoration of contaminated groundwater to beneficial uses, unless technically impracticable, has been embraced, as

called for by the Administration’s principles. I am concerned, however, that two critical provisions necessary to ensure protection in the case where complete restoration

is technically impracticable are notably missing—a requirement to contain and reduce sources of pollution that cannot be eliminated entirely and may continue to re-
79

lease pollutants to ground or surface water, and a requirement to contain the dissolved plume.

One issue on which there a high degree of consensus is that restoration of an aquifer or part of an aquifer cannot occur unless new contamination is prevented from

entering the groundwater. Given that a five-gallon bucket of the commonly used solvent trichloroethylene (TCE) can contaminate 800 million gallons of water at levels

above drinking water standards, leading to enormous cleanup costs, it is imperative

to control and minimize such sources. That is why the groundwater policies the

Agency has issued under its Administrative Reform efforts have called for early control of both surface and subsurface-sources as critical to successful groundwater remediation efforts. Surface sources include lagoons or landfills which may be leaching

contaminants into groundwater. Effective control of such sources is one of the components critical to making monitored natural attenuation a viable cleanup option for

some groundwaters.

Dense and light non-aqueous phases liquids, (DNAPLs and LNAPLs) are good examples of subsurface sources which can pose a greater threat to groundwater over

time because of the potential for the contaminants to migrate and accumulate in

less accessible zones. The diverse panel of experts the National Research Council

drew together to write ‘‘Alternatives for Groundwater Cleanup’’ in 1994 advocated

that ‘‘measures to remove contaminants from zones where the release occurred and

to contain contaminants that cannot be.removed should be-taken as soon as possible

after the contamination occurs.’’ Requirements for such measures have appeared in

numerous bills in the past. The absence of a minimum requirement in the chairman’s mark to control and reduce sources in cases where full restoration is technically impracticable, and to contain the plume, removes an assurance citizens have

come to expect and will cause needless debate over what should be codified as a best

practice.

Waiver from Protection?

Of continuing concern are conflicting provisions in the chairman’s mark which

seem to expand the ‘‘technical impracticability’’ waiver from current law to permit

not only applicable requirements of other laws to be waived on the basis of cost,

among other factors, but also cleanup levels established as necessary-to protect

human health and the environment at a site where applicable requirements are not

This standards are waived, the President shall select a ‘‘technically practicable’’ remedial action that ‘‘protects human health’’ and most closely achieves the protectiveness goals. The conflict in the language is confusing. We cannot afford any confusion

over the fact that protection of human health and the environment is a fundamental

mandate that must be met in all cases without exception.

In addition, by prescribing numeric risk goals, the bill would lock the Agency into

current methods of expressing and measuring risk, which are in transition as the

science is changing. Under the Agency’s new cancer guidelines, there will be decreasing reliance on linear models which underlie the ‘‘risk range’’ Superfund currently uses for managing risks, and new units of measures, including ‘‘margin of exposure’’ will begin to be used. Protectiveness goals are best dealt with qualitatively,

or left.to the Agency to address in regulations or guidance.

The bill unnecessarily codifies current practice regarding how determinations of

protectiveness are made, and leaves out the ‘‘point of departure’’ used to establish

‘‘safe’’ levels of carcinogens risks within the risk range of 10–6 and 10–4, by not explicitly addressing sensitive sub-populations, and by inappropriately linking the

hazard index to threshold carcinogens, which we only use for noncarcinogens.

The Chairman’s Mark Would Delay Cleanup

One issue upon which I think we would all agree is that the pace of cleanups

should not be derailed. We are currently showing tremendous progress in addressing the current sites on the NPL, and strongly oppose any provisions that could negatively affect that progress.

Mandated ROD Reviews

I appreciate that the chairman’s mark attempts to capture the ‘‘spirit’’ and features of the Agency’s ‘‘Remedy Update’’ Administrative Reform, than did the extremely onerous remedy review provisions in the original S. 8. Under current law,

remedy updates have yielded impressive results, however I remain concerned that

the regimented mandate the chairman’s mark contains will still result in delays and

disruptions to the program that are at odds with the Administration’s commitment

to speed the pace of cleanup. The artificial deadlines on petition submission and

Agency review, the mandated role of the remedy review board, and the implied comment process all promise to transform the current administrative process that is
80

yielding $340 million in cost savings in fiscal year 1996 and another $280 million

estimated to date for fiscal year 1997 into a resource-intensive diversion from cleanup.

While the remedy review provisions initially appear to provide discretion to the

Agency in its reviews, this language is illusory. The chairman’s mark requires the

Agency to prioritize petitions, which in turn requires an evaluation of each petition

against eight factors. As a result, the discretion provided in one portion of the provisions is effectively negated in another.

Based on our experience with the Remedy Update Reform and the National Remedy Review Board, our preliminary analysis indicates that the task of implementing

the 180 day petition review and prioritization process could consume approximately

70 percent of our workforce of remedial project managers and policy experts for over

a year, diverting attention from moving projects to completion. Keep in mind that

remedy changes can precipitate changes in consent decrees and interagency agreements, which will also take time and divert attention away from cleanup—increasing, not reducing, transaction costs. I agree that appropriate remedy changes should

be made, but I urge retention of the flexibility the current administrative process

affords the Agency to balance ‘‘rework’’ of old decisions with forward progress at

sites.

Prescriptive Remedy Review Board

The Remedy Review Board would certainly have a dramatically expanded workload under the chairman’s mark. In addition to its role in reviewing past decisions,

the Board would continue its efforts begun under the Administrative Reforms to review proposed remedial action decisions. Again, I am pleased with the endorsement

of the Remedy Review Board reflected in its codification in the chairman’s mark,

but-am concerned that some unhelpful prescription has been picked up in the translation. Specifically, The chairman’s mark requires that fully one-third of all draft

decisions the Board should be reviewed in any given year, a dramatic increase in

workload from the approximately 10 percent of decisions the Board plans to review

under its current criteria. The chairman’s mark also adds a notice and comment

process relating to the Board’s recommendations to the opportunity to comment on

the official Proposed Plan the public already has under current law, adding significant delay.

Overly Prescriptive Risk Assessments

The chairman’s mark retains some troublesome features of S. 8’s risk assessment

provisions. Most notably, the over broad requirement for site-specific chemical data

simply makes no sense. Toxicity, the primary type of chemical-specific information

used in risk assessment, does not generally change from site to site. In addition,

toxicity studies cost hundreds of thousands of dollars, and several years to conduct.

Peer-reviewed Agency toxicity criteria should be used along with site-specific exposure information. Also, the requirement for ‘‘central. upper-bound and lower bound

estimates’’ of risk for each facility are inappropriate for site-specific risk assessments, but rather apply to chemical-specific risk assessments like those found in

IRIS or to be performed under the Safe Drinking Water Act.

Site-specific risk assessment in Superfund use Agency toxicity criteria along with

site-specific measures of exposure. Superfund relies on a high-end estimate of exposure (between a central and upper-bound estimate) that neither minimizes nor exaggerates risks posed by contaminants at the site. This estimate, along with consideration of sensitive sub-populations, forms the basis.for making cleanup decisions that

will ensure protection of human health. Finally, the requirement for risk assessment

to specify ‘‘each uncertainty identified in the process . . . and research that would

assist in resolving the uncertainty’’ would lead to paralysis by analysis. Only significant uncertainties need to be identified to better inform the risk management decision.

The Chairman’s Mark has Broad Liability Exemptions

While we are encouraged by the limited focus on parties whose liability we believe

should be addressed, such as generators of municipal solid waste, de micromis generators, recyclers, and municipal owners of co-disposal landfills, the Administration

continues to have several major concerns regarding many of the liability provisions

of the chairman’s mark of S. 8.

The revised legislation continues to exempt or limit the liability of parties that

are viable and liable and should remain responsible for cleanup of their sites. As

an example, the chairman’s mark 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 asso-
81

ciated with their waste or the impact that waste may have on the cleanup. At the

Delaware Sand and Gravel Site, for example, the chairman’s mark 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.

The chairman’s mark also continues to limit the liability of private owners and

operators of ‘‘co-disposal’’ sites—a position EPA has never endorsed. Under the

terms of the chairman’s mark, major waste 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 the revised S. 8’s orphan share funding provisions. In fact, as the chairman’s mark 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 the chairman’s

mark, a ‘‘co-disposal’’ landfill is one which contains ‘‘predominantly’’ municipal solid

waste. The term ‘‘predominantly’’ 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 small business exemption found in the chairman’s mark 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 these contributors.

Instead of blanketly exempting these parties, without regard to their contribution

or company-specific circumstances, we support the use of other tools to address the

liability of these parties, including a litigation moratorium on small businesses with

an ability-to-pay problem; and exemption for small businesses who are generators

or transporters of municipal solid waste; and penalties to discourage frivolous lawsuits against small businesses.

Further troubling aspects of the liability exemptions and limitations in the chairman’s mark include the problem that they apply prospectively—effectively eliminating the incentive for sound waste management practices. Also, the liability provisions apply only to sites on the NPL, ignoring certain parties such as residential

homeowners and small volume contributors at non-NPL sites that would still be liable for their wastes. Finally, the liability provisions do not eliminate contribution

litigation against the parties most in need of such protection, such as the residential

homeowners and small volume contributors described above. This violates the Administration’s Principles, which seek to reduce litigation and transaction costs.

In addition, the liability exemptions and limitations in the chairman’s mark, 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, the chairman’s mark 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.

The chairman’s mark 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

The chairman’s mark 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
82

unclear, proof of illegal or culpable behavior would be impossible at most sites, because the bill’s language requires court action at the time of the activity.

The Allocation Process is Too Broad and Prescriptive

Though the chairman’s mark simplified the allocations procedures and made clear

that EPA can require a potentially responsible party to perform work at a site, the

Administration continues to have a number of concerns with the 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.

The chairman’s mark requires formal and prescriptive allocations at all multiparty sites on the NPL where post-enactment costs are outstanding (over 1,200

sites), even where the parties are exempt from liability under the revised S. 8. In

addition, under the chairman’s mark, 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 protecting small volume contributors or parties with an inability to pay, and thus from protecting them from the transaction

costs associated with an allocation. Finally, the revised 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 who is responsible for 5 percent of

the costs 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, we believe that legislation should reduce transaction costs by promoting settlements and encouraging contribution allocation of costs among settling parties through a flexible, nonprescriptive process that makes effective use of available ‘‘orphan share’’ funding.

Other Liability Concerns

The chairman’s mark of S. 8 precludes Federal or administrative enforcement action at any facility that is subject to a State remedial action plan. The revised 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 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.

Finally, we remain concerned with the very broad exemptions, and few limitations, placed on the liability of cleanup contractors.

The Chairman’s Mark Provides General Support for Communities

The Administration supports many of the changes made to the Community Participation Title of the chairman’s mark of S. 8, which generally improves public participation in the Superfund decisionmaking process. However, the Administration is

concerned with several omissions from the Title.

Lack of Public Health Support

The chairman’s mark of S. 8 fails to provide adequate support for public health

concerns. The Administration supports the continued protection of human health of

communities effected by Superfund sites through efforts of public health assessments, health effects studies, and other public health activities prescribed by law.

Prior legislative proposals have provided transparency to the public regarding many

of the Agency for Toxic Substances and Diseases Registry’s (ATSDR’s) responsibilities at Superfund sites.

The Chairman’s Mark Provides Incomplete Support for States and Tribes

One area in which we seem to agree is our desire to provide greater involvement

for States and Tribes in the Superfund program. While we support enhanced flexibility in accomplishing this goal, the previsions in the chairman’s mark fail to ensure that authorities are transferred in a responsible manner. We do, however sup-
83

port the new provisions which allow States to request removal of sites from the

NPL, with an appropriate role for EPA in responding to such a request.

Problematic State Delegation and Authorization Processes

The chairman’s mark of S. 8 provides a confusing array of opportunities for States

to implement the Superfund program, including authorization, expedited authorization, delegation, and limited delegation. The chairman’s mark may also make all of

these opportunities unnecessary, because of provisions in the voluntary cleanup portion of the bill that seem to circumvent most requirements at Superfund sites, as

discussed below. We believe that any transfer of responsibility should be accomplished in a responsible manner, taking into account individual State program characteristics, and should provide appropriate reviewable criteria as part of the transfer process. While the Administrator may review appropriate criteria as a part of

the authorization process, we are extremely troubled by the criteria relating to expedited authorization.

Instead of relying on criteria which relate to the capability of a State to undertake

Superfund cleanups, the limited criteria for expedited cleanups provide for self-certification and relate primarily to cosmetic aspects of State programs, such as whether the total number of employees in the State program exceeds 100, whether the

length of time the State program has been in effect exceeds 10 years, or whether

the number of response actions taken by the State program exceeds 200.

While these criteria may provide some insight into the State program, they do not

justify the conclusive presumption of capability in the chairman’s mark. For example, these facts provide no information about the capabilities of the State to conduct

large scale Superfund site cleanups, the types of cleanups that have been performed,

or even whether those cleanups were successful and to what degree. Given the ease

of meeting the criteria required to receive expedited authorization, it is unlikely that

a State would ever pursue more meaningful delegation or full authorization agreements with EPA.

We continue to believe, consistent with our Principles, that the best manner in

which to transfer responsibility to the States is through a process which identifies

a workable division of labor between States and EPA. Through this process, we can

ensure protective cleanups for all Americans by allowing State and Federal programs to utilize their strengths where needed, without resorting to a hasty transfer

of responsibilities or a cookie-cutter, one-size-fits-all approach.

Transfer of Responsibility is Approved by Default and Limits Citizen Access

Additionally, we remain concerned with the default approval process set out in

the chairman’s mark. With regard to delegations, the chairman’s mark provides

automatic approval of a State application if the Administrator does not approve or

disapprove the application in a specified timeframe. Similar short timeframes also

apply to applications for expedited authorization, resulting in permanent approvals

without regard to ability, and with little accountability after the decision or lack of

a decision. As a result, the Administrator, and any other person, lose all opportunity

to challenge the certification in a judicial or administrative proceeding.

Even with the limited exceptions or extensions, 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.

Finally, the chairman’s mark provides for no public notice or comment on a proposed approval or disapproval of a State application to take over the program. In

the case of the chairman’s mark, 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. The

public is also barred from taking civil action against any person for any matter that

has been transferred.

Limiting Ability to Respond to Emergency Removals

The chairman’s mark requires EPA to give a State 48 hours notice before EPA

can take action to perform emergency removal actions at non-Federal listed facilities, unless EPA determines that a public health or environmental emergency exists, or EPA determines that the State has failed to act within a reasonable period

of time. Without regard to the vague terminology of the exceptions, even in situations that arguably might not meet the definitions of public health or environmental

emergencies, 48 hours in the life of an emergency removal action can sometimes be

an eternity. Within that timeframe, contamination can easily spread, causing increased cleanup costs and durations. Though the provisions allow EPA to act in circumstances where EPA determines that the State has unreasonably delayed its re-
84

sponse, any such delay can result in disrupted cleanups. These provisions, in concert

with unrealistic delegation timeframes, could severely limit the emergency response

system which has been so successful in responding to chemical spills, fires, and

other emergencies.

Other State Issues

Besides the issues listed above, there are other potential problems with the provisions of the chairman’s mark. For example, the new State cost share requirements

appear to add significant costs to the Trust Fund by Limiting a State’s responsibility for operation and maintenance costs to, at most, 10 percent. Finally, the chairman’s mark provides overly generous incentives for State-managed cost recoveries,

which may not adequately recognize the need to utilize recovered moneys to replenish the Superfund Trust Fund.

The Chairman’s Mark 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 the inclusion of Brownfields provisions, as well as

voluntary cleanup program provisions, within the chairman’s mark. However, in reviewing the revisions to these provisions, concerns remain.

Brownfields Grants are Limited

Although the chairman’s mark would establish grant programs for both

brownfields site characterization and assessment and to capitalize revolving loan

funds for brownfields site response actions, the funding authorization levels do not

reflect the President’s Fiscal Year 1998 budget request. As such, these new grant

programs will be substantially under funded and fail to provide the opportunity for

many communities to benefit from brownfields assessment and cleanup. Among the

other elements of the draft which work against communities, is the limitation on

funding per year. This provision will restrict and inhibit grant recipients from efficiently managing and benefiting from the grant itself.

The revised bill also retains onerous criteria for grant approval and grant application ranking that will prove difficult, in not impossible, to implement. These requirements will also work to the detriment of communities. In many cases, the information requested as part of the application process may not be available until after

the brownfields processes of site investigation and assessment are completed? Similarly, ranking criteria requests call for information that simply cannot be forecast

until cleanup at a brownfield site is completed. In addition, the bill excludes States

from the list of eligible recipients for brownfields characterization grants. EPA’s experience with the Brownfields Pilot Program has taught us that in the case of smaller communities, it may make more sense and be more efficient to provide the grants

directly to States.

Voluntary Cleanup Program Concerns

The Administration is opposed to provisions in the chairman’s mark regarding

voluntary cleanup. Title I of the bill clearly undermines the need for States to pursue program authorization or delegation under Title II. The voluntary cleanup program is not designed to be, nor should it become; the primary vehicle for hazardous

waste site cleanup in the United States. Under the Title I provisions, the elements

of a qualifying State voluntary response program are only required if assistance is

being sought. The bill should make clear that the Agency determines the adequacy

of a State voluntary cleanup program.

A State voluntary cleanup program, as envisioned by the Agency, is one that

serves as an alternative to conventional CERCLA or State Superfund-like enforcement approaches for cleaning up those sites which generally pose lower risk. It

should not include higher risk sites of the type that historically have been listed on

the NPL. The chairman’s mark explicitly includes such sites as eligible for cleanup

under voluntary programs and provides those and other sites a shield against Federal enforcement and many other current statutory requirements.

Title I allows States to use ‘‘remedial action plans’’ as a shield against Federal

and citizen enforcement. There is no link between a ‘‘remedial action plan’’ and a

‘‘qualifying’’ State voluntary cleanup program.

It should be clear that progress toward the development and enhancement of

State voluntary programs is a condition of funding under this program. Without

such a requirement, the 5-year authorization for voluntary programs, which under

the revised S. 8, allows States to receive over one million dollars during this period,

may be treated as an entitlement program by States.
85

The Administration remains opposed to the provisions in the chairman’s mark

that would severely limit EPA authority to exercise enforcement where there is a

release of hazardous substances, whenever a State remedial action plan has been

prepared, whether under a voluntary response program, or any other State program.

Under the chairman’s mark, the mere existence of such a cleanup plan eliminates

any Federal enforcement authority—even where there may be an-imminent and

substantial endangerment to human health and the environment. This compromise

of public protection is alarming. Moreover, the new notification requirements with

48-hour time limitations seriously compromise EPA’s ability to protect public health,

welfare and the environment. These notification requirements will require the Agency to focus time and resources on administrative determinations, rather than on protecting public health and the environment in emergency situations. While EPA is

burdened with these administrative requirements, the public may be unnecessarily

exposed to substantial threats.

Finally, the level of community involvement provided by the chairman’s mark is

inadequate. The revised bill limits site specific community involvement to an ‘‘adequate opportunity.’’ Unlike the current practices of EPA, DOD, DOE, and some

States, this does not guarantee participation in all levels of the cleanup process, nor

does it guarantee participation in determinations regarding end uses of the property. Coupled with the preclusion of citizen suits at all sites subject to a State remedial action plan, this limitation could result in shutting out citizens from decisions

that affect their health and environment.

Other Concerns

The problems discussed above are not a complete list of problems in the chairman’s mark of S. 8. The revised bill significantly restricts restoration of natural resources injured as a result of hazardous waste contamination. Further, the revised

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.

CONCLUSION

In light of the aforementioned concerns, the Clinton Administration strongly opposes the chairman’s mark of S. 8 in its current form.

However, we look forward to returning to a bipartisan process of legislative negotiations in which to resolve the Administration’s concerns as quickly as possible so

that responsible Superfund reform legislation can be enacted in the 105th Congress.

Mr. Chairman, thank you for this opportunity to address the committee. Now will

be happy to answer any questions you or the other members may have.
86
87

RESPONSES OF CAROL BROWNER TO QUESTIONS FROM SENATOR BOXER

Question 1. I am concerned about the lack of an explicit requirement that cleanup

standards be protective of children, the elderly, and other vulnerable subpopulations. What are your views on this and how do you think the bill’s lowering of remediation standards will affect the protections given our children?

Response. EPA believes that sensitive subpopulations need to be explicitly protected in the statute. This protection will address those individuals who are particularly sensitive to the toxic effects of certain chemicals, or experience much higher

exposures than the general population, such as children. Sensitive subpopulations

are not limited, however, to children. Other examples of sensitive subpopulations

could include subsistence fishermen, exposed to large amounts of contaminated fish,

such as Vietnamese fishermen at the Lavaca Bay Superfund site in Texas; or individuals exposed to multiple sources of contamination. Because the chairman’s mark

of S. 8 does not specifically address sensitive subpopulations, it does not ensure the

more stringent protective measures needed for these at-risk individuals.

Question 2. I am concerned that the ‘‘hot spot’’ language in this bill favoring the

containment of hazardous contamination over the treatment and cleanup of contamination will jeopardize treatment efforts at sites in California. Do you agree?

Response. EPA believes that the chairman’s mark of S. 8 will jeopardize treatment

efforts at all Superfund sites, including those in California. EPA supports a statutory preference for treatment at all sites where the waste is highly toxic or highly

mobile. Treatment of highly toxic or highly mobile waste offers advantages over containment or other measures; it helps ensure that any materials managed on-site

over the long-term would not pose a serious threat to human health and the environment. And obviously, the more contaminated material that remains on-site and

the higher the potential risks it poses, the less likely that productive reuse of that

property, or significant portions of that property, will occur.

As a result, we are currently striving to implement these goals today, using treatment where necessary, at such sites as the Bayou Bonfuooca Site in Louisiana. At

this site, EPA determined that incineration was necessary to treat creosote waste,

including Benzo(a)pyrene, that had leaked into a bayou. The creosote mixture was

so potent, that divers received second degree chemical burns from contact with the

contaminated sediments. The contamination appeared to have killed all life in the

bayou. Treatment was necessary at this site to permanently eliminate the threat

from these materials.

While the chairman’s mark of S. 8 does include a limited preference for treatment,

it is so restrictive as to provide virtually no preference. Specifically, a substantial

burden of proof must be met before the preference can even be applied: a site-specific analysis must demonstrate that the material (1) cannot be reliably contained,

and, (2) is highly toxic, and (3) is highly mobile, and, (4) that there is a reasonable

probability that actual exposure will occur. In addition, the bill exempts landfills

and mining sites from the preference.

While bills in the 103d Congress contained similar provisions, they were exceptions to a requirement to treat hot spots. As reflected in the chairman’s mark, treatment would probably never even be considered for many sites that present a multitude of problems, some of which are amenable to treatment. Finally, the preference is neutralized by a conflicting provision, which states that institutional controls and engineering controls are to be considered on an equal basis to all other

remedial actions, regardless of the hazard of the material in question.

The Administration’s legislative reform principles support the idea of eliminating

the mandate to utilize permanent solutions and treatment to the maximum extent

practicable, in exchange for a new emphasis on long-term reliability, and retention

of the preference for treatment of highly toxic or highly mobile waste. We believe

such changes would eliminate the potential for ‘‘treatment for treatment’s sake,’’ but

retain an appropriate presumption that materials posing the ‘‘principal threats’’ at

sites due to the intrinsic hazards posed by their toxicity or mobility should be treated, unless impracticable.

Question 3. I am concerned about the groundwater cleanup provisions in this bill

because they do not include an affirmative requirement that we treat the source of

the groundwater contamination. Could you please express your specific concerns and

explain why this requirement is important?

Response. EPA shares your concerns about the lack of an affirmative requirement

to contain and reduce sources of pollution that cannot be eliminated entirely and

may continue to release pollutants to ground or surface water. We also believe that

the statute should contain a further requirement to contain the dissolved plume.
88

One issue on which there is a high degree of consensus is that restoration of an

aquifer or part of an aquifer cannot occur unless new contamination is prevented

from entering the groundwater. Given that a five-gallon bucket of the commonly

used solvent trichloroethylene (TCE) can contaminate 800 million gallons of water

at levels above drinking water standards, leading to enormous cleanup costs, it is

imperative to control and minimize such sources. That is why the groundwater policies the Agency has issued under its Administrative Reform efforts have called for

early control of both surface and subsurface sources as critical to successful groundwater remediation efforts. Surface sources include lagoons or landfills which may be

leaching contaminants into groundwater. Effective control of such sources is one of

the components critical to making monitored natural attenuation a viable cleanup

option for some groundwaters.

Dense and light non-aqueous phases liquids, (DNAPLs and LNAPLs) are good examples of subsurface sources which can pose a greater threat to groundwater over

time because of the potential for the contaminants to migrate and accumulate in

less accessible zones. The diverse panel of experts the National Research Council

drew together to write ‘‘Alternatives for Groundwater Cleanup’’ in 1994 advocated

that ‘‘measures to remove contaminants from zones where the release occurred and

to contain contaminants that cannot be removed should be taken as soon as possible

after the contamination occurs.’’ Requirements for such measures have appeared in

numerous bills in the past. The absence of a minimum requirement in the chairman’s mark of S. 8 to control and reduce sources in cases where full restoration is

technically impracticable, and to contain the plume, removes an assurance citizens

have come to expect and will cause needless debate over what should be codified

as a best practice.

Question 4. I am concerned about the lack of flexibility in the bill regarding the

delegation and authorization of States. EPA is not given the option of partial dedelegation or de-authorization. What are your thoughts on this?

Response. Many aspects of the State role as established in Titles I and II in the

chairman’s mark of S. 8 are of concern to me. The legislation requires EPA to approve or disapprove a State’s application without the ability to set conditions related

to that approval. If, at any time, EPA finds that a State does not meet certain criteria, the Agency may withdraw the program after meeting certain mandatory requirements, including, providing written notice, a 90-day period for the State to correct deficiencies and public notice and comment. This process, which we believe

would minimally take 6 months, provides the only way for EPA to take independent

action, except to address an emergency situation.

To repeat, except to address emergencies or to take enforcement action after making a finding that the State is unwilling or unable to act and obtaining a declaratory

judgment, the Agency must formally withdraw a State’s authority before taking action. These provisions establish a very confrontational procedure for dealing with

disagreements. They also establish an ‘‘all or nothing at all’’ atmosphere that may

work contrary to the interests of efficient site cleanups.

EPA believes that the State role in Superfund should be enhanced, and that this

should occur in a manner that meets each State’s interest and capabilities. A partnership agreement should clearly define who is in the lead at which sites and what

statutory authorities will be used. Periodic program reviews should be conducted so

that the partnership agreement can be adjusted quickly based on any changed budgets, statutes, expertise and site problems that need to be addressed.

The provisions of the chairman’s mark of S. 8 would allow States, even those without EPA approved programs to use the existence of ‘‘remedial action plans’’ as a

shield against Federal enforcement. Title I (Brownfields Revitalization) preempts

CERCLA government judicial and administrative enforcement actions, as well as

private cost recovery actions at sites (including NPL sites) subject to ‘‘State plans’’

or ‘‘State remedial action plans.’’ Moreover, the revised S. 8 does not define ‘‘remedial action plans.’’ In addition, it precludes EPA from taking enforcement action unless specified circumstances are met. In Title II (State Role) specifically, a State

must request EPA assistance, or EPA must make ‘‘a determination that the State

is unwilling or unable to take action at a facility at which there is an imminent

threat of actual exposure’’ and EPA ‘‘obtains a declaratory judgment in U.S. district

court that the State has failed to make reasonable . . . progress at the facility.’’

In addition, citizen suit actions are precluded at sites subject to State remedial

action plan (Title I) or for which there has been a transfer of responsibility to the

State (Title II). For releases at facilities not subject to a State plan, EPA must provide notice to the State 48 hours after issuing 106 orders. If the State fails to concur, the order will automatically cease to have force 90 days after issuance.
89

These provisions remove the safety net that the Federal Government provides at

these toxic waste sites, and when coupled with other authorization/delegation provisions, unnecessarily establishes confrontation that could jeopardize human health

and the environment and progress in cleaning up uncontrolled hazardous waste

sites.

Question 5. I am concerned that the elimination of relevant and appropriate requirements or ‘‘RARs’’ could seriously hamper a State’s ability to clean up contaminated aquifers. More specifically, in California, we have a quickly developing issue

in perchlorate contamination of groundwater aquifers. No national standard exists

for perchlorate, nor is there enough information to confidently determine risk. Without the current use of RAR’s it is possible this contamination would go unaddressed.

What effect would elimination of RAR’s have upon the EPA and States ability to

protect public health?

Response. Under current law, EPA can establish protective cleanup levels where

there are no standards (i.e., applicable or relevant and appropriate requirements)

for a chemical, where the Agency determines that levels more stringent than available ARARs are necessary to protect human health and the environment. We envision this authority to continue under a revised statute.

Practically speaking, elimination of relevant and appropriate requirements will

put more emphasis on scientific, risk based approaches to support taking action at

Superfund sites. However, there are mechanisms that can assist us in this approach. EPA has the ability to develop interim reference doses (i.e., evaluation of

toxicity) for specific chemicals that may pose a problem at a site. These interim reference doses can then be used to provide a risk basis for taking an action. It is not

necessary for EPA or the State to develop a RAR on which to base an action needed

to protect human health and the environment.

The perchlorate situation in California is an example of this. EPA initially developed a provisional reference dose in 1992. In 1995 EPA revised the reference dose

based on new information. The State of California took EPA’s toxicity assessment,

among other pieces of information, and developed an interim action level for perchlorate in drinking water. This action level is not a cleanup level, per se, for Superfund, although it does give further regulatory support for cleanup based on the toxicity information and site-specific exposure information. However, the determination

to clean up a site and to what level can be supported by the need to protect human

health and the environment, independent of relevant and appropriate requirements.

RESPONSES OF CAROL BROWNER TO QUESTIONS FROM SENATOR MOYNIHAN

Question 1. Many people believe that the agency is using unreasonable assumptions in its risk assessments at Superfund sites. What have you done to ensure that

the very best science is brought to bear in Superfund risk assessments? What is the

role of peer review in the risk assessment process for Superfund?

Response. Superfund has been criticized for ‘‘compounding conservative assumptions’’ in its risk assessments, when in fact, the assessments are based on average

exposure concentrations and a mix of average and more conservative exposure values that target the ‘‘high-end’’ of the exposure distribution. Superfund risk assessments focus on ‘‘high-end’’ exposure estimates to ensure that the majority of the

population on or near a site will be represented. Many critics would prefer that the

Agency use ‘‘best’’ or ‘‘central tendency’’ estimates that address exposures to only

half of the population, however, the Agency believes we should protect ‘‘most’’ individuals, and not just those with ‘‘average’’ exposures or less.

In addition, the Agency seeks to protect ‘‘sensitive subpopulations.’’ The term

‘‘sensitive subpopulation’’ refers to a segment of the general population that is at

greater risk, because the individuals are either particularly sensitive to the toxic effects of certain chemicals, or they experience higher exposures than the general population. Lead is an example where the Superfund program uses the Integrated Exposure Uptake Biokinetic Model (IEUBK model) to address both increased sensitivity and increased exposure among children.

EPA supports the development of realistic risk assessments that address the exposure and risk to all segments of the community, not just the ‘‘average’’ individual.

The focus should be on collecting the right site-specific data to tailor the risk assessment appropriately. After all, the true test of whether an assessment is ‘‘realistic’’

or not is the extent to which it addresses site-specific conditions and the concerns

of the surrounding community. To that end, local communities are playing an ever

increasing role in determining the future land use at sites, and shaping the exposure scenarios that are addressed in site-specific risk assessments.
90

The Agency is also interested in using the best science available in developing the

toxicity information used in our Superfund risk assessments. For this reason, EPA

maintains the Integrated Risk Information System (IRIS), which provides the Agency’s most current toxicity evaluations for hundreds of chemicals. To ensure IRIS remains of high quality, EPA is engaging in a systemic reevaluation of chemicals in

the system. This reevaluation includes a widespread request for new data and internal and external peer review.

Peer review is an important tool used in scientific disciplines to ensure that the

best, most current thinking and information is used. However, it is not necessary,

efficient, or appropriate to conduct peer review on every risk assessment at every

Superfund site. A more efficient and appropriate use of peer review would be to review the guidance and practices of risk assessment for Superfund. It is for this reason that the current Superfund risk assessment guidance was submitted to the

Science Advisory Board for review before it became final. The Soil Screening Guidance, developed for Superfund program use, was submitted to peer review as well

as to the Scientific Advisory Board. These reviews resulted in useful changes to the

guidance. EPA is also engaging a wide variety of stakeholders in the revision of the

risk assessment guidances for Superfund. EPA has also made its revised cancer

guidelines available for public comment, which gives scientific peers the opportunity

to comment. All of these activities serve to ensure that the best science available

will be used for Superfund risk assessments.

Question 2. What changes, if any, are needed to improve the existing natural resource damage provisions?

Response. The Administration strongly supports the NRD program administered

by Federal, State, and Tribal trustees under CERCLA. Our experience with the program indicates that the public and its resources would benefit from a shift to a restoration-based approach which focuses the NRD program on restoration planning

rather than litigation over monetized damage claims. To that end, the Administration believes there are two provisions that are essential to any responsible NRD legislation:

(1) Clarification of the statute of limitations for bringing an NRD claim. As the

Administration has stated in its proposal, the existing statute of limitations for nonNPL facilities should be changed to 3 years from the date of completion of an assessment in accordance with the damage assessment regulation or the completion of a

restoration plan adopted after adequate public notice. The existing statute of limitations for non-NPL facilities is 3 years after the later of the date of the discovery

of the loss and its connection with the release, or the date on which the natural

resource damage assessment regulations are promulgated. This provision has engendered a great deal of confusion and litigation. In some cases, trustees have felt compelled to file premature claims, before the scope of the needed restoration is even

known, in order to guard against the most extreme and unfavorable interpretation

of the current limitations period. When claims are filed prematurely, the NRD decision becomes focused on monetized damage claims, which is inconsistent with a restoration-based approach.

(2) An express provision for review of trustee restoration decisions on the basis

of an administrative record. The Administration supports an open assessment process in which scientific and resources management decisions are made on the basis

of the best information from all interested parties, including PRPs and the general

public. Record review discourages tactical withholding of information by PRPs and

dilatory litigation, and promotes the public’s right to know. It should be made explicit that judicial review of assessments will be limited to the administrative record

and that court’s will uphold trustees selection of a restoration action unless it is arbitrary or capricious.

Question 3. In your view, how would the chairman’s mark affect ongoing natural

resource damage restoration efforts, such as the Hudson River?

Response. The chairman’s mark would weaken the NRD program and make it difficult or impossible to protect and restore natural resources like the Hudson River.

It would restrict damages for losses that occur from the time a hazardous substance

release causes injury until the resource is restored. It would also eliminate consideration of nonuse values when determining restoration projects that compensate the

public for the loss of natural resources. Failure to consider the total value of natural

resources, not just their human use value, could result in the selection of restoration

projects that significantly undercompensate the public, thus creating a perverse incentive for PRPs to take fewer precautions to prevent future spills in pristine areas,

where direct human use is low, than in already degraded areas, where direct human

use is higher. Finally, the chairman’s mark would insure endless litigation over the

scientific and resources management decisions of trustees.
91

RESPONSES OF CAROL BROWNER TO QUESTIONS FROM SENATOR GRAHAM

Question 1. A major concern about the Superfund program is the unfairness of

imposing liability on municipalities, small businesses, individuals and companies for

lawful waste disposal activity which occurred prior to the enactment of Superfund

in November 1980. A related problem is requiring those entities which are viable

today to pay for the large orphan share arising from PRPs which disposed of waste

decades ago but are no longer in business or cannot be located. In light of these inequities, my general question is: Wouldn’t we make Superfund fairer if we substantially reduced PRP liability for lawful disposal activities occurring prior to 1981,

particularly if there is an acceptable funding mechanism to pay for this reform?

Response. One of the core principles I believe we must adhere to in Superfund

reform is that the parties who contributed to the contamination, not the taxpayer,

should contribute to the cleanup. The proposal you suggest does not adhere to this

principle.

You suggest by your question that fairness would be improved by considering the

legality of the behavior that resulted in contamination. I disagree. Under this construct, parties that undertook egregious behavior—that resulted in contamination

serious enough to require a Superfund cleanup could escape Superfund liability and

responsibility for cleanup. Proof of illegal or culpable behavior may be impossible

at most sites. Since Superfund addresses the results of acts that frequently took

place many decades ago, documentary evidence is typically scarce or non-existent.

Witnesses are often unavailable or have poor recollection of the behavior that lead

to the contamination. In most cases, it may not be clear what law would apply. Congress created Superfund in large part because existing laws were inadequate to address abandoned hazardous waste sites. In many cases, Superfund sites were created by poor waste management practices that were ‘‘lawful’’ at the time because

of the lack of any laws governing hazardous waste disposal. Superfund liability is

based upon responsibility. Parties are held responsible for contributing to the creation of hazardous waste sites that pose threats to human health and the environment.

You also suggest that liability for activities occurring prior to 1981 could be treated differently than that liability associated with activities which occurred after that

date. Nearly 70 percent of the activity that resulted in the contamination at Superfund sites occurred prior to 1981. A ‘‘cutoff ’’ date of 1981, would result in substantial unfairness to parties that have accepted cleanup responsibility and reached settlement in good faith, by conferring a financial benefit to many parties that have

avoided their cleanup responsibility through litigation.

I share your concern about the potential impact of a large orphan share on settling responsible parties. To address that concern, absent reauthorizing legislation

with sufficient orphan share funding, EPA has instituted an orphan share policy to

compensate settling parties. Under our policy, in all remedial design/remedial action

settlement negotiations, we offer to compensate settling parties by forgiving past

costs and future oversight costs up to 25 percent of the orphan share. Although this

is the extent to which we believe we can compensate parties without additional appropriations, we realize that this temporary measure does not go far enough. For

this reason, we have proposed that legislation provide for a separate, mandatory

spending account to fund the orphan share, i.e., the liability attributed to insolvent

and defunct parties, and to fund the difference between the share of liability attributed to parties with an inability to pay their full share, and the amount these parties actually pay.

Question 2. To achieve affordable liability reform, has any thought been given to

a compromise solution where 50 percent of future PRP liability for lawful pre-1981

disposal is assigned to an ‘‘orphan share’’ which is paid for by the Superfund or

other credible funding mechanism?

Response. As discussed in question 1, we do not consider a proposal that eliminates or reduces liability based exclusively on a date, or the legality of disposal, to

be fair or responsible. Such an approach would potentially result in an abandonment of the principle that the parties responsible for the contamination should be

responsible for the cleanup.

Question 3. To pay for liability reform, we have discussed a number of proposals

in the past, including a modest supplemental insurance fund. One way of creating

a ‘‘win-win’’ situation for PRPs and their insurers would be for PRPs, in exchange

for obtaining a 50-percent reduction in pre-1981 liability at particular sites, to give

up their insurance claims at those sites. Wouldn’t this kind of proposal be worth

exploring as a basis for creating a limited insurance fund to help achieve fair Superfund reform?
92

Response. In the past, EPA has supported an insurance settlement fund to resolve

the insurance coverage litigation that arose from the disposal of hazardous wastes

prior to 1986. This proposal had been accepted by segments of the insurance industry. Although the idea has not been revisited since the 103d Congress, I would certainly not foreclose the discussion of such a fund. However, as I have indicated, I

have serious concerns regarding the use of any ‘‘cutoff’’ date for the determination

of Superfund liability.

RESPONSES OF CAROL BROWNER TO QUESTIONS FROM SENATOR ALLARD

Question 1. What is the Administration’s position on H.R. 1195, legislation which

would explicitly waive the Federal Government’s sovereign immunity under

CERCLA and ensure that Federal facilities comply with State cleanup standards?

Response. This response is undergoing OMB clearance.

Question 2. Let me give you a situation in Colorado that highlights the need for

Federal facility legislation. Several years ago the EPA issued an Emergency Removal Order for a 22,000 cubic feet of contamination material from a site on the

Colorado School of Mines Campus where EPA, DoD, DOE, and Bureau of Mines had

conducted research.

Despite the fact that EPA, DoD and DOE contributed to the contamination of the

material, their involvement was never investigated by EPA.

Don’t you think it’s inappropriate for EPA to be the judge of whether they (the

EPA) should be held financially responsible for cleanup of areas they contaminated?

Isn’t that why we should pass legislation similar to H.R. 1195?

Response. EPA is aggressive in ensuring that Federal PRPs fully participate in

all response actions and settlement discussions. It is EPA’s policy to issue notice letters and administrative orders where appropriate to Federal agencies. (See, e.g.,

EPA’s Interim CERCLA Settlement Policy, 50 Fed. Reg. At 5044, February 5, 1985.)

This policy has been reiterated on several occasions, most recently in EPA’s August

2, 1996 memorandum establishing procedures for the Superfund Reform designed

to ensure equitable issuance of CERCLA 106 cleanup orders. In the case of the Colorado School of Mines Site, EPA sent notice letters to the Federal PRPs who may

have contributed significantly to site conditions and worked with them on an almost

daily basis to negotiate an administrative order on consent. For a variety of reasons,

these negotiations failed and EPA issued unilateral administrative orders to the

other parties. Under the applicable Executive Order signed by President Reagan

that delegated CERCLA order authority, EPA must go through additional procedures when issuing non-consensual orders to Federal parties.

Specifically, the Department of Justice must concur with any EPA proposal for

the issuance of such orders. (See, e.g., ‘‘Procedures and Criteria for Department of

Justice Concurrence in EPA Administrative Orders to Federal Agencies,’’ December

22, 1988.) In the School of Mines case, EPA staff spoke with DOJ concerning this

procedure and the involvement of Federal PRPs at the site. EPA believed that the

now-defunct Bureau of Mines (BOM) was the one non-de minimis Federal PRP that

should receive a unilateral administrative order. DOJ indicated that rather than the

issuance of an order, it would ensure that BOM would work closely with the private

PRPs and fully participate in settlement negotiations.

I believe you have not been given an accurate explanation of EPA’s involvement

in the settlement of this case. In cases where EPA finds no documented evidence

of liability, EPA eliminates the party in question from further consideration as a

PRP. Where EPA has evidence that a party sent hazardous substances to a site, but

the amount could not be determined, EPA assigns a standard amount (50 pounds)

to that waste shipment. In this case, EPA has received no special treatment as a

PRP. In fact, assuming the School of Mines information did rise to the level of documentation considered adequate by EPA, which it frankly does not, EPA would be

eligible for a de minimis settlement. In an attempt to resolve this matter expeditiously, EPA is shouldering a much greater proportion of liability than can reasonably be established by the available documentary evidence. EPA’s settlement offer

will benefit all PRPs, including the School of Mines and the State. While EPA is

not privy to the details of the PRP settlement, it stands to reason that EPA’s agreement to forego $185,000 of its response costs associated with site cleanup will reduce the total costs that are to be divided among all the PRPs.

Question 3. In the situation, above the Bureau of Mines admitted responsibility

for contamination of the 22,000 cubic feet. Yet when the emergency removal order

went out it only went to 12 private parties, the State, and the School of Mines. Can

you give any possible reason why EPA wouldn’t serve another Federal agency?
93

Response. EPA engaged in significant fact finding efforts to identify Federal and

private PRPs at the site. EPA followed our standard procedure when investigating

PRPs. This procedure required that EPA: (1) request all existing documentation relating to the Site from the owner/operator of the Site; (2) follow up on the information received from the Site by sending information requests to specific parties mentioned in that documentation who appear to have some liability; and (3) gather outside information relating to the Site or specific PRPs where available.

It is not uncommon, when dealing with activities which occurred 10 to 15 years

prior to the initiation of EPA’s cleanup activities, to encounter difficulties in locating

documentation in support of a case against a party. For the School of Mines case,

only a small percentage of the non-Federal parties contacted by EPA were able to

provide documentation regarding hazardous substances they sent to the site. Like

the private PRPs, many of the Federal agencies had difficulty identifying any connection to the site. EPA and other Federal agencies have record retention requirements and procedures which provide for the destruction of certain documents, such

as bid and grant proposals, after specified periods of time. Congress authorized the

promulgation of these procedures in 44 U.S.C. § 3303. Other documents which are

considered permanent are eventually transferred to the Federal Records Center and

then to the National Archives. Where EPA had specific information about projects

performed by Federal agencies, the agencies were largely successful in locating additional records.

Question 4. Isn’t this an example that illustrates the Federal Government doesn’t

enforce against themselves, isn’t it true that no matter how responsible another

Federal agency is, EPA would not force them to comply with laws the private sector

should comply with?

Response. This response is undergoing OMB clearance.
94
95
96
97

PREPARED STATEMENT OF TERRY D. GARCIA, ACTING ASSISTANT SECRETARY FOR

OCEANS AND ATMOSPHERE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

Mr. Chairman and members of the committee, I appreciate the opportunity to

submit testimony for the record on behalf of the Federal natural resource trustees

concerning the proposal recently circulated by the committee Staff (draft chairman’s

mark dated August 28, 1997) for reforming the natural resource damages (NRD)

provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). I am Terry D. Garcia, Acting Assistant Secretary for Oceans and Atmosphere in the Department of Commerce, with responsibility for the National Oceanic and Atmospheric Administration (NOAA). I am presenting this testimony on behalf of the Federal agencies that act as trustees for natural resources under CERCLA. Carol M. Browner, Administrator of the Environmental Protection Agency (EPA), will present testimony on other aspects of the committee’s proposal.

INTRODUCTION AND SUMMARY

At the outset, I and my Administration colleagues would like to express our gratitude to the chairman and to the committee for the constituent outreach process and

the bipartisan process of negotiation that the Majority has undertaken with the Minority and the Administration to achieve a Superfund reform bill that has broad bipartisan support. We are disappointed that this process has been suspended, and

we would urge that the committee resume that process at the earliest possible date

following these proceedings. I am confident that the dialog that the committee has

established with the Federal natural resource trustees will result in broadly supported, responsible provisions addressing NRD, and the Administration is committed to working with the committee and affected stakeholders to that end.

The Administration would also like to commend the committee for the many improvements in this draft NRD title when compared to S. 8, the Superfund bill previously before the committee. The changes reflected in the current draft reflect a

concerted effort by the committee to respond to some of the strong objections that

the Administration and stakeholders have expressed concerning S. 8. For example,

this draft includes much-improved provisions concerning consistency between natural resource restoration and response. Significant changes to the ‘‘phased payment’’

proposal make this provision compatible with current enforcement practice. The provision for a ‘‘lead administrative trustee,’’ in lieu of a lead decisionmaking trustee,

responds to concerns raised by Federal, State, and Tribal trustees concerning recognition of their respective trust responsibilities. Most notably, this draft adopts the

well-established ‘‘cost-effective’’ criterion in place of the vague, ill-considered, and

onerous ‘‘cost-reasonable’’ criterion that S. 8 imposed on restoration decisions, which

threatened to mire NRD cases in greater monetization of damages, at the expense

of the Administration’s restoration-based approach to NRD.

We also have been heartened by the committee’s continued effort to develop two

provisions that are essential to any responsible NRD legislation: an appropriate

clarification of the statute of limitations; and express provision for review of trustee

restoration decisions (as distinct from issues of liability) on the basis of an administrative record. However, for reasons stated below, we believe that these two aspects

of the current proposal remain seriously flawed. Indeed, one of the most salutary

aspects of S. 8, the critical provision stating that judicial review of trustee decisions

will be on the basis of the administrative record, has, quite inexplicably, been deleted. If this deletion was purposeful, it is one of the areas where this draft NRD

title is moving decidedly in the wrong direction. Nonetheless, assuming that this deletion does not import a change in policy, we remain hopeful that our differences

may center on issues of technical detail and implementation rather than on fundamental policy disagreements, and that we might readily reach consensus if negotiations resume.

Despite the substantial progress that the proposal reflects, however, the Administration would have to oppose this proposal strongly if it were to be considered for

mark-up in its current form, primarily for two reasons. First, this bill continues to

include S. 8’s most odious feature: unwarranted restrictions on the range of values

that trustees may consider in deciding the appropriate steps to achieve full restoration of the losses that communities suffer when natural resources are injured, lost,

or destroyed by a release of hazardous substances. Second, the failure to address

clearly the Administration’s concerns with respect to the statute of limitations and

record review issues would defeat the Administration’s effort to reform its NRD programs in a manner that focuses these programs on restoration, because it creates
98

new incentives to use litigation as a means of delaying or avoiding restoration obligations.

We would also note that the Administration was given an incredibly short space

of time to review the draft; therefore, we have not had adequate time to consider

its full implications. We are also concerned that the committee is not soliciting the

views of Tribes. The Administration continues to advocate the adoption of the NRD

legislative reform proposal transmitted to the committee on October 7, 1996. The

Administration stands ready to resume discussions to develop legislation that builds

on the progress reflected in the current committee draft and more frilly incorporates

the essential features of the Administration’s proposal.

PROGRAMMATIC OVERVIEW

At this point, the committee is aware of the important role that NOAA and other

natural resource trustees serve in restoring natural resources that have been injured or lost as a result of a release of hazardous substances. For convenience, I

would refer the committee to my testimony for the record at the committee’s previous hearing, which focused on S. 8 (testimony dated March 5, 1997, by Terry D.

Garcia, on behalf of the Department of Commerce, the Department of the Interior,

The Department of Agriculture, the Department of Energy, and the Department of

Defense).

The goal of the NRD program under CERCLA is to ensure that the nation’s valuable public trust inheritance is passed on for the use and benefit of future generations. Under the statute, natural resource trustees include not only Federal agencies

like NOAA, but also the States and Indian Tribes, all of whom act as stewards of

natural resources on behalf of the public. In fulfilling their trust responsibilities to

affected communities, the trustees typically seek both ‘‘primary restoration’’ (to return natural resources to the condition that would have existed but for the release

of hazardous substances), and ‘‘compensatory restoration’’ (to restore the natural resource services and amenities that communities lose from the time of the release

until the completion of primary restoration).

CERCLA’s provision for both primary and compensatory restoration reflects the

significant role that natural resources play in many communities affected by releases of hazardous substances. Natural resources are essential to the hunting and

fishing that sustain the economic life of many communities, and the quality of life

in many others. Consequently, the NRD provisions of CERCLA are important to the

future of many communities and particular industries. Commercial fishermen are

depending on NOAA’s restoration of sediment in the Montrose open-water DDT site

off southern California, and fish habitat in Panther Creek at the Blackbird mine

site in Idaho. Small businesses like charter boat operators in Tacoma, Washington,

are depending on the Department of the Interior, the Department of Commerce, and

the State of Washington to revitalize the commercial and recreational fishing industry in Commencement Bay. To date, only 5 percent of all sites listed on the National Priorities List (NPL) have required restoration in addition to remediation.

However, in some cases, the future of entire regions may depend on the effectiveness of CERCLA’s NRD provisions: Anaconda, Montana, whose State government is

pursuing natural resource damage claims to restore natural resources in the Clark

Fork River Basin, anxiously awaits restoration of natural resources that are essential to the future of its angling and tourist trades, knowing that their economic future hangs in the balance.

Accordingly, the Administration strongly supports the NRD programs administered by Federal, State, and Tribal trustees under CERCLA. The Administration

has strongly opposed proposals, like those seen in S. 8, that would undermine the

trustees’ efforts to replace or restore injured natural resources. Nonetheless, we

agree that certain legislative reforms may be appropriate to strengthen the program. We have been pleased to participate in the committee’s process of discussing

the concerns of a range of stakeholders, and look forward to developing a bipartisan

proposal on NRD that has broad support. We also believe that many of our administrative efforts to reform the NRD program can provide an appropriate template and

point of reference for legislative change.

For example, our shift to a ‘‘restoration-based’’ approach, in which the focus of the

NRD program is on restoration planning rather than litigation over monetized damage claims, is reflected in both the Administration’s proposal and, to some extent,

in the committee’s draft NRD title. The Administration is currently embarking on

a broad effort to ensure greater coordination between trustees and response agencies, such as the EPA and the Coast Guard, so that response actions and natural

resource restoration are frilly coordinated. In these and other efforts, we are seeking

to incorporate the views of the committee as well as those of affected constituencies,
99

including States and Tribes, environmental and community groups, and industry.

We believe that our administrative reform efforts have advanced the legislative reform dialog, and we look forward to working with the committee as our administrative reform efforts continue.

SPECIFIC OBJECTIONS TO THE CURRENT DRAFT NRD TITLE

1. Restrictions on Interim Loss Compensation

The inclusion in the current committee draft of numerous restrictions on the values that may be considered by trustees in determining the appropriate level of primary and compensatory restoration of natural resources plainly violates the Administration’s principles for legislative reform of CERCLA, which were provided to this

committee by Administrator Browner on May 7, 1997. As articulated in those principles, the Administration strongly opposes ‘‘repeal of all or part of the current liability standards’’ as well as any ‘‘limitation on the type of values that may be considered in determining the scope or scale of restoration or damages.’’

Under existing law, natural resource trustees are authorized to recover frill compensation for the public’s interim loss of resource services from the date that a natural resource is injured by a hazardous substance release until the date the resource

has frilly recovered. These recoveries compensate the public for real, and often significant, losses that are not addressed by restoring injured resources to baseline

many years after the injury first occurred. A community that has lost its opportunity to fish a stream, hike a trail, or enjoy a spectacular and pristine vista because of a hazardous substance release is not made whole by the promise of primary

restoration that may only occur years—or even decades—in the future. For example,

at Lavaca Bay, Texas, a ban on harvesting crab, oyster, and finfish has been in

place since 1988 due to mercury contamination. It is unacceptable to deny the affected community compensation—in the form of restoration, replacement, or acquisition of equivalent resources—for the loss of nearly a decade of fishery closure. Such

long periods of interim loss can be devastating to local economies that depend on

revenues generated by their natural resource base.

Further, the longer it takes before baseline is restored, the greater the interim

loss is for the affected community. The absence of frill compensation for this loss

creates an incentive for potentially responsible parties (PRPs) to delay restoration

and engage in tactical litigation to defer its restoration obligations, because the affected community is asked to bear the entire cost of the delay. Providing frill compensation for interim loss, by contrast, gives PRPs an effective incentive for initiating, implementing, and completing restoration measures in a timely manner.

Restrictions on compensatory restoration also tend to distort the decisionmaking

process for trustees in selecting primary restoration alternatives that satisfy their

trust responsibilities. For example, there are many cases where the most appropriate primary restoration approach is to rely on natural recovery, due to the high

cost and technical difficulty presented by other alternatives. This is the case with

respect to the New Bedford harbor restoration, following extensive contamination of

the harbor by PCBs. Reliance on natural recovery may indeed be the preferable alternative in such cases, but only if the trustees have authority to take appropriate

steps to compensate for interim loss. In the absence of such authority, trustees may

be discouraged from relying on natural recovery, because trustees cannot satisfy

their trust responsibilities through the adoption of a natural recovery option that

results in more protracted interim losses that cannot be frilly compensated. I would

note that affected communities are unlikely to accept natural recovery options

where provisions for interim loss compensation are inadequate.

There are two provisions in the draft NRD title that could eliminate recovery for

interim losses altogether. The title limits the measure of natural resource damages

to ‘‘the cost of restoration, replacement, or acquisition of the equivalent of a natural

resource that suffers injury, destruction, or loss caused by a release’’ (p. 230, lines

9–17). The title also states that ‘‘[t]he goal of any restoration shall be to restore an

injured, destroyed, or lost natural resource to the condition that the natural resource would have been in but for the release of a hazardous substance’’ (p. 238,

lines 21–25). These two provisions taken together could be construed as eliminating

compensatory restoration, because such restoration is not intended to return injured

resources to their baseline (but-for-the-release) condition. Instead, compensatory restoration is designed to provide affected communities with the natural resource services and amenities they would have enjoyed but for the release.

2. Provision for ‘‘Temporary Replacement’’

The draft title does make allowance for some interim loss compensation by authorizing recovery of the costs of ‘‘temporary replacement of the services provided
100

by the injured, destroyed, or lost natural resource’’ (p. 230, lines 17–20, also p. 240,

lines 13–17). However, if this provision is intended to provide redress for the interim

losses that members of the public incur when their natural resources are despoiled,

it is woefully inadequate, for at least three reasons.

First, limiting compensatory restoration to temporary replacement of the services

lost could be read as restricting trustees to addressing only those interim losses that

can be offset prospectively. Such a reading would unfairly and arbitrarily bar the

public due compensation for losses that accrued before trustees were able to determine whether particular natural resource injuries had in fact been caused by a particular release from a specific facility and to select appropriate restoration projects.

Second, the draft title’s reference to ‘‘replacement of the lost services’’ could eliminate needed flexibility to undertake compensatory restoration that provides services

different than those lost. In some cases, trustees cannot replace the same services

as those lost (e.g., a unique park has been closed). In others, it would not make

sense for the trustees to do so (e.g., a fishing stream is closed, but enhancing access

on a substitute stream would threaten populations in the other stream). In such

cases, trustees should retain the ability to consider projects that enhance the level

of resource services available to the public but do not replace the same services as

those lost.

Third, the draft title’s reference to ‘‘temporary’’ replacement may prohibit trustees

from considering worthwhile projects that are appropriately scaled and discounted

to provide the same total quantity of services as those lost in the interim, yet result

in a permanent improvement in resource services. For example, if 50 acres of wetland are lost for 10 years, trustees should not be restricted to the unrealistic option

of acquiring or constructing 50 replacement acres for only 10 years. Instead trustees

should have the flexibility to consider permanent acquisition of additional wetlands

of less than 50 acres that provide services comparable to those that the 50 acres

would have provided during that 10-year period.

Reliable and valid methods exist for determining the appropriate scale of such

projects, and trustees should be allowed to continue using them.

3. Ban on Consideration of Nonuse Values

The draft title states that ‘‘[t]here shall be no recovery under this Act for any impairment of nonuse values’’ (p. 231, lines 1–3). This ban on compensation for nonuse

losses is an unacceptable limitation on the type of values that may be considered

in determining the scale of restoration. This provision could prevent adequate compensation for injuries to the unique or pristine natural resources we treasure the

most.

There is no debate over whether people derive value from natural resources beyond their utility for immediate and direct human use. This fact is demonstrated

whenever individuals make charitable donations or support government regulation

and spending for the protection of species and places they themselves do not see or

visit. Some natural resources, such as Katmai Wilderness Area in Alaska, are valued by the public specifically because they have escaped human use. Other resources are heavily used but that use represents only a fraction of the benefits the

public derives from them. Units of the National Park System, such as Yellowstone

National Park, and State parks, such as Anza Borrego Desert in California, were

established in explicit recognition of the value we receive from ensuring that our

grandchildren and our grandchildren’s children will be able to enjoy the same experience we do when we visit these special areas. We derive value from simply knowing that our public natural resources exist unimpaired, for the sake of future generations and the integrity of the global ecosystem.

This fact was vividly illustrated following the EXXON VALDEZ oil spill in Prince

William Sound, Alaska. Prince William Sound, with its pristine natural beauty, is

a national treasure, but few would contend that its value (and the losses to the public) could be adequately measured by quantifying direct human use of the sound for

recreation or commerce. The public response to that spill, and the insistence by the

trustees and the public that there be frill compensatory restoration, reflects the

public’s very strong sense of values beyond those measured by actual human use

of a resource.

Whenever natural resources are injured by contamination, the public may experience a reduction in nonuse value. These reductions can be very significant when a

unique resource has been injured, or when restoration is slow or will never return

the resource to baseline. Under existing law, trustees may consider nonuse values

when determining restoration projects that compensate for interim losses. Retention

of this authority is crucial to ensuring that the public is made whole after a hazardous substance release.
101

As mentioned above, the Administration supports codifying a restoration-based

approach to compensating for interim loss. Under such an approach, if a trustee can

provide the same services as those lost, the trustee need not explicitly determine

whether and how much use or nonuse value was lost. The trustee simply selects

a project that generates the same quantity of services as those lost over time and

asserts a claim based on the cost of implementing the project. However, as also discussed above, sometimes trustees cannot create the same services as those lost. This

situation arises whenever a unique resource is injured, which is also one of the situations in which nonuse losses are likely to be most significant. In these cases, trustees should be allowed to undertake compensatory restoration projects that improve

the level of other resource services available to the public, but only if such improvements are commensurate with the losses resulting from the release. To ensure that

such projects are appropriately scaled, trustees need to compare quantities of services lost to quantities of services gained, and economic valuation may, in some cases,

be the best-method for making this comparison. In such cases, failure to consider

the total value of the natural resources (use value plus nonuse value) could result

in the selection of projects that significantly undercompensate the public, thus creating an incentive for PRPs to take fewer precautions to prevent future spills in pristine areas, where direct human use is low, than in already degraded areas, where

direct human use is higher.

The draft title’s restriction on nonuse values may also prevent trustees from selecting appropriate primary restoration actions. While the Administration agrees

that imposition of a rigid, quantitative cost-benefit test on restoration selection is

inappropriate, trustees often need to make some evaluation of benefits for purposes

of determining the cost-effectiveness of different alternatives. Barring any consideration of nonuse values in that evaluation may unfairly bias the restoration selection

process away from active restoration, even if natural recovery takes decades and

notwithstanding the very real and significant human and ecological losses incurred

in the interim.

Furthermore, the draft title may impose an unwarranted burden on trustees even

when they are not attempting to explicitly address lost nonuse values. The ban on

compensation for impairment of nonuse values could be read as requiring trustees

to demonstrate that a restoration project compensates only for impairment of use

values.

Restoration projects designed to restore use values may incidentally restore some

of the lost nonuse values. Therefore, it may be difficult to demonstrate that a restoration project only addresses lost use, particularly where the project is restoring

services, such as habitat, that are not directly used by humans but are used by

other resources.

4. Statute of Limitations

As stated above, an essential component of any responsible NRD reform bill is an

appropriate clarification of the statute of limitations. The existing statute of limitations for NRD claims at sites other than Federal facilities, facilities listed on the

NPL, and facilities at which a remedial action is otherwise scheduled, is 3 years

after the later of: (1) the date of the discovery of the loss and its connection with

the release; or (2) the date on which the natural resource damage assessment regulations are promulgated. This provision has engendered a great deal of confusion

and litigation. In some cases, trustees have felt compelled to file premature claims,

before the scope of needed restoration is even known, in order to guard against the

most extreme and unfavorable interpretation of the current limitations period.

When claims are filed prematurely, the NRD action becomes focused on monetized

damage claims, which is inconsistent with the restoration-based approach advocated

by the Administration and reflected, in several respects, in the draft title.

The draft title would revise the current statute of limitations ‘‘[w]ith respect to

a facility for which the trustees and the potentially responsible parties, after the

date of enactment of the [Act] have entered into a cooperative agreement governing

the conduct and scope of a natural resource damage assessment and allocating the

costs of the assessment.’’ The deadline for filing such claims would be the ‘‘earlier

of 6 years after the date of signing of the cooperative agreement, or 3 years after

the completion of the damage assessment’’ (p. 241, lines 9–25).

Unfortunately, this revision to the statute of limitations does not appropriately

address existing problems and could cause more. The draft title does not provide

any clarification of the existing deadline. Instead, the draft provision would only

apply where trustees and PRPs have entered a cooperative agreement; where there

were no such agreements, the existing problematic deadline would still apply. Further, the draft provision creates a disincentive for PRPs to work cooperatively with
102

trustees whenever one or more PRPs might benefit from the uncertainty associated

with the current statute of limitations.

As the Administration has stated in its proposal, the existing statute of limitations for non-NPL facilities should be changed to 3 years from the date of completion of an assessment in accordance with the damage assessment regulations or the

completion of a restoration plan adopted after adequate public notice.

5. Record Review

The draft title includes provisions authorizing trustees to establish an administrative record for an assessment (p. 235, lines 6–20). However, the draft eliminates the

language included in S. 8 that specified that judicial review was to be based on the

administrative record. The Administration supports an open assessment process in

which scientific and resource management decisions are made on the basis of the

best information from all interested parties, including the PRPs and the general

public. By authorizing creation of a record but failing to restrict judicial review to

the material in that record, the draft title provides no incentive for PRPs to provide

their data to the trustees while the record is being compiled and restoration decisions are being made. In fact, the provision will likely encourage tactical withholding of information by PRPs, promotes dilatory litigation, and contravenes public

right-to-know. The draft should be modified to make explicit that judicial review of

assessments will be limited to the administrative record and that the court will uphold trustees’ selection of a restoration action unless it was arbitrary and capricious.

6. Limitation on Assessment Costs

In addition, the draft title arbitrarily bars recovery of certain assessment costs.

The draft title prohibits recovery of the cost of ‘‘conducting any type of study relying

on the use of contingent valuation methodology’’ (p. 236, lines 14–17). Trustees

should have the flexibility to use and recover the cost of any assessment procedure,

so long as the procedure is valid and can be performed at a reasonable cost. The

draft title already requires trustees to conduct assessments ‘‘in accordance with . . .

scientifically valid principles’’ (p. 233, lines 15–18). The CERCLA natural resource

damage assessment regulations contain a detailed definition of reasonable assessment costs that requires, among other things, that the cost of an assessment be less

than the amount of damages being assessed (43 CFR 11. 14(ee)). The Administration believes these provisions adequately protect against unwarranted assessment

costs. Furthermore, contingent valuation (CV) is a reliable and valid methodology

when appropriately applied. CV has been used for years by industry for market research, and by governments for cost-benefit analyses of regulations and public works

projects. CV is the only tool currently available for explicitly measuring lost nonuse

values. It is also an important tool for measuring use values of natural resources.

7. Other Concerns

The draft title contains several other problematic provisions and fails to include

several important and beneficial amendments.

A. Barring Restoration and Recovery Upon Return to Baseline.

The draft title includes a provision that would bar recovery of all restoration costs

‘‘if the natural resource returned to the baseline condition before the earlier of . . .

the filing of a claim for natural resource damages; or . . . the incurrence of assessment or restoration costs by a trustee’’ (p. 232, lines 10–24). The Administration has

actively considered such a proposal while exploring ideas that might respond to concerns raised by the committee and by industry representatives. The Administration

is concerned, however, about the possibility that such a provision could unfairly

eliminate all public compensation where resources recovered naturally before trustees began their assessment work, notwithstanding the fact that the public may have

incurred substantial interim losses. This could be especially problematic, particularly for State and Tribal trustees, where a trustee is proceeding as expeditiously

as possible to assess the effects of known hazardous substance releases, but staff

and funding constraints delay assessment and restoration. It may not be appropriate for the public to bear the cost of interim loss of resources in cases where

trustees are simply unable to begin assessment work for this reason. In other cases,

the public may have experienced clear losses, yet trustees may have had no reason

to suspect that the losses were a result of a hazardous substance release until after

natural recovery occurs. This provision also might create a disincentive for PRPs to

provide timely notification of releases, since by delaying or failing to provide such

notification, they might avoid liability for the public’s loss altogether. For these reasons, the Administration believes that this particular provision warrants further

discussion and consideration by Federal trustees and by potentially affected stakeholders.
103

B. Modification of the ‘‘Double Recovery’’ Provision

The draft title modifies the bar on double recoveries by providing that any ‘‘person’’ that recovers ‘‘damages, response costs, assessment costs, or any other costs

under this Act for the costs of restoring an injury to . . . a natural resource’’ shall

not be entitled to recovery under any law for the same injury (p. 233, lines 4–13).

Throughout our discussion with committee staffs there has been no policy reason

articulated for changing the existing double recovery provision. Furthermore, as

drafted, this provision could be interpreted to preclude a recovery by the United

States for natural resource damages (including interim losses) if the United States

has previously recovered for ‘‘any’’ costs of a response action that in some respect

affected, but did not frilly address, a natural resource injury, such as by enhancing

recovery of an injured resource. Because CERCLA defines ‘‘person’’ to include the

United States, rather than ‘‘agencies of the United States,’’ a response cost claim

brought by EPA could be read to bar a subsequent NRD claim brought by a trustee.

C. Encouragement of Trustee Conflicts

The draft title requires that the natural resource damage assessment regulations

include procedures under which ‘‘all pending and potential trustees identify the injured natural resources within their respective trust responsibilities, and the authority under which such responsibilities are established, as soon as practicable

after the date on which an assessment begins’’ (p. 243, lines 16–22). The Administration agrees that it is appropriate to ensure that trustees pursue claims only for

those resources that fall under their trusteeship and, thus, are public resources.

However, this draft provision could be interpreted as requiring not only that trustees determine which resources are public but also that they delineate the overlapping jurisdictions of all the different trustees. If all trustees are working together

resolving such inter-trustee jurisdictional issues is unnecessary. On the other hand,

requiring trustees, as one of the first steps in the damage assessment, to address

such potentially contentious issues could create conflicts where none currently exist

and undermine the goals of inter-trustee coordination.

D. Transition Rule

The draft (MU) title includes a transition rule that selects among sites for application of the bill’s provisions. The Administration has not had an opportunity to understand the particular rationale by which the committee developed this rule, but

we are concerned that this transition rule may operate arbitrarily and unfairly in

its selection of the sites to which the new provisions apply.

E. Omissions

There are numerous other aspects of the proposal that are of concern to the Administration. We are identifying a limited number of omissions for your consideration now, with the expectation that more technical issues can be resolved if staff

negotiations resume.

• The draft title fails to authorize the recovery of enforcement costs, thus preventing the public from being made whole for the costs of the release.

• The draft title omits the clarification in the Administration’s proposal that the

government may split response claims and natural resource damage claims, and

that natural resource damage claims are not compulsory counterclaims to claims

against the government for recovery of response costs or performance of response

action.

• The draft title fails to include provisions identified in the Administration’s proposal explicitly requiring consultation with trustees before selection of a remedial

action, and calling for new regulations governing coordination with trustees regarding listing of sites on the NPL, investigations of releases, and selection of response

actions.

• The draft title fails to include provisions identified in the Administration’s proposal adding references to notification of tribal trustees by response agencies.

CONCLUSION

The Administration appreciates the opportunity to provide testimony on this draft

proposal. In spite of the committee’s concerted effort to modify or eliminate many

of the most objectionable provisions of S. 8, the Administration strongly opposes this

draft title in its current form and urges the committee instead to adopt the Administration’s proposal or to incorporate more frilly the elements of that proposal in the

committee’s draft. NOAA and all of the other Federal natural resource trustees

stand ready to resume negotiations with the committee so that, together, we can develop a broadly supported, bipartisan proposal on NRD that can move forward in

this session of Congress.
104

Thank you, Mr. Chairman. This concludes my statement.

PREPARED STATEMENT OF THE HONORABLE E. BENJAMIN NELSON, GOVERNOR OF NEBRASKA

INTRODUCTION

Good morning Mr. Chairman and members of the committee. My name is E. Benjamin Nelson. I am Governor of the State of Nebraska and chair of the National

Governors’ Association (NGA) Committee on Natural Resources. This testimony is

presented on behalf of the National Governors’ Association, but has been developed

in close consultation with the Environmental Council of States (ECOS) and the Association of State and Territorial Solid Waste Management Officials (ASTSWMO),

which represent State officials who manage the Superfund program on a daily basis.

The States have a strong interest in Superfund reform and believe that a variety

of changes are needed to improve the Superfund program’s ability to clean up the

nation’s worst hazardous waste sites quickly and efficiently. We commend U.S. Environmental Protection Agency (EPA) Administrator Carol Browner for many of the

administrative reforms she has developed for this program. However, we still believe that legislation is required. If I leave you with one message today, let it be

our hope that Senators on both sides of the aisle will continue to work in a bipartisan fashion to craft a Superfund reform package that can be signed into law. The

Governors are committed to doing everything within our power to assist in that effort and hope to continue working cooperatively with both the majority and the minority to develop a final bill that enjoys broad bipartisan support and can be signed

by the President.

Mr. Chairman, Senator Smith, I want to commend you for developing a very good

starting point for the kind of bipartisan negotiations that are required to develop

a bill the President can sign. I know that there remain important differences between Republicans and Democrats and between States and the Administration, but

we see the chairman’s mark as a significant step toward resolving the concerns that

were expressed by both EPA and the States concerning the underlying bill. Important compromises have been made in the development of this legislation, and we

hope the spirit of compromise will continue on a bipartisan basis.

The States appreciate the opportunity to review and comment on the draft chairman’s mark dated August 28, 1997. 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. States are

responsible for cleanup at the tens of thousands of sites that are not on the National

Priorities List (NPL). In order to address these sites, many States have developed

highly successful voluntary cleanup programs that have enabled sites to be remediated quickly and with minimal governmental involvement. It is important that legislation support and encourage these successful programs by providing clear incentives and flexibility. Frankly, we feel an increased need for congressional direction

because the guidance on State voluntary cleanup programs that EPA is about to finalize does not afford us the necessary and appropriate flexibility. It is the view of

States that voluntary cleanup programs and brownfields redevelopment are currently hindered by the pervasive fear of Federal liability under the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. We

strongly support the provisions in the chairman’s mark that encourage potentially

responsible parties and prospective purchasers to voluntarily cleanup sites and

reuse and redevelop contaminated property. The draft 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, NGA does support EPA’s use of its emergency removal authority. We also believe that an important provision has been included that clarifies

EPA’s authority to take action at a site if a State requests the President to do so.

Any assignment of liability, however, must be consistent with liability assigned

under State cleanup laws.
105

Finally, we would like to make the distinction that while the draft would preclude

Federal enforcement for sites in a State voluntary cleanup program, you have not

provided a release from Federal liability. We believe that this would leave potentially responsible parties vulnerable to third party suits and would effectively take

much of the incentive out of entering a State voluntary cleanup program. We would

like to work with the committee to address this provision.

STATE ROLE

The impacts of hazardous waste sites are felt primarily at the State and local levels, so each State should have the option to take over and administer as much of

the program as they can. The Governors support the efforts of Senators Chafee and

Smith to provide us with options to enhance the role of States in this program. We

appreciate the inclusion of options for authorization, expedited authorization, delegation, and limited delegation by agreement in the draft and feel that this allows

for maximum flexibility to meet State needs and objectives. We especially support

the authorization provisions that allow States to operate their programs in lieu of

the Federal program. Where a State is authorized to operate a program in lieu of

the Federal program, States should receive adequate Federal financial support.

The creation of an expedited process to delist from the NPL a site for which a

State has assumed responsibility will help provide a necessary finality to the Superfund process and will help prioritize time and money on remaining problems.

However, the States cannot support allowing EPA to withdraw delegation on a

site-by-site basis. EPA should periodically review State performance instead of involving itself in site-by-site oversight. If program deficiencies are found, a State

should have an opportunity to resolve them before EPA proceeds to withdraw authorization or delegation. Withdrawal of delegation should be consistent with the

criteria for approval or rejection of a State’s application for delegation.

The Governors strongly support a 10 percent State cost-share for both remedial

actions and operations and maintenance and appreciate the retention of this provision in the chairman’s mark. The Governors would like to ensure that the provision

for States to petition the Office of Management and Budget (OMB) is a workable

mechanism to deal with any cost-shifts resulting from changes in liability, and that

reform does not result in a higher cost-share than States currently pay.

SELECTION OF REMEDIAL ACTIONS

Because of the complexity and importance of the title on ‘‘Selection of Remedial

Actions,’’ I would like to respectfully request more time to provide detailed comments and have them included in the record after we have had time for more adequate review. Although we will undoubtedly have some comments with this title,

there are several key improvements that I would like to touch on today.

The Governors believe that changes in remedy selection should result in more

cost-effective cleanups; a simpler, more streamlined process for selecting remedies;

and a more results-oriented approach. We believe the bill moves significantly in this

direction. Many of these reforms seem to us to be codifications and improvements

of EPA’s administrative reforms.

As you know, allowing State-applicable standards to apply at both NPL and State

sites is of great importance to the Governors. We greatly appreciate and strongly

support measures to allow State applicable standards and promulgated relevant and

appropriate requirements 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 the bill that provide 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 second-guessed 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. While we believe that groundwater needs

to be protected, we need to ensure that these provisions are workable and flexible.

The Governors recognize that there are some records of decision (RODs) that

should be reopened because of cost considerations or technical impracticability.

However, we have been concerned about a flood of petitions to reopen, and we believe the Governor should have the final decision on whether to approve a petition

to reopen a ROD in his or her State. We particularly appreciate the efforts of the

committee to improve the draft by removing the provision in S. 8 that would allow
106

a remedy review board to override a Governor’s veto of a petition to reopen a ROD.

NGA believes that this is a very important addition.

We would also like to commend you on removing the provision in S. 8 that would

preempt State liability laws at sites where EPA has released a potentially responsible party from Federal liability because the site has been cleaned up for unrestricted use. As you know, the Governors do not support preemptions of State law

and are grateful to you for incorporating our recommendations in your draft.

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 some 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 provide adequate assurance and funding

so that sites will continue to be cleaned up and so that there will be no cost shifts

to the States.

Although it is clear that much effort has been focused on finding compromises and

creating a more equitable system, the Governors are still concerned that the

changes to the Federal liability scheme are not complementary to State liability programs. We are particularly opposed to the apparent preemption of all State liability

laws when a facility has been released from Federal liability. Preemption of State

liability laws at NPL sites effectively creates an inequitable situation in States because it creates an inconsistency in application of State law at sites throughout the

State. We want to avoid creating a scenario where there is a demand by potentially

responsible parties to be added to the NPL because the Federal liability scheme is

more favorable.

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. Much emphasis has been placed on

modifying the language on liability, and we do not want to discount the obvious efforts at compromise that can be seen in this draft. However, we would like more

time to review the provisions of this title and would like to work with the committee

to create a system that has fewer adverse impacts on State programs.

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

confidence in government at all levels. Therefore, the Governors believe that Federal

facilities should be held to the same process and standard of compliance as private

parties. We would like to make sure that the intent of language in the draft allows

State-applicable standards to be applied at Federal facility sites in the same manner

that they apply at nonFederal facility sites.

The States would like to commend the committee for including provisions in the

chairman’s mark allowing EPA to transfer responsibility for Federal facilities to

States. However, we are unclear why the process is different and the provisions

much more restrictive than the provisions in Title II for nonFederal sites on the

NPL. One interpretation is that responsibility for Federal facilities may be transferred to States, but that States must at all times use the Federal remedy selection

process. We do not understand the justification behind this language and would be

greatly concerned if this precludes States from applying State applicable standards

to Federal facilities if they are more stringent than the Federal standards.

In addition, in virtually every other environmental statute, Congress has waived

sovereign immunity and allowed States to enforce State environmental laws at Federal facilities. A clearer, more comprehensive sovereign immunity waiver should be

developed that includes formerly used defense sites.

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
107

environment. The Governors feel this is an important program that must be maintained. We commend the committee for emphasizing restoration as the primary goal

of this program, extending the statute of limitations to 3 years from completion of

a damage assessment, and creating an effective date to protect claims and lawsuits

already filed. Protection of existing claims and lawsuits is a very important provision for all Governors, particularly Governor Marc Racicot of Montana who serves

as vice chair of NGA’s Committee on Natural Resources. We also suggest that the

committee consider removing from the trust fund the prohibition on funding natural

resource damage assessments and giving State trustees the right of first refusal to

be lead decisionmaker at NPL sites with natural resource damages. We also support

retention of nonuse damages.

MISCELLANEOUS

The States would like to applaud the inclusion in this draft of a provision to require the concurrence of the Governor of a State in which a site is located before

a site may be added to the NPL. NGA has fought long and hard to have this vitally

important provision included in legislative proposals.

We have concerns about an annual ‘‘cap’’ or limit on NPL listings. We believe that

by requiring a Governor’s concurrence on any new listings, a sufficient and appropriate limitation is placed on new listings. Further limitations are unnecessary. Because of differences in capacities among States, the complexities and costs of some

cleanups, the availability of responsible parties, enforcement considerations, and

other factors, limitations on new listings could result in some sites not being cleaned

up. We believe there should be a continuing Federal commitment to clean up sites

under such circumstances, regardless of whether an arbitrary cap has been exceeded

in any given year. The States are interested in working with the committee to resolve our concern.

CONCLUSION

Mr. Chairman, I would like to thank you for your hard work on this important

reform legislation and for providing me with the opportunity to communicate the

views of State government on Superfund reform. Again, NGA, ECOS, and

ASTSWMO are very encouraged by the direction you have taken with this legislation and are pleased that this draft reflects many important compromises that

should enjoy bipartisan support. We hope that members of both parties will roll up

their sleeves to pass Superfund reform legislation. I look forward to working with

both the majority and minority to bridge any differences and craft legislation that

can be signed into law.

RESPONSES BY GOVERNOR E. BENJAMIN NELSON TO QUESTIONS FROM

SENATOR WYDEN

Question 1. Isn’t it true that private parties have to comply with all applicable

environmental laws, both State and Federal, when they’re conducting cleanups at

Superfund sites and are subject to enforcement action if they fail to comply? Is it

good public policy to allow a double standard for private versus Federal cleanups

when it comes to complying with these laws?

Response. It is true that private parties must comply with all applicable State and

Federal laws during the course of remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. The requirements of State environmental laws and Federal laws, such as the Clean Water Act,

the Clean Air Act, and the Resource Conservation and Recovery Act, are binding

on remediating parties under all circumstances.

As I stated in my testimony, the Governors believe that failure to hold the Federal Government to the same standards it imposes on private parties creates a double standard and allows it to elude its civic responsibilities. This double standard

erodes the public’s faith in all levels of government, precludes States from consistently enforcing the environmental standards that they have adopted as protective

of human health and the environment, and shifts the costs of remediating Federal

sites to State governments.

The Governors strongly recommend that Congress include in CERCLA a clear requirement that Federal agencies comply with all procedural and substantive requirements of State and Federal environmental law.

Question 2. Does the National Governors’ Association support adding language to

Superfund reform legislation to make it clear that Federal agencies must comply
108

with applicable environmental laws during the course of Superfund cleanups at Federal facilities and/or clarify the authority of States to enforce these laws?

Response. The Governors recommend that Congress include a clear waiver of sovereign immunity under CERCLA as it has under virtually every other Federal environmental statute. A waiver of sovereign immunity would hold the Federal Government to the same standards it has set for private parties and allow States to enforce

environmental requirements against Federal facilities in the same manner and to

the same extent they are enforced against private parties.

RESPONSE BY GOVERNOR E. BENJAMIN NELSON TO A QUESTION FROM

SENATOR MOYNIHAN

Question 1. The chairman’s mark asks for a cap on the number of new NPL sites.

How will this cap affect the ‘‘cleanup’’ of sites not yet on the NPL?

Response. As I testified, NGA opposes an arbitrary limitation or ‘‘cap’’ on the National Priorities List (NPL) because it could preclude the Federal Government from

addressing a contaminated site if the cap had been reached in a given year. The

Governors recognize that sites may be discovered in the future that may require

Federal attention and believe that the Federal Government should continue their

commitment to cleaning up the most contaminated sites.

We believe that requiring a Governor’s concurrence on all NPL listings places a

reasonable and appropriate limitation on new NPL listings while ensuring that the

Federal Government maintains its necessary role.

RESPONSE BY GOVERNOR E. BENJAMIN NELSON TO A QUESTION FROM

SENATOR CHAFEE

Response. Mr. Chairman, I would like to take this opportunity to respond more

thoroughly to a question you asked me on September 4. You asked my opinion of

a comment made by Ms. Wilma Subra, the community participation representative

on my panel. She opposed a substantial State role in the Superfund program because of her lack of faith in her State government to protect the people.

I believe very strongly in the concept of federalism and the role of State governments in the lives of people every day. Governors take pride in their jobs and take

environmental protection very seriously. A substantial State role in this program is

entirely appropriate and necessary and all Governors take offense at Ms. Subra’s

assertion that people need the Federal Government to protect them from their State

government. The answer to this concern should continue to be the election process,

not the administrator of the U.S. Environmental Protection Agency.

The Governors commend you for including in your mark flexible opportunities for

States to administer the Federal Superfund program and a provision that requires

a Governor’s concurrence for all new NPL listings. These provisions strike an appropriate balance between the roles of State and Federal Governments.

I again thank you for the opportunity to testify and for the chance to respond to

additional questions for the record. If I, or any of the Nation’s Governors, can be

of any assistance as you continue to develop a bipartisan Superfund reform package,

please contact me directly. I look forward to working with you on these very important issues.

PREPARED STATEMENT OF MAYOR JAMES P. PERRON, ELKHART, IN, ON BEHALF OF

THE U.S. CONFERENCE OF MAYORS

Good morning, Mr. Chairman and members of the committee. I am James Perron,

Mayor of Elkhart, IN. I am pleased to be here this morning and thank you for your

leadership in development of S. 8 and in moving the legislative process forward with

this hearing. Today I am testifying on behalf of the United States Conference of

Mayors, which represents over 1100 cities with populations of 30,000 or more.

As Mayor of Elkhart for almost 15 years, I have dealt head-on with virtually

every environmental problem and opportunity available to a modern city today, including: Superfund, groundwater contamination, recycling, closing a polluted landfill, riverfront redemption and many others. Our Environmental Center—built on

the site of the old city dump—and our EnviroCorps program, funded by

AmeriCorps—are award winning. We have an ongoing relationship with Notre

Dame University aimed at environmental management innovations. I know that

working together we can bring new success to Superfund and Brownfield initiatives.
109

Mr. Chairman, I should note for the record that my experience with the Superfund program goes back almost to its beginning as well as the start of my mayoralty. Soon after taking office in 1984, we learned that our municipal drinking

water supply was essentially a Superfund site. In the years that followed, working

closely with EPA, our community worked its way out of this dilemma. Our water

supply is now clean, and we have a Sole Source Aquifer Designation.

Our experience with brownfields is very real and hands-on. Elkhart is one of the

most densely industrialized cities in the country. We are among the Nation’s leaders

in per capita manufacturing jobs. Many projects have been slowed and others even

brought to a halt by problems associated with brownfields. The framework provided

by S. 8, along with a willingness on the part of a city to work creatively with the

private sector, will go a long way toward accelerated brownfield recycling.

The Nation’s mayors are uniquely interested in Superfund reform, because we

have been directly affected by the best and the worst of Superfund. We believe that

the Superfund program has been successful in meeting three national policy objectives: (1) the dramatic reduction in use of hazardous materials by industry and commerce, (2) the ability for our nation to respond to emergency spills and contamination that pose an immediate health and environmental threat, and (3) creation of

a much safer, national hazardous waste management and disposal system.

No one doubts that industry and businesses have significantly reduced their use

of hazardous substances because of the threat of CERCLA liability. When CERCLA

was passed in 1980, many companies entered the hazardous materials business in

expectation that the need for hazardous materials management would result in

handsome profits. But many of their projections did not materialize. Instead, industry changed how it did business and used less hazardous materials.

The emergency response program within CERCLA is a similar success story. EPA

has been able to immediately respond to hundreds of emergencies across the Nation

that represented immediate endangerment to the public’s health. The program gets

high marks for its efficiency and should continue. Similarly, we are disposing today

of our hazardous waste in a dramatically safer manner than we did prior to

CERCLA’s enactment.

That’s the best of Superfund. But along side these tremendous public benefits is

a horrible, unintended consequence of the Superfund program—the fact that the private sector will not invest in hundreds of thousands of non-NPL, contaminated properties because of the fear of being caught in the Superfund liability web. The liability structure of Superfund has had a chilling effect on developers and local governments who want to redevelop these so-called ‘‘brownfields’’—sites that have been

contaminated or ‘‘might be’’ contaminated because of their past industrial or commercial use.

Furthermore, the Superfund program has made the cleanup of National Priority

List sites expensive, bureaucratic, time-consuming and litigious. Everyone agrees

that the Superfund program as it relates to NPL sites needs reforming. Local governments, non-profits and small businesses are acutely aware of this because liability associated with the normal disposal of municipal solid waste has resulted in endless litigation. While allocating costs to the polluter of an industrial facility that has

undergone few changes in ownership makes sense, sorting out through the courts

who disposed of municipal solid waste over an extended period in a co-disposal site

is a nightmare and has accounted for some of Superfund’s most egregious horror

stories. Your decision to move forward with a mark up of S. 8 to reform and expedite

how we deal with Superfund site cleanups is extremely important and the nation’s

mayors want to support your efforts. We hope that this process will coalesce in bipartisan support for a Superfund reform bill in this Congress.

BROWNFIELDS

Mr. Chairman, the contamination of now abandoned industrial and commercial

property, which today we call brownfields, was not caused by local governments or

the citizens who now must live with the consequences of lost jobs, an eroded tax

base and abandoned or underutilized properties that denigrate communities. The

unintended, negative consequence of our Federal Superfund policies has been the

price for achieving the Superfund program’s national benefits. This unfortunate situation simply must be addressed in an aggressive way as you begin the reauthorization process. We must undo the unintended harm that Superfund has imposed upon

our communities.

Last year The U.S. Conference of Mayors released at its Winter Meeting a 39-

City Survey on the Impact of Brownfields on U.S. Cities. Of the cities surveyed, 33

cities with brownfield sites said that more than $121 million is lost each year in

local tax revenues—using conservative estimates. More than $386 million is lost
110

each year, using more optimistic estimates, suggesting that the more than 20,000

cities and other municipalities nationwide could be losing billions of dollars each

year in local tax receipts due to the existence of brownfields. I am pleased to provide

a copy of the survey to the committee for the record.

Mr. Chairman, we also believe that the existence of brownfields and the inability

to ‘‘recycle’’ our previously contaminated land has additional negative environmental

effects. Urban sprawl has a direct negative impact on air and water quality, in addition to destroying farmland, forests, and open spaces. We believe that between 1982

and 1992, prime farmland equivalent in area to the States of Rhode Island and Connecticut was lost to urban sprawl. If we do not develop an aggressive farmland and

forest preservation program that allows us to turn our development energies to

brownfields, this alarming trend will only continue.

The President of the U.S. Conference of Mayors, Fort Wayne Mayor Paul Helmke,

has made brownfields redevelopment the top priority for the nation’s mayors in the

coming year, as did Mayor Richard Daley of Chicago during his presidency of the

Conference. Your willingness to place brownfields as Title I of the Superfund reform

bill is, itself, an indication that this committee understands the importance of addressing the Brownfields issue. As we speak, Mayor Helmke is meeting with the Cochairs of our Brownfields Task force in Rhode Island to further evaluate S. 8 and

its brownfield proposals. We would be pleased to forward our more detailed comments on S. 8 and the results of our deliberations to the committee in the coming

days. We would also like to submit for the record the Conference of Mayors

brownfields and Superfund reform policies unanimously adopted in San Francisco

at our annual meeting in June of this year.

Turning specifically to the proposals that we were asked to address for today’s

hearing, I would like to start by saying that it is important for Title I on

Brownfields to provide local governments the greatest flexibility possible in the use

of brownfields site assessment, characterization, and cleanup funds.

The definition of brownfields should not require the site to currently have an

‘‘abandoned, idled, or underused facility.’’ Many former industrial and commercial

sites have been razed, but still contain contamination that should qualify the site

as a brownfield.

Likewise, the list of exclusions in the definition of brownfields should be significantly narrowed or eliminated, so that local governments have the flexibility to submit brownfield sites that are local priorities. For example, the current list of exclusions within the brownfields definition would disqualify sites that should be addressed as brownfields, such as those that have been subject to emergency response

actions. Many emergency response actions remove the immediate ‘‘emergency’’ but

do not leave the property in a condition that would allow the private sector to invest

in it. These abandoned industrial sites may have both removal and remediation

needs which require action to address immediate threats and a less urgent remedial

process to restore the property to a useful purpose. The current language would not

provide the flexibility needed to include these sites as a part of a local government

brownfields program, the principal purpose of which is to clean these sites and return them to tax generating properties.

Similarly, under the current language, a facility that was subject to corrective action would be disqualified as a brownfield. But the corrective action may apply only

to the ‘‘waste disposal unit’’ on the site. In these instances, the entire site should

not be disqualified from the brownfield program.

Furthermore, many sites have multiple contaminants that may be subject to various statutory authorities. Local governments need the equivalent of a ‘‘one-stop’’

shop at EPA where the sole objective should be to clean up the site as soon as possible and to return it to productive reuse in the community. The presence of a particular type of contaminant should not disqualify the site, particularly if the local

government has determined that it is in the best interest of the community to qualify the site as a brownfield. The brownfields program offers us a unique opportunity

to create that ‘‘one-stop shopping’’ approach.

The bottom line is that local governments want to serve as a catalyst to attract

the private sector to invest in these sites. Our goal should be results oriented: clean

them up and return them to productive economic reuse, as opposed to disqualifying

them.

On the issue of funding, we believe that the Superfund program, which helped

to create hundreds of thousands of brownfields, should devote at least 10 percent

of its funding annually to the brownfield cleanup program. We are extremely

pleased that both House and Senate Appropriations Committees have provided $85

and $88 million respectively in fiscal year 98 for the EPA brownfields program. We

want to thank Senator Bond for his leadership in that arena.
111

We believe this funding can be justified on the grounds that the Superfund program has served as a tremendous disincentive for the cleanup and reinvestment of

these properties. But it can also be justified on public health grounds. While

brownfield sites may be less contaminated than NPL sites, in many instances they

are more accessible to the public. An abandoned industrial facility is an invitation

to the public, particularly children. Anyone who says that such facilities can be adequately secured over long periods of time in an urban or rural environment is not

realistic. Furthermore, the inability to redevelop these sites has resulted in the

denigration of many communities, loss of jobs and therefore a general decline in the

health of a community. We believe these reasons are more than adequate to justify

significant funding for brownfields cleanup and redevelopment.

We believe that the limitations on funding per site in the current draft are overly

restrictive. Certain large brownfield sites may well need more assessment and

cleanup funds than are allowed for in the current draft. Similarly, the limitations

on the size of capitalization grants for local revolving loan funds are also overly restrictive, especially when one considers communities that have been, or are, heavily

industrial, or smaller communities that may have a single, but very large brownfield

site. In addition to capitalization grants, language should clarify that grant funds

can also be used directly to clean up sites, particularly those sites held by local governments or those located in distressed communities.

We want to commend the committee for providing liability provisions which protect certain third party purchasers of brownfield properties. We want to make sure

that local governments are afforded equal liability protections if they acquire property for brownfield redevelopment or have acquired the property as a result of tax

foreclosure. It is also extremely important that the legislation include strong provisions for ‘‘finality’’ of sites cleaned up through State voluntary cleanup programs,

with well defined, limited parameters as to when EPA may reintervene. Additional

comments on these provisions, which we consider of critical importance, will be submitted for the record in the coming days.

Mr. Chairman, we consider Title I of the revised draft of S. 8 to be an excellent

starting point for further consideration and we look forward to working with you

to further improve it.

SUPERFUND PROVISIONS

Mr. Chairman, the policy which mayors adopted in San Francisco calls for Superfund reauthorization to include provisions that expedite the cleanup of co-disposal

landfill sites by providing liability protections for generators, transporters, and arrangers of municipal solid waste and capping liability for local government owners

and operators of such landfills. The provisions of S. 8 clearly begin that process and

go a long way toward that end. We are concerned, however, that the bill does not

provide generators and transporters of MSW protection from third party contribution lawsuits for cleanup costs incurred prior to date of enactment at codisposal

sites. Because we believe Congress never intended municipal solid waste and sewage sludge to be considered hazardous under CERCLA, we believe that some form

of liability relief should also be extended to pre-enactment costs for generators and

transporter of MSW, particularly those related to third party contribution suits that

have not yet been settled. Numerous studies have indicated that MSW contains less

than one-half of 1 percent (.5 percent) toxic materials. In almost every instance,

NPL landfill sites are co-disposal sites contaminated principally by hazardous

waste, not municipal solid waste. We also encourage the committee to include local

government ‘‘ability-to-pay’’ provisions in the bill.

Our policy also calls for the EPA to adopt administrative reforms to provide liability relief to generators, transporters, and arrangers of municipal solid waste at codisposal sites. We are pleased that the Agency has responded with its recent proposal, which should apply to all pending third party suits. One concern, however,

is how will EPA adjust the per ton fee as more cost efficient remedies are performed

on co-disposal sites, and how can local governments be assured that they do not pay

an unreasonable percentage of cleanup costs at co-disposal sites under this proposal.

The most important principle set forth in EPA’s policy is that municipal solid waste

has virtually never been the cause for listing co-disposal landfills on the NPL. This

principle should guide the policies for both legislative and administrative reform.

Various legislative proposals in the past have relied on the principle that in no case

should generators and transporters of municipal waste pay more than 10 percent

of total response costs—a threshold that the EPA administrative reforms must meet

in order to be viable. We are currently evaluating the EPA proposal to determine

if it meets this test. However, we agree with the chairman’s mark which reflects

the view that the toxicity of MSW is so low that the transaction costs of collecting
112

funds for response costs incurred after date of enactment warrant a transfer of liability from individual parties to the orphan share.

Mr. Chairman, we look forward to working with the committee to determine if

there is a way to marry the benefits of both these approaches.

On the issue of remediation, many of our public water systems want to make sure

that Superfund reforms adequately protect public health and preserve our drinking

water supplies for future generations. Water supplies that are or may be used as

drinking water sources must be remediated, if feasible, by methods that offer permanent solutions. Remedies that serve to protect currently uncontaminated water

supplies which are or may be used as drinking water sources from becoming contaminated must take precedence over other remedies. The legislation should recognize that users of the drinking water may be in separate jurisdictions and provide

for involvement of both jurisdictions in remedial action plans. Mr. Chairman, I serve

as the Conference of Mayors designee to the American Water Works Association

Public Affairs Committee, and in that capacity I have developed an even greater appreciation for the need to protect our long term drinking water sources from further

contamination.

Finally, we believe that local governments have not been adequately tapped as

local management resources to help expedite the cleanup of NPL and non-NPL sites.

In every aspect of the legislation, local governments should be viewed as valuable

partners who are responsible for protecting human health and the environment at

the local level. Therefore, we urge a stronger role for local governments in organizing the local advisory groups, in evaluating State proposals to receive delegated authority, in evaluating remedy selections, particularly as they pertain to long-term

drinking water supplies, and in serving as catalysts for expediting cleanups.

Mr. Chairman, we thank you for the opportunity to appear today before the committee. We will be submitting additional comments on other aspects of the bill

which we did not have time to address today. We encourage the Senate to move forward on Superfund reform and to reach a bi-partisan agreement on a bill. We believe S. 8 is a good starting point for those deliberations. I would be pleased to answer any questions the committee may have.

RESPONSES BY MAYOR JAMES P. PERRON TO QUESTIONS FROM SENATOR INHOFE

Question 1. Will restrictions on new emissions restrict redevelopment opportunities in urban areas?

Response. Without question, EPA’s proposed implementation plan for the new air

quality standards will restrict redevelopment opportunities in urban areas. The plan

perpetuates the flawed regulatory approach that now targets urban ‘‘nonattainment’’

areas, imposing pollution control costs on businesses located in those areas. These

costs can be, and are, avoided by locating outside of the nonattainment areas where

increased pollution is allowed due to less stringent regulations.

We know that redevelopment efforts in many urban areas are already hampered

by the existing air regulations and implementation plan. EPA itself has admitted

that the existing framework effectively drives businesses away from urban areas.

The new implementation plan could serve to exacerbate this problem, not only because it retains most elements of the existing implementation plan, but also because

it threatens to impose even more restrictions on many urban areas and is fraught

with regulatory uncertainty.

The existing implementation plan for the former 1-hour ozone standard already

hinders redevelopment efforts in many urban areas, with many of the largest urban

areas in the Nation already classified as ‘‘nonattainment’’ for ozone. Under the current legislative and regulatory framework, industrial and commercial businesses located in ‘‘nonattainment’’ areas are forced to comply with a number of stringent regulations that do not apply to ‘‘attainment’’ areas. Among other requirements, businesses that want to construct a new facility or expand an existing facility in a nonattainment area confront the following: a lengthy, complicated permitting process;

an offset requirement, which means that a new emitting facility cannot be built unless an existing facility decreases its emissions or ceases its operations; and an obligation to comply with the ‘‘lowest achievable emission rate,’’ or LAER, which requires use of the most stringent emission control technology available.

We have seen how this scheme effectively drives businesses out of major urban

areas. Businesses that either cannot, or choose not to, comply with the stringent air

regulations in nonattainment areas can easily avoid them simply by locating their

facility in an attainment area, on a greenfield site. EPA has even admitted that this

policy negatively impacts economic development in cities.
113

Former EPA Assistant Administrator for Air and Radiation Mary Nichols acknowledged these concerns in a July 24 interview with BNA. In discussing how air

standards designate areas in or out of attainment, she said that creating these two

categories ‘‘has had the unintended consequence of creating incentives for new businesses and new developments to spread out into the countryside, as opposed to helping build the economies of our core cities.’’ Nichols then explained that ‘‘I don’t think

it’s so much that urban areas have been neglected per se. It’s that we have not

given as much time and attention to helping figure out how air quality goals can

meld into other goals that we have.’’

EPA’s present denial of the link between air quality regulations and brownfields

redevelopment efforts simply ignores its recognition of the unintended consequences

brought by its regulation.

EPA’s proposed implementation plan for the new air quality standards will perpetuate and magnify the burdens on urban areas, further undermining brownfields

redevelopment efforts. For the new ozone standard, EPA is proposing an implementation plan that designates geographic areas as either ‘‘nonattainment,’’ ‘‘transitional’’ or ‘‘attainment.’’ The ‘‘nonattainment’’ designation and the current implementation plan would continue to apply to all areas still designated ‘‘nonattainment’’ for the prior ozone standard. The stringent regulations discussed above,

which clearly are in direct conflict with brownfields redevelopment efforts, would remain in place. Once these areas meet the prior standard, the new ozone standard

would take effect. At that time, EPA has said that even more local controls will need

to be implemented, serving to even further discourage urban redevelopment in those

areas.

The ‘‘transitional’’ designation will further thwart urban redevelopment efforts because it will discourage businesses from redeveloping in even more urban areas

than the number of urban areas now where redevelopment is already discouraged.

As we understand EPA’s plan, the new ‘‘transitional’’ designation, which will apply

to all areas meeting the prior standard but not the new standard, will likely attach

to the remaining urban areas not already designated ‘‘nonattainment.’’ Interestingly,

EPA created the ‘‘transitional’’ category to avoid having to impose ‘‘burdensome local

planning requirements’’ and ‘‘stigmatize areas by labeling them ‘‘nonattainment.’’

This is yet another acknowledgement that its current air regulations discourage

businesses from locating in urban areas.

But even the ‘‘transitional’’ designation will serve to discourage brownfields redevelopment. According to EPA’s proposed plan, the transitional areas may or may not

need new local controls. Faced with such regulatory uncertainty, businesses looking

to make sound economic investments will certainly try to avoid transitional areas

in favor of attainment areas where regulations are guaranteed to be far more lax.

The proposed implementation plan for new particulate matter standard will also

discourage urban redevelopment efforts, in that it creates uncertainty for at least

the next 5 years. Businesses will not want to locate in an area that has the potential to be designated nonattainment.

In summary, we disagree with EPA’s representation that brownfields redevelopment efforts will not be jeopardized by the new air quality standards. Urban redevelopment is already hindered by the current standards, and will be further hindered under the new standards. EPA’s approach to clean air clearly undermines efforts to redevelop our urban environments, and is wholly inconsistent with the

many brownfields initiatives being pursued throughout the country.

Question 2. Would a successful brownfields program require special flexibility

from the new NAAQS standards? Other environmental standards?

Response. While a brownfields program with special flexibility from the new

NAAQS would be helpful in resolving the inconsistency between the air regulations

and the goal of brownfield programs, a far better solution would be to correct the

problem via the implementation plan for the air quality standards. As The U.S.

Conference of Mayors has pointed out in numerous other forums, the current and

proposed implementation plans not only thwart urban redevelopment efforts but

have numerous other problems as well, including unintended, negative consequences

for both public health and the environment. A revised implementation plan—one

that treats all communities equally for purposes of regulating air quality rather

than singling out individual cities for disproportionate or stigmatizing treatment—

would resolve the conflict with brownfields redevelopment programs and many of

these other public health and environmental problems.

If revising the implementation plan for the air quality standards will take excessive time to accomplish, then the Conference of Mayors believes that an interim,

flexible approach is needed to relieve urban areas attempting to redevelop

brownfields of the undermining effects of the air regulations. One suggestion that
114

the Conference is currently developing would be to award emission credits for businesses that choose to develop at a brownfield site. The emission credits would be

justified due to the fact that employees traveling to a worksite in the inner-city, as

opposed to outlying areas, can generally get there by relying on public transit or

making shorter auto trips. There are other benefits that can be realized when we

develop these sites where densities offer many environmental and other advantages.

In answer to the question of whether a successful brownfields program would require special flexibility from other environmental standards, the Conference would

be interested in seeing increased Federal funding for the cleanup of brownfields, and

Federal support and recognition of State voluntary clean-up programs to encourage

cleanup and redevelopment.

PREPARED STATEMENT OF WILMA SUBRA

Thank you for the opportunity to testify on the issue of Superfund reauthorization. I have been involved in Superfund issues since the inception of Superfund,

working with citizens groups living around sites, serving as a technical advisor on

the National Commission on Superfund, and provide technical assistance to citizens

groups at 8 Superfund Sites through the TAG process.

STATE DELEGATION

The transfer of authority to States in order to perform the Superfund program

may be appropriate for a few States, but the wholesale transfer of the Superfund

program to a large number of States will have a negative impact on the program.

An example of a State that should not be granted Superfund authority is the

State of Louisiana. The State lacks the financial resources, personnel and political

will to even implement their own State program. The majority of the National Priority List sites in Louisiana were submitted to EPA by citizens groups. The State did

not want the stigma of hazardous waste sites being on a Federal list.

In 1995, the State legislature removed almost all of the funding and personnel

from the State program. The current State program only has sufficient financial resources to perform small emergency removal actions when midnight dumpers drop

off barrels of waste along roadsides and to provide Federal required oversight at the

14 Superfund Sites in the State. There is little or no resources to evaluate the more

than 500 potential sites or to perform remedial activities at confirmed sites. During

the past two fiscal years 57 confirmed hazardous waste sites sit waiting for cleanup

when and if resources become available. When sites pose an eminent and substantial threat, the EPA has to step in to finance and perform emergency removal actions for the State. The most recent examples of the need for Federal resources and

manpower was the Broussard Chemical Co. sites in Vermilion Parish. The EPA

spent more than $2.5 million performing an investigation, removal and disposal action at 6 separate locations operated by Broussard Chemical. A number of additional

sites operated by the same person are currently being investigated by EPA.

If it were not for the EPA and the financial resources of the Potentially Responsible Parties, little progress would be made in the State of Louisiana in addressing

the hazardous waste sites.

The EPA is currently funding site inspections at 15 potential hazardous waste

sites in the the State of Louisiana. More than 40 pipeline companies are performing

site evaluation at sites along their pipelines throughout the State of Louisiana. Site

cleanups were completed at 7 PRP funded sites. The EPA is funding a program to

assist the State in identifying up to 25 additional sites per year. But the State will

still lack the financial resources to address the newly identified sites.

At PRP funded sites the State is still responsible for oversight. The lack of personnel resources has a major impact on the process. In Louisiana, the lack of sufficient

technical resources has resulted in the State missing critical technical issues on the

Shell—Bayou Trepagnier site. One of the issues missed involved the diluting of the

contaminant levels by the PRP including the control samples in both the site samples and the control samples. Thus lower contaminant concentrations were evaluated for the site.

The State of Louisiana and many other States which lack financial and personnel

resources should not be even given the opportunity to request State delegation or

feel pushed by Congress into having to accept the delegation of the Superfund Program.
115

FAILURE TO ACT

The delegation of the Superfund Program to individual States contains a clause

entitled Failure to Act. This clause is contained in three separate portions of the

delegation requirements (pg. 37, 45 and 46). Under the Failure to Act clause, if a

determination is not made by the Administration within a specified number of days

after the required information is received from a State, the transfer of responsibility

shall be deemed to have been granted.

This clause is inappropriate. A State should not be automatically granted delegation of the Superfund Program. The EPA must be given the opportunity to completely evaluate information provided by the State.

TREATMENT OF HOT SPOTS

The preference for permanence in Superfund remedies has been modified to only

treatment of hot spots. Attempts are made to justify the appropriateness of only

treating the hot spots by including containment for the other hazardous substances.

Reliance on containment is not a permanent remedy and merely puts off addressing

the hazardous contamination until a future date. During that period when the containment fails, public health and the environment will be impacted. The community

members in the area of the site will once again be exposed to the hazardous substances and bear the burden of health impacts. The preference for permanence

should be expanded to include a larger portion of the hazardous contaminants than

just the hot spots.

A containment remedy is being proposed for the Agriculture Street Landfill

Superfund Site in New Orleans. The landfill was operated by the city of New Orleans from 1909 to 1965. The city then developed 47 acres of the 95 acre site on top

of the landfill an private and public housing, recreation facilities and an elementary

school. The residential population consists of 67 privately owned homes, 179 rentto-own townhouses, and 128 senior citizen apartments. The proposed containment

will be a permeable two feet of soil in the residential area and one foot of soil in

the undeveloped area. The hazardous waste will still be located one to two feet

under the residential area with only a permeable layer separating the people from

the waste. Even representatives of waste disposal companies have stated that no

one should be made to live on top of an old landfill. In this case the people should

be relocated and an appropriate containment remedy implemented.

COMMUNITY ADVISORY GROUP COMPOSITION

The composition of the Community Advisory Group is defined under SCAA Section 303(h)(5)(ii). The first type of group defined is ‘‘Person who resides or owns residential property near the facility.’’ In the case of some Superfund sites, people live

and own land on the Superfund site. These people should be represented on the

Community Advisory Group.

An example of such a site is the Agriculture Street Landfill Superfund Site in

New Orleans. Approximately 1,000 people live on top of the landfill and 67 families

own their own homes on top of the landfill.

DELISTING

Under Section 135(a)(i), the bill proposes a delisting process that will be initiated

no later than 180 days after the completion of physical construction to implement

the remedy. The initiation of the delisting process after construction completion

rather than after remedy implementation completion is totally inappropriate.

Under the most ideal circumstances, implementation of the remedy after construction has been completed encounters snags that were unknown during the planning

process. In some cases these problems have required a change in part of the remedy

process and required additional construction activities.

Just a few months ago, the solidification and stabilization portion of the remedy

at the Gulf Coast Vacuum Superfund site had to be reevaluated. The waste at the

site is biotreated in land treatment units and was to be solidified and stabilized

with portland cement. Bench scale tests provided appropriate results. However,

when the first field test was executed, the stabilized mixture failed to meet the appropriate standards due to chromium contaminants contained in the portland cement. A search for noncontaminated cement was unsuccessful. The remedy is now

being reevaluated utilizing different stabilizing chemicals.

If the delisting process proposed in the bill was in place, this site would have already been delisted. Therefore I would request that the delisting process only occur

after the remedy has been implemented and completed.
116

In the case of delisting a site, the Technical Assistance Grants could be lost due

to site delisting. If delisting occurs after construction completion but before the remedy has been implemented and completed the community will be cut out of participation in the critical implementation phase of the process. There is a misconception

that once the remedy is selected and construction completed, there is no need for

public participation. At all of the Superfund Sites that I have been involved in,

there are always situations that arise during remedy implementation that require

involvement of the public in resolving the issues to everyone’s satisfaction. Please

do not initiate a process that prevents public involvement and participation in the

remedy implementation phase of the Superfund Process.

STATE CONCURRENCE

The addition of sites to the National Priorities List can only be accomplished

‘‘with the concurrence of the Governor of the State’’ in which the site is located

(SCAA Section 802(i)(3). In the State of Louisiana the Governor has only concurred

on one site That site was the Southern Shipbuilding Site in Slidell. The Southern

Shipbuilding site waste was to be treated in the existing Bayou Bonfouca Superfund

onsite incinerator and the same contractors were to perform the work. Thus the

Governor concurrence allowed the local contractors to perform the second Superfund

job.

At the other sites investigated and proposed for inclusion on the NPL, the Governor did not concur. The failure to concur stopped the Superfund process and put

on additional financial burdens on the already over burdened State agency. Even

though the majority of the non-concurrence sites would have been PRP funded, the

State agency is still responsible for providing financial and technical resources to

perform oversight activities. The non-concurrent sites have had little or no progress

since the non-concurrence.

The ability of the Governor to have the veto over a site being listed on the NPL

in inappropriate. It not only puts an additional burden on the State agency if anything is to be accomplished at the site, it also prolongs the exposure of the citizens

living and working on or near the site, or consuming seafood and animals contaminated by the site, as is the case of Bayou D’Inde in Calcasieu Parish, Louisiana.

LIMITATION ON NEW SITES

The proposed bill establishes a limit on the number of new sites that can be added

to the NPL (SCAA Section 802(i)(1)). The number of sites decreases from 30 in 1997

down to 10 in the year 2000 and each year thereafter.

For States without sufficient funding to address sites that should be fund led, this

limit on the number of new sites will be an additional burden. In reality the additional burden will be borne by the citizens living on and adjacent to these sites. The

establishment of a limit on the number of new sites should be removed from the

bill.

Thank you for the opportunity to provide input into this process.

PREPARED STATEMENT OF GORDON J. JOHNSON, NEW YORK STATE ASSISTANT

ATTORNEY GENERAL

My name is Gordon J. Johnson, and I am the Deputy Bureau Chief of the Environmental Protection Bureau in the Office of New York Attorney General Dennis

C. Vacco. I very much appreciate the opportunity to appear before the committee,

and particular thank Senators Chafee and Baucus, as well as Senator Moynihan

from New York State, for giving me the time to present comments on S. 8 and the

chairman’s draft mark of August 28, 1997.

I am appearing today on behalf of my office, which has had considerable experience in natural resource damage cases, and on behalf of the National Association

of Attorneys General, NAAG. My office has handled or is now counsel in more than

25 major natural resource damages cases arising from the release of hazardous substances or petroleum products. We also challenged on behalf of the State of New

York the initial natural resource damage assessment regulations promulgated by

the Department of the Interior in 1986, a case which I argued before the United

States Court of Appeals for the District of Columbia Circuit. That case, Ohio v. Department of the Interior, 880 F.2d 432 (D.C. Cir. 1989), led to significant changes

in the assessment regulations. When the revised regulations were challenged, New

York with other states intervened in support of the rules. The decision in that case,

Kennecott Utah Copper Corp. v. Department of the Interior, 88 F.3d 1191 (D.C. Cir.

1996), upheld the Department’s rule in large part.
117

At its Summer meeting on June 22–26, 1997, the sole resolution adopted by

NAAG addressed Superfund Reauthorization; a copy of the resolution is attached.

Attorney General Vacco was among the group of bipartisan sponsors of the NAAG

resolution. The resolution directly addresses the natural resource issues which are

the subject of this panel.

The NAAG resolution arose from the state Attorneys General’s recognition of the

critical importance of the Superfund programs in assuring protection of public

health and the environment from releases of hazardous substances at thousands of

sites across the country. They also know first hand the problems with the statutory

scheme, and the need to limit transaction costs and streamline certain processes required by Superfund today. In particular, the Attorneys General want to make the

tasks of assessing natural resource damages and restoring injured or destroyed resources less complicated, and to reduce the amount of litigation that may result

when trying to accomplish those goals.

In the following paragraphs, I will first address the issues raised in the NAAG

resolution, and then address other significant issues in the current bill and the

chairman’s draft of August 28, 1997.

1. JUDICIAL REVIEW

In the resolution, NAAG urges Congress to clarify that in any legal proceeding

the restoration decisions of a trustee should be reviewed on the administrative

record, and be upheld unless arbitrary and capricious. S. 8, as introduced, contained

provisions in § 702 regarding the administrative record and public participation

which, when read together, appeared to accomplish that goal. The chairman’s markup retained the provision regarding the establishment of the administrative record

but removed the language in the public participation section providing that judicial

review of the trustee’s restoration plan decisions would be on that record. S. 8 also

removed the rebuttable presumption provided in current law to a trustee who adheres to the assessment regulations when conducting an assessment.

The deletion of the judicial review provision is unfortunate and unwise, and likely

will lead to greater litigation, increased expense, and secretive and duplicative assessments. Unless the selection of a plan and the assessment which led to that selection is entitled to the usual administrative presumption of correctness, no trustee

could afford to conduct an assessment and select a plan on an open record with full

public input knowing that responsible parties would not bound in any fashion by

the determination. The key to reducing the costs of assessment and constructing a

cooperative relationship with responsible parties is judicial review limited to correction of arbitrary decisions by a trustee. Such a process has been at the center of

administrative law processes, and has received the approval of all courts as to its

constitutionality. We again urge the committee to restore the judicial review provision deleted in the recent draft.

We suggest language that makes clear the standard of review, thereby limiting

the ability of the ever inventive CERCLA lawyers to raise a new issue with which

to clog the courts and delay the implementation of restoration plans:

[add to end of paragraph of draft chairman’s mark—August 28, 1997 in Administrative Record (new § 107(f)(20(C)(v)(I)] In any judicial action under this chapter, judicial review of any issues concerning the selection of a restoration plan

shall be limited to the administrative record, and a trustee’s selection shall be

upheld unless the objecting party can demonstrate, on the administrative

record, that the selection is arbitrary and capricious or otherwise not in accordance with law. In reviewing any procedural errors, the court may disallow damages only if the errors were so serious and related to matters of such central

relevance to the plan that the plan would have been significantly changed had

such errors not been made.

2. STATUTE OF LIMITATIONS

The Attorneys General ask that CERCLA be amended to provide that claims for

natural resource damages be brought within three years of the completion of a damage assessment. Currently, CERCLA has a complicated two-prong statute of limitations period. The ‘‘discovery prong’’ requires filing a suit within three years of the

discovery of the loss and its connection with the release in question, and the ‘‘regulatory prong’’ requires its filing within three years of promulgation of natural resource damage assessment regulations. Final promulgation of regulations that comply with the statutory directives still is not complete.

The language of both prongs is ambiguous, and provides little guidance. What

constitutes ‘‘discovery of the loss’’ and ‘‘its connection with the release’’ is far from

obvious, and certainly has various interpretation in any given situation. Even the
118

‘‘regulatory prong’’ has had numerous judicial interpretations. See, Kennecott Utah

Copper Corp. v. Dept. of the Interior, 88 F.3d 1191, 1209–13 (D.C. Cir. 1996); United

States v. Montrose Chemical Corp., 883 F. Supp. 1496 (E.D. Cal. 1995), rev. sub

nom. California v. Montrose Chemical Corp., 104 F.3d 1507 (9th Cir. 1986); Idaho

v. M.A. Hanna Co., No. 83–4179, slip op. at 8–9 (D. Idaho July 17, 1995).

These provisions often put a trustee in a difficult position and result in unnecessary litigation: the trustee may have to bring suit before he or she has sufficient

information to determine the scope of the injury or to quantify damages, and even

before the RI/FS is completed.

In contrast, in the Oil Pollution Act of 1990, Congress adopted a clear rule: the

limitations period runs three years after completion of an assessment. See, OPA

§ 1017(f)(1)(B). This period has not resulted in uncertainty for trustees or liable parties. In addressing response costs for oil spills, states and the Federal Government

generally have addressed natural resource damages and either settled or dropped

claims, or established timetables for an assessment. Trustees cannot afford to delay

assessments and thereby extend the liability period because evidence and data needed to conduct an assessment disappears after time. As demonstrated under OPA,

NAAG’s proposed solution has proved workable and just.

The August 28, 1997 draft complicates the issue further. The pertinent provision,

new § 705, would apply a third period when trustees and responsible parties enter

into an agreement regarding the performance of an assessment. By setting a limit

of six years from the signing of the agreement, the provision may well force a trustee to court before the assessment is complete in complicated cases, and limits the

flexibility parties need when negotiating an agreement. Indeed, this new provision

may well discourage agreements and settlements because responsible parties might

prefer to rely on the current ambiguous provisions that still would remain and avoid

the certain extension this new provision provides. We suggest the follow language

instead:

STATUTE OF LIMITATIONS.—(1) Section 113(g)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9613(g)(1)) is

amended by striking the first sentence and inserting the following:

‘‘(1) ACTION FOR NATURAL RESOURCES DAMAGES.—Except as provided in paragraphs (3) and (4), no action may be commenced for damages (as defined in section 106(6)) under this Act, unless that action is commenced within 3 years

after the date of completion of the natural resources damage assessment in accordance with the regulations promulgated under section 301(c) of this title, or,

if the trustee elects not to follow those regulations, of a plan for the restoration,

replacement, or acquisition of the equivalent of the injured, lost, or destroyed

natural resources adopted after adequate public notice, opportunity for comment, and consideration of all public comments.’’

(2) Section 112(d) of CERCLA is amended by striking paragraph (2) and inserting the following:

(2) CLAIMS FOR RECOVERY OF DAMAGES.—No claim may be presented under

this section for recovery of the damages referred to in section 107(a) unless the

claim is presented within 3 years after the date of completion of the natural

resources damage assessment in accordance with the regulations promulgated

under section 301(c) of this title or if the trustee elects not to follow those regulations, of a plan for the restoration, replacement, or acquisition of the equivalent of the injured, lost, or destroyed natural resources adopted after adequate

public notice, opportunity for comment, and consideration of all public comments.’’

3. SUPERFUND MONEYS FOR ASSESSMENTS

When CERCLA was amended in 1986, Congress provided in CERCLA that the

Superfund Trust Fund could be used by state and Federal trustees to conduct damage assessments, recognizing in particular that many state trustees lack the funds

to pay for the necessary expertise to conduct assessment themselves. In conference,

language was added to the amendments to the Internal Revenue Code which had

the practical effect of negating that CERCLA provisions. NAAG long has asked that

the conflict between the IRS Code and CERCLA be eliminated and that state trustees be able to draw on the Fund to conduct assessments, as they can currently to

conduct RI/FS’s.
119

4. USE OF RELIABLE ASSESSMENT METHODOLOGIES

Just as Congress does not direct EPA to use only certain scientific methodologies

in the changing and developing area of remedial science, NAAG believes that Congress should retain the ability of trustees to recover damages based on any reliable

assessment methodology. S. 8, however, provides that assessments must be conducted only in accordance with regulations not yet promulgated by the President,

and effectively forbids the use of one methodology, the admittedly controversial

‘‘contingent valuation’’ methodology, in the assessment process. We believe that

state trustees should not be compelled to use one federally dictated method to assess

damages, particularly given the myriad types of hazardous substances and release

scenarios and the experience of state trustees in assessing damages in ways that

are reliable and cost-effective. The precise methodologies allowed is a matter of scientific expertise best left to the regulatory and judicial process for resolution.

5. LIABILITY CAP

We are pleased that S. 8 does not alter the current liability cap. We are confident

that trustees will continue to use their good sense, and in any event that the courts

will not award excessive damages. Calamities such as the Exxon Valdez spill and

the contamination of the Hudson River convince us that there may be circumstances

where altering the current liability cap may result in a gross injustice to the people

of the United States.

6. RECOVERY OF ENFORCEMENT AND OVERSIGHT COSTS

S. 8 provides that trustees may recover the costs of their assessments, but is silent

with respect to the related costs of enforcement and recovering the damages and a

trustee’s cost of overseeing restoration of damaged resources. The NAAG resolution

asks that Congress clarify that such costs are inherent in a sound assessment process, and explicitly provide that trustees can recover both the costs of enforcement,

including attorney fees generally incurred by a state Attorney General’s office, and

the costs of overseeing the implementation of a natural resource damage restoration.

The NAAG resolution is consistent with the general and uncontroversial policy

that persons responsible for the release of hazardous substances have an obligation

to make the public whole in the event that there is an injury to our natural resources. Well over a hundred years ago in cases on the abatement of nuisances and

the public trust doctrine, the courts made clear several bedrock principles. The

states and the Federal Governments are trustees for the people, and that their trust

corpus includes this nation’s glorious natural resources. We, as trustees, have an obligation to protect these often irreplaceable resources from harm, and those that

harm them have the obligation to restore them for all the people. A strong and clear

natural resource damages remedy is essential to accomplishing these goals.

Implementation of CERCLA’s natural resource damage provisions had a difficult

birth and early childhood. The initial assessment regulations were deeply flawed,

and states such as mine had to go to court to seek their repromulgation. Contrary

to Congress’s directive, the Federal agencies entrusted with implementation of the

Superfund natural resource damages program gave them little attention at first.

Since the 1989 decision in the Ohio v. Department of the Interior case, however, the

Federal program has matured. States have continued their progress in implementing fair and just recovery programs at state levels, relying in large part with the

tools provided by CERCLA. We recognize that like almost any tool, the natural resource damage provisions of CERCLA could use some sharpening. We ask that this

committee and Congress maintain the central provisions of CERCLA that make the

public whole when a release causes injury.

Other Issues

S. 8 and the August 28, 1997 draft address a number of natural resource damage

issues important to the remedy provided by CERCLA. In the following paragraphs,

I address some of the major issues, relying on the experiences of my office and those

of other Attorneys General, as well as the experiences of trustees since the early

1980’s with the natural resource damage provisions.

I note that the August 28, 1997 draft suggests some revisions to S. 8 that address

certain problems state trustees and my office found in the bill as introduced. I comment on those revisions first.

A. Consistency Requirement

The August 28, 1997 draft rewrote the consistency provision of S. 8 at § 703, removing troublesome language and creating in its place a provision requiring a trustee to ‘‘take into account’’ implemented or planned removal and remedial actions
120

when selecting a restoration alternative. The trustee also is required to advise EPA

of the selection, confirm that the selected plan is, ‘‘to the extent practicable, consistent with the response action planned or accomplished at the facility,’’ and to explain

any significant inconsistencies.

The proposal provides a workable solution to the hypothetical problems that

might arise between EPA cleanup measures and trustee restoration plans. New

York would suggest one minor alteration: in cases where EPA has not implemented

or planned any removal or remedial action and the site is not on the NPL, notice

need not be given EPA of the selected plan. While in most significant cases a state

normally will include EPA in the process at least on an informational basis, requiring the statement adds just another layer of paper and imposes another mandate

on state trustees in cases where EPA has had no involvement and plans no future

involvement.

B. Payment Period

S. 8 provided that payment of damage over a period of years would be appropriate.

While periodic payment settlements are far from uncommon in this area, S. 8 included the ‘‘period of time over which the damages occurred’’ among the factors to

be considered when establishing as schedule for payment. The August 28, 1997 draft

wisely removed that consideration. With that and the other changes, the provision

is appropriate.

C. Lead Federal Trustee

The August 28, 1997 draft modifies the provision regarding the appointment of

a lead Federal trustee appropriately. S. 8 at § 702(a). The revised provision requires

regulations to provide for a ‘‘lead Federal administrative trustee’’ at a facility undergoing an assessment, who presumably will coordinate the Federal trustees’ activities

administratively. This role is important, because it will give state trustees the ability to contact one Federal official when seeking to coordinate state efforts with Federal activities.

We think that the committee should clarify either in the bill expressly or through

the committee’s report that the ‘‘lead Federal administrative trustee’’ would be the

lead only among the Federal trustees, not among the Federal, state and tribal trustees. At many sites, it is much more appropriate and effective for a lead trustee who

handles matters with the responsible parties or among all the trustees to be a state

or tribal trustee. Who should be the lead among all trustees should be left to the

trustees to decide, and co-lead trustees should be allowed.

Finally, we do not think it is appropriate for the lead Federal trustee to be a responsible party, a situation which may occur in cases addressing damages arising

from releases at a Department of Energy or military facility. In those situations, the

lead Federal administrative trustee should be from one of the Federal agencies not

liable for damages in order to eliminate even the appearance to the public and the

states that the fox is deciding on repairs to the chicken house.

D. Interim Losses and ‘‘Temporary Restorations’’

By arguably limiting a trustee’s ability to recover interim damages to natural resources, the provisions of S. 8, even as modified by the August 28, 1997 draft, significantly depart from the principle that when natural resource are damaged, the

party responsible for that damage has an obligation to make our citizens whole.

While S. 8 places emphasis, appropriately, on restoration or replacement of injured

or damaged resources, arguable restrictions on recovery of interim losses may also

have the ironic effect of delaying that restoration. Moreover, in cases where the injury to the resources cannot be repaired except by natural recovery because restoration is infeasible or grossly expensive, the language of the August 28, 1997 draft

could be read to imply that a trustee cannot recover any damages whatsoever, leaving the public alone to bear the consequences and costs of injured or destroyed natural resources.

Restoration of injured natural resources, or their replacement or acquisition of

their equivalent when restoration is not feasible or appropriate, has always been the

goal of a trustee. Natural resources almost always provide numerous ecological and

human services and have intrinsic values to society that are difficult to quantify,

and thus the first step in insuring proper compensation is to restore the resource.

Pending that restoration, however, our citizens do suffer losses which also should

be compensated. The August 28, 1997 draft’s explicit inclusion of language allowing

recovery for ‘‘temporary replacement of the lost services’’ is a step in the right direction, but is too limited.

First, while the draft provides that a restoration alternative selected by a trustee

may include such temporary replacement, it should clarify that a trustee may begin

providing such services before the restoration plan is selected at the end of an often
121

lengthy assessment study, and that the costs of such pre-selection provision of services will be recoverable.

Second, even if a resource recovers naturally quickly following a release, the public still has suffered quantifiable and compensable damages. For instance, when

public recreational facilities, such as beaches, are closed for days after a spill, temporary replacement often will not be practicable or implementable on a short-term

basis even though the public has suffered an injury. Trustees still should be able

to recover damages and use sums to improve beach access or otherwise enhance the

resource. Third, the bill should be clarified to confirm that temporary replacement is allowed in non-restoration alternatives. A trustee may also evaluate ‘‘replacement’’

and ‘‘acquisition’’ alternatives when evaluating plans. Pending implementation of

such plans if selected, a trustee also should’ be able to recover for providing replacement services.

E. Double Recovery Language

CERCLA presently contains a clause expressly prohibiting double recovery:

‘‘[t]here shall be no double recovery under this chapter for natural resources damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for the same release and natural resource.’’ CERCLA § 107(f)(1). While

double recovery has not been an issue in the years since 1980, S. 8 rewrites the otherwise clear language. Unfortunately, the new version may create fertile ground for

litigation. A strained reading of the new language may suggest that anyone who has

recovered response costs which are used to restore an injured resource—and remedial work often has that consequence, obviously—cannot recover natural resource

damages. Moreover, the new language appears to preempts state laws, and could

result in significant unfairness. For instance, most states have long allow recovery

for spills which kill fish in a river, with recoveries paid to a state’s fish stocking

programs. Such damages may not necessarily be recoverable under S. 8. Thus, this

new language would appear to prevent a state from recovering such damages in the

event of a natural resource recovery under CERCLA as amended by S. 8. Moreover,

recovery by a state for just this element of typical damages may preclude any recovery under S. 8 for all the other effects of a release.

Double recovery has not been raised as a problem, and the current language protects against such a result. We urge the committee to return to the current statutory language.

F. Injury Before 1980

Section 701(7) of the August 28, 1997 draft imposes significant and unwarranted

restrictions on recovery of damages when a release occurred prior to 1980 even

though damages resulting from that release still are being incurred. First, under

current law, a trustee can recover if the damages caused by a pre-1980 release continue after 1980. See CERCLA § 107(f)(1) [last sentence]. Under S. 8, a trustee may

recover only if the injury continues. This one word substitution may be read to preclude recovery of all damages whatsoever for a pre-1980 release, even one which

continues to have significant impacts and harms, because some courts have concluded that the ‘‘injury’’ occurs at the moment of release while damages occur thereafter. See, e.g., In re Acushnet River & New Bedford Harbor Proceedings, 716 F.

Supp. 676, 681–687 (D. Mass. 1989). Claims now being litigated for numerous sites

could well be affected and extinguished.

At common law, the creator of a nuisance which continues to cause damage after

its creation still is liable for its abatement. This well-grounded common law doctrine

is at the heart of the natural resource damages remedy, and should not be discarded

by this committee.

G. Apparent Ban on Modeling

Modeling of releases and spills to calculate damage quickly and inexpensively is

not only permitted by current law, but expressly encouraged. See, CERCLA

§ 301(c)(2). Especially when damages resulting from a spill are not extensive, modeling avoids the costs associated with damage assessment and the necessary scientific

procedures and analyses that otherwise might be required to complete a site-specific

assessment.

In contrast, S. 8 provides that all aspects of the assessment process shall, ‘‘to the

extent practicable, be based on facility-specific information.’’ S. 8 at § 703(a). This

provision could be read as essentially prohibiting modeling despite the huge savings

in assessment costs resulting from its use. We believe that the provision is counterproductive and may well increase assessment costs—which would be paid by liable

parties—to many times more than any miscalculation modeling of restoration costs

might yield at a specific site. We urge this committee to allow modeling and other
122

types of expedited assessments as possible methodologies that could be considered

when promulgating assessment regulations.

H. Identification of Trustee Responsibilities

S. 8 requires the assessment regulations include procedures for trustees to identify

the resources under their trusteeship and the legal bases for their authority. These

procedures are not useful, and could create issues for time-consuming litigation as

well as foster jurisdictional disputes among state, Federal and tribal trustees. In

New York, we have repeatedly worked with other trustees from the Federal Government, tribes and other states. Cooperation is fostered when we agree to avoid debates over the status and nature of our trusteeships, and has allowed us to work

more cooperatively and efficiently with responsible parties. This provision of S. 8 is

unnecessary.

I. Timeliness of Suit

The August 28, 1987 draft adds a paragraph prohibiting recovery by a trustee if

the resource has returned to baseline condition before the trustee files a claim or

incurs assessment or restoration costs. This provision would unfairly penalize the

public and award polluters when a trustee lacks the finances or opportunity to address immediately a particular release even though the public has suffered considerable injury until the resource recovered.

For instance, a release may close recreational facilities or kill fish, but before a

trustee can turn his or her attention to the matter, the resource may have returned

to baseline conditions. As discussed above, such events do cause damage which

should be compensable. More ominous, however, is the inducement created by this

section for a responsible party to withhold crucial information about a spill and its

effects from the trustee and the public until the resource has naturally recovered.

We urge that this provision be deleted from the bill.

J. Non-use Values

S. 8 expressly prohibits recovery for ‘‘any impairment’’ of non-use, or passive use

values. In New York, we believe that such a provision could inappropriately devalue

natural resources, and may force the State and its taxpayers to bear themselves the

costs arising from improper release of hazardous substances.

The value of a natural resource is a combination of its value as a useful commodity, such as the value of an aquifer as drinking water or seal pelts as clothing, and

its passive values. These passive values include the value placed on having a resource available for future use, and the fact that we repeatedly pay to have resources available merely because we value their existence. My state expends thousands of dollars a year to protect and propagate endangered species, even though

we cannot think of any use for a piping plover, for instance. We protect whales and

will incur costs to save stranded ones not because the whales are ‘‘useful’’ as commodities, but because we value their existence. Unique resources, such as majestic

canyons and rivers like the Grand Canyon and the Hudson River, are valuable to

society not only for their actual uses as parks, waterways, or recreational facilities,

but because they just are.

By prohibiting recoveries predicated on these values, S. 8 ignores the costs borne

by government to protect and safeguard these resources. Under S. 8, a spiller who

kills endangered species may not have to pay any damages whatsoever when it is

not possible to restore the species through a breeding program, even though government may have expended thousands of dollars that year alone to protect the species.

There is no doubt that the resource has been injured and that we, the public, have

suffered damages, yet we will have no remedy under S. 8.

Moreover, the provision is susceptible to misuse in litigation. It will certainly be

used in legal arguments to oppose restoration plans in situations where nonuse values predominate and influence a plan’s conclusion that the cost of restoration is not

disproportionate to the benefits of restoration.

There are numerous safeguards in our legal and political systems to prevent the

inappropriate use of nonuse values. The settlements reached in natural resource

damage cases to date reflect trustees’ common-sense utilization of the economic concepts relating to both use and passive use valuation. New York urges that this provision be dropped from the bill.
123

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL

ADOPTED SUMMER MEETING, JUNE 22–26, 1997, JACKSON HOLE, WYOMING

RESOLUTION—SUPERFUND REAUTHORIZATION

WHEREAS, the Attorneys General of the States have significant responsibilities

in the implementation and enforcement of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and analogous state laws, including advising client agencies on implementation of the cleanup and natural resource damage programs, commencing enforcement actions when necessary to compel those responsible for environmental contamination to take cleanup actions and

to reimburse the states for publicly-funded cleanup, and advising and defending client agencies that are potentially liable under CERCLA;

WHEREAS, the Superfund programs implemented under CERCLA and analogous

state laws are of critical importance to assure protection of public health and the

environment from uncontrolled releases of hazardous substances at thousands of

sites throughout the country;

WHEREAS, Congress is currently considering legislation to amend and reauthorize CERCLA;

WHEREAS, to avoid unnecessary litigation and transaction costs over the interpretation of new terms and new provisions, amendments to CERCLA should be simple, straightforward, and concise;

WHEREAS, the National Association of Attorneys General has adopted resolutions in March 1987, July 1993, and March 1994 on the amendment of CERCLA;

STATE ROLE

WHEREAS, many state cleanup programs have proven effective in achieving

cleanup, yet the CERCLA program fails to use state resources effectively;

WHEREAS, state programs to encourage the cleanup and redevelopment of

underutilized ‘‘brownfields’’ are making important strides in improving the health,

environment, and economic prospects of communities by providing streamlined

cleanup and resolution of liability issues for new owners, developers, and lenders;

FEDERAL FACILITIES

WHEREAS, Federal agencies should be subject to the same liability and cleanup

standards as private parties, yet Federal agencies often fail to comply with state

and Federal law;

LIABILITY

WHEREAS, the core liability provisions of CERCLA, and analogous liability laws

which have been enacted by the majority of the states, are an essential part of a

successful cleanup program, by providing incentives for early cleanup settlements,

and promoting pollution prevention, improved management of hazardous wastes,

and voluntary cleanups incident to property transfer and redevelopment;

WHEREAS, the current CERCLA liability scheme has in some instances produced

expensive litigation, excessive transaction costs, and unfair imposition of liability;

REMEDY SELECTION

WHEREAS, constructive amendments to CERCLA are appropriate to streamline

the process of selecting remedial actions and to reduce litigation over remedy decisions;

NATURAL RESOURCE DAMAGES

WHEREAS, constructive amendments to CERCLA are appropriate to make it less

complicated for natural resource trustees to assess damages and to restore injured

natural resources, and to reduce the amount of litigation that may result in implementing the natural resource damage program.

NOW, THEREFORE, BE IT RESOLVED THAT THE NATIONAL ASSOCIATION

OF ATTORNEYS GENERAL urges Congress to enact CERCLA reauthorization legislation that:

A. State Role

1. Provides for delegation of the CERCLA program to qualified states, and for

EPA authorization of qualified state programs, with maximum flexibility;

2. Reaffirms that CERCLA does not preempt state law;
124

3 Ensures that states are not assigned a burdensome proportion of the cost of operation and maintenance of remedial actions and in no event to exceed 10 percent;

4. Clarifies that in any legal action under CERCLA, response actions selected by

a State shall be reviewed on the administrative record and shall be upheld unless

found to be arbitrary and capricious or otherwise not in accordance with law;

B. Federal Facilities

5. Provides for state oversight of response actions at Federal facilities, including

removal actions.

6. Provides a clear and unambiguous waiver of Federal sovereign immunity from

actions under state or Federal law;

C. Liability

7. Provides a liability system that: (a) includes the core provisions of the current

CERCLA liability system that are essential to assure the effectiveness of the cleanup program; (b) provides incentives for prompt and efficient cleanups, early cleanup

settlements, pollution prevention, and responsible waste management; (c) addresses

the need to encourage more settlements, discourage excessive litigation, reduce

transaction costs, and apply cleanup liability more fairly and equitably, especially

where small contributors and municipal waste landfills are involved; and (d) assures

adequate funding for cleanup and avoids unfunded state mandates;

8. Provides reasonable limitations on liability for disposal of municipal solid

waste;

9. Provides an exemption from liability for ‘‘de micromis’’ parties that sent truly

minuscule quantities of waste to a site;

10. Encourages early settlements with de minimis parties that sent minimal

quantities of waste to a site;

D. Remedy Selection

11. Provides for the consideration of future land use in selecting remedial actions,

provided that future land use is not the controlling factor, and provided that remedial actions based on future land use are conditioned on appropriate, enforceable institutional controls;

12. Retains the requirement that remedial actions attain, at a minimum, applicable state and Federal standards;

13. Retains the prohibition on pre-enforcement review of remedy decisions;

14. Provides that cost-effectiveness should be considered, among other factors, in

remedy selection;

15. Allows EPA or the state agency to determine whether to reopen final records

of decision for remedial actions, as under current law;

E. Natural Resource Damages

16. Clarifies that in any legal action, restoration decisions of a natural resource

trustee shall be reviewed on the administrative record and shall be upheld unless

found to be arbitrary and capricious or otherwise not in accordance with law, without precluding record review on other issues;

17. Provides that claims for damages for injuries to natural resources must be

brought within three years of that completion of a damage assessment;

18. Allows Superfund moneys to be used for assessments of damages resulting

from injures to natural resources and for efforts to restore injured natural resources;

19. Retains the ability of trustees to recover damages based on any reliable assessment methodology;

20. Does not revise the cap on liability for natural resource damages so as to reduce potential damage recoveries;

21. Clarifies that trustees are entitled to recover legal, enforcement, and oversight

costs;

F. Brownfields

22. Strengthens state voluntary cleanup and brownfields redevelopment programs

by providing technical and financial assistance to those programs, and by giving appropriate legal finality to clean up decisions of qualified state voluntary cleanup programs and brownfield redevelopment programs;

G. Miscellaneous

23. Allows EPA to continue to list new sites on the National Priorities List based

upon threats to health and the environment, with the concurrence of the state in

which the site is located.

BE IT FURTHER RESOLVED that the CERCLA Work Group, in consultation

with and with approval of the Environmental Legislative Subcommittee of the Envi-
125

ronment Committee, and in consultation with NAAG’S officers is authorized to develop specific positions related to the reauthorization of CERCLA consistent with

this resolution; and the Environmental Legislative Subcommittee, or their designees, with the assistance of the NAAG staff and the CERCLA Work Group, are

further authorized to represent NAAG’s position before Congress and to Federal

agencies involved in reauthorization decisions consistent with this resolution and to

provide responses to requests from Federal agencies and congressional members and

staff for information, technical assistance, and comments deriving from the experience of the state Attorneys General with environmental cleanup programs in their

states.

BE IT FURTHER RESOLVED that NAAG directs its Executive Director and General Counsel to send this resolution to the appropriate congressional committees and

subcommittees, and to the appropriate Federal agencies.

ABSTAIN: Attorney General Don Stenberg

RESPONSES BY GORDON J. JOHNSON TO QUESTIONS FROM SENATOR MOYNIHAN

Question 1. What is the State’s experience with the natural resource damage provisions in the current law? How would that change under the chairman’s mark?

Response. New York has been or is the plaintiff in over 25 cases that have sought

natural resource damages arising from releases of hazardous substances and petroleum products. In a majority of these cases, the State has settled with responsible

parties and recovered funds that are used to restore or purchase wetlands, replant

shorelines, enhance groundwater supplies and provide alternative water supplies,

and implement other measures relating to the restoration or replacement of damaged or destroyed resources. The right to recover damages has also helped improve

remedial measures; aware that a trustee could recover damages for lost interim uses

until restoration is complete, responsible parties have agreed to speedier and more

extensive remedial measures in order to reduce potential damages.

The chairman’s mark will have significant effects on New York’s use of the natural resource damage recovery remedy. For instance, when it is not possible to fully

restore a contaminated aquifer, funds might not be recoverable that could be used

to protect the groundwater from further degradation in compensation for the reduced or completely lost use of the aquifer because the measure of damages only

allows for the temporary replacement of services rather than compensation for lost

uses. See, Section 701(7), adding § 107(f)(1)(E)(i)(I). Arguably, the State also could

no longer recover funds to protect or enhance habitats of endangered species—animals or plants which may have little or no use value—unless the habitat itself was

degraded because no recovery is allowed for ‘‘impairment of nonuse values.’’ See Section 701(7), adding § 107(f)(1)(E)(ii). The State’s ability to fully recover for the loss

of fisheries, impacts on birds and other species, and related injuries arising from

longstanding but continued discharges of chemicals into rivers or lakes may well be

jeopardized by changes in the provisions governing pre-1980 releases. See Section

701(7), adding § 107(f)(1)(E)(iv)(II). Because the full value of lost interim uses may

not necessarily be recoverable—such recovery arguably being limited to the costs of

temporary replacement of services—delay in implementing remedies and restoration

may work to the advantage of responsible parties, leading to drawn out litigation.

See, Section 701(7), adding § 107(f)(1)(E)(i).

Question 2. Are the present methods for determining the ‘‘value’’ of natural resources adequate? How will the chairman’s mark affect our ability to determine natural resource damages?

Response. The current methods generally are adequate. A trustee will usually follow the procedures set forth in the natural resource damage assessment regulations,

43 C.F.R. Part 43, which provide a range of methodologies that allow a trustee to

calculate the full value of natural resources, including the non-market values that

often are at the core of the resources’ value to society. Using these methodologies,

a trustee can calculate damages arising from the destruction or impairment of endangered species, aquifers, beaches, wetlands and other resources that are not traded in a market and thus lack market valuations, and which have significant nonconsumptive values, such as existence and option values. See State of Ohio v. United

State Department of the Interior, 880 F.2d 432, 462–4 (D.C. Cir. 1981) (requiring Interior Dept. to structure regulations ‘‘to capture fully all aspects of the loss’’ as intended by Congress).

The chairman’s mark would significantly hinder the determination and recovery

of the full value of the loss. The absolute restriction on recovery of non-use values,

the restriction on the use of the contingent valuation methodology, an apparent limitation on the recovery of interim lost uses, which is only partially ameliorated by
126

1See e.g., Testimony of Tom Udall, Attorney General of New Mexico before the House Subcommittee on Commerce, Trade and Hazardous Materials of the House Committee on Commerce, October 26, 1995; Testimony of Christine Gregoire, Attorney General of Washington before the Senate Committee on Environment and Public Works, April 24, 1996; Testimony of Gale

Norton, Attorney General of Colorado before the Senate Subcommittee on Superfund, Waste

Control, and Risk Assessment, Committee on Environment and Public Works, May 9, 1995. 2See, Everett, H., ‘‘Federal Sovereign Immunity and CERCLA: When is the United States Liable for Costs,’’ 9 J. Natural Resources and Environmental Law 479 (1994). A copy of this article

is attached. 3 132 Cong. Rec. 514903 (daily ed. Oct. 3, 1986).

the ability to recover the cost of a temporary restoration of services, and language

implying that modeling may not be used to determine damages each will diminish

a trustee’s ability to determine and recover damages. Ironically, under both S. 8 as

introduced and the chairman’s mark, the greater the injury to and the more irreplaceable the resource, the less likely that a trustee will recover damages because

of the restrictions on recovery for impairment of non-use values and interim loss

values; injuries to unique and pristine resources that cannot be replaced or are not

currently being used may have very low values under the current versions of S. 8.

RESPONSES BY GORDON J. JOHNSON TO QUESTIONS FROM SENATOR WYDEN

Question 1. Does the National Association of Attorneys General support including

a clearer, more comprehensive waiver of sovereign immunity in Superfund reform

legislation than what is currently provided in existing law. If so, could you explain

why NAAG believes it is necessary to clarify the Superfund law’s waiver of sovereign immunity and bring it into line with what is already provided for hazardous

waste laws in the Federal Facilities Compliance Act?

Response. The National Association of Attorneys General (NAAG) strongly supports a clearer, more comprehensive waiver of sovereign immunity in Superfund reform legislation. This position is reflected in the July, 1997 NAAG Superfund Reauthorization Resolution, a copy of which is attached to my written testimony. NAAG

has advocated a clarification of this waiver for approximately ten years. It proposed

such an amendment in the 1990 report ‘‘From Crisis to Commitment: Environmental Cleanup and Compliance at Federal Facilities’’ co-authored with the National Governor’s Association, and in its July, 1993 NAAG Resolution on Superfund

Reform. Numerous attorneys general, including those from Colorado, Washington

and New Mexico have testified in favor of such a clarification,1 and forty-three attorneys general signed a May 3, 1995 letter requesting such a clarification, among

other things. On July 10 of this year, 39 attorneys general urged passage of H.R.

1195 introduced by Representative Dan Schaefer’s last spring. A copy of this letter

is attached. Rep. Schaefer’s bill would amend the current CERCLA waiver to accord

more closely to the language in the Federal Facilities Compliance Act (FFCA).

NAAG supports a clarification of the waiver of sovereign immunity in CERCLA

to enable Federal, State and local regulators to hold Federal facilities to the same

standard that is applied to private parties. Although section 120(a) currently contains a waiver, it does not include the detailed, explicit language that appears necessary to avoid litigation with the Department of Justice and to withstand ultimate

judicial scrutiny by the Courts which are compelled to construe any perceived ambiguity in favor of the sovereign. The waiver language in section 120(a)(4), pertaining

to liability under State law, is particularly weak, and must be replaced with language similar to that in the FFCA to avoid fruitless disputes with recalcitrant Federal agencies.2 The fact is, as Senator Stafford remarked a decade ago, ‘‘no loophole,

it seems, is too small to be found by the Federal Government.3 Clarification of the

waiver of sovereign immunity is necessary to eliminate some of the loopholes that

the Federal Government has already found, and to ensure that more State and Federal resources go to determining how best to comply, and not to disputing and litigating over whether compliance can be compelled.

Question 2. Another important issue involving Federal Facilities is whether an

interagency agreement like the Hanford Tri-Party Agreement can be used by Federal agencies as an excuse not to have to comply with otherwise applicable environmental laws. This was the issue in the Heart of the America case. Has this issue

been resolved or are there still outstanding issues about Federal agencies’ responsibility to comply with environmental laws during the course of cleaning up Hanford

and other Federal Facilities?

Response. The issue raised by the Heart of America case has not been resolved.

The United States argued successfully in that case that the existence of the TriParty Agreement at Hanford brought all environmental activities at Hanford under
127

4See e.g., NAAG Resolution on Superfund Reauthorization, June, 1997. States have urged one

exception to this general rule. In the States’ Reform Proposals Regarding Environmental Obligations at Federal facilities transmitted to President Clinton by letter dated July 12, 1995 and

signed by thirty-eight Attorneys General and eleven governors, States advocated that the transfer of EPA authority at Federal facilities to States with corrective action authority should be

automatic. This exception is necessary because at Federal facilities, unlike private sites, EPA

cannot act truly independent of its sister agencies.

the CERCLA umbrella, even those expressly delineated in the Agreement as activities that would be regulated pursuant to State authorities. As a result, citizens were

precluded by the pre-enforcement review ban in section 113(h) of CERCLA from enforcing applicable State law.

Although the ruling was limited on its facts to citizen suits, States are concerned

that the Federal Government may argue that its reasoning also applies to State enforcement actions. States have therefore been reluctant to enter into comprehensive

agreements at Federal facilities for fear of losing the independent enforcement authorities they would otherwise have. Thus, the case provides a counter-incentive to

cooperative relations between the regulators and regulated agency, and stymies efforts to develop sensible, coordinated, efficient responses at these very complicated

sites. Language proposed by Representative Schaefer in H.R. 1195 would address

this question to the satisfaction of NAAG (see above-referenced July 10, 1997 letter

in support of H.R. 1195).

Question 3. Governor Nelson stated in his testimony that NGA supports having

applicable State environmental laws apply at Federal Facilities in the same manner

that they apply at non-Federal Facility sites. Does NAAG agree with NGA that

States should be authorized to apply their state cleanup laws to Federal Facilities?

Response. NAAG concurs with NGA’s position that Federal facilities should be

treated the same as private responsible parties, and finds no justification for establishing unique delegation and remedy selection procedures to apply to Federal facilities.4 Rather, Title II on state role should be modified to include Federal sites. This

modification along with other reforms urged by States would allow States to apply

their laws at Federal facilities in the same manner that they apply them at nonFederal Facility sites.
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146

STATEMENT OF SUSAN ECKERLY, DIRECTOR, FEDERAL GOVERNMENT RELATIONS,

NATIONAL FEDERATION OF INDEPENDENT BUSINESS

Mr. Chairman, members of the committee, thank you for the opportunity to testify

today on the recently revised version of S. 8, the Superfund Cleanup Acceleration

Act of 1997. My name is Susan Eckerly, and I am the Director of Federal Government Relations-Senate for the National Federation of Independent Business (NFIB).

The NFIB is the nation’s largest small business advocacy organization, representing 600,000 small business owners in all fifty states. The typical NFIB member employs five people and grosses $350,000 in annual sales. Our membership reflects the

general business profile in that we have the same representation of retail, service,

manufacturing and construction businesses that make up the nation’s small business community. NFIB sets it legislative positions and priorities based upon regular

surveys of its membership.

I commend the committee for its continued efforts to reach consensus on legislation that will overhaul the Superfund program. We support your efforts to move forward by marking up legislation next week and hope that this Congress will at last

put an end to the Superfund liability nightmare for small business. Those caught

in the Superfund web cannot wait much longer for relief.

SUPERFUND’S UNINTENDED EFFECTS

When Superfund was originally passed in 1980, it was believed that the number

of hazardous waste disposal sites and the costs to clean them up were relatively

simple. Unfortunately, that has not been the case. Over the past seventeen years

this program has proved to be one of, if not the worst, environmental programs on

the books. It has failed to meet its mission of cleaning up hazardous waste sites and

instead has encouraged wasteful, excessive litigation that can last for years and cost

billions of dollars. Today’s system is fraught with the wrong incentives: incentives

to prolong cleanup, continue expensive litigation and to drag even the smallest contributor through the lengthy process.

When examining the sites that have been cleaned up, the costs associated with

such cleanups, coupled with the staggering amount of money that has gone directly

to lawyers’ coffers, it is easy to see that the fault and liability system currently in

Superfund is flawed. Congress may have envisioned a system that would only catch

the few, large, intentional or irresponsible polluters, however, the reality has been

very different. There have been over 100,000 different potentially responsible parties

(PRPs) identified at Superfund sites. Obviously, a majority of these are not Fortune

500 companies, but are small businesses. Since Congress last reauthorized Superfund, we have experienced an increasing number of complaints and questions from

our membership. The effect of the current liability system is permeating all segments of the small business community. No issue in this very complex public policy

debate will have a more direct impact on the present and future economic viability

of many small businesses than this aspect of Superfund reform. There is not one

segment whether it be a retail store, a professional service business, or a construction business that has not been touched.

SMALL BUSINESS ATTITUDES

It is helpful to keep in mind the unique nature of a small business when you examine small business owners’ reactions to environmental legislation. Small business

owners wear many hats. Two of the most important are being both a business owner

and a citizen of a community. They drink the water, breathe the air and fish in the

lakes. They want a healthy environment both for themselves and for their children.

They also expect the government to be fair and responsible.

It is this lack of fairness and responsibility in the area of Superfund that is causing a groundswell of anger, distrust and in many cases, despair. The committee has

heard testimony twice from one of our members, Barbara Williams, a restaurant

owner, who is a fourth party defendant at the Keystone landfill in Gettysburg,

Pennsylvania. She is being sued for over $76,000 because she legally dumped her

restaurant’s trash, which consisted mostly of food scraps. If she is forced to pay this

amount, she likely will close her restaurant and her employees will lose their jobs.

As Barbara has testified: ‘‘This suit defies common sense. I have recycled for years.

I used the trash hauler that was approved and permitted by my borough government.’’ With the continuing emergence of these kinds of stories, NFIB began asking

our members questions about Superfund in an effort to identify their specific concerns.

Overwhelmingly, our membership indicated that the liability scheme in the current statue was the area they felt needed the most reform. I would like to call your
147

attention to a study undertaken by the American Council for Capital Formation

(ACCF) in conjunction with the NFIB. This study surveyed small business PRP’s

and asked numerous questions about their experiences with Superfund. Approximately 70 percent of the 5,000 small PRP’s surveyed indicated that the liability system was the major burden of Superfund. And at the 1996 White House Conference

on Small Business, reform of Superfund’s liability was voted by the conference as

the group’s fifth highest priority. Thus, our focus has been on the liability system

and how to make it more equitable and efficient for the small business owner.

Liability—Small Business Concerns

What are the small business problems with regard to liability? NFIB members

have identified three major problems. First, the nature of Superfund encourages litigation. In most cases, our members are dragged into the process by being named

as a PRP in a third party lawsuit. They are forced to spend thousands of dollars

and an excessive amount of their time defending themselves when they have done

nothing wrong or illegal or have no records to prove their innocence.

Second, they are forced to remain in the liability scheme when many times small

businesses could and should be eliminated from the lengthy settlement process

through exemptions. These businesses contributed a minute amount of waste, and

it frankly is a waste of time and money to include them in the process. Nothing is

gained—either for the economy or the environment—when businesses are forced to

close their doors due to the lack of reasonable settlement offers.

Third, the retroactive joint and several liability scheme is what our members find

most unbelievable and unfair. The fact that they can today be held responsible for

past actions that were legal at the time they were undertaken and could be forced

to pay for 100 percent of the cleanup costs is un-American and outrageous. It forces

our members to choose between two equally bad and unfair decisions: either pay for

the cleanup even though you did nothing wrong or face years of litigation, huge

legal fees, loss of credit and the threat of bankruptcy.

With the large number of small businesses already entwined in this web and with

the increasing threat of thousands more in the future, NFIB’s goal is to achieve

meaningful reform in this Congress. Given the widespread agreement among the

Administration and both parties in Congress that liability relief should be provided

to small business, we sincerely hope that these business owners do not have to wait

much longer for the rhetoric to become reality.

SUPERFUND REFORM PROPOSALS

As we testified in March, Senator Smith’s and Chairman Chafee’s bill, S. 8, is an

important step forward to eliminating the liability nightmare for small business. It

contains some excellent reforms, and we appreciate the steps that have been taken

to eliminate some of the inequities and burdens placed on small business. We are

pleased that the draft chairman’s mark, distributed on August 28, contains much

of the small business reforms included in S. 8.

For the first time, a small business exemption is applicable to those businesses

with fewer than 30 employees or less than $3,000,000 in gross revenues. This will

provide much needed relief and an early exit to the truly small businesses who, in

most cases, do not deserve to be caught up in the Superfund litigation morass. By

identifying an employee and monetary threshold, S. 8 approaches reform from a

standpoint that NFIB has long advocated.

Both proposals also take positive steps to reform the current liability system by

eliminating the liability for those parties involved in co-disposal municipal landfill

sites and those parties who contributed only municipal solid waste to a site. Many

NFIB members will benefit from this reform.

In addition, S. 8 and the revised draft make strong improvements in the current

program by including a ‘‘de micromis exemption’’ to exclude the smallest of contributors from Superfund liability. We are disappointed, however, that the draft chairman’s mark fails to contain the one-percent ‘‘de minimus exemption’’ included in

S. 8, as introduced, and instead subjects those contributors to an expedited settlement procedure. Due to the limited financial and legal resources of most small business owners, we believe that both de micromis and de minimus contributors serve

no purpose but to delay the process and hinder the ultimate goal of cleaning up our

nation’s most polluted sites. We hope that you will reconsider this modification.

SMALL BUSINESS IMPROVEMENTS TO S. 8

While these liability reforms move in the right direction, there are several areas

that NFIB would like to see clarified or that we have concerns with.
148

NFIB has consistently supported creating an ‘‘ability to pay’’ definition that would

become a required criteria when assessing a small business’s contribution during

the allocation process or any expedited settlement procedure. We feel that a strong

definition that does not leave the burden on the small business owner to bring forward information and initiate the process is necessary. Notification to small business parties should be an automatic requirement in which all small businesses are

requested to provide necessary financial documents and then the burden should be

on the government to determine small business’ ability to pay.

In addition, NFIB has advocated that EPA and the allocator meet certain time

deadlines set forth both in the expedited settlement procedure and in the allocation

process. These deadlines, both for the commencement of the allocation process and

for de minimis settlements, are a necessary ingredient in order to have a more expeditious and decisive process. We feel that such prompt determinations are an essential element if a reformed process is to succeed. To ensure that EPA and the allocator meet these imposed deadlines, we suggest that incentives be included.

Finally, we applaud the exemption for recyclers. NFIB would suggest that the

elimination of liability provision be broadened to include oil recycling or refining

centers. The parties that sent their oil to these types of sites were not only following

the direction of their local governments, they were attempting to improve the environment. They should not be penalized for acting responsibly.

Conclusion

Mr. Chairman, we feel that the revised S. 8, in combination with our suggested

changes, would address most of the concerns that our members have expressed. If

passed, these reform suggestions will dramatically reduce unnecessary litigation, ensure that money will go toward its intended purpose, and most importantly, ensure

that sites will be cleaned up in a timely manner. We thank you for this opportunity

and for your efforts to address the small business concern with Superfund.

RESPONSE BY SUSAN ECKERLY TO A QUESTION FROM SENATOR INHOFE

Question. The draft chairman’s mark contains a definition for small businesses of

30 employees and three million dollars in gross annual revenue. Does this definition

meet other statutory or private sector definitions for small businesses? Please describe other methods for defining a small business.

Response. While there is no standard definition of an average small business,

NFIB generally would define a small business as a business with less than 100 employees. We have not included a revenue number because that would vary depending upon the type of the business.

According to the Small Business Administration, the general definition of a small

business is:

. . . a business smaller than a given size as measured by its employment, business receipts, or business assets. The SBA’s Office of Advocacy generally uses

employment data as a basis for size comparisons, with firms having fewer than

100 or fewer than 500 employees defined as small. [The State of Small Business,

1995]

In spite of the SBA’s authority on these matters, most laws and regulations typically devise one of their own. In fact, we have identified 19 statutory recommendations, outside of the tax code, regarding the size of a small business. The following

constitute a sampling of the various laws that have small business definitions,

thresholds or exemptions.

• Family and Medical Leave Act: requires employers with more than 50 employees to provide unpaid family and medical leave.

• Americans with Disabilities Act: Title I, which relates to the employment of individuals with disabilities, applies to employers with more than 15 employees.

• Age Discrimination in Employment Act: exempts employers with less than 20

employees.

• The WARN Act: exempts employers with fewer than 100 employees from coverage.

PREPARED STATEMENT OF ROBERT N. BURT, CHAIRMAN AND CHIEF EXECUTIVE

OFFICER, FMC CORPORATION ON BEHALF OF THE BUSINESS ROUNDTABLE

The Business Roundtable welcomes the opportunity to submit comments on the

August 28, version of S. 8, ‘‘The Superfund Cleanup and Acceleration Act of 1997.’’

The Roundtable is an organization of the Chief Executive Officers of over 200 of the

nation’s largest companies which agree that passing a comprehensive Superfund re-
149

form bill should be a priority for this Congress. We are pleased, therefore, that the

chairman has put this bill forward as the vehicle for consideration by the Environment and Public Works Committee.

While 280 of the sites on the NPL had reached the construction complete stage

by June of this year (an additional 139 of these sites have already been delisted),

491 sites still have construction underway and approximately 500 sites are still in

the study phase. Moreover, thousands of sites on the CERCLIS list remain as potential NPL sites. The slow pace of this program under current law (the GAO calculates

it now takes twice as long to clean up a site as it did 10 years ago), its cost to the

economy, the precedents it sets for other cleanup activities and its potential under

current law to stretch out well into the next century, make reform a priority among

our members. We would urge the committee to proceed to mark-up this bill in a bipartisan way which accommodates honest differences on this issue.

The Roundtable is keenly aware of the differences which can divide opinion on

how Superfund should be reformed. The Roundtable is comprised of companies

which have paid a large proportion of the over $18 billion in business taxes which

have gone into the Superfund Trust Fund since the law’s enactment. The Roundtable also is comprised of companies which have spent some $30 billion on Superfund settlements over the life of the program, in addition to comparable sums in

litigation concerning liability and other aspects of the Superfund program. Some of

our members cleaned up sites in the early years of this program’s history; while others still have substantial costs ahead of them.

Despite sixteen years of disparate experience among our membership, we are

united in our view on the need for reform and have reached basic agreement on how

such reform should occur. The considerable debate over this issue over three consecutive Congresses has substantially narrowed our differences on Superfund policy.

In many important ways, S. 8 is consistent with the consensus we have reached

in the Roundtable over how best to proceed with reform. However, we would also

note that there are important issues which we believe need to be addressed during

the committee’s consideration of this bill before it can have our full support. Moreover, given the limited timeframe in which we had an opportunity to review this

bill, we may find it necessary to supplement these comments as our members review

in more depth specific provisions.

Before turning to our concerns and recommendations, let me briefly summarize

the principles which we believe need to be part of a comprehensive Superfund reform effort: • The tax revenue from Superfund must be dedicated to clean up. • Significant reform of the remedy selection provisions of the law must be

achieved, including elimination of the preference for treatment and the mandate for

permanent remedies. Liability reform should provide all parties with fair and equitable relief; and not increase the burden on the economy.

• No Superfund taxes should be enacted without comprehensive reform, including

reform of the current law’s Natural Resource Damages (NRD) provisions.

• NRD should be geared to restoration of proven damages to resources, not to obtaining punitive damages.

In our own analysis of how the current Superfund law should be reformed to enable better performance, we have concentrated on the liability provisions in the law.

However, throughout our economic analysis of several liability reform proposals, it

has become increasingly clear that liability reform cannot and should not be addressed apart from other issues such as remedy selection, funding and NRD. While

we understand this increases the challenge and complexity of the debate, we are

pleased that this committee will be addressing Superfund in a comprehensive way.

The following are the ways in which S. 8 is consistent with The Roundtable’s position. We also will point out areas where it falls short of our goals or where the intent of the draft is unclear:

Remedy Selection: The remedy selection provisions underscore the need to base

cleanup decisions on real rather than hypothetical risks. As drafted, this title of the

bill will allow the parties involved in remedial decisionmaking greater flexibility to

address site specific characteristics with emphasis on the current and reasonably

anticipated uses of land and water resources, taking into account the timing and

use of those resources. S. 8 does so while retaining the current goal for protection

of human health in the National Contingency Plan (NCP) (i.e., 1 × 10¥4 to 1 × 10¥6)

and by adding an important new, practical definition for environmental protection

based on plant and animal populations. These goals are clear and will not require

time consuming revision to the NCP before changes are realized.

We believe that S. 8 has been substantially revised in an attempt to conform the

law to the better practices EPA and the states are implementing on groundwater

cleanup. This includes distinguishing between the cleanup goals of drinking water
150

and water used for other purposes, and reinforcing EPA’s initiatives to look at the

specific characteristics of each site and propose a deliberative, managed remedial

approach. Looking at groundwater in separate zones and phasing in needed control

measures facilitates this cost-effective, but protective approach.

We would note, however, S. 8 does seem to have some confusion in terminology

related to groundwater. For example, it is not clear whether the balancing factors

cited in the general rule applying to remedies also apply in the case of groundwater,

or if the specific groundwater factors take precedence over these.

There is also some need for clarity around the reference to groundwater that is

‘‘suitable for use’’ versus groundwater where the ‘‘currently or reasonably anticipated future use’’ is for drinking water. This is important in that remedial actions

must ‘‘seek to protect’’ uncontaminated groundwater suitable for use as drinking

water unless technically impracticable. Since the bill provides a very limited definition of what is not suitable as drinking water’’ and this definition triggers specific

control goals, further clarification is needed for this section of the bill.

We are also concerned that land use determinations are made based on site specific factors while the use of groundwater gives substantial deference to state classification efforts which are generally not facility specific.

There also needs to be clarification of whether the bill has created any inflexible

mandates. The reference to attaining cleanup goals to the edge of that contamination which is managed in place, might be read so as to in fact eliminate flexibility

of site managers to look at the nature and timing of use and other factors. It is the

experience of our membership that EPA in its own implementation of its administrative reforms, has gotten away from arbitrary requirements in terms of compliance points and choice of remedial measures. The bill should be clarified to conform

to current practice.

While the bill does maintain the current law’s preference for treatment, it does

so for certain discrete areas. The definition provided appears consistent with sound

principles of protection of human health and the environment. It also would appear

to maintain flexibility in how actual risk from discrete areas of highly toxic, highly

mobile contamination with the potential for human exposure can best be addressed.

But it is not clear that this flexibility is sufficiently defined to take into account the

unique characteristics of certain types of facilities which affect our membership (i.e.,

landfills and mining sites).

We would also note the improvements made from prior Congresses in the approach to reevaluating Records of Decision (ROD’s). This is an important provision

for our membership and to the pace of future cleanup, particularly since many of

our members signed ROD’s and performed cleanup activity in the early years of this

program’s operation. We are concerned that the language in the bill can, in certain

instances, be interpreted to fall short of current EPA practice.

For example, under current administrative reforms, EPA follows three criteria as

the basis for review: (1) changes in the remediation technology which would result

in a more cost-effective cleanup; (2) modification of the remediation objectives due

to the physical limitations posed by site conditions; and (3) modification of monitoring to reduce sampling, analysis and reporting requirements where appropriate. We

would note that only the first of these criteria is a part of S. 8’s approach and we

would recommend adoption of the other two. We also believe it is unnecessary to

invite a Governor’s veto of the Remedy Review Board’s decision because state input

to this process is already a part of this bill.

In addressing the ROD review issue we recognize that reform must attempt to

balance the competing needs of fairness and program pace. We would emphasize

that it is in no one’s interest to burden the EPA with having to make decisions on

every single ROD currently in the pipeline; or to create a system that puts the

Agency in the business of reviewing existing ROD’s to the virtual exclusion of negotiating new ones. We believe given the status of sites in the current pipeline and

the limits on the-number of new sites coming into the system under S. 8, the ROD

review procedure should not impede program pace.

We agree with the elimination of ‘‘Relevant and Appropriate’’ standards being applied to remedial decisions under Superfund. Historically, this has led to an almost

arbitrary application of remedial standards at some sites. Retention of state ‘‘applicable’ standards as is now proposed, is acceptable if the standard relates to the remedy or to the siting of facilities and applies to the conduct or operation of remedial

actions or cleanup levels under state law. However, it is not clear that these applicable state standards must satisfy the balancing criteria which apply to other remedies. We believe they should. Further, the bill requires any more stringent state

applicable requirements relating to the remedy or facility siting law promulgated by

the state after enactment to be published as a rule and consistently applied. However, the provision appears not to limit these new state standards to those that re-
151

late specifically to the conduct or operation of the remedy or the contaminants involved. We believe this clarification would improve the bill.

Liability: We believe this section of the bill should significantly decrease the litigation inherent in the current Superfund liability system. It does so by establishing

an allocation system which can mitigate much of the inherent unfairness of the joint

and several liability system. And, it eliminates liability altogether for small and

other appropriate parties, further acting to reduce what is now an almost institutionalized unfairness in the liability system.

On principle we believe all parties should receive uniform treatment under any

reformed liability system, regardless of their status as a PRP or the type of site at

which they are involved. S. 8 does not adhere to this principle for co-disposal sites

at which certain categories of responsible parties would be treated more favorably

than others. For example, a generator or transporter of waste at a co-disposal facility is treated more favorably than an owner and operator of such a facility. Moreover, parties at co-disposal facilities are generally treated more favorably than

PRP’s at other sites, including other, large multi-party sites.

However, we are also aware that co-disposal sites historically have been prone to

the type of litigation which is most objectionable under the current Superfund; i.e.,

third-party cost recovery litigation, often involving literally thousands of small parties. It is our understanding that the basis for the so-called ‘‘co-disposal site carve

out’’ is to reduce the burden on the allocation system and reduce these transaction

costs. We would also acknowledge that removing the liability of a vast majority of

parties at co-disposal sites and thereby eliminating there need for allocation, significantly reduces what may be a burden on the allocation system and should, therefore, facilitate the application of this important feature of the bill to other multi

party sites. Moreover, our preliminary economic analysis of the approach to liability

reform currently embodied in S. 8 indicates that this approach is affordable within

historic EPA Superfund budget levels.

For the majority of parties, the critical element of fairness in S. 8 comes from its

revised allocation system. By exempting small business and de micromis contributors early in the process, the bill eliminates the need for these parties to be present

or have representation during an allocation. Moreover, the bill has in our view, the

appropriate amount of specificity around the allocation process; it appropriately sets

forth the authority conveyed to the allocator (including broad powers to discover information), indicates the so-called ‘‘Gore factors’’ as the basis for determining appropriate shares, defines the penalties for non-settling parties, and defines the role of

the Administrator in defending the Fund. The definition of orphan share is a step

in the right direction with the Fund assuming a pro rata share of the unattributable

portion of the orphan. However, as a matter of fairness, The Roundtable believes

the unattributable share should be paid fully if resources are available.

We support fairness for those parties already well into the cleanup process, as

well as for those newly identified parties. S. 8 precludes those sites already under

a settlement agreement from the mandatory allocation procedure. While we would

oppose any double recovery of costs, there are conditions under which some sites at

which there is an existing settlement should benefit from a mandatory allocation for

future costs. These conditions could include the following: very high cleanup costs,

a very large orphan share, cleanup costs which are driven primarily by the activities

of orphan or recalcitrant PRP’s, and viable PRPs that have cooperated with EPA

in performing the cleanup work. Under such circumstances, third-party litigation to

recover future costs at the site would of course be stayed.

Moreover, we believe the mechanics of payment should be clarified. The language

in the bill clearly intends to structure a method for reimbursement for construction

costs for lead PRP’s (i.e., PRP’s which volunteer or are ordered to undertake construction of the remedy at a site). But it is less clear in setting up a specific mechanism to assure that the dollars from the Fund are dedicated for this purpose. Nor

is a specific amount for such Fund contribution designated. We believe more specificity needs to be given to issues such as the size of the Fund, how much is available

for reimbursement, how the Fund will handle requests for reimbursement that exceed the annual size of the Fund (or the allocated portion), what recourse the PRP

has if the government fails to meet its obligations, etc.

These are important issues since under the bill one or more responsible parties

will continue to perform work at the site. They will then receive reimbursement

from the Fund for any costs incurred after the date of enactment in excess of their

allocated share. The Roundtable agrees that PRP’s should continue to be the lead

at sites to maximize efficiencies in site cleanup. However, we believe the bill, or at

a minimum legislative history, needs to be more precise in defining the decision

rules under which these performing parties will be reimbursed for amounts spent

in excess of their allocated share of responsibility.
152

Natural Resource Damages: While we acknowledge that the experience with actual NRD claims is relatively limited, the consistently large size of pending claims,

coupled with statements by the trustees that additional claims will follow, leads us

to conclude that a fundamental reassessment of the current NRD provisions is needed. Claims upwards of a billion dollars, with a majority of those costs based on speculative methodologies and unrelated to what is needed for restoration, clearly warrant the full attention of this committee. It could well be that we make real reforms

in the rest of Superfund and accelerate the pace of cleanup, only to find that natural

resource damage claims dwarf the transaction costs which are and historically have

been associated with the liability and remedy provisions of current law.

S. 8 does take steps toward modifying the unconstrained features of NRD provisions of current law. The bill seeks to eliminate so-called non-use damages which

are based on the highly speculative Contingent Valuation Methodology (CVM) and

unrelated to restoration. Similarly, The Roundtable opposes imposition of past lost

use in that it is punitive and not related to the actual injury to the resource.

We are also encouraged by the requirement mandating mediation of NRD claims

as a way to fairly reduce the potential for protracted litigation. We are greatly concerned, however, that this sensible approach may be negated by other provisions

that trustees may construe as taking away a defendants ultimate right to a de novo

trial by jury.

We would encourage the committee to reexamine the language of the bill which

describes the objective of restoration and the criteria which Trustees consider in developing alternatives and selecting restoration measures. Specifically, unless a reformed law directs the trustees to select measures which are cost reasonable, there

is no mechanism to insure that the ratio of benefits to costs will be balanced. S. 8

recognizes this important concept when it comes to selecting remedies, which makes

it all the more important to apply this concept to NRD as well.

In addition, it is critical that trustees be given a rational, objective benchmark

for when the goal of restoration is accomplished. In our view, the benchmark should

be reinstatement of the public’s ability to use and enjoy the resource again.

We would note that a number of provisions relating to restoration in S. 8 would,

if made mandatory, allow trustees and PRP’s to get on with the business of restoring injured resources; but because they are discretionary, they likely will lead to

protracted litigation. These include all the criteria for selecting restoration alternatives; the reliance on facility specific information and scientifically valid principle

in assessing, planning and quantifying restoration costs; conduct of assessments in

accordance with regulations; and trustee coordination. These are the critical elements which will define the scope of the natural resource damage program. To truly

focus this program on resource restoration, the committee should conclusively decide

the parameters under which this will be accomplished, rather than deferring to continued court interpretation and litigation. Moreover, reforms adopted in this bill

should apply to pending NRD claims.

Funding: S. 8 makes reforms to the current law in a number of ways which will

have measurable impacts on the costs of the program. We believe it is important

that the authorizing committee continue its close coordination with the funding and

appropriating committees on issues which affect how this program will be paid for

in the future. S. 8 addresses these issues in an indirect way, in particular in limiting

future listings on the NPL to an additional 100 sites until the year 2000 and not

more than 10 per year thereafter. We believe current assessments of the NPL pipeline by the states and GAO, and EPA’s own initiative to trim CERCLIS indicate

such limits represent a workable target.

As authorizing legislation, S. 8 understandably does not address future funding

issues which we believe are critical for this Congress if we are to put the reformed

program on a sound financial footing going forward. Yet we believe it is important

for this committee to understand our views on enhancing the funding integrity of

this program by more closely tying the funding aspects of this program to performance-based objectives.

In this context, we would note that to date, the business community has paid virtually the entire cost of the Superfund program. The major dedicated Trust Fund,

which funds EPA’s responsibilities, has been funded by three industry taxes: excise

taxes on the chemical and petroleum industries, and an across-the-board corporate

income tax. In addition, individual PRP’s pay the full costs of cleanup and transaction costs on sites at which they take the lead. They also reimburse EPA for Federal oversight costs at those sites.

We would note that the amount of revenues to the Trust Fund, historically from

$1.8 to $2.2 billion has been significantly greater than appropriations. This has resulted in a significant and growing surplus in the Fund. Due to the surplus and the

limitations this bill would place on NPL listings going forward, the opportunity ex-
153

1 In particular, we are glad to see that the ‘‘polluters in charge’’ provisions of S. 8 as introduced—under which polluter-written cleanup plans could have been approved by default—have

been deleted. We also applaud the fact that the revised bill no longer allows Potentially Responsible

Continued

ists for future funding of the program to be tied to the pace of the program; or, put

another way, its success in meeting its goals. The Roundtable members believe future funding for Superfund should be tied to needed NPL site cleanup.

We would further note that ‘‘core’’ or non-cleanup activities have grown to be almost equal to clean up expenditures on EPA led sites. S. 8 addresses the continued

pressure for expenditure of funds from the Superfund Trust Fund for brownfields

development, community participation, health analysis, and other items not directly

related to cleaning up sites on the NPL. And, as indicated by provisions in the State

Role Title of S. 8, states will inevitably assume a larger role in the management of

individual sites on the NPL. How large a role they play will be determinant in the

amount of funds they will require from the Fund as well. We would ask that the

committee give special attention to the extent to which it is conveying additional

non-NPL related cleanup activity to the Fund.

In this context of providing greater fiscal discipline to the Superfund budget, we

note that the limitation on future NPL listings is an important step toward defining

a successful end point to the Superfund program, which was not intended to be a

permanent Federal Government responsibility. In addition, the inclusion of a ‘‘Results Oriented Cleanup’’ section begins to address the need to impose budget discipline on this program, allowing the Agency the latitude to define how it can best

be measured.

We believe additional emphasis needs to be placed on the discussion of how a reformed Superfund will be funded. This discussion should include consideration of

constraints on non-cleanup funding, and limitations on moneys raised other than for

cleanup purposes. These two provisions represent a constructive step in this direction.

Other Provisions: We would also note S. 8 makes substantial improvements to current law in enhancing the role citizens play in the remedy decisionmaking process.

It is the experience of many of our members that such involvement can assist in

developing remedies which are truly protective of human health and the environment, while taking into account the specific concerns of communities about comparative risks of alternative remedies. More often than not, citizens are looking to return

Superfund sites to some productive use where this is consistent with meeting appropriate health and environmental standards. S. 8 also addresses fundamental issues

associated with brownfields redevelopment, including limiting the liability of prospective purchasers and innocent landowners. However, we remain concerned that

without additional clarification of future Superfund liability of for PRP’s who undertake cleanup at non-NPL sites, there will be reduced incentive for them to undertake brownfields cleanups at non-NPL sites.

In conclusion, The Roundtable looks forward to continuing to work with the committee in modifying S. 8 to accommodate the diverse range of views on these and

other important issues in Superfund. We are prepared to do additional analysis of

S. 8’s economic and environmental impact by using of The Business Roundtable’s

Programmatic Superfund Model. Additionally, we are prepared to respond to

amendments to S. 8 as offered by members of the committee during mark-up. We

thank you for this opportunity to comment.

PREPARED STATEMENT OF KAREN FLORINI, SENIOR ATTORNEY, EDF; ACCOMPANIED

BY JACQUELINE HAMILTON, SENIOR PROJECT ATTORNEY, NRDC

INTRODUCTION

On behalf of the Environmental Defense Fund (EDF) and the Natural Resources

Defense Council (NRDC), I appreciate this opportunity to discuss the revised version

of S. 8, the ‘‘Superfund Cleanup Acceleration Act of 1997,’’ amending Superfund.

EDF and NRDC have 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. Most recently, I testified before this committee’s Subcommittee on

Superfund, Waste Control, and Risk Management regarding the initial version of

S. 8 on March 5, 1997.

While some of the most problematic features in S. 8 as introduced have been moderated,1 we believe that there are still numerous fundamental flaws in the bill as
154

Parties to serve as voting members on the Community Advisory Group [SCAA § 303, adding

CERCLA § 117(h), p. 72]. And we support the provision dropping the requirement in existing

law for matching contributions for Technical Assistance Grants [SCAA § 303, adding CERCLA

§ 117(g)(2), p. 80], and expressly allowing up-front payments for TAGs. 2 Although the community Participation provisions, Title Ill of S. 8 are an improvement over

existing law, they will be largely irrelevant for all sites transferred to states given the weaknesses of Title II’s state roles. 3This weakness in the Brownfield title is especially objectionable because NPL sites are (inappropriately, in our view) eligible to be included under Brownfield programs [SCAA § 102(b), adding CERCLA § 128(c), p. 16].

revised, compelling us to continue to oppose the bill in its current form. These include features that will make cleanups less protective, disempower communities

(particularly where authorities are transferred to States), and let large industrial

polluters escape liability without policy justification and with unacceptable consequences for the future of the cleanup program.

In addition, numerous provisions, taken together, will dramatically slow the pace

of cleanups. This is a particularly inopportune time for doing so, given that the

Superfund program has finally begun to make substantial progress in recent years.

We urge Congress not to turn back the clock to an earlier era in which Superfund

cleanups were abysmally slow. In particular, Congress must not divert funds needed

for cleanups to sweeping liability carve-outs for polluters who can well afford to pay

to clean up the messes they have made, nor divert EPA’s resources by creating unnecessary, time-consuming new tasks. Rather, Congress should:

• adopt a targeted set of broadly supportable provisions to enhance program effectiveness and public participation,

• increase funding to allow cleanups to proceed as promptly as is consistent with

good decisionmaking and full public participation, and

• reinstate the now-defunct taxes that help finance the program.

We would welcome an opportunity to work with the committee in developing a

bill meeting these objectives.

The remainder of this testimony focuses on our principle criticisms of the current

version of S. 8, the August 28 ‘‘Draft Chairman’s Mark.’’ Because the draft bill was

made available to us only 4 business days before today’s hearing, please note that

we may subsequently identify additional concerns.

I. COMMUNITY DISEMPOWERMENT: HOW S. 8 MAKES COMMUNITIES IRRELEVANT

Almost everyone agrees that early, robust public participation pays handsome

dividends in avoiding controversy—and thus cleanup delays—down the line. Accordingly, it is surprising as well as disappointing that a bill denominated the Superfund Cleanup Acceleration Act would contain numerous provisions that systematically curtail public participation in key contexts, most notably those involving state

roles.2 While EDF and NRDC do not oppose a greater role in cleanup for states that

have adequate resources, authorities, and commitment, this expansion must not

occur at the expense of curtailing the public’s role in Superfund cleanups.

Yet just such curtailment could well result from the state role provisions in Title

II of S. 8 as revised. Problems with S. 8’s state role provisions include the process

through which delegation or authorization occurs, as well as the consequences of delegation or authorization. In effect, both communities and EPA are forced to trust

that state programs will contain adequate community involvement provisions without any way of verifying that such provisions will indeed be included—and without

meaningful recourse if they are not. Similar problems exist in Title I, the

Brownfields title. Both are discussed below.

A. Curtailing community participation through inadequate state role criteria and

procedures

Public participation is conspicuous by its absence from the list of criteria for EPA

to evaluate in making delegation determinations [SCAA § 201, adding CERCLA

§ 130(e)(3)(C), p. 44]. To make matters worse, the bill expressly precludes EPA from

including any conditions regarding public participation (or anything else) in approving a delegation request [§ 130(e)(4)(D), p. 46]. Similarly, for authorization, states

merely are required to have ‘‘procedures to ensure public notice and as appropriate

opportunity for comment’’ on cleanup plans [§ 130(c)(1)(C), p. 37]—a loophole potentially big enough for a proverbial Mack truck. Similar language exists for

Brownfields programs [SCAA § 102(b), adding CERCLA § 128(b)(2), p. 15].3

Not only is public participation omitted as a criterion for transfer of authorities

to States, but the public is excluded from decisions about whether to transfer such

authorities. There is no allowance for public notice and comment in proceedings ei-
155

4 In addition, the presumptive remedies section as now written further disempowers communities. While the concept of presumptive remedies can be beneficial, S. 8 as revised seems to

make the presumption an irrefutable one—regardless of community concerns. Specifically, the

bill provides that the Administrator may select a presumptive remedial action ‘‘without consideration of (other) technologies, approaches, or methodologies’’ [SCAA § 403, adding CERCLA

§ 132(c)(2), p. 120]. This could be read to allow the Administrator to adopt a presumptive remedy

regardless of community views at a particular site. At the same time, the bill specifies that identification of presumptive remedies does not constitute rulemaking and need not go through public notice and comment procedures [§ 132(b)(3), p. 120]. The text of the bill should make clear

that nothing in the presumptive remedy section authorizes EPA to disregard comments and alternative remedies suggested by interested parties at sites for which presumptive remedies

exist.

ther for delegation or authorization. The public is even more emphatically excluded

from participating in the context of ‘‘expedited authorization’’ applications, given

that states meeting any 3 of 5 specific criteria are ‘‘conclusively presumed’’ to warrant authorization [§ 130(d)(1), p. 38]. And expedited authorizations cannot be challenged in court [SCAA § 130(d)(4)(D), p. 42]. So, if there are grave deficiencies in

a state’s program, the public will have no opportunity to call these to EPA’s attention. Similarly, the public will have no opportunity to voice concerns about state enforcement authorities despite the fact that even delegated states are to use state enforcement authorities [§ 130(e)(1)(C), p. 43].

Moreover, the bill’s liberal use of default approvals mean that delegation or authorization can occur without any actual review by EPA of the adequacy of the state

program. Decisions about toxic waste dump cleanup programs are too important to

be relegated to the flipping of pages on a calendar. This is true regardless of the

cause of any bureaucratic delays in making decisions—whether they be due to a personal tragedy that befalls an EPA reviewer, or a change of personnel, or a government-wide shutdown, or even simple inertia. Deadlines play a legitimate role, but

default approvals do not.

B. The draconian consequences of state delegation and authorization

Exclusion of the public from authorization and delegation decisions is particularly

troubling because those decisions have profound consequences under S. 8 as revised.

For example: • State roles override CERCLA’s citizen-enforcement provisions, because the bill

provides that neither EPA nor any other person can take judicial enforcement action

against any person regarding a transferred site [SCAA § 201, adding CERCLA

§ 130(h)(4), p. 52]. Thus, citizens will be unable to use existing § 310 of CERCLA

even to enforce cleanup agreements. The Brownfields title contains similar strictures for facilities ‘‘subject to’’ state cleanup plans, apparently regardless of whether

those plans meet any criteria whatsoever [SCAA § 103, adding CERCLA § 129(b)(1),

p. 18]. These limitations are radical and unwarranted departures from prior law not

only under Superfund, but indeed virtually all Federal environmental programs.

There is no justification for barring citizen enforcement of Superfund requirements. • State delegation/authorization eliminates virtually all EPA authority. The public needs and deserves an effective Federal fallback where states fail to carry out

their environmental responsibilities appropriately for toxic site cleanups, just as occurs for air and water pollution programs. Yet, extraordinarily, the bill provides

that EPA cannot act at a site covered by a delegation agreement unless the agency

goes to court and obtains a declaratory judgment that the state has failed to make

reasonable cleanup progress [SCAA § 201, adding CERCLA § 130(h)(4)(B)(ii)(II), p.

53]. For a bill that supposedly seeks to accelerate cleanups and reduce litigation,

forcing EPA to wait helpless pending completion of a lawsuit against a state is as

curious as it is counterproductive. Provisions almost as onerous apply in the

Brownfields title, with regard to any facility that is ‘‘subject to’’ a State remedial

action plan—despite the fact that EPA apparently has no role in reviewing state remedial programs at all [SCAA § 103, adding CERCLA § 129(b)(4), p. 18].

All the preceding problems are compounded by the fact that the bill offers EPA

no option of partial de-delegation or de-authorization. Instead the only option is the

‘‘nuclear’’ one of total program withdrawal—a seldom-used tactic.

C. Other features that undercut effective public participation.

In addition to the state role and Brownfields provisions discussed above, several

other features of the bill undercut public participation as well. These are briefly discussed below.4

1. 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
156

concurrence of the Governor of the State’’ in which the sites are located [SCAA

§ 802, adding CERCLA § 105(i)(3), p. 246]. Similarly, a state can block any administrative cleanup order under § 106 by failing to concur within 90 days [SCAA § 103,

adding CERCLA § 129(c), p. 20].

While it may be appropriate to give states ‘‘first dibs’’ on cleanups at sites that

will be appropriately addressed through state action, these provisions go 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 program only upon affirmatively determining that the State will conduct an adequate, timely cleanup absent the listing

or 106 order.

2. Shifting the Public Out of Cleanup Decision Revisions.

As written, the bill’s provisions for reopening existing cleanup decisions essentially eliminate opportunities for effective public participation. Given that review

boards are to complete their review within 180 days [SCAA § 406, adding CERCLA

§ 136(d), p. 144], communities often will have inadequate time to receive notice and

respond. This is particularly true at sites where no Technical Assistance Grant is

currently in place. (Even where TAGs already exist, the limited number of community-oriented technical experts would be unable to provide effective support if large

numbers of reopener petitions are submitted—a possible outcome under the bill as

now drafted, see section III below.) To assure that the public is meaningfully involved, the Administrator should be able to extend the deadline for the Board to

complete its review.

II. S. 8’S INADEQUATE CLEANUP PROVISIONS

Although the revised version of S. 8 has dropped the egregious provisions that let

polluters run the cleanup decisionmaking process, the remedy title still has several

major deficiencies that make it highly objectionable. These include a preference for

treatment of ‘‘hot spots’’ that is worse than useless; critical omissions from the range

of cleanup objectives; and important weaknesses in the cleanup standards themselves. These are discussed in turn below.

A. The hot spots ‘‘preference’’

Given current EPA practice of cleanup up to unrestricted use at only one-third

of sites even with the existing preference for treatment, we have increasing reservations about whether there is any rationale for changing this portion of the law.

However, if the preference for treatment contained in current law is to be narrowed,

it is essential to provide a preference for treatment of ‘‘hot spots.’’ While S. 8 as revised now includes such a preference, as currently drafted it applies only when contaminants ‘‘cannot reliably be contained’’ and ‘‘present substantial risk . . . because

of high toxicity . . . and high mobility’’ and there is ‘‘a reasonable probability of actual exposure based on site-specific factors’’ [SCAA § 402, amending CERCLA

§ 121(c)(3), p. 108].

Such an approach is highly objectionable because it implies that treatment will

occur only when these onerous and unworkable requirements are met. More generally, this approach entirely misses the point of having a preference for treating

hot spots: to avoid intrinsically uncertain guesstimates about whether material cannot reliably be contained, and whether and how future exposures will occur. Because

it is impossible to see into the future with the level of confidence these phrases suggest, a preference for treatment is vital.

Another approach to this issue may also warrant consideration. The current statute’s preference for treatment and mandate for permanent remedies have caused

problems primarily at sites with high volumes of low-toxicity wastes. That problem

could be dealt with explicitly, by maintaining the preference for treatment while creating an exception for high-volume, low-toxicity sites. Rather than making containment the rule and hot spots the exception, Superfund would maintain treatment as

the rule and make the problematic type of sites (high-volume, low toxicity) the exception.

B. Weaknesses in institutional controls provisions

Even with Superfund’s existing mandate for permanence and broad preference for

treatment, many sites have been cleaned up only part way, to a degree that allows

for some but not all types of use of land or water (e.g., industrial use only, or no
157

5For example, the bill expressly provides that use of institutional controls is ‘to be on an equal

basis with all other remedial action alternatives’’ [SCAA § 402, amending CERCLA § 121

(c)(4)(E), p. 112]—despite the fact that institutional controls are inherently more uncertain than

treatment-based remedies. The bill also requires facility-specific risk evaluations to ‘‘consider the

use of institutional controls’’ [SCAA § 403, adding CERCLA § 131(b)(1)(D), p. 116]. 6Love Canal is a classic illustration of the failure of institutional controls. The deed contained

a notice of the presence of chemical wastes, but a subsequent owner eventually disturbed the

waste when doing construction on the site. See U.S. v. Hooker Chemicals & Plastics Corp., 722

F. Supp. 960,962 (W.D.N.Y 1989). 7This problem is exacerbated by the fact that the bill calls for use of central estimates in risk

communication principles [SCAA § 403, adding CERCLA § 131 (d)(2), p. 118]. This is a specific

statistical technique that is only appropriate under particular circumstances—ones generally not

found in the Superfund context—and are otherwise affirmatively misleading. This language

should be stricken.

excavation). To assure that restricted-use sites are in fact only used in a manner

consistent with their restrictions, legal mechanisms known as ‘‘institutional controls’’ may be employed. Unfortunately, while S. 8 would do much to increase the

prevalence of restricted-use sites,5 it provides no real assurance that any institutional controls adopted as part of such cleanups will actually work. As experience

at Love Canal itself amply illustrates, institutional controls that fail can be a disaster on many fronts.6

Among other problems in this critical section, the definition of ‘‘institutional controls’’ is itself overly broad [SCAA § 402, amending CERCLA § 121(c)(4)(A), p. 1 10].

While zoning, land use plans, and notification systems may be extremely valuable

as supplements to institutional controls, these devices are too ephemeral and/or too

weak to serve as institutional controls in this context: protecting human health and

the environment from the effects of toxic contaminants left on land or in water after

cleanup activities are ‘‘complete.’’

Similarly, the bill’s current ‘‘requirements’’ for institutional controls—that they

are ‘‘adequate to protect human health and the environment,’’ ‘‘ensure . . . longterm reliability,’’ and ‘‘will be appropriately implemented, monitored, and enforced’’—are far too vague to be meaningful [SCAA § 402, amending CERCLA

§ 121(c)(4)(c), p. 112]. Rather, the bill must explicitly require that specific criteria

be met for any institutional control that is adopted as part of a remedy. These include, at a minimum:

• permanence (i.e., the control will remain in effect until removed following an

affirmative, site-specific determination that it is no longer needed because the contamination is gone);

• universality (i.e., applies to all current and future interest-holders of the land

or water);

• enforceability (i.e., by all interested parties, including citizens); and

• permanent notice (i.e., in land records unless inappropriate given the specific

nature of the control).

Given the Byzantine complexity of much of American property law, some jurisdictions may lack mechanisms that meet these criteria. Congress should create an

array of Federal institutional controls to assure that qualifying mechanisms are

available in all jurisdictions. The only other alternatives are either unlikely (disallowing institutional controls in jurisdictions that lack qualifying controls and requiring that all sites be remediated to unrestricted use) or intolerable (allowing use

of inadequate institutional controls).

C. Weaknesses in cleanup standards

The cleanup standards in S. 8 continue to commit critical sins of omission. In particular, there is still no explicit requirement for protecting the health of children

and other highly susceptible or exposed groups.7 Likewise, ‘‘protection of health’’ is

still defined as a cancer risk in the range of 10¥4 to 10¥6 [SCAA § 402, amending

CERCLA § 121(a)(1)(B)(i)(l), p. 85], but without the National Contingency Plan’s provision specifying that 10¥6 is the ‘‘point of departure.’’ As a result, cost considerations are likely to tilt remedies toward the less-protective outcome, since cleaning

up to a less-protective level is almost always cheaper.

Similarly, S. 8 continues to lack explicit objectives of protecting clean groundwater, and making contaminated land and groundwater available for beneficial use.

These important objectives have, until now, been inherent in the program, given the

existing mandate for permanence and preference for treatment. If those provisions

are to be narrowed, the list of objectives must grow (with the recognition that not

every remedy may be able to attain these additional objectives).

While the revised bill has taken some steps in this direction, it does not go far

enough. Beneficial use of land is now included, but only as one element in develop-
158

8The numbering of this subparagraph appears to be erroneous.

9Moreover, it is not clear what will happen when a State has designated an area as a low

priority for protection under one program—such as a classification of groundwater protection

program—but as an underground source of drinking water (USDW) in a rulemaking under the

underground injection control program. Clearly, the most protective of the state actions should

control In addition, it is important to clarify two additional points: first, that point-of-use devices

may only be used on a temporary basis (i.e., while more permanent arrangements are being

made), or where no other approach is technically feasible; and second, that technical feasibility’’

means what can be accomplished from an engineering and technical perspective. 10 61 Fed. Reg. 18780 (Apr. 29, 1996); The proposal is due to be finalized in the next several

months. 11 Although we believe that such interpretations are fundamentally inconsistent with the use

of the discretionary term ‘‘may,’’ the D.C. Circuit recently adopted just such a reading of section

211(f) of the Clean Air Act. There, the statute provided that EPA ‘‘may’’ grant a petition allowing use of a gasoline additive known as MMT upon finding that the additive would not foul

ing future land use assumptions [SCAA § 402, amending CERCLA

§ 121(b)(1)(B)(ii)(IV), p. 97]. Protection of groundwater shows up only in an amorphous way—the bill merely provides that remedial action ‘‘shall seek to protect

uncontaminated groundwater], and ‘‘shall seek to restore groundwater to a condition

suitable for beneficial use’’ [SCAA § 402, amending CERCLA § 121(c)(?)(B) & (C),8

p. 100]. It is not clear how these aspirational statements relate to the bill’s express

objectives and balancing factors. Moreover, even they are ‘‘not required to be attained in an area in which any hazardous substance, pollutant, or contaminant is

managed in place’’ [SCAA § 402, amending CERCLA § 121(b)(1)(B)(v), p. 102]—potentially an immense loophole if interpreted to mean areas other than those directly

underlying landfills or other clearly and narrowly delineated areas.

More generally, S. 8 continues to provide only limited protection for water resources. In particular, protection of groundwater is dependent on its anticipated

use—with all the inherent uncertainties of predicting both who will need the water

when, and where the water will be at that time—rather than its status as a valuable and limited resource. Moreover, the bill provides that assumptions about future

water use are to take into consideration state water use plans [SCAA § 402, amending CERCLA § 121(c)(2), p. 98]. Unfortunately, in many cases, these plans were

originally developed with no meaningful public input, often many years prior to the

cleanup decisions and in a generalized statewide rulemaking or policymaking context in which it was not clear to any member of the public or affected community

that the decision would have any effect upon a particular site’s cleanup.9

Finally, one other point bears mention with regard to clean up standards. The bill

exempts on-site activities from otherwise-applicable provisions of hazardous waste

regulations under the Resource Conservation and Recovery Act (RCRA) [SCAA

§ 402, amending CERCLA § 121(a)(1)(C)(i)(II), p. 89]. The bizarre result will be that

Superfund sites will be the only locations in the United States where untreated hazardous-waste soils can lawfully be placed in substandard landfills. This provision is

an artifact of a problem that EPA has already taken formal steps to alleviate,

through the proposal of rules tailoring hazardous waste standards to clean up situations.10 Rather than eviscerating RCRA’s applicability to on-site cleanups, the tailored rules should themselves become the applicable standards.

III. SUPERFUND SLOWDOWN: HOW S. 8 IS THE SUPERFUND CLEANUP

DECELERATION ACT?

More than a dozen provisions of the revised bill impose major new or expanded

obligations on EPA. But far from assuring that additional resources will be available

so that EPA can accelerate the rate of cleanup completions while meeting these new

and largely unnecessary demands, the bill does precisely the opposite: it allows dollars now available for cleanups to be diverted to polluter-pays liability rollbacks,

with costs shifted from polluters to the Fund, and with no ‘‘firewall’’ between cleanup costs and these pay-the-polluter funds (see discussion below in section IV).

Even beyond the pernicious effect of the changes in liability on the speed and

thoroughness of cleanups, S. 8 as revised has numerous features that will slow down

cleanups. These include potentially creating expansive new rights to re-open existing cleanup decisions as well as bottlenecks in the Remedy Review Board process,

and requiring EPA to issue a slew of complex new rules implementing changes imposed under the Act—most of which are unnecessary and counterproductive.

The ROD re-opener provisions warrant particular scrutiny. Although the bill provides that a re-opener petition ‘‘may’’ be accepted if certain criteria are met [SCAA

§ 406, adding CERCLA § 136(b)(3)(A), p. 141], under existing case law that language

could well be construed to require that all petitions meeting those criteria must be

accepted.11 Such a result would likely lead to an unmanageable explosion in EPA’s
159

automotive pollution-control systems. EPA made such a finding, but rejected the petition on the

basis of concerns about the additive’s potential health effects. The court ruled that EPA lacked

discretion to consider any factors other than the one expressly stated in the statute, e.g., effect

on automotive systems, regardless of the fact that the Clean Air Act’s objectives expressly include protection of human health. Ethyl Corn. v. Environmental Protection Agency, 51 F.3d 1053,

1058–59 (D.C. Cir. 1995). 12Similarly, the bill imposes an unworkable requirement to identify research needs emerging

from each risk assessment, and peer-reviewed studies that are relevant to or fail to support estimates of public health effects and methods used to reconcile inconsistencies in scientific data

[SCAA § 403, adding CERCLA § 131(d)(4), p. 1 18]. while such steps can be useful, they should

be done generically, not in each risk assessment. Moreover, the requirement in paragraph (d)(5)

to discuss individual studies that fail to support’ any risk estimate is at odds with a weight of

evidence approach. It would end up focusing as much attention on a single study that contradicts or fails to support the risk estimate or assumption as the multitude of studies which

do support that position.

workload, forcing the agency to divert additional resources from making progress in

cleanups to rehashing existing decisions.

Similarly, because the bill creates a new role for the Remedy Review Board in assessing reopener petitions [SCAA § 406, adding CERCLA § 136(b)(3)(A), p. 141],

while also requiring Board involvement in reviewing a third of new cleanup decisions [SCAA § 404, adding CERCLA § 134(e)(2)(B)(ii), p. 131], the Board may well

become a major bottleneck. To avoid that result, EPA may have to establish multiple Boards, in which case more and more EPA personnel will have to be involved

in Boards instead of actual cleanup activities.

With regard to regulations, the bill requires EPA to issue a slew of new rules,

most within six months of the bill’s enactment. Even aside from forcing EPA to divert considerable resources to re-writing rules, the pendancy of this array of rulemaking will very likely stall future cleanups, and ongoing ones, while everyone

waits to see how the new rules will come out.

Specific rulemaking obligations coming due within 180 days of the bill’s enactment include:

• revise the National Priorities List to delete over-lying parcels from NPL [SCAA

§ 407(b), p. 148];

• revise the National Contingency Plan within 180 days of enactment to reflect

changes made by the Act [SCAA § 404, adding CERCLA § 133(a), p. 122];

• issue regulations for providing polluter paybacks [SCAA § 502, adding CERCLA

§ 112(g)(4), p. 161];

• issue regulations establishing procedures for the remedy review board [SCAA

§ 404, adding CERCLA § 134(e)(2)(A), p. 130]

• issue regulations for selection of allocators (due within 90 days of enactment)

[SCAA § 504, adding CERCLA § 136(d)(3)(A), p. 172];

• issue regulations incorporating Results Oriented Cleanup requirements into the

National Hazardous Substances Response Plan [SCAA § 801(b), p. 244];

• issue regulations implementing risk assessment and risk communication provisions (due within 18 months of enactment) [SCAA § 403, adding CERCLA § 131(f),

p. 119].

Furthermore, the bill establishes a broad mandatory allocation process that the

Administrator must conduct [SCAA § 504, adding CERCLA § 136(b)(1)(A), p. 165].

Allocations are mandatory even for sites at which consent decrees and settlements

have long since been established, if any additional costs will be incurred. In addition, the Administrator (or the Attorney General with EPA staff participation) will

need to participate in such allocations in order to assure that the Fund is not

drained by unduly enthusiastic attribution of expenses as ‘‘orphan’’ shares that will

be paid for by the Fund. Given that multi-party sites with 1 or more viable parties

currently lacking a final settlement will use the allocation process—potentially covering several hundred sites—this resource drain is likely to prove substantial.

Last but by no means least, several provisions relating to risk assessment will

slow down cleanups unnecessarily and will drain EPA resources. For example, the

bill requires use of ‘‘chemical-specific and facility-specific data in preference to default assumptions whenever it is practicable to obtain such data’’ in facility-specific

risk assessments [SCAA § 403, adding CERCLA § 131(b)(1), p. 116]. This language

may force EPA to engage in massive data-gathering, to little purpose. Defaults are

appropriately chosen for policy purposes, including protection of health where the

science is uncertain. Unless someone makes chemical- or facility-specific data available to the Administrator (and the Administrator concludes those data are reliable),

generic default values should be used.12

Similarly inappropriate is the requirement to use ‘‘the best’’ science in accordance

with ‘‘objective’’ practices [SCAA § 403, adding CERCLA § 131(e), p. 119]. This is ex-
160

13 Because the liability provisions of S. 8 as revised are substantially similar to those of S. 8

as introduced, this section of our testimony closely parallels the liability section of EDF’s testimony of March 5, 1997.

cessive, amorphous verbiage that invites endless wrangling to no useful purpose. If

any such provision is to be included, it should simply direct the agency to use available, reliable data.

IV. OVERLY BROAD LIABILITY ‘‘REFORMS’’: STILL CORPORATE WELFARE BY

ANOTHER NAME 13

There is no dispute that Superfund’s existing liability system has often been

abused by some Potentially Responsible Parties (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

routinely provides contribution protection to settling parties.

Even if legislation on this point were viewed as desirable, S. 8 as revised continues to go 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. The trade-off between liability rollbacks vs. cleanup dollars

Although the bill provides that parties who have already received cleanup orders

must carry out the cleanup, it also specifies that they will be repaid for all costs

attributable to a party whose liability is limited [SCAA § 502, adding CERCLA

§ 112(g)(1) & (2), p. 160]. 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. 160], and must be made within a year

[§ 112(g)(6), p. 161]. In addition, parties that settle pursuant to an allocation have

‘‘an entitlement’’ to be promptly reimbursed for any costs they incur attributed to

an orphan share [SCAA § 504, adding CERCLA § 136(m), p. 186].

This language creates a legal entitlement, as contrasted with discretion under

current law 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

funds remaining in the Superfund are inadequate, one of three 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. The latter two are unacceptable from

an environmental perspective, while the first appears politically implausible.

B. Overly broad exemption for ‘‘co-disposal’’ sites

S. 8 repeals polluter-pays liability for generators and transporters of industrial

wastes at hundreds of ‘‘co-disposal’’ sites at which those wastes were dumped along

with municipal trash [SCAA § 501(b), adding CERCLA § 107((t)(1)(B), p. 153]. 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 40 percent of cleanup costs (or the cost of closure) [§ 501(b), adding CERCLA § 107(t)(1)(D)(i), p. 156].

C. Overly broad exemption for ‘‘small’’ businesses

While we do 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. 152]. 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
161

14 Because the NPL cap provisions of S. 8 as revised are identical to those as introduced, this

section of our testimony is identical to that in EDF’s March 5 testimony (other than with regard

to bill citations). 15 U.S. General Accounting Office, Impact on States of Capping Superfund Sites. GAO/RCED–

106R. March 1996. 16 Ibid., p. 2. 17 ‘‘Toxic Cleanup: Ohioans Aim to Skirt Superfund Listing,’’ Greenwire (electronic newsletter),

June 14, 1995 (synopsis of story from June 11 Cleveland Plain Dealer). 18GAO, p. 3.

§ 501(b), adding CERCLA § 107(r)(2), p. 152 (exception to exemption for de micromis

contributors)).

V. THE NPL CAP: DUMPING CLEANUPS ON COMMUNITIES AND STATES 14

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 can only add a total of 90 sites to the Superfund National Priorities

List before 2000, and then 10 sites/year thereafter [SCAA § 802, adding CERCLA

§ 105(i)(1)(A), p. 245]. 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.15

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.’’ 16

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.

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.’’ 17

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.’’ 18 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 states are unable to do so, today’s polluters will evade cleanup responsibilities, and sites will remain unaddressed.

In short, the cap should be eliminated.
162

19This portion of our testimony was prepared by Sarah Chasis of the Natural Resources Defense Council.

VI. NATURAL RESOURCE DAMAGE PROVISIONS 19

While there have been some improvements in the revised version of S. 8 relating

to natural resource damages, there have also been some weakening changes. Most

importantly, the draft retains the major deficiencies of S. 8 as introduced: it arbitrarily prevents trustees’ from factoring heritage values—the values people place on

passing on to their children and their grandchildren a pristine wilderness, a population of endangered whales or a national symbol such as the Grand Canyon—into

their restoration decisions and from recovering damages for the impairment of these

values. This approach has the effect of valuing least our most pristine and endangered resources.

The revised bill accomplishes this result by retaining the prohibition on the recovery for impairment of heritage values, referred to in the draft as ‘‘nonuse’’ damages

[SCAA § 701, amending CERCLA § 107(f)(1), p. 231] and by its prohibition on trustees’ recovery for the costs of conducting contingent valuation studies [SCAA § 702,

amending CERCLA § 107(f)(2), p. 234], a methodology that Nobel laureate economists recognize as legitimate and that market researchers and businesses use regularly.

Other deficiencies of the revised bill include its limitations on the trustees’ ability

to recoup for the interim losses that may be suffered pending restoration of damaged natural resources. The bill has at least four significant limitations on interim

losses: • It limits such recoveries to ‘‘temporary replacement of the services provided by

injured . . . resource’’ [SCAA § 701, amending CERCLA § 107(f)(1), p. 230; see also,

SCAA § 703, amending CERCLA § 107(f), p. 240]. This language artificially limits

recoveries to measures that are temporary and replacement in nature (thus precluding acquisition, for example) and also potentially limits recoveries to prospective

losses, those for which temporary replacement costs are incurred, omitting compensation for past losses. The term ‘‘services’’ also could be construed too narrowly

to mean just human services, rather than ecological services as well. • It precludes recovery of any lost uses that occurred prior to December 11, 1980

[SCAA § 701, amending CERCLA § 107(f)(1), p. 231]; • It precludes recovery of interim losses, no matter how significant, if the resource has returned to baseline condition before trustees have had a chance either

to file a claim or to incur assessment or restoration costs [SCAA § 701, amending

CERCLA § 107(f)(1), p. 232]; and • It prohibits recovery of any lost heritage values [SCAA § 701, amending

CERCLA § 107(f)(1), p. 231].

With respect to the selection of restoration options, we strongly support the revised version’s deletion of the ‘‘reasonable cost’’ criterion that was in S. 8 as introduced. However, we remain concerned about the criteria that are included [SCAA

§ 703, amending CERCLA § 107(f), p. 239]. First, we believe they should be listed

as considerations, rather than as absolute criteria, as is the case in Interior’s regulations. Second, arguably the most important criterion is not even mentioned, namely

effectiveness in restoring the resource to baseline. This should be included. Cost-effectiveness is included as a requirement, but the term is not defined. To avoid confusion and to clearly distinguish this criterion from a reasonable cost criterion, a definition of the term should be included. Finally, we strongly object to the limitation

placed on the last factor, ‘‘timely’’ to the extent consistent with cost and the other

three factors. This factor should be included without limitation, just as the other

factors are. The current language renders this factor potentially irrelevant. Natural

recovery will tend in many instances to be more cost effective than active restoration. If timeliness is not considered as a separate factor but must always be consistent with what is most cost effective, natural recovery will tend to win out, even if

it will take decades to occur.

We strongly object to the deletion from the revised bill of the provision contained

in S. 8 as introduced for judicial review of the restoration plan on the administrative

record. If the trustee goes through the process of compiling an administrative

record, which we believe is highly desirable to ensure openness and fairness in decisionmaking, then the evaluation of the decision reached by the trustee should be

based on that administrative record. The deletion of this provision from the revised

bill defeats the whole purpose of providing for an administrative record with public

participation. It means that a PRP could come into court with entirely new evidence

that it kept out of the administrative process and use that evidence to discredit the

trustee’s restoration plan. There will be no incentive for the trustee to compile an
163

administrative record since the PRP will be free to ignore the process and submit

its evidence later in court. This change represents a serious step back from S. 8 as

introduced.

The revised bill’s language on the relationship between response actions and restoration [SCAA § 703, amending CERCLA § 107(f), pp. 239–240] is an improvement

over S. 8 as introduced, as is the provision for a Federal ‘‘administrative’’ trustee (as

opposed to a lead Federal ‘‘decisionmaking’’ trustee).

The provision [SCAA § 705, adding to CERCLA § 113(g)(1), p. 241] allowing for an

extension of the current statute of limitations only where, in effect, the PRP agrees

(by entering into a cooperative agreement) is ineffective in addressing trustees’ concerns on this issue. We strongly recommend that the provision on mediation [SCAA

§ 706, adding to CERCLA § 136, p. 242] be made optional. To require trustees to go

through a mediation process when there is no prospect of cooperation from the PRP

only introduces delay and expense into the process. Mediation works only when

there is a real interest on both sides; otherwise, it is a waste of time and money

and further delays restoration of the resources.

Three final points. We oppose the provision on double recovery which would

broaden current law in a number of ways (e.g., by extending to actions brought

under state law, as well as Federal law, and potentially limiting recoveries in such

state actions for damages other than restoration costs, as well as extending to response actions—which are not designed to achieve restoration) [SCAA § 701, amending CERCLA § 107(f)(I), p. 231].

We also are concerned with the failure to call for the development, as part of the

regulations, of simplified damage assessment methods. This combined with the call

for ‘‘facility-specific’’ information [SCAA § 702, amending CERCLA § 107(f)(2), p. 233]

could be used to call into question the ability of trustees to utilize simplified assessment techniques, which not only save time and money, but ensure that smaller

spills and sites are assessed and restored.

Finally, we have serious objections to the grandfathering provision [SCAA § 707,

p. 242] that seeks to carve out a special exception for the Clark Fork case in Montana.

CONCLUSION

Thank you for this opportunity to present our views.

PREPARED STATEMENT OF GEORGE J. MANNINA, JR., EXECUTIVE DIRECTOR, COALITION FOR NRD REFORM

Mr. Chairman, distinguished members of the committee, I am appearing today on

behalf of the twenty-three companies and associations comprising the Coalition for

NRD Reform. A list of Coalition members is attached as Appendix 1. Mr. Chairman,

I would like to begin by thanking you for recognizing that the NRD program needs

reform. As the Interior Department’s 1994 Report on Reinventing Government stated: ‘‘The existing [NRD] process is complex for all parties involved and creates conflict instead of restoring resources.’’

When the NRD Coalition formed two years ago, we were told NRD was a small

problem involving only a few sites. A scant two years later, Federal trustees state

that they want to use their NRD authority at half the NPL sites and at 80,000 surface lagoons, 14 percent of all U.S. lake acreage and 4 percent of all U.S. river miles.

EPA’s recently completed study of 2,100 watersheds ranked 824 as Priority 1–5 for

sediment contamination, but, to date, trustees have asserted major NRD claims at

only 10 of the 824 priority watersheds. To put the EPA survey into further perspective, one watershed which EPA placed in its lowest priority category is the subject

of an NRD claim of over $1 billion. The rapidly escalating NRD program also presents a serious problem for the Federal Government, particularly at sites owned by

the Departments of Energy and Defense where there is extensive contamination of

resources subject to state and tribal authority.

The problem which brings us before you today is that the NRD program has lost

its focus on reasonable restoration. Unless the NRD program is reformed, not only

will the problems with this program dwarf the well recognized problems of the

cleanup program, but any progress made on remedy reform in S. 8 will be undone.

Remedy reform without NRD reform will be like squeezing a balloon at the bottom,

all the air will shift to the top—government agencies will be able to bypass the new

remedy requirements under the guise of resource restoration. For example, while

S. 8 establishes an environmental protection standard tied to population and community level effects on plants and animals, Federal trustees assert that any measurable adverse change in the chemical, physical, or biological environment justifies an
164

NRD claim. In other words, trustees claim that any change from the so-called baseline—or pre-release—condition supports an NRD claim—even when there is no population or community level impact. If the trustees’ definition of injury prevails, reforms to EPA’s remedial program can be overridden or rendered moot. Small and

large businesses which have engaged in cleanup under EPA standards, agreed to

a remedy selection, or entered into a covenant not to sue with EPA can find themselves liable for additional cleanup under the NRD program.

Because trustees define a resource injury requiring NRD action as any measurable adverse change in the chemical, physical or biological environment, Superfund

is no longer two programs, cleanup and restoration, but it is three programs: cleanup 1 administered by EPA designed to protect human health and the environment;

cleanup 2 administered separately by resource trustees in which trustees can second

guess EPA remedial decisions; and natural resource restoration administered by

trustees to restore fisheries, wetlands, etc.

S. 8 offers a unique opportunity to fix the problem of having two separate cleanup

programs. Unfortunately, the language in the chairman’s mark does not clarify the

differences between the remedial program and restoration, thereby allowing NRD to

remain as a second cleanup program. In fact, we think the trustees will read the

first part of proposed Section 703(a) as confirming that NRD is a second cleanup

program. We strongly urge you to develop a clearer definition of the objective of restoration. We would like to work with you to address this issue which we believe

must be fixed—otherwise the Superfund program will become even slower and more

litigious. Trustees for the public should focus on restoring injured public resources

and providing the public with appropriate alternatives to use while restoration is

taking place—not on creating a second cleanup program.

Having said that, there are provisions in the chairman’s mark which we think are

positive. The requirements for technically feasible and cost effective restoration are

good, as is the requirement for proof of causation and the clarification of the right

to seek contribution from other responsible parties. We are interested in the provisions allowing for an extended payment period and would like to better understand

your intent.

We are particularly pleased by the intent of the chairman’s mark to limit the

measure of damages to the cost of restoration, including permanent and temporary

measures, and to exclude surplus and punitive damages. However, we are concerned

that trustees will circumvent your intent. The chairman’s mark states non-use ‘‘values’’ are not allowed. But trustees have begun to change the words, asserting that

they are not collecting values and damages but are collecting ‘‘compensatory restoration’’ or determining the proper level of restoration. Non-use claims need to be prohibited regardless of what they are called. We would be pleased to work with you

in this regard. Similarly, the chairman’s mark does not clearly prohibit the use of

the much criticized contingent valuation methodology (‘‘CVM’’). The mark only says

trustees cannot collect the costs of a CVM study from liable parties. This implies

that CVM can still be used. Again, we think a simple fix could be made to prohibit

the use of CVM and we would like to work with you to accomplish that.

Since much of the debate on NRD reform has swirled around non-use and lost

use damages, it is worth taking a moment to trace the history of these damage

claims because the history demonstrates how the regulatory expansion of the NRD

program has changed congressional intent and mired the program in controversy

and litigation. When Superfund passed in 1980, there was no hint that the NRD

program included lost use and non-use damages. Not until 1986 did the Federal regulations introduce the concept of lost use and then it was to require that liable parties pay the lesser of the cost of restoration or lost use. And non-use was only to

be considered if it was impossible to restore the resource or to compute lost use

damages. Today, trustees claim they can require parties to pay for the full cost of

restoration plus past lost use and non-use. If the resource is fully restored, what

are past lost use and non-use moneys used for? The answer is that they are surplus

to the actual cost of restoration and are punitive damages. A moment ago, I told

you that because of regulatory interpretations adopted by Federal trustees Superfund has become three programs, cleanup 1, cleanup 2, and restoration. Based on

this regulatory history, I think it is fair to say trustees have added a fourth program

not intended by Congress—punitive non-use and past lost use damages. Such damages undermine your intent to limit the measure of damages to the cost of restoration.

In this regard, it is worth noting the most recent regulatory expansion of the NRD

program. The trustee’s latest view is that lost use also includes surplus resource to

resource lost use. In simple English what that means is that trustees are going to

attempt to compute the value to the squirrel of having to eat acorns instead of walnuts while restoration is occurring, or the value to a robin of eating bugs instead
165

of worms—and to file claims for the robin’s pain and suffering. That type of lost use

will lead to speculative claims, increased litigation, and conflict instead of restoring

resources. We hope that your focus on actual restoration precludes this result and

we would like to work with you to clarify this issue. The NRD program should focus

on restoration.

We also understand your intent is to leave the status quo unchanged on the critically important issue of a defendant’s right to a trial. However, we think you have

inadvertently changed existing law and may have established record review by (1)

referencing Section 113(k) which provides for record review, (2) providing for the

creation of an administrative record, which implies that judicial review is based on

that record, and (3) repealing the rebuttable presumption which has been relied on

by courts as proof that the law requires trial de novo, not record review. The Coalition is unalterably opposed to record review and we believe this section of the chairman’s mark must be changed. We cannot understand why the trustees are afraid

of a standard which requires that they prove their case in court. We urge you to

delete those provisions in the chairman’s mark which will be used by trustees to

argue for record review under which trustees do not have to prove that their case

is supported by the preponderance of the evidence.

Mr. Chairman, as I said at the beginning of my statement, the Coalition for NRD

Reform thanks you for recognizing that the NRD program needs reform. We believe

important substantive adjustments need to be made to the chairman’s mark to better effectuate your policy of reforming the NRD program so that it focuses on real

restoration and we look forward to working with you. We also think there are important technical issues which merit additional attention. For example, your double

recovery provision only prohibits persons from acting first under Superfund and

then proceeding under another statute. The double recovery prohibition should be

expanded to run both ways as it does in Section 114(b)(1) so that persons also cannot collect for a natural resource injury under another statute and then proceed

under CERCLA for the same injury. The double recovery provision should also prohibit more than one person from recovering for the same resource.

A second technical issue involves the statute of limitations issues. Since

CERCLA’s existing statute of limitations provides that the statute of limitations begins to run after the promulgation of regulations, and since the courts have ruled

the regulations have been issued, one possible reading of the chairman’s mark

which requires regulations to be issued within two years is that you are reviving

claims now barred by the existing statute of limitations. We understand that is not

your intent and we hope you will clarify this point. Efforts by the trustees to apply

the statute retroactively for NRD are bad enough, double retroactivity by reviving

stale claims is doubly bad.

A third technical issue is that there are a number of positive provisions in the

chairman’s mark which are then undermined by saying the provisions are requirements only ‘‘to the extent practicable.’’ We think the ‘‘to the extent practicable’’ language should be deleted. Why, for example, should trustees use the best available

scientific information only ‘‘to the extent practicable.’’ Or why should trustees use

site specific analyses to determine the extent of injury at a site only ‘‘to the extent

practicable.’’

Finally, the requirement for the designation of a lead Federal trustee is positive

but your language is subject to interpretation at sites involving Federal, state and

tribal trustees. One interpretation of your language is that the Federal trustee will

be the lead trustee at every site, even sites principally involving state or tribal resources. We believe that would not be the right result.

Mr. Chairman, I appreciate the opportunity you have given the Coalition for NRD

Reform to testify before you today and I would pleased to answer any questions you

might have.

Thank you for this opportunity to testify.

APPENDIX 1

MEMBERS OF THE COALITION FOR NRD REFORM

ALCOA

ARCO

General Electric Company

Zeneca, Inc.

ASARCO

FMC

Kennecott
166

American Petroleum Institute

Reynolds Metals Co.

Fort Howard Corporation

Georgia-Pacific Corporation

Hercules

Elf Atochem

USX Corporation

Mobil

American Forest and Paper Association

Montrose Chemical Corporation

National Paint & Coatings Association

Beazer East, Inc.

Dow Chemical Co.

National Mining Association

Amoco Corporation

Western Regional Council

RESPONSES TO QUESTIONS SUBMITTED BY SENATOR DANIEL PATRICK MOYNIHAN TO

GEORGE J. MANNINA, JR., TO SUPPLEMENT SEPTEMBER 4, 1997 HEARING RECORD.

Question 1. You mention in your testimony that natural resources can recover on

their own—essentially, you suggest that we can wait for a ‘‘natural recovery’’ rather

than trying to speed the process of recovery through restoration. How long, sir, are

you prepared to wait for such ‘‘natural recovery’’ to occur?

Answer. Although my testimony does not mention natural recovery, your question

is an important one. The facts are that once cleanup is completed, the environment

will begin to recover and many resources will recovery naturally. In such circumstances, the question becomes how much money should be spent to accelerate

the recovery process.

To simplify the analysis, assume that a resource can recover naturally in 15 years, but also can recover in 10 years with the expenditure of $5 million or in 2

years with an expenditure of $10 million. If all three restoration alternatives

achieve the same result, the question becomes which alternative should be selected.

Without more information, it is not possible to make that decision. The needed information relates to the purpose of the NRD program which is to restore what the

public lost. If the affected resource has a very high public use, if may be appropriate

to select the more expensive option in order to accelerate restoration. If the resource

has a lower public use, then a slower restoration alternative might be appropriate.

The Coalition for NRD Reform has never advocated that we should always wait

for natural recovery. Rather, we have recommended that natural recovery be considered as an option but that restoration should be timely. This means there must be

careful consideration of the loss to the public. Often, this will argue against natural

recovery and for accelerated restoration.

When considering accelerated restoration alternatives versus natural recovery, it

is also important to recognize that accelerated restoration options may create unintended problems. For example, scientists have long recognized that in certain circumstances it may be appropriate to allow natural forces to cover over contaminated

sediments rather than dredge such sediments. The reason is that the act of dredging

releases otherwise trapped contaminants into the water column causing adverse environmental consequences.

Question 2. Is it your view that there are no non-use values associated with natural resources? If so, is the habitat of an endangered species worthy of protection?

Answer. The purpose of the NRD program is to restore, replace, or acquire the

equivalent of the injured resource. Unfortunately, trustees have expanded the program to collect money that is surplus to the actual costs of restoration. Non-use

damages fall into that category. If the resource is fully restored, what is the additional non-use money used for? The answer became clear in a Senate stakeholders

meeting when trustees responded by stating that they would use non-use funds to

address other environmental issues. The point is that non-use values are surplus

to the cost of restoration.

With respect to your specific example of endangered species, if a release caused

an injury to an endangered species, the Coalition for NRD Reform would support

necessary restoration actions. If the impact on the endangered species was occurring

because of impacts to the habitat, then habitat restoration measures would clearly

be appropriate. However, claims for ‘‘non-use values’’ are surplus to the cost of actual restoration. In fact, any non-use values which may attach to endangered species are satisfied once the resource is restored.
167

Question 3. How do you feel we should address natural resource damages like

those associated with the contamination of the Hudson and St. Lawrence Rivers?

Answer. The question assumes incorrectly that the trustees have established that

there are natural resource damages associated with the Hudson and Saint Lawrence

Rivers. To date, the trustees for both rivers have completed only the preassessment

screen, the first step in determining whether there are any compensable injuries

(i.e., actual adverse effects) to natural resources. It remains to be seen what natural

resource damages (i.e., the cost of restoring, replacing, or acquiring the equivalent

of any injured natural resource plus reasonable assessment costs) if any, are associated with any such injuries to natural resources of the Hudson and St. Lawrence

Rivers.

With respect to the Hudson, the General Electric Company (GE) has spent more

than $130 million on PCB research and cleanup at its two plant sites and the River.

In 1976, GE settled a claim by New York for PCB damage to the River to the full

satisfaction of the State. The Natural Resources Defense Council, the Hudson River

Fisherman’s Association and the Sloop Clearwater were parties to the settlement.

The State also received $20 million from the Federal Government to address PCB

contamination in the River, but did not take any action using those funds. In 1984,

EPA concluded that no action other than natural recovery and the capping of exposed areas near GE’s plant sites was appropriate at that time to address PCBs in

the River. GE performed the capping pursuant to an agreement with EPA. In 1990,

EPA began a reassessment of the River under Superfund, which will not be complete for at least another two years. GE has cooperated fully with that effort. In

addition, GE settled the claims of the commercial fisherman for PCB damage.

We also note that there have been no restrictions on swimming, boating, or other

recreational use of the Hudson or on its use as a drinking water supply because of

PCBs. In a 1993 report entitled ‘‘20-year trends in Water Quality of Rivers and

Streams in New York State, Based on Macroinvertebrate Data 1972–1992,’’ the New

York Department of Conservation (DEC) classified the seventy miles of the Hudson

lying between Hudson Falls and Fort Edward and the City of Hudson as non-impacted or slightly impacted, reflecting ‘‘excellent’’ water quality and ‘‘good’’ water

quality. The DEC, which was well aware of the PCBs in the river, concluded, ‘‘No

impact at the community level has been observed at any site that can be attributed

to high PCB levels.’’ Fish are abundant and healthy in the Hudson.’’ In 1995, the

DEC described the upper River as supporting ?robust populations of prized

gamefish, largemouth bass, smallmouth bass, walleye, northern pike and striped

bass of excellent size and quality [that] will draw recreational anglers from much

of eastern New York.’’ As to birds, the Fish and Wildlife Service study of tree swallows cited in the preassessment screen does not show or claim any reduction in the

abundance of tree swallows or other birds found along the Hudson. After a hundred

years, eagles have returned and hatched on the lower Hudson. Obviously, if eagles

have not been present in the Hudson Valley for 100 years, something other than

PCBs was the cause. Claims that there are significant natural resource damages associated with the Hudson River ignore these facts and other evidence of the robust

health of the River.

To the extent that there are any compensable natural resource injuries associated

with contamination of the Hudson and St. Lawrence Rivers that may give rise to

damages, such injuries can be addressed effectively and responsibly by implementing a natural resource damages program as proposed by the Coalition for NRD Reform and detailed in the attached chart. Under that proposal, which is based in

large part on the statute and the Department of the Interior’s Type B damage assessment regulations, the trustees must first determine, using scientifically valid,

site-specific assessment methods, that a release of hazardous substances has caused

a natural resource injury. If the trustees determine that a release has injured a natural resource, the trustees next would determine whether the injured natural resource was committed to public use at the time of the conduct giving rise to the release. If the resource was so committed, then the trustees would determine whether

the services provided to the public by the resource have been eliminated or impaired. If the services have been eliminated or impaired, the trustees then would

develop and select a technically practicable, cost-effective and cost-reasonable plan

for restoring those services in as timely a manner as is consistent with those criteria. Trustees would not be permitted to assert claims for non-use damages or past

lost use damages, which are surplus to the cost of restoration. This approach would

move the focus of the natural resource damages program away from maximizing

damages claims to restoring what the public has lost as a result of an injury to a

natural resource.
168

CRS REPORT—SUPERFUND: SUMMARY OF THE DRAFT CHAIRMAN’S MARK OF S. 8, THE

SUPERFUND CLEANUP ACCELERATION ACT OF 1997; PREPARED AT THE REQUEST OF

THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS—SEPTEMBER 2,

1997 (BY MARK REISCH, MARK HOLT, JAMES E. MCCARTHY, LINDA SCHIEROW,

MARY TIEMANN, ENVIRONMENT AND NATURAL RESOURCES POLICY DIVISION)

SUMMARY

The Superfund Cleanup Acceleration Act, S. 8, was introduced on January 21,

1997, by Senator Bob Smith. It proposes extensive changes to the Superfund law,

and would reauthorize it for 5 years at a level of $8.5 billion.

Title I (Brownfields Revitalization) authorizes $65 million per year for programs

to characterize brownfields, to capitalize revolving loan funds for their cleanup, and

to promote state voluntary cleanups. The Federal Government may not intervene

at a site subject to a state remedial action plan unless there are certain specified

risks present. Liability protection is given to neighbors of a Superfund site, and to

innocent purchasers of contaminated property.

Title II (State Role) allows a state to receive authorization, or full or partial delegation of Superfund authorities at sites in the state. The state may ask EPA to remove cleaned sites from the National Priorities List (NPL). The 50 percent state

cost-share requirement is reduced to 10 percent, or a percentage determined by the

Office of Management and Budget.

Title III (Local Community Participation) authorizes the establishment of Community Action Groups to be conduits of information, and to represent the people

during cleanup planning and implementation. The funds-matching requirement for

Technical Assistance Grants to communities would be eliminated; early disbursements would be allowed.

Title IV (Selection of Remedial Actions) requires cleanups to be cost-effective and

protective of human health and the environment. Remedies must be based on sitespecific conditions and future use. It generally replaces the law’s preference for permanent treatment remedies with specified factors, and establishes remedy review

boards to reexamine remedy decisions.

Title V (Liability) exempts waste generators and transporters at co-disposal landfills for their liability for activities prior to January 1, 1997. Co-disposal landfills

are those that mostly received municipal solid waste and sewage sludge. The liability of owners and operators (O/O) is capped at varying amounts depending on

whether the O/O is private or a municipality, and how large the municipality is.

Small businesses and other small waste contributors are exempt from liability. The

bill establishes an allocation process for dividing liability at multi-party sites.

Title VI (Federal Facilities) allows the cleanup of Federal facilities to be delegated

to a state provided it uses the Federal remedy selection process and standards. Federal facilities may be used to test innovative technologies.

Title VII (Natural Resource Damages) eliminates non-use damages, and claims for

lost-use activities for pre-1980 activities. Title VIII limits the number of sites that

can be added to the NPL, and doubles the emergency response authority to $4 million and 2 years. Title IX authorizes $8.5 billion for 5 years.

SUPERFUND: SUMMARY OF THE DRAFT CHAIRMAN’S MARK OF S. 8, THE SUPERFUND

CLEANUP ACCELERATION ACT OF 1997

The Superfund Cleanup Acceleration Act of 1997, S. 8, was introduced on January

21, 1997, by Senator Bob Smith, Chairman of the Environment and Public Works

Subcommittee on Superfund, Waste Control, and Risk Assessment. The bill reauthorizes the Comprehensive Environmental Response, Compensation, and Liability

Act of 1980 (CERCLA, or Superfund) for 5 years at a level of $8.5 billion total, and

makes extensive amendments in its nine titles. The subcommittee has received comments on the bill since its introduction, and has negotiated changes with Senators

and the Administration. The draft chairman’s mark circulated by the subcommittee

in late August is the result of those discussions and is summarized in this report.

A hearing on the revised bill is scheduled for September 4, 1997, and markup is

planned for September 11.

TITLE I—BROWNFIELDS REVITALIZATION

There is no specific brownfields authority in CERCLA; the current program was

initiated administratively by EPA. It provides 2-year grants of up to $100,000 annually ($200,000 total) to help communities address brownfields, which are abandoned,

idle, or underused industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. The
169

1 Resource Conservation and Recovery Act, also known as the Solid Waste Disposal Act.

2This provision and the rest of this section describing title I applies to any applicable facilities, not just brownfields. 3 A section 106(a) administrative order is a unilateral administrative order whereby EPA can

order a potentially responsible party (PRP) to perform certain remedial actions at a Superfund

Continued

grants are for site assessment and related activities—not cleanups. The Taxpayer

Relief Act of 1997 (P.L. 105–34) allows brownfield cleanup costs to be deducted in

the current year, a tax break estimated at $417 million by the Joint Committee on

Taxation, that ends December 31, 2000.

S. 8 directs EPA to establish two programs. The first, the Brownfield Character- ization Grant Program, would provide grants of up to $100,000 per year for 2 years

to characterize and assess brownfield sites; $15 million annually is authorized for

the program for 5 years. ‘‘Eligible entities’’ to receive the grants are local governments, regional councils, state-chartered redevelopment agencies, and Indian tribes.

The second program, the Brownfield Remediation Grant Program, would provide

grants to states or eligible entities to capitalize revolving loan funds (RLF) for

brownfield cleanups. A state receiving a grant must pay a matching share of at least

50 percent of the costs of the response action for which the grant is made, from

other sources of state funding. The maximum amount of a grant with respect to any

facility may not exceed $150,000 annually for 2 years. Twenty-five million dollars

annually is authorized for the program for 5 years. An eligible entity receiving a

grant for either program may leverage the funds by using them at a brownfield

project for which funding is received from other sources, but the grant may only be

used for the purpose specified (site characterization or capitalizing the RLF).

Requirements for grant applications are set out, as are criteria for EPA to use

in ranking the applications. Facilities being cleaned up under other authorities are

excluded from the program, namely: • facilities subject to emergency removal actions under CERCLA, • facilities on the National Priorities List (NPL), • facilities subject to corrective action under RCRA,1

• facilities being closed under RCRA, • facilities subject to administrative orders or consent decrees, • Federal facilities, and • facilities for which cleanup assistance has been provided under the Leaking Underground Storage Tank (LUST) Trust Fund.

The bill also authorizes technical and financial assistance to states to maintain,

establish, and administer voluntary response programs. Elements of a qualifying

state program include public participation in remedy selection, streamlined procedures, oversight and enforcement authorities to ensure that response activities are

completed, and a requirement for state certification that the response is complete.

A voluntary cleanup at an NPL site must protect human health and the environment to the same extent as a remedial action selected by EPA. The bill authorizes

$25 million per year for 5 years for assistance to states. Each qualifying state program is guaranteed at least $250,000 per year.

EPA must notify a state prior to undertaking an administrative or judicial enforcement action at a facility 2 where there is a release or threatened release of a

hazardous substance. The state must notify EPA within 48 hours whether the facility is currently, or has been, subject to state remedial action. The Federal Government is forbidden from taking an administrative or judicial enforcement action, or

bringing a private civil action against anyone at a facility subject to a state remedial

action plan. There are several exceptions to this prohibition. EPA may bring an administrative or judicial enforcement action if:

• the state requests assistance; or

• EPA makes a written determination that the state is unwilling or unable to

take appropriate action, after giving the governor notice and an opportunity to cure;

and (1) the Agency for Toxic Substance and Disease Registry issues a human health

advisory, or (2) EPA determines there is an imminent threat; or

• EPA determines the contamination has migrated across a state line; or

• EPA obtains a declaratory judgment in U.S. district court based on: newly discovered information about the contamination; the discovery of fraud; a failure of the

remedy; or a change in land use that presents a clear threat of exposure to hazardous substances.

At a facility not subject to a state remedial action plan, the President shall provide notice to the state within 48 hours after issuing a section 106(a) administrative

order.3 The order shall cease to have effect 90 days after issuance unless the state

concurs in the continuation of the order.
170

site if there is an imminent and substantial endangerment to public health, welfare, or the environment; failure to comply with a section 106 order is subject to a fine of not more than $25,000

per day.

The bill protects from liability landholders whose property may be contaminated

by a contiguous NPL site, if they did not contribute to the contamination; such landholders shall provide cooperation and facility access to those cleaning up the property. Also relieved from liability are purchasers of contaminated property, if they

did not contribute to the contamination, and conducted appropriate inquiries prior

to the purchase. ‘‘Appropriate inquiries’’ is clarified.

TITLE II—STATE ROLE

At present, states are involved in the selection of remedies and may enter into

cooperative agreements with EPA to carry out most cleanup activities on a site-bysite basis. However, final remedy selection must be done by EPA.

The bill defines several terms for use in this title, including:

• ‘‘Authorized state’’ means a state that is authorized to apply its own cleanup

program requirements, in lieu of the requirements of CERCLA, to the cleanup of

a non-Federal listed facility.

• ‘‘Delegable authority’’ means the authority to perform all the elements in one

or more of the following categories of authority:

(1) site investigations, evaluations, and risk analyses;

(2) development of alternative remedies, and remedy selection;

(3) remedial design and remedial action;

(4) operation and maintenance; and

(5) information collection, and allocation of liability.

• ‘‘Delegated state’’ means a state that has received delegable authority. Delegation allows a state to implement the Federal CERCLA program.

• ‘‘Delegated facility’’ means a non-Federal listed facility with respect to which a

delegable authority has been delegated to a state.

• ‘‘Non-Federal listed facility’’ means a facility not owned by any entity of the

U.S. Government, and that is on the National Priorities List (NPL).

• ‘‘Enforcement authority’’ means all authorities necessary to recover response

costs, to require Potentially Responsible Parties (PRPs) to perform response actions,

and otherwise to compel implementation of a response action, including: issuance

of a section 106(a) administrative order, a response action cost recovery, imposition

of a civil penalty or award, settlement, and information gathering.

• ‘‘Non-delegable authority’’ means authority: (1) to make grants to Community

Advisory Groups; and (2) to conduct research and development under CERCLA’s

provisions.

The bill directs EPA ‘‘to seek . . . to transfer’’ to states the responsibility to perform response actions (cleanups) at non-Federal listed facilities. There are four ways

to accomplish the transfer of responsibility: by authorization, expedited authorization, delegation, and limited delegation. Authorization allows a state to implement

its own program within its borders. Delegation allows a state to implement the Federal program.

• Authorization. EPA may authorize a state to apply any or all of the requirements of the state’s cleanup program in lieu of CERCLA to any non-Federal listed

facility if the state: (1) has adequate legal authority, financial and personnel resources, organization, and expertise; (2) will implement its cleanup program in a

manner protective of health and the environment; (3) has procedures for public notice and an opportunity to comment; and (4) agrees to use its enforcement authority

to require potentially responsible parties (PRPs) to perform and pay for the response

actions. EPA must determine within 180 days whether the state meets the requirements, or the transfer of responsibility to the state is deemed to have been granted.

• Expedited Authorization. A state that meets any three of the following five criteria may receive expedited authorization to operate its program in lieu of the Federal program: (1) the state’s program has been in effect for at least 10 years; (2)

the state has spent at least $10 million from its state cleanup fund or other state

source of cleanup funding; (3) the cleanup program has at least 100 employees; (4)

at least 200 response actions have been performed at non-NPL sites under the program; and (5) there are at least 100 non-Federal listed facilities in the state, or 6

non-Federal listed facilities per million state residents. EPA has 90 days to review

the state’s certification, after which the transfer of responsibility to the state is

deemed to have been granted.

• Delegation. A state may apply to receive one or more delegable authorities for

one or more non-Federal listed facilities. The state must demonstrate that its en-
171

forcement authorities are equivalent to those under CERCLA. Its application must

identify each delegable authority it requests for each non-Federal listed facility for

which it requests delegation. The application must also enable EPA to determine

whether and to what extent: (1) the state has adequate financial and personnel resources, organization, and expertise; (2) the state will implement the delegated authorities in a manner protective of health and the environment; and (3) the state

agrees to require PRPs to perform and pay for the response actions. EPA must approve or disapprove the application within 120 days or the application is deemed

to have been granted.

• Limited Delegation. EPA may delegate to a state limited authority to perform,

ensure the performance of, supervise, or otherwise participate in the performance

of one or more delegable authorities, as appropriate.

A state shall have sole authority to perform the transferred responsibility. A delegated state shall implement the applicable provisions of CERCLA (including regulations and guidance issued by EPA) in the same manner as EPA at facilities that

are not delegated.

EPA may withdraw the transfer of responsibility if it finds that a state does not

meet the requirements that it has certified or agreed to.

Before EPA performs an emergency removal at a non-Federal listed facility under

section 104 it must notify the state. If the state notifies EPA within 48 hours that

it intends to take action, EPA shall not proceed unless the state fails to act within

a reasonable period of time. In case of a public health or environmental emergency,

EPA need not provide notice prior to acting.

If there is a hazardous substance release at a non-Federal listed facility where

responsibility has been transferred to the state, the Federal Government may not

take an administrative or judicial enforcement action, or bring a private civil action,

unless the state requests assistance, or EPA obtains a declaratory judgment in U.S.

district court that the state has failed to make reasonable progress and there is an

imminent threat of exposure to hazardous substances.

Of the amount of any response costs recovered from a responsible party by a state

that has received transferred responsibility for a non-Federal listed facility, the

state may retain: (1) 25 percent of any Federal response costs incurred there, plus

(2) any response costs incurred by the state at the facility; the remainder shall be

deposited in the Superfund trust fund. EPA may recover response costs from a PRP

if the state says it does not intend to, or the state fails to take timely action in light

of applicable statutes of limitation. If EPA takes a cost recovery action against a

PRP, the state may not take any other action for recovery of response costs relating

to that release.

A state may request EPA to remove all or part of a transferred facility from the

NPL, and EPA shall do so if the delisting is not inconsistent with a requirement

of CERCLA. The agency shall report annually to Congress describing actions taken

under this provision. Facility-specific and non-facility-specific grants to delegated

states are provided for. Grant money may not be used to pay the state share of response costs. The 50 percent state cost-share requirement at state-operated facilities

would be repealed. The state cost share would be the lower of 10 percent, or a percentage determined by the Office of Management and Budget.

TITLE III—LOCAL COMMUNITY PARTICIPATION

Currently, CERCLA requires only that there be a public notice and comment period before the adoption of many emergency removal actions and all remedial (cleanup) actions. Technical assistance grants (TAGs) of $50,000 are available to the public.

Title III would facilitate participation in decisionmaking by the people affected by

sites that are on or proposed for the National Priorities List (NPL), or where there

is a removal action expected to last more than a year or that will cost more than

the amount specified in section 104(c)(1). EPA would be required to inform and consult with the affected community and to consider their views in developing and implementing the remedial action plan. The affected community would have access to

documents regarding response actions, but not to those relating to liability nor confidential documents.

S. 8 directs EPA to assist in establishing Community Advisory Groups (CAGs). A

CAG shall contain 20 or fewer EPA-approved voting members representing the affected community, including residents or property owners; other affected citizens;

the local medical community; local Indian communities; citizen, civic, environmental, or public interest groups; local businesses; and employees at the facility.

When appropriate, CAGs will include as non-voting members representatives of
172

4The intent is to ensure that exposure to hazardous substances is small enough that adverse

health effects are either: precluded (for threshold substances that are known to be harmless at

low exposure levels); or highly unlikely (for nonthreshold hazardous substances that have no

known level of harmless exposure, such as many carcinogens).

EPA, other Federal agencies, states, Indian tribes, local governments, facility owners, and potentially responsible parties.

CAGs would serve as conduits of information to and from the community, and

represent it during the remedial action planning and implementation process. CAGs

may be recipients of technical assistance grants (TAGs) to obtain expert assistance

in interpreting information or for training in community involvement. No more than

10 percent of a grant could be used to train citizens. As in current law, TAGs are

for $50,000, but the bill allows a waiver of that limit. The bill eliminates the current

law fund-matching requirement, and authorizes early disbursement to the TAG recipient in advance of the recipient’s making expenditures to be covered by the grant;

up to $5,000 may be advanced at a time.

TITLE IV—SELECTION OF REMEDIAL ACTIONS

Under CERCLA, cleanup standards are set by looking at applicable or relevant

and appropriate requirements (ARARs) of Federal and state laws. Where no ARARs

exist, cleanup levels are determined using site-specific risk assessments. The law

states a preference for remedies using treatment (of soil and groundwater) that permanently reduces or eliminates volume, toxicity, and mobility of contaminants.

Section 401 adds two definitions to CERCLA section 101. The first new definition,

‘‘technically impracticable,’’ means impracticable due to engineering infeasibility or

unreliability or inordinate costs. The second added definition, ’beneficial use,’’ means

the use of land on completion of a response action in a manner that confers economic, social, environmental, conservation, or aesthetic benefit.

Mandate to Protect Human Health and the Environment. Section 402 requires the

President to select a cost-effective remedial action that achieves the mandate to protect human health and the environment, and that complies with other applicable

Federal and state laws. The bill states that, notwithstanding any other provision of

this Act, a remedial action shall protect human health. The remedial action is

deemed to protect human health if, considering the expected exposures associated

with the current or reasonable anticipated future land and water use, and on the

basis of a facility-specific risk evaluation, the remedial action: (1) achieves a residual risk from exposure to threshold carcinogenic hazardous substances such that the

cumulative lifetime additional cancer risk is in the range of 10¥4 to 10¥6 (one in

10,000 to one in 1,000,000) for the affected population; (2) achieves a residual risk

from exposure from nonthreshold carcinogenic and noncarcinogenic hazardous substances that does not exceed a hazard index of 1; and (3) prevents or eliminates any

human ingestion of drinking water containing hazardous substances in excess of

Safe Drinking Water Act maximum contaminant levels (MCLs), or if MCLs have not

been established for the substance, at levels that meet the goals for protecting

human health.

Stated another way, the remedial action will ‘‘protect human health’’ if the remaining chemicals at the site are: (1) at levels unlikely to cause more than one case

of cancer in a population of between 10,000 and 1,000,000 people who are exposed

all their lives; and (2) below levels expected to cause any other adverse health effects in any people exposed.4

The remedial action for a facility is deemed to protect the environment if it protects plants and animals from significant impacts resulting from releases of hazardous substances at the facility. The determination of what is protective would not be

based on individual plants and animals unless the species is listed as threatened

or endangered under the Endangered Species Act.

A remedy must comply with the substantive requirements of Federal and state

environmental and facility-siting laws applicable to the conduct of the remedial action or to the determination of the cleanup level. More stringent state requirements

may be applied at NPL sites if the state demonstrates that they are generally applicable and consistently applied to remedial actions, and the state publishes and identifies the applicable requirements to the President. Federal hazardous waste management provisions of the Solid Waste Disposal Act (Section 3004) do not apply to

the return of ‘‘contaminated media into the same media in . . . then-existing areas

of contamination at the facility.’’ Federal and state procedural requirements, including permitting requirements, shall not apply to response actions conducted on site

at the facility. Waivers from the substantive requirements of Federal and state environmental and facility siting laws are authorized for specified reasons; however, the
173

5Presumptive remedies are preferred technologies for common categories of sites, based on

historical patterns of remedy selection and EPA’s scientific and engineering evaluation of performance data on technology implementation.

President must publish findings including documentation and an explanation of how

the remedial action meets the cleanup requirements of Section 121.

If no applicable Federal or state standard exists for a contaminant, a remedial action must meet a standard that the President determines to be protective.

Remedy Selection Methodology. The President shall select a remedial action from

among a range of alternatives by following remedy selection rules and balancing

adequately the following factors:

• effectiveness of the remedy in protecting health and the environment;

• reliability in achieving the protectiveness standard over the long term (replacing the current law’s preference for permanence);

• short-term risk posed by implementing the remedial action;

• acceptability to the community;

• implementability; and

• reasonableness of the cost.

A remedial action that implements a presumptive remedial action is considered

to achieve the goals to protect human health and the environment, balance the

above factors, and account for remedy selection rules.5

Remedy Selection Rules. In selecting a remedy for a facility, the President shall

take into account the reasonably anticipated future use of land and water potentially affected by the release. In developing assumptions regarding reasonably anticipated future land uses, the President must consider the views of local officials

and community members and consider specified factors. In developing assumptions

regarding reasonably anticipated future groundwater and surface water uses, the

President must give substantial deference to classifications in a state comprehensive

groundwater protection program and consider other designations or plans adopted

by the governmental unit that regulates surface or groundwater use planning in the

area. The information on which the President bases the development of these assumptions must be included in the administrative record.

If appropriate, a remedial action for contaminated groundwater may proceed in

phases, allowing collection of sufficient data to evaluate other actions at the site,

and to determine the appropriate scope of the remedial action. Groundwater decisions must take into consideration current or reasonably anticipated future use of

the groundwater, any natural attenuation that would occur without action, and the

effect of any other response actions. A remedial action shall seek to protect

uncontaminated groundwater that is suitable for use as drinking water for such

beneficial use unless it is technically impracticably to do so. For contaminated

groundwater that is, or is planned to be, used for drinking, if it is technically practicable, the President shall try to restore it to a condition suitable for beneficial use.

In determining technical practicability and timeframe for restoring groundwater,

the President may distinguish among groundwater contamination zones at a site.

For contaminated groundwater that is suitable for drinking water, a remedial action must, if technically practicable, attain in the contaminated groundwater plume

and extending to the edge of any contaminant that will be managed in place, either

Federal drinking water standards or state water quality standards for water designated for drinking water use, whichever is more stringent. If no standard exists,

then the remedy must attain a level that is protective of human health and the environment. If restoration is technically impracticable, the selected remedy may rely

on point-of-use treatment or other measures to ensure there is no ingestion of contaminated drinking water; point-of-use treatment shall be considered as part of the

remedy’s operation and maintenance.

For groundwater not suitable for drinking water, a remedy must, if technically

practicable, attain a standard that is protective of the current or future uses of the

water and any connected surface water.

Groundwater shall not be considered suitable for drinking water if naturally occurring conditions prevent it, or it is so contaminated by broad-scale human activity

(unrelated to a facility release) that restoration is technically impracticable, or if it

is physically incapable of yielding 150 gallons a day to a well or spring (unless it

is currently used as drinking water).

For discrete areas containing highly toxic contaminants that cannot be reliably

contained or are highly mobile, and present a substantial risk to human health and

the environment, the remedy selection process shall include a preference for a remedy that includes treatment. For such areas, the President may select a final containment remedy at a landfill or mining site in specified circumstances.
174

The Administrator may not select a remedy that allows a contaminant to remain

at a facility above a protective level unless institutional and engineering controls are

incorporated into the remedial action that ensure protection of human health and

the environment. Institutional controls are defined to mean restrictions of the permissible use of land, groundwater or surface water included in any enforceable decision document for a NPL facility to comply with the requirements to protect human

health and the environment. A remedial action that uses institutional and engineering controls shall be considered to be on an equal basis with all other remedial action alternatives. EPA is required to maintain a registry of institutional controls

that place restrictions on land, water, or other resources uses; and that are included

in an enforceable decision document.

If, after reviewing a remedy, the President finds that attaining a standard is technically impracticable, the President shall select a technically practicable remedy

that protects public health and most closely achieves the cleanup goals through costeffective means.

Facility-Specific Risk Evaluations. Section 403 states that the goal of a facilityspecific risk evaluation is to provide informative estimates that neither minimize

nor exaggerate the current or potential risk posed by a facility.

A facility-specific risk evaluation shall: (1) use chemical and facility-specific data

in preference to default assumptions whenever practicable or, if this is not practicable, use a range and distribution of realistic and scientifically supportable default assumptions; (2) ensure that the exposed populations and all pathways are accurately evaluated; (3) consider current and anticipated future use of land and

water resources in estimating exposure; and (4) consider the use of institutional controls. The President may consider only institutional controls that are in place at the

facility when the risk assessment is conducted.

This section directs that facility-specific risk evaluations be used to: determine the

need for remedial action evaluate the current and potential exposures and risks at

the facility; screen out contaminants, areas or exposure pathways from further

study; evaluate the protectiveness of alternative proposed remedies; demonstrate

that the selected remedial action can achieve the goals of protecting health and the

environment and land and water resource uses; and establish protective concentration levels if no applicable requirement exists or if an applicable requirement is not

sufficiently protective.

The President must ensure that the presentation of health effects information is

informative, comprehensive and understandable. The document reporting the results of the risk evaluation must specify each population addressed by the risk estimates, present the central estimate of risk for specific populations and the upperand lower-bound risk estimate, identify uncertainties is the assessment process, and

known peer-reviewed studies that do or do not support the health effects estimates

and the methodology used to reconcile inconsistencies in the data. In preparing facility-specific risk evaluations, the President must use the best available peer-reviewed

science and studies, and data collected by accepted methods. Within 18 months of

enactment, the President must promulgate a regulation implementing this section.

Presumptive Remedial Actions. For the purpose of streamlining the remedial action selection process, Section 404 directs EPA to establish presumptive remedial actions that: identify preferred technologies and approaches for common categories of

facilities, and identify site characterization methodologies for those categories of facilities. Such presumptive remedies may include institutional and engineering controls. They must be practicable, cost-effective, and protective of human health and

the environment. Within one year, EPA must issue a list of presumptive remedial

actions that are available for specific categories of facilities. At least once every

three years, EPA must solicit information for updating the presumptive remedial actions to incorporate new technologies or to designate additional categories of facilities.

Section 404 directs the President to expedite implementation of response actions

and reduce transaction costs. This is to be achieved by implementing measures to

accelerate and improve the remedy selection and implementation processes, tailor

the level of oversight of response actions, and streamline the process for submitting,

reviewing and approving plans and other documents. The President must attempt

to expedite completion of response actions through appropriate phasing of investigative and response activities. The results of initial investigations shall be used, as

appropriate, to focus subsequent data collection or to develop multiple phases of a

response action.

The bill authorizes the President to allow a potentially responsible party (PRP)

or group of PRPs to perform a response action where the President determines that

the party(ies) will perform the action properly and promptly and the PRPs agree to
175

reimburse the Fund for oversight costs. The President may tailor the level of oversight of PRP-led response actions taking into consideration specified factors.

The bill requires EPA to issue guidelines identifying the contents of a draft proposed remedial action plan which must include a discussion of alternative remedies

and their costs, a recommended remedy, and a summary of information used to

make the recommendation including a brief description of site risks.

Remedy Review Boards. EPA must establish at least one remedy review board

comprised of technical and policy experts from Federal and state agencies. Within

180 days of enactment, EPA must promulgate a regulation establishing procedures

for the operation of the review board including cost-based or other criteria for determining which draft proposed remedial action plan will be eligible for review. EPA

may develop different criteria for different categories of facilities. The criteria shall,

to the extent practical, allow for the review of not less than an annual average of

one-third of the draft proposed remedial action plans. A proposed remedial action

plan that meets the criteria shall be submitted to the board unless EPA determines

that review by the board would unacceptably delay measures to protect human

health and the environment. The Administrator shall give substantial weight to the

board’s recommendations in determining whether to modify a remedial action plan.

The President may approve a draft proposed remedial action plan prepared by a

PRP.

Delisting NPL Sites. Section 405 sets procedures and timeframes for EPA to provide notice of completion of a remedial action and delisting of a facility from the

NPL. Delisting does not affect liability allocations, cost-recovery provisions, or operation and maintenance obligations. A PRP is released from liability if the facility

is available for unrestricted use, and operation and maintenance are not needed. If

the facility is not available for unrestricted use, or operation and maintenance are

required, EPA must review the status of the facility every 5 years and require additional remedial action, as needed. A facility or portion of a facility may be made

available for restricted use.

Transition rules for remedy review. Section 406 establishes transition rules for facilities currently involved in remedy selection. EPA is directed to use the remedy

review boards to determine, on petition by the implementor of a record of decision

(ROD), whether an alternative remedy should apply to a facility, rather than the

one specified in the ROD.

For facilities for which a record of decision (ROD) was signed before the date of

enactment and that meet specified criteria, the implementor of the ROD has one

year to submit to the remedy review board a petition to update the ROD to incorporate alternative technologies or approaches in the remedial action. To be eligible

for review, the implementor must demonstrate that the alternative proposed remedial action meets the cleanup requirements of Section 121, the Governor does not

object to consideration of the petition, the ROD was issued before certain dates, and

the ROD has implementation costs in excess of $30 million (or the cost is between

$5 million and $30 million, and the alternative remedy achieves at least a 50 percent cost savings). The review board must prioritize decisions to accept petitions for

remedy update based on the above criteria and the potential for cost savings. In

forming recommendations for remedy updates, the review board must consider the

continued relevance of the exposure and risk assumptions in the original remedy,

the effectiveness of the original cleanup strategy, cleanup goals, new technologies

and approaches, the level of community and PRP involvement and consensus in selecting the original strategy, and other factors. The board must submit its recommendations to EPA within 180 days of receiving a petition. In deciding whether

to approve a proposed remedy update, EPA is to give substantial weight to the

board’s recommendations. EPA must submit an annual report to Congress on the

Agency’s activity in reviewing and modifying RODs signed before the date of enactment of this section. In conducting remedial action reviews, EPA should give priority consideration to RODs that were issued before October 1, 1993, and that involve

primarily groundwater treatment for dense, nonaquaeous phase liquids.

National Priorities List. When listing a site on the NPL, EPA should not include,

to the extent practicable, any parcel of real property at which no release has occurred, but to which a released contaminant has migrated in groundwater unless

the groundwater is (or was) in use as a public drinking water supply, and the facility owner or operator is liable for any response costs.

TITLE V—LIABILITY

Current law imposes joint and several liability on a strict and retroactive basis,

covering owners and operators of sites, generators and transporters of hazardous

substances released at Superfund sites, and those who arranged for disposal at
176

6Subtitle C of the Resource Conservation and Recovery Act address the generation, handling,

treatment, storage, and disposal of hazardous waste; for most purposes, its effective date was

November 19, 1980. 7 RCRA subtitle D addresses non-hazardous wastes.

those sites. It authorizes EPA to settle with PRPs, provides authority for EPA to

prepare non-binding allocations of responsibility, and has special settlement provisions for de minimis parties. EPA may use mixed funding, and may provide settling

parties protection from third party lawsuits and covenants not to sue.

The bill defines ‘‘codisposal landfills’’, ‘‘municipal solid waste’’, ‘‘municipality’’, and

‘‘sewage sludge’’. A codisposal landfill is one that was listed on the NPL as of January 1, 1997; received municipal solid waste or sewage sludge (MSW or SS); and also

may have received, before the effective date of RCRA subtitle C requirements,6 hazardous waste, if the landfill contains predominantly MSW or SS that was transported to the landfill from outside the facility.

Title V would exempt from liability for any response costs incurred after the date

of enactment the generator, arranger, and transporter of MSW and SS. De micromis

contributors are exempt from liability for response costs incurred after enactment

unless the material contributed or may contribute significantly to the amount of response costs; a de micromis contribution is less than 200 pounds or 110 gallons of

material containing a hazardous substance prior to January 1, 1997. Also exempt

from liability is any small business with fewer than 30 employees, or less than $3

million in annual gross revenues.

For generators, transporters, and arrangers there is no liability for response costs

incurred after enactment for codisposal landfills. For the owners and operators of

codisposal landfills, the situation is different, and depends on whether the owner or

operator is private or a municipality, and if the latter, on its size.

Large and small municipalities are defined as those with populations above and

below 100,000 respectively. For a codisposal landfill that is owned or operated only

by small municipalities, and is not subject to RCRA subtitle D 7 criteria, the aggregate liability of the municipalities for response costs incurred after enactment shall

be the lesser of (a) 10 percent of the total response costs, or (b) the cost of complying

with RCRA subtitle D (as if the facility had continued to accept MSW through January 1, 1997). For large municipalities, their aggregate liability would be the lesser

of 20 percent of the total response costs, or the RCRA subtitle D compliance costs.

For codisposal landfills owned or operated by non-municipalities, and that are not

subject to RCRA subtitle D, the liability would be the lesser of 40 percent of the

total amount of response costs, or the costs of complying with RCRA subtitle D. For

codisposal landfills owned or operated by a combination of small and large municipalities, or persons other than municipalities, and are subject to RCRA subtitle D,

the allocator shall determine the proportion of the use of the landfill that was made

by small and large municipalities and persons other than municipalities, and shall

allocate among them an appropriate percentage of total liability not exceeding the

aggregate liability percentages stated. For a codisposal landfill that is subject to

RCRA subtitle D, regardless of the status of the owners and operators, the aggregate liability is no more than the costs of complying with RCRA subtitle D.

The codisposal landfill exemption does not apply to one who acted in violation of

RCRA subtitle C or D if the violation pertains to a hazardous substance that caused

the incurrence of response costs at the facility.

A responsible party who currently is subject to a section 106 administrative order

or has entered into a settlement decree is required to fulfill his obligations, even

if the responsible party is not liable by reason of a liability exemption or limitation.

The party may apply to the Fund for contribution, and shall be reimbursed expeditiously.

The bill replaces the de minimis settlement provisions of section 122 with a provision establishing expedited settlement procedures for parties that contributed less

than 1 percent of the volume of material containing a hazardous substance at an

NPL site. It provides that any such settlement will be final if the settling party pays

a premium of not to exceed 10 percent of the amount of the settlement.

The bill would establish a mandatory, non-binding allocation process for multiparty sites where response costs are incurred after enactment. Excluded from the

allocation process are facilities where cost shares are already determined. The bill

excludes from liability relief any party found guilty of violating Federal or state law

resulting in the release of a hazardous substance which caused the incurring of response costs at the facility.

The bill sets a moratorium on litigation until 120 days after the allocator’s report

is issued.
177

The bill would require that each allocation be performed by a neutral third-party

allocator in a fair, efficient, and impartial manner. The allocator is to make every

effort to streamline the process and minimize costs. Prior to issuing a final allocation report, the allocator shall give each party opportunity to comment on a draft.

The actions of the allocator would not be subject to judicial review.

Within 90 days of enactment, the bill requires EPA to establish a process for the

expedited selection and retention of a neutral allocator. The EPA Administrator or

the Attorney General shall participate in the allocation process as the representative of the Fund from which any orphan share shall be paid. Allocators are authorized to acquire reasonable support services, and the Administrator may not limit the

discretion of the allocator in the conduct of the allocation.

The Administrator begins the allocation process for a facility by performing a comprehensive search for all potentially responsible parties. The allocator is required

to allow each of these parties at least 30 days to name additional potentially responsible parties and provide supporting information. These parties will be included on

the list of allocation parties unless there is no basis to believe they are liable. Any

party assigned a zero share in the allocator’s final report, however, will be entitled

to recover its costs of participating in the process, including attorney’s fees, from the

person who submitted its name.

The allocator is required to provide a written final allocation report to the Administrator and each allocation party specifying the percentage share of each party and

any orphan shares. The allocator shall allow the parties 60 days to reach a voluntary settlement, and shall adopt any such settlement in lieu of issuing an allocation report if it allocates at least 95 percent of the recoverable costs of response action and contains the terms and conditions generally applicable to allocation settlements.

The allocator shall prepare a nonbinding allocation report that specifies the percentage share of each party, and any orphan share. The factors for allocation are: • the amount, degree of toxicity, and mobility of hazardous substances contributed by each party; • the degree of involvement of each party; • the degree of care exercised with respect to hazardous substances; • the cooperation of each party in contributing to any response action, and in providing complete and timely information to the allocator; and • such other equitable factors as the allocator determines are appropriate.

The orphan share consists of: (1) the shares of insolvent or defunct parties; (2)

the remainder of any share not paid by a party where: (i) it was an expedited settlement with a person with limited ability to pay; (ii) the party’s share is eliminated,

limited, or reduced by any provision of this Act; or (iii) the person settled with the

U.S. before the allocation was completed. Unattributable shares will be distributed

among the allocation parties and the orphan share in accordance with the allocated

share assigned to each.

The allocator has information-gathering authorities, including the authority of the

President under section 104(c) and authority to issue subpoenas. Information submitted to the allocator is to be kept confidential by all persons involved in the allocation and is not discoverable (if not independently discoverable or admissible) in

judicial or administrative proceedings. The submission of information to the allocator does not constitute a waiver of any privilege under any Federal or state law.

The Administrator and the Attorney General may jointly reject a report by an allocator if they determine, not later than 180 days after the Administrator receives

the report, that no rational interpretation of the facts would form a reasonable basis

for the shares assigned to the parties, in light of the factors required to be considered, or that the allocation process was directly and substantially affected by bias,

procedural error, fraud, or unlawful conduct. If a report is rejected, the allocation

parties shall select an allocator to perform a new allocation based, to the extent appropriate, on the record available to the previous allocator.

Unless a report is rejected, any party at a mandatory allocation facility shall be

entitled to resolve its liability to the United States if it offers to settle on the share

specified by the allocator within 90 days of issuance of the allocator’s report. The

terms of such settlements shall provide authority for the Administrator to require

any allocation party or group of parties to perform the response action, and shall

include i) a waiver of contribution rights against all potentially responsible parties;

ii) a covenant not to sue and provisions regarding performance or adequate assurance of performance of the response action; iii) a premium not to exceed 10 percent

to cover the risk of the United States not collecting unrecovered response costs; iv)

complete protection from all claims for contribution; and v) provisions for prompt

contribution from the Fund for any response costs incurred in excess of the party’s

allocated share.
178

The bill provides that an allocation party that incurs response costs after the date

of enactment to an extent that exceeds its allocated share shall be entitled to

prompt payment of the excess amount from the Fund, reduced by an amount not

exceeding the litigation risk premium. The bill includes specific provisions concerning the timing of any such payment, failure to perform work, auditing of claims, and

waiver of contribution rights from other responsible parties.

If funds are unavailable in any fiscal year to provide contribution to all eligible

allocation parties, the Administrator may delay payment until funds are available.

The priority for payment shall be based on the length of time that has passed since

settlement. Delayed payments shall include interest on the unpaid balance at a rate

equal to that of the current average market yield on outstanding marketable obligations of the United States with a maturity of 1 year.

If a party does not pay its allocation share within 120 days of the allocator’s report, EPA may commence an action to recover response costs not recovered through

settlements with other parties. Parties that do not pay their allocation share are

subject to the joint, several, strict, and retroactive liability of section 107.

The cost of implementing the allocation process and the funding of orphan shares

shall be considered necessary response costs under Superfund.

Response action contractors (RACs) would receive additional liability protection by

being excluded from the definition of owners and operators, and by extending their

existing exemption from Federal law to state law. RAC negligence would be evaluated based on the standards and practices in effect at the particular time and place.

Subcontractors are also covered.

The liability of ‘‘501(c)(3) organizations’’ (religious, charitable, scientific and educational organizations) that receive a facility as a gift, would be limited to the fair

market value of the facility. The bill relieves the liability of a railroad owner or operator of a spur track if he is not responsible for a release.

The bill provides an exemption from liability for those who arrange for the recycling of seven specified materials if they can meet certain threshold demonstrations.

The seven materials are paper, plastic, glass, textiles, rubber (other than whole

tires), metal, and batteries.

TITLE VI—FEDERAL FACILITIES

Current law makes Federal agencies subject to CERCLA in the same way as other

parties. The agencies must pay for cleanup of their facilities out of their appropriations; they are not eligible to use any Superfund moneys. Cleanups of federally

owned sites on the NPL are under the sole jurisdiction of Federal environmental

laws; federally owned sites not on the NPL are subject to state law concerning removal, remedial action, and enforcement.

Title VI authorizes EPA to transfer responsibilities over federally owned NPL

sites to qualified states. To receive authority over a site, a state must have an adequate environmental enforcement program, utilize CERCLA’s remedy selection process and standards, and abide by the terms of any existing interagency agreement

between EPA and the Federal agency that owns the site. The President may take

enforcement action at such a transferred site if the state requests it, or if EPA obtains a declaratory judgment in U.S. district court that the state has failed to make

reasonable progress and there is an imminent threat of exposure to hazardous substances.

A Federal officer, employee, or agent may not be held criminally liable for failing

to comply with a state order to take a response action at a federally owned or operated site, unless: (1) he has not fully performed his duties to ensure that a sufficient

request for funds to undertake the response action was included in the President’s

budget, or (2) appropriated funds were available to pay for the response action.

The President may designate Federal facilities on the NPL for research, development, and application of innovative technologies by Federal and state agencies, and

public and private entities. EPA may approve or deny the use of any innovative

technology at a Federal site.

TITLE VII—NATURAL RESOURCE DAMAGES

CERCLA makes the Federal and state governments trustees for natural resources; claims against responsible parties must be made within 3 years after the

later of (1) discovery of the loss, or (2) the date on which regulations are promulgated.

The bill would limit the measure of damages for injury or loss of natural resources

to the costs of restoration, replacement, or acquisition of equivalent natural resources, and the costs of assessing damages. The bill eliminates non-use damages,

and claims for lost-use activities that occurred prior to December 11, 1980; there can
179

be no double recovery under both CERCLA and other law. Nor can there be recovery

if the natural resource has returned to its baseline condition before the filing of a

claim for natural resource damages, or the incurrence of assessment or restoration

costs by a trustee.

The bill strikes the provision which gives a trustee’s determination of damages

the force and effect of a rebuttable presumption. New natural resource injury and

restoration assessment regulations must be written that identify procedures for determining the reasonable cost of restoration, and that require consideration of natural recovery as a restoration method, and the availability of replacement or alternative resources. The regulation shall be issued within 2 years of enactment, and

be reviewed every 5 years.

Under the bill, the goal of any restoration shall be to restore the injured natural

resource to the condition it would have been in had the hazardous substance release

not occurred. A trustee shall select a restoration alternative that is technically feasible, in compliance with applicable law, consistent with CERCLA and the National

Contingency Plan, cost-effective, and timely. The range of alternatives considered by

the trustee shall consider an alternative that relies on natural recovery. In selecting

a restoration alternative, the trustee shall take into account what any removal or

remedial action carried out or planned has accomplished or will accomplish. A restoration alternative may include temporary replacement of the lost services provided

by the natural resource.

A responsible party may seek contribution from other liable persons for natural

resource damages.

The bill proposes that where the trustees and PRPs have entered into a cooperative agreement, the period in which an action for damages may be brought would

be the earlier of 6 years after the signing of the cooperative agreement, or 3 years

after the completion of the damage assessment.

A trustee seeking damages for injury to a natural resource shall initiate mediation of the claim with any PRPs within 120 days after commencing the action for

damages.

The amendments made by this title shall not apply to an action to recover natural

resource damages under section 107(f) in which trial has begun before July 1, 1997,

or in which a judgment has become final before that date.

TITLE VIII—MISCELLANEOUS

Section 801 amends section 105(a) of CERCLA to require the President to revise

the National Hazardous Substance Response Plan (a part of the National Contingency Plan) to establish results-oriented procedures for remedial actions that minimize the time required and reduce the potential for exposure to hazardous substances in a cost-effective manner.

Section 802 amends section 105 of CERCLA to limit additions to the National Priorities List to 30 vessels and facilities in 1997, 25 in 1998, 20 in 1999, 15 in 2000,

and 10 in any year after 2000. EPA shall prioritize the vessels and facilities on a

national basis in accordance with the threat they pose to health and the environment. Additions to the list may be made only with the concurrence of the Governor

of the state in which the vessel or facility is located.

Section 803 increases the authority for emergency response actions from $2 million to $4 million, and the time limit from 1 year to 2.

TITLE IX—FUNDING

Section 901 amends CERCLA section 111 to authorize appropriations from the

Fund of $8.5 billion for the 5-year period, fiscal years 1998 to 2002.

Section 902 amends CERCLA section 111 to allow payment of orphan shares as

a use of the Fund.

Section 903 amends CERCLA section 111 to authorize appropriations from the

Fund for the activities of the Agency for Toxic Substances and Disease Registry of

$50 million for each of fiscal years 1998–2002.

Section 904 sets limits for FY 1998–2002 of $30 million per year for alternative

or innovative technologies research, development, and demonstration programs; for

hazardous substance research, demonstration and training, $37 million for FY 1998,

$39 million for FY 1999, $41 million for FY 2000, and $43 million each year for FY

2001 and FY 2002, with no more than 15 percent of those amounts to be used for

training; and $5 million annually for university research centers.

Section 905 authorizes appropriations from General Revenues of $250 million annually for fiscal years 1998–2002.

Section 906 limits funding for Community Action Groups to $15 million for the

period from January 1, 1997, to September 30, 2002. The section also specifies that
180

any response cost recoveries will be credited as offsetting collections to the Superfund appropriations account.

Section 907 amends CERCLA section 111(a) to allow the Fund to be used to reimburse PRPs if a PRP and EPA have entered into a settlement under which the Administrator is reimbursed for response costs, and the Administrator determines

(through a Federal audit) that the costs are unallowable due to contractor fraud or

the Federal Acquisition Regulation, or should be adjusted due to audit procedures.

PREPARED STATEMENT OF THE AMERICAN PETROLEUM INSTITUTE

The American Petroleum Institute (API) has long supported reform of the Superfund program. API members believe that S. 8, the ‘‘Superfund Cleanup Acceleration

Act of 1997,’’ incorporates many important and necessary reforms to the program.

As we have previously stated, the petroleum industry has a unique perspective

with regard to Superfund. Petroleum-related businesses are estimated to be responsible for less than 10 percent of the contamination at Superfund sites; yet these

businesses have historically paid over 50 percent of the taxes that support the Trust

Fund. This inequity is of paramount concern and should be rectified forthwith. It

has caused API members to focus on those elements of reform that affect the costs

of the program and the authorized uses of the Trust Fund.

API members are pleased that the Senate bill would reduce the number of sites

to be added to the NPL in the future and commend the sponsors for taking this important step. Limiting new additions to the NPL ensures a more reasoned, cost-efficient, and focused Federal program with reduced future funding requirements. Once

again, 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 remedy selection, state roles, liability/funding reform, natural resource damages, used oil recycling, as well as exploration and production wastes. Additional comments on various

provisions contained in S. 8 are outlined in an attachment to this testimony. We—

and other stakeholders—have had limited time to review the revisions to S. 8; thus,

this testimony represents our initial reactions. As we develop other comments, we

will forward them to you.

REMEDY SELECTION REFORM

API members continue to support remediation standards that are site-specific and

risk-based and are pleased that provisions in the bill would establish requirements

for facility-specific risk evaluations to determine the need for remedial actions and

to evaluate the protectiveness of remedial actions. However, it should be made clear

that the President is required to use the results of risk assessments in selecting the

appropriate remedy.

API members believe that the remediation process should provide protection of

human health and the environment through methods that are practical and achievable in a cost-effective 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. As noted in our previous testimony, API members support the provisions in S. 8 that would:

Establish a protective risk range of 10¥4 to 10¥6 for all remedies;

Establish facility-specific risk evaluations;

Establish the reasonableness of cost as a remedy selection criterion;

Give consideration to reasonably anticipated future land and water use; and

Consider all remedial alternatives on an equal basis, including engineering

and institutional controls.

API also endorses the use of the remedy selection balancing criteria and is

pleased to see that the Chairman’s mark maintains the reasonableness of cost as

a remedy selection criterion. The balancing criteria are the keystone of the remedy

selection process, and API believes that all remedy selection procedures and applications, including groundwater remediations, should be subject to them.

API has several serious concerns with the bill, and these are outlined below.

Preference for Treatment. API is concerned that the bill’s proposal to maintain a

preference for treatment for some discrete areas containing hazardous substances

is inconsistent with the overriding principles of remedy selection (e.g., facility-specific risk assessments and the balancing of environmental and economic factors).

There should be no generic preference for treatment, and this section of the bill

should be deleted. The need for treatment should be determined on a site-specific
181

basis for each facility using the balancing criteria and the risk assessment procedures.

Presumptive Remedies. The bill would allow EPA to select presumptive remedial

actions without allowing a PRP the opportunity to select more cost-effective and protective remedies. A PRP should be able to conduct a risk-based response action in

lieu of a presumptive remedy. The inequity of this situation is compounded by the

fact that presumptive remedies are subject to neither traditional rulemaking procedures nor judicial review. API members believe that stakeholders must have an opportunity to review and comment on such remedies and that there must be an opportunity for judicial review.

Applicable Federal and State Laws. The bill would also allow the use of ‘‘applicable’’ Federal and state laws and state standards in selecting remedial alternatives.

We continue to hold the view that ‘‘applicable’’ laws should be subject to the balancing factors; 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 remediation requirements including the balancing criteria and the risk assessment procedures.

Technical Impracticability. The consideration of technical impracticability in remedy selection and groundwater is poorly defined. Factors for determining technical

impracticability need to be made clear. The bill should clearly specify the timing

constraints on such determinations, and the concept of ‘‘inordinate costs’’ as included in the definition of technical impracticability should be defined. Moreover,

there is no opportunity in the statute for PRPs to participate in the technical impracticability decision through public notice and comment.

Establishment of Standards. If no applicable Federal or State standard has been

established for a specific hazardous substance and pollutant and contaminant, the

bill gives the President broad authority to establish such standards. Current laws

define the process for developing such standards, and this bill should not undermine

the established process. We believe that generic cleanup standards are unnecessary

and that remediation should be determined by site-specific risk evaluations. Most

importantly, any requirement to adopt standards should not be granted without a

requirement for public review and comment.

Groundwater. We find the bill’s groundwater provisions to be troublesome and

confusing for a variety of reasons. First, it needs to be made clear that the requirement to protect and restore groundwater is subject to the balancing criteria and the

risk assessment procedures. The reasonableness of cost must be considered when selecting a groundwater protection remedy. The Chairman’s mark would allow only

inordinate costs caused by technical impracticability to be considered.

Second, remedial actions for contaminated groundwater are required to attain ‘‘a

standard’’ that is protective of the current or reasonably anticipated use of the

water. Once again, the term ‘‘standard’’ is not clearly defined, and API is opposed

to the establishment of generic cleanup standards for groundwater and other media

without due process.

Third, the bill would require restoration of contaminated groundwater to meet

maximum contaminant levels or state drinking water standards throughout the

groundwater plume. Such a requirement would be very difficult—if not impossible—

to attain and would be achieved only at great expense. Cleanup of contaminated

groundwater should be based on a reliable risk analysis and the balancing of environmental and economic factors.

Finally, as drafted, the preference for treatment appears to apply to groundwater

remediation as well as remediation on land. Given the difficulty of groundwater

treatment, it must be made clear that the preference for treatment does not apply

to groundwater remediation.

STATE ROLES

API members support the bill’s provisions that would delegate Superfund remedial authority to states at non-Federal NPL sites. However, we have concerns about

the bill’s State authorization provisions. While delegated States must implement

provisions of the bill, there is not a similar provision for authorized States. Presumably, authorized States could ignore the remedy reform contained in S. 8 as long as

the State cleanup program met the extremely general standard of protecting human

health and the environment. Authorized State cleanup programs should be implemented in accordance with the reformed Federal program.

Additionally, the bill appears to allow authorized States to apply more costly remedies at NPL sites and to recover the additional costs. States applying more strin-
182

gent remedies should not be able to recover incremental costs from PRPs, other

agencies, or the Fund.

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.

We continue to question the cost of the liability exemptions outlined in S. 8. For

example, under the liability provisions, 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’/operators’ and others’ liability for response costs under

Superfund and any other Federal or State statute would be capped at such landfills.

In addition, de micromis, de minimus parties and others would be exempt. These

provisions are far too broad and the costs to the Fund are not known, but they are

likely large.

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.

Taxpayers to the Fund—which is expected to cover most of the future costs of the

Federal Superfund program—need to know these cost implications to evaluate legislation.

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 a few 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.

NATURAL RESOURCE DAMAGES (NRD)

API is an active member of the Coalition for Legislative NRD Reform and strongly

supports the coalition’s positions and the testimony they are submitting. While the

bill would favorably repeal liability for non-use values, API members are extremely

concerned by the bill’s failure to require de novo trials of NRD cases and to distinguish the objective of restoration from remediation. The focus of the bill should be

on restoring the functions of natural resources that were committed to public use

at the time of the injury.

USED OIL RECYCLING

The bill exempts recyclers of scrap glass, metal, paper, plastic, rubber, textiles

and spent batteries from liability; however, used oil recycling is noticeably absent

from the list. If the Senate is intent on maintaining recycling exemptions, API members feel strongly that used oil recycling, including used oil filters, should be exempt

as well. Adding used oil and used oil filters to the list of recyclable materials encourages recycling of these valuable commodities.

EXPLORATION AND PRODUCTION WASTE

As noted in our testimony of March 5, 1997, 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. API continues to urge Congress should clarify that these wastes are excluded under Superfund.
183

CONCLUSION

In summary, API commends members of the subcommittee for their continuing

efforts to develop meaningful Superfund reform. However, we believe our concerns

must be addressed if the Superfund process is to be truly reformed. 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.

ADDITIONAL COMMENTS

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.

• 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.

• Contaminated media is exempt from the substantive provisions of section 3004

of RCRA. Since many states are authorized to implement these provisions, the exemption should also apply to state corrective action requirements.

Land and Water Use Considerations

• In determining reasonably anticipated future land use, EPA should consider the

views of the broadest spectrum of stakeholders including facility owners and operators as well as potentially responsible parties. Facility owners and operators should

be listed among those whose views are to be considered regarding reasonably anticipated future uses.

• In determining reasonably anticipated future use of water resources, the bill requires EPA to give substantial deference to classifications and designations in State

groundwater protection programs. API agrees that State classifications are important, but we also believe additional factors should be considered (e.g., current water

uses, recent development patterns, population projections, as well as the plans of

the owner/operator of the facility).

Groundwater

• The bill would require protection of uncontaminated groundwater and restoration of contaminated groundwater that is suitable for use as drinking water. The

bill needs to make clear that the requirements are applicable only to drinking water

used for human consumption.

• API endorses provisions that would give consideration to reasonably anticipated

future land and water use. However, we are concerned that in considering reasonably anticipated future use, EPA may consider the potential for ‘‘beneficial use’’

which encompasses conservation and aesthetic benefits. The consideration of these

speculative factors is troublesome and could lead to requirements to remediate all

groundwater.

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 be clarified to require that facility-specific risk assessments be

used in selecting the remedy.

• 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.
184

• Additionally, the bill should make clear that PRPs have the right to conduct

risk assessments in authorized or delegated states.

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.

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 five 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.

Brownfields

• The bill does not explicitly release owners, sellers, or buyers of brownfield properties from liability. This will result in impediments to recovery of such properties

for re-use.

Community Participation

• Section 301 defines an affected community to be a group of two or more individuals who may be affected by the release or threatened release of a hazardous substance. The definition of affected community should be limited to persons living

within some reasonable proximity to a site.

• The local community and its advisory group should be required to submit comments on remedy selection in a timely manner.

• The process for selecting facility employees for community advisory groups

should be determined by the facility.

Federal Facilities

• Federal employees, who fail to take or comply with response action requirements, will not be subject to criminal liability unless they have failed to ensure that

sufficient funds were available in the President’s budget. This provision should be

deleted. Criminal prosecution under environmental laws requires the government to

prove criminal intent.

PREPARED STATEMENT OF THE AMERICAN PUBLIC HEALTH ASSOCIATION AND THE

NATIONAL ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS

The following statement is submitted on behalf of the American Public Health Association (APHA) and the National Association of County and City Health Officials

(NACCHO). APHA represents a combined national and affiliate membership of more

than 50,000 health professionals. NACCHO is the principal organization representing local public health officials and serves all 3000 of the nation’s local health departments—in cities, counties, and townships. The statement explains why Superfund is a public health program and urges the committee to keep public health

issues in the forefront as it considers reauthorization of this program.

SUPERFUND IS A PUBLIC HEALTH PROGRAM

The underlying purpose of Superfund is to prevent disease and disability due to

toxic exposures. Human exposures to toxic substances have many potential adverse

health outcomes, including neurological damage, birth defects, and cancer. Preventing the exposure of entire communities to potentially devastating health consequences is no less important than protecting people from infectious diseases such

as polio or diphtheria, or protecting them from food poisoning. Identifying potential

health hazards and cleaning up hazardous waste sites are just as important in protecting public health as vaccinating children or requiring safe food processing.

Public health does not concern itself solely with the health of individuals. It encompasses a much broader concept of community health and well-being. Public

health practice is a comprehensive approach to ensuring that individuals and communities remain healthy—this means tracking the occurrence of disease, providing

health care services, identifying and addressing hazards before they cause damage,

and educating the public about how to prevent disease and injury.

Public health involvement in Superfund site assessment and remediation has

been built into the program from the beginning, primarily through the activities of

the Agency for Toxic Substances and Disease Registry. However, the full potential
185

of public health approaches to improve the efficiency and effectiveness of Superfund

has never been fully realized. To achieve this potential, the Superfund program

must require early, strong, and meaningful involvement of public health agencies

and experts at local hazardous waste sites, beginning at site discovery.

PUBLIC HEALTH PARTICIPATION IS ESSENTIAL IN ADDRESSING HAZARDOUS WASTE SITES

Public health experts, Federal, state and local, must be engaged actively at the

earliest stages of the Superfund process. When a hazardous waste site is identified

in a community, everybody has questions and concerns. Responding to these requires collection of the proper kinds of data using the most appropriate scientific

methods and practices. Public health assessments, using the best epidemiologic and

toxicological methods and data available, serve two important purposes. First, they

alert all the parties to what the key public health problems are. Second, they can

alleviate many concerns by ruling out health problems that are unrelated to the

site. When a hazardous waste site is identified, there is a window of opportunity

for establishing baseline health and exposure data, understanding potential health

risks, and developing plans for remediation that specifically address those health

risks. This window often is closed before public health expertise has been tapped.

Early involvement by public health experts assures that public health needs will determine the priorities for clean-up. Early public health involvement will improve the

ultimate outcome of Superfund site clean-ups in achieving and documenting better

public health outcomes and sustaining healthy communities.

Public health involvement must extend to off-site activities as well. For instance,

testing of air, water, and soil in nearby locations is necessary to identify more precisely which neighbors of a hazardous waste site may be subjected to toxic exposures, and which are not. This is important also in addressing the interactive effects

of exposures to a community through air, water, and soil contamination, whether

or not all such contamination is attributable to the site itself.

Local public health agencies, which often are left out or brought in late in the

Superfund process, are ideally situated to spearhead early public health involvement in hazardous waste sites. They bring a critical local perspective to a process

that is largely governed by state and Federal agencies. They can provide an immediate response to imminent hazards. For instance, a local health department can

promptly arrange a safe drinking water alternative where there is suspected drinking water contamination around a hazardous waste site.

The Superfund statute requires action by Federal and state agencies that is largely confined to the sites, with little flexibility to address community problems and

concerns. Local health agencies, which have no statutory authority related to the

Superfund process, have responsibility and expertise for protecting the health of the

community and addressing the community’s health concerns. They know the demographic and cultural characteristics of the community and they know the other

health problems of the community. This knowledge, and the relationships that have

been cultivated by addressing other community health issues, can be critical when

dealing with the myriad problems caused by a hazardous waste site.

COMMUNITY INVOLVEMENT IS INTEGRAL TO A PUBLIC HEALTH APPROACH

Community involvement is necessary not only because the Superfund process is

intended to protect the community, but also because communities can offer extremely valuable information and assistance. Residents have knowledge that nobody

else has. They know how a site has been used in the past, who lived near the site,

and who has moved away. This information is essential to the conduct of studies

that help us understand both the short-term and long-term health effects associated

with a hazardous waste site. For example, in Michigan City, Indiana, a partnership

between the local health department and a minority health coalition uncovered exposures to contaminated game and fish by an African-American community that

hunted and fished for food.

Community participation in Superfund processes also helps the public better understand what has taken place at the site, what will be done about it and what it

means for their health. The Presidential/congressional Commission on Risk Assessment and Risk Management strongly recommends including all stakeholders in environmental risk management decisions at the earliest possible time. Information

builds trust and support within the community and helps individuals affected by

toxic exposures to take appropriate steps to protect their own health. A successful

and efficient Superfund clean-up process is one that avoids frustration, stalemates,

and delays due to poor communication and misunderstandings. It is one that creates

a sense of ownership and shared responsibility in the entire community, including

residents, community organizations, health professionals, and elected officials. It is
186

one that employs to best advantage all the community’s resources in cleaning up

the site to protect public health.

SUPERFUND MUST SUPPORT THE USE OF PUBLIC HEALTH TOOLS.

Data collection, research, ongoing disease surveillance, and health education must

be adequately supported to enable Superfund to achieve its purpose of protecting

the health of communities. The Agency for Toxic Substances and Disease Registry

(ATSDR) is the cornerstone of public health in the Superfund program, in partnership with state and local health departments, the National Institute for Environmental Health Science, and universities. Within the limits of the resources available

to it, ATSDR has performed well. Local and state public health departments that

have used ATSDR’s technical expertise in addressing hazardous waste sites in their

communities have a high regard for its work.

ATSDR has also invested in building the capacities of state and local health departments to respond to hazardous waste issues, thus increasing our nation’s ability

to meet public health concerns related to hazardous waste. However, health departments, physicians and other health care providers in communities around Superfund sites have a significant unmet need for training and technical assistance in

matters of hazardous substances.

In order to do its job better, ATSDR also needs expanded authority and flexibility

in conducting site-specific public health assessments, health studies, surveillance

and registries. ATSDR’s various activities complement each other and work together

to enable Superfund site activities to address adequately the health needs of communities. Superfund reforms must provide expanded support for ATSDR.

For further information, please contact: Ilisa Halpern, American Public Health

Association; Donna Grossman, National Association of County and City Health Officials.

PREPARED STATEMENT OF JOHN H. SULLIVAN, DEPUTY EXECUTIVE DIRECTOR,

AMERICAN WATER WORKS ASSOCIATION

INTRODUCTION

The American Water Works Association (AWWA) appreciates the opportunity to

present its views on Superfund Reauthorization and S. 8, The Superfund Cleanup

Acceleration Act of 1997). AWWA is the world’s largest and oldest scientific and

educational association representing drinking water supply professionals. The Association’s 54,000 plus members are comprised of administrators, utility operators,

professional engineers, contractors, manufacturers, scientists, professors and health

professionals. The Association’s membership includes over 3,800 utilities which provides over 80 percent of the nation’s drinking water. Since our founding in 1881,

AWWA and its members have been dedicated to providing safe drinking water.

AWWA believes few environmental activities are more important to the health of

this country than assuring the protection of water supply sources, and the treatment, distribution and consumption of a safe and healthful supply of drinking

water. AWWA strongly supports measures which protect groundwater from contamination and the remediation of drinking water sources from groundwater. AWWA

urges the committee to include groundwater remedy standards at least as protective

as current law in the Superfund reauthorization bill.

AWWA commends Senator Chafee and Senator Smith for their leadership in moving the legislative process forward by introducing S. 8 and holding hearings on

Superfund Reauthorization. AWWA supports superfund reforms which will streamline the process, resolve the liability issues which are preventing clean-up and effectively remediate contaminated sites. However, AWWA is concerned that Superfund

reforms adequately protect public health and preserve our water supplies for future

generation. In this statement, AWWA will focus on groundwater protection and remediation; however, many of the issues presented also apply to surface water.

Groundwater

Groundwater is one of the most finite natural resources of this country. It is valuable, not only as an ecological resource, but is also the only source of drinking water

for millions of Americans. Approximately 100 million Americans use groundwater

from community public water systems. Another 20 million consumers get their

drinking water from private wells which are fed by groundwater.

Increasingly, public water suppliers throughout the country are closing down

wells dues to pollution. The most recent highly publicized case is in San Bernardino,

California, where some of the city wells had to be closed because of ammonium per-
187

chlorate contamination—a rocket fuel contaminant that is not regulated under the

Safe Drinking Water Act (SDWA). Another chemical not regulated under the SDWA,

MTBE (methyl-t-butyl ether), which is an additive to gasoline to comply with the

Clean Air Act is now being found increasingly in groundwater. MTBE, because a

small amount produces a foul taste, renders groundwater unfit to drink at levels

far below a level which would pose a health threat. These incidents illustrate how

vulnerable groundwater is to contamination, not only from highly toxic and mobile

concentrations of pollutants, but also from lower levels of contamination.

Much of the cost of obtaining alternative supplies of drinking water or installing

expensive treatment facilities has been borne by the drinking water consumer rather than the those responsible for the pollution. AWWA urges the committee to address this inequity in the cost of cleanup and provide cleanup standards that will

make groundwater fit for use as a drinking water source, where practicable, and

prevent further contamination of uncontaminated groundwater (or surface water) in

Superfund reauthorization.

Clean Up Standards

While it is recognized that Superfund reform needs to provide flexibility for effective remediation, there is concern that the elimination of ‘‘applicable and relevant

appropriate requirements’’ (ARARs), such as the standards promulgated under the

Safe Drinking Water Act, from the law for use in cleanup standards may not provide for protection and remediation of drinking water source supplies. Other ARARs

could be used to address contaminates that are not regulated under the SDWA. Retention of the use of ARARs would provide a means of determining specific cleanup

actions and standards. Remedies such as attenuation and biodegradation alone cannot be used to satisfy cleanup standards unless it occurs in a relatively short period

of time. AWWA strongly urges the committee to retain stringent cleanup standards

for groundwater (and surface water).

Costs and Benefits

AWWA supports the concept of using costs and benefits in implementing environmental statutes. However, AWWA is concerned that the value of groundwater both

at the time of remediation and in the future be given high priority in these decisions. The reasonableness of cost alone in determining the technical practicability

of a cleanup could potentially block the cleanup of a water supply even if there is

a need for the water for drinking water purposes. The value of groundwater as a

future drinking water source must be taken into consideration even if it is not used

as a drinking water source at the time of remediation. Naturally occurring contamination should not be used as a sole factor in determining the suitability of groundwater as a drinking water source. Clean up of contaminants that do not naturally

occur in the groundwater still should be required. AWWA urges the committee to

require formal consultation with local public water suppliers in determining beneficial uses of groundwater.

Permanent Solutions

Superfund reforms must continue to favor permanent solutions for remediation

and protection of groundwater. Water supplies that are or may be used as drinking

water sources must be remediated, if feasible, by methods that offer permanent solutions rather than point-of-use devices or provision of alternative water supplies.

Remedies that serve to protect currently uncontaminated water supplies which are

or may be used as drinking water sources from becoming contaminated must take

precedence over other remedies. Point-of-use devices, point-of-entry devices, and bottled water should be considered in remediation as a temporary expedient to resolve

an urgent situation. Further, at sites in which it has been determined that it is not

technically practical to clean up the groundwater as part of remediation for the site,

permanent measures must be implemented to prevent the contaminant of adjacent

uncontaminated groundwater. AWWA also recognizes the need to remediate highly

toxic and mobile sites or ‘‘hot spots’’ but sites of lesser toxicity must also be addressed in the law, particularly when there is contamination of groundwater.

AWWA recognizes the difficulties in remediating groundwater; however, to ensure

the availability of groundwater as a drinking water source permanent solutions

must be implemented wherever possible to assure a continuing supply of drinking

water.

Local Jurisdictions

AWWA urges a strong role for local jurisdictions in organizing local advisory

groups, evaluating state proposals to receive delegated authority, and in evaluating

remedy selection, particularly as they pertain to long-term plans for drinking water

supplies. Water suppliers must be part of any remedy selection process involving
188

groundwater. Remedy selection of site which involves contaminated groundwater

must not only involve the jurisdiction in which the site is located, but water suppliers in other jurisdictions which use the aquifer as a source drinking water. Without

required inter-jurisdictional coordination in these cases, site remediation may not

protect the drinking water sources of other communities.

CONCLUSION

In summary AWWA recommends that the committee include the following points

in the Superfund reauthorization bill: • Put the cost of clean-up of groundwater on those responsible for the contamination rather than public water systems and consumers. • Retain stringent standards for the clean-up and protection of groundwater that

is or may be used as a drinking water supply. • Assure that the beneficial use of groundwater as an existing or potential source

of drinking water be given high value in cost-benefit analysis determinations. • Favor permanent clean-up solutions to remediate and protect drinking water sources. • Increase participation of local jurisdictions and public water suppliers in the

Superfund decisionmaking process concerning groundwater that is or may be used

as a drinking water supply.

AWWA thanks you for the opportunity to present comments on Super Fund Reauthorization. We hope that comments will be helpful to the committee in its deliberations. AWWA looks forward to working with the committee on these and other

Superfund issues. AWWA was very pleased to work with the committee in 1995–

1996 in the successful reauthorization of the Safe Drinking Water Act. bi-partisan

cooperation and consensus building among the majority party, the minority party,

the Administration and affected parties such as state and local government and the

drinking water community was the hallmark of that effort. We encourage the Senate to move forward on Superfund reform in a similar manner and to reach a bipartisan agreement. S. 8 is a good starting point for those deliberations.

This concludes the AWWA statement on Superfund Reauthorization and S. 8, The

Superfund Cleanup Act of 1997.

PREPARED STATEMENT OF THE ASSOCIATION OF METROPOLITAN WATER AGENCIES

RE: SUPERFUND—REMEDY SELECTION AND COMMUNITY PARTICIPATION

Groundwater is a finite resource and one that nearly 120 million Americans rely

upon as a primary source of drinking water. About 100 million of these consumers

are served by more than 40,100 community water systems using groundwater for

all or most of their water supply. The remaining 20 million consumers rely on private wells, which are fed by groundwater and are not protected by Federal or State

drinking water standards.

Today, drinking water suppliers in different regions of the country are closing

down wells due to pollution and seeking alternative sources of supply for the communities they serve. In other cases, the water utility has had to install expensive

treatment methods they would not have otherwise needed. Much of this has occurred at the expense of drinking water consumers and not those responsible for the

pollution.

Given the overwhelming need for clean groundwater and the costly implications

of pollution, the Association of Metropolitan Water Agencies (AMWA) strongly urges

the Senate Committee on Environment and Public Works to develop a Superfund

reauthorization bill with groundwater remedy standards at least as stringent as current law. It should ensure the protection of future sources of drinking water and

place appropriate and fair responsibility for cleaning up polluted groundwater on

the polluter, and not water suppliers and consumers.

AMWA is comprised of the nation’s largest publicly-owned drinking water systems, represented by their general managers and commissioners of water. Altogether, AMWA member agencies serve nearly 100 million Americans with clean,

safe water.

Having reviewed the remedy selection and community participation titles of the

August 28,1997, draft proposal, AMWA offers the following specific comments:

PREFERENCE FOR TREATMENT

The association supports the continuation of the current law’s broad preference

for treatment and could not support the narrow preference for ‘‘hot spots’’ only. We

appreciate the need to address highly toxic and mobile concentrations of pollutants,
189

but focusing only on hot spots could leave the water supplier with a future cleanup

burden. Such an amendment could lead to water suppliers having to treat low-level

contamination to satisfy drinking water standards or other health standards if the

circumstances of the pollution do not meet the hot spot definition.

GENERAL RULES

AMWA believes the general rule governing remedy selection should include a

statement that underlines the importance of protecting uncontaminated groundwater and, wherever practicable, restoring contaminated water to beneficial uses.

LEGALLY APPLICABLE AND RELEVANT AND APPROPRIATE REQUIREMENTS

AMWA is very concerned that the elimination of relevant and appropriate requirements or ‘‘RARs’’ could leave water systems responsible for another party’s pollution

simply because no legally applicable requirement exists for the given contaminant.

Under the August 28 draft proposal, if no official standard exists, a remedy is to

be protective of public health if risk falls within a certain range. While this approach is valuable, RARs provide a State or other entity with greater authority to

require a polluter to conduct a cleanup, as current law has shown.

In California, water systems are just recently finding MTBE, a fuel additive, and

ammonium perchlorate, a constituent of rocket fuel, in groundwater supplies. No

regulations exist for these two chemicals, nor is there enough information to confidently determine risk. Without RARs, it would seem that MTBE and perchlorate

contamination would go unaddressed under the August 28 draft proposal. Retaining

RARs, however, would give States at least some means to direct polluters to clean

up such contamination. This could mean reliance upon anti-degradation laws or

other statutes or rules providing adequate authority to require a cleanup.

DETERMINATION OF BENEFICIAL USES OF GROUNDWATER

AMWA strongly urges the committee to require formal consultation with local

water suppliers when EPA and the States determine beneficial uses of groundwater

supplies. The association applauds the Chairman for adopting the state comprehensive groundwater management plans endorsed by EPA to determine beneficial uses,

but local water suppliers are integral to predicting use patterns and needs in a

given area. Most large water suppliers have conducted detailed studies to plan for

future needs. To ignore these plans could leave a community unprepared.

UNCONTAMINATED GROUNDWATER

AMWA believes the August 28 draft proposal could be more protective of

uncontaminated groundwater, as it now applies only to groundwater suitable for use

as drinking water. This approach is too narrow and discounts sources that could be

needed in the future, but are not being used as a drinking water source at the time

a remedy decision is made. The language sets aside the inherent value of groundwater simply because we have no immediate practical use for it, and it threatens

to allow polluters to avoid their rightful responsibilities.

GROUNDWATER NOT SUITABLE AS DRINKING WATER

In some regions of the country, water suppliers rely on groundwater containing

naturally occurring contaminants. In these cases, suppliers treat this contamination

in order to meet community demands.

Under the August 28 draft proposal, groundwater currently used for drinking

water, but containing naturally occurring contaminants, would be exempt from

treatment requirements under Superfund. The proposal allows the existence of naturally occurring contaminants in groundwater to preclude its designation as a

drinking water source, thus getting around the cleanup of contaminants that are not

naturally occurring in the aquifer. AMWA believes naturally occurring contamination should not be used as a sole factor in determining the suitability of groundwater as a drinking water source.

TECHNICAL IMPRACTICABILITY (TI)

AMWA supports the inclusion of ‘‘inordinate cost’’ as a factor in determining

whether a remedy is technically impracticable, as well as the concept that a TI determination may be made at any time after adequate information is available. In

addition, the association strongly supports the requirements for a polluter to execute, after a TI waiver is granted, the following, at a minimum:
190

• prevention or elimination of exposure or ingestion of the pollutant in excess of

the MCL,

• containment of the pollution source,

• containment of contaminated around water,

• prevention of further contamination, prevention of impairment of surface water

designated uses under the Clean Water Act,

• long-term monitoring, and

• assurance that the party responsible for the cleanup assumes responsibility and

liability and all associated incremental costs for operation, maintenance and delivery of drinking water for present and anticipated future uses until such time as the

level of contamination is reliably and consistently below the MCL.

Also, use of point-of-use or point-of-entry devices and bottled water should be explicitly temporary and for the purpose of resolving an urgent situation. Consumers

are entitled to a consistent and permanent source of safe drinking water they do

not have to treat themselves. Nor should consumers have to rely for any significant

period of time on bottled water to satisfy their everyday needs.

Without these requirements, it is unclear how uncontaminated water would be

protected or how exposure to contaminants would be prevented once a TI waiver is

granted.

Maximum Contaminant Level (MCL)

To ensure compliance with Federal drinking water regulations, water suppliers

often seek to keep contaminant levels reliably and consistently below the MCL.

Given that cleaned up groundwater, whether returned to the aquifer or sent to a

distribution system, is anticipated to be used as drinking water, consumers would

be best served if parties responsible for cleanup follow the same rule of thumb to

which water suppliers subscribe.

This is the approach AMWA recommends if the committee seeks to provide relief

to responsible parties by allowing treated groundwater to be sent to a distribution

system, storage tank or reservoir, rather than back to the aquifer where it may

come in contact with the source of contamination again.

Community Participation

The association urges the committee to include in its reauthorization bill a requirement that any remedy decision involving groundwater be made in consultation

with drinking water suppliers whose districts are adjacent to the contaminated aquifer. These systems and their customers will be affected in one way or another by

the contaminated aquifer.

The Association of Metropolitan Water Agencies recognizes the difficulties involved in treating polluted groundwater or otherwise preventing exposure to harmful contaminants. Nonetheless, AMWA strongly believes it is the responsibility of

the polluter, not the consumer or the water supplier, to treat contaminated water,

where possible, and protect uncontaminated groundwater to ensure its availability

as a drinking water source.

We hope you have found our comments on the remedy selection and community

participation titles helpful as you prepare for the September 4 hearing. In the near

future, we plan to provide you with the association’s thoughts on other reauthorization issues.

If you have any questions in the meantime, please don’t hesitate to call me.
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230

PREPARED STATEMENT OF THE NATIONAL ASSOCIATION OF MANUFACTURERS

The National Association of Manufacturers (NAM) is the nation’s oldest and largest broad-based industrial trade association. Its 14,000 member companies and subsidiaries, including approximately 10,000 small manufacturers, are in every state

and produce about 85 percent of U.S. manufactured goods. The NAM’s member companies and affiliated associations represent every industrial sector and employ more

than 18 million people.

The NAM commends Chairman John Chafee (R–RI) and Chairman Bob Smith (R–

NH) on their attempt to reauthorize one our nation’s centerpiece environmental

statutes, the Comprehensive Environmental Response, Compensation and Liability

Act (CERCLA or ‘‘Superfund’’). The NAM is supportive of the Senators’ continuing

efforts to move Superfund reform legislation forward and remains hopeful that this

process will result in an improved Superfund statute sooner rather than later. The

NAM continues to have reservations, however, regarding several major titles and

provisions of the draft chairman’s mark of S. 8, The Superfund Cleanup Acceleration

Act of 1997, which are summarized below.

REMEDIAL ACTIONS

The NAM applauds the Senators’ efforts to improve Superfund’s remedy provisions. The draft chairman’s mark reflects progress on a number of key issues toward

ensuring a site-specific, risk-based management approach to remediation. Areas

that require further work include imposition of Federal and state standards, presumptive remedies and the preference for treatment.

In addition, the groundwater provisions are complex and require clarification. The

provisions are extremely prescriptive and fail to provide the needed flexibility to

adopt common sense solutions. The groundwater provisions deviate significantly

from the site-specific, risk-based approach provided for soil contamination and, in

several respects, would require more expensive, less cost-effective remedies than are

currently being selected at some sites. Similarly, the remedy-update proposal introduces new and significant limitations not present in current practice and represents

a step backwards.

LIABILITY

While the liability provisions did not change significantly, the NAM remains concerned that the reforms of Superfund’s liability system should not, for reasons of

equity, be limited to sites listed on the National Priorities List. Other liability provisions also remain inconsistent with the NAM’s principles for reform. For example,

in the division of liability for unattributable wastes between the fund and parties

that remain liable for their own wastes, the potentially responsible parties (PRP’s)

should not be held liable for any wastes not of their own making.

In addition, since recycling is a positive behavior to be encouraged, the recycling

provision should be designed to encourage recycling of all materials put to any productive secondary uses. Generator and transporter liability protection for recycling,

whether required by law or undertaken voluntarily, should apply to all recycled material. This change would correctly provide incentives for recycling rather than narrowly providing an exemption for only specified materials.

NATURAL RESOURCE DAMAGES

The new draft natural resource damages (NRD) provisions properly exclude recovery of speculative non-use values, a change that the NAM strongly supports. However, the mark does not include a definition of ‘‘non-use values.’’ Unfortunately, the

provisions still allow trustees to assert claims for post-1980 lost-use damages. These

claims are surplus since the aim of the NRD program is only to restore, replace or

acquire the equivalent of the injured resource. In addition, the NAM’s recommendations for reaffirming the liability cap and clarifying CERCLA’s original intent to

limit liability to damages related to post-1980 conduct were not addressed.

The draft also includes a number of new provisions to S. 8. Among the new items

are: (a) use of mandatory mediation for NRD litigation; (b) confirmation of a PRP’s

right to contribution for NRD claims; and (c) elimination of the rebuttable presumption. The NAM generally supports these changes. The NAM’s support for the elimination of the rebuttable presumption, however, is contingent on the addition of express legislative language affirming that PRPs will continue to be entitled to a trial

de novo on all aspects of any claim for damages.

In addition, the NAM is concerned about the language in the mark that could result in the revival of stale NRD claims, as well as the language that could take

away retroactive liability defenses that may well be afforded under current law.
231

Finally, a major issue raised by the chairman’s mark is the growing number of

inconsistencies between remedy-selection criteria elsewhere in the bill and the NRD

restoration-selection criteria, such as use of the terms ‘‘cost-reasonable’’ and ‘‘technical impracticability’’ for remedy selection, and ‘‘cost-effective’’ and ‘‘technical feasibility’’ for restoration selection. These inconsistencies, and others, might lead to

anomalous results such as NRD trustees requiring actions not permitted or required

under the remedy-selection criteria. These two titles should be made consonant to

reflect the reforms in the remedial actions title.

While the NAM supports certain of the mark’s proposed changes to the NRD program, on balance the NAM is not persuaded that the draft NRD title will enhance

the overall goal of Superfund reform.

STATE ROLE

The NAM is concerned that the mark allows states to use their own cleanup programs in lieu of any or all of the requirements of a revised CERCLA. This approach

does not ensure that the federally legislated reforms will be carried through to the

states where Superfund dollars are used.

CONCLUSION

These issues merit serious attention and we stand ready to work with appropriate

parties to reach constructive solutions. The NAM continues to support other titles

of the bill, including the brownfields provisions. The NAM applauds the continued

effort to pass comprehensive reform of the badly broken Superfund program and desires to work toward a bill that will speed cleanups, reduce unnecessary costs and

increase equity.
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
412
413
414
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
454
455
456
457
458
459
460
461
462
463
464
465
466
467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
484
485

Æ