U.S. GOVERNMENT PRINTING OFFICE

58–513CC WASHINGTON : 1999

LEGISLATION TO IMPROVE THE COMPREHENSIVE

ENVIRONMENTAL RESPONSE, COMPENSATION

AND LIABILITY ACT

HEARINGS

BEFORE THE

SUBCOMMITTEE ON

FINANCE AND HAZARDOUS MATERIALS

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

AUGUST 4, 1999—BROWNFIELDS PROVISIONS OF H.R. 1300, H.R. 1750,

and H.R. 2580

SEPTEMBER 22, 1999—H.R. 1300 and H.R. 2580

Serial No. 106–82

Printed for the use of the Committee on Commerce

(

2

COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

THOMAS C. SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON FINANCE AND HAZARDOUS MATERIALS

MICHAEL G. OXLEY, Ohio, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

Vice Chairman

PAUL E. GILLMOR, Ohio

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

STEVE LARGENT, Oklahoma

BRIAN P. BILBRAY, California

GREG GANSKE, Iowa

RICK LAZIO, New York

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ROBERT L. EHRLICH, Jr., Maryland

TOM BLILEY, Virginia,

(Ex Officio)

EDOLPHUS TOWNS, New York

PETER DEUTSCH, Florida

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

FRANK PALLONE, Jr., New Jersey

BOBBY L. RUSH, Illinois

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

3

C O N T E N T S

Page

Hearings held:

August 4, 1999 .................................................................................................. 1

September 22, 1999 .......................................................................................... 137

Testimony of:

Curtis, Jonathan G., President, Environmental Business Action Coalition 78

Fields, Hon. Timothy, Jr., Assistant Administrator, Office of Solid Waste

and Emergency Response, U.S. Environmental Protection Agency:

Accompanied by Lois Schiffer, Assistant Attorney General, Department of Justice ....................................................................................... 19

Accompanied by Steve Herman, Assistant Administrator, Office of

Enforcement and Compliance Assurance ............................................ 150

Florini, Karen, Senior Attorney, Environmental Defense Fund ................... 83

Garczynski, Gary, Treasurer, National Association of Home Builders ........ 92

Helmke, Paul, Mayor of Fort Wayne, Indiana, on behalf of the U.S.

Conference of Mayors ................................................................................... 54

Jackson, Jeremiah D., President-elect, Environmental Business Action

Coalition ......................................................................................................... 221

Jeffers, Christopher, City Manager, Monterey Park, on behalf of the

National Association of Counties ................................................................. 193

Johnson, Gordon J., Deputy Bureau Chief, Office of the Attorney General,

State of New York, on behalf of the National Association of Attorney’s

General .......................................................................................................... 201

Kerbawy, Claudia, Section Chief, Superfund, Environmental Response

Division, Michigan Department of Environmental Quality, on behalf

of Association of State and Territorial Solid Waste Management Officials ................................................................................................................ 69

Mills, Teresa, on behalf of the Buckeye Environmental Network ................ 75

Nobis, Mike, JK Creative Printers, on behalf of National Federation

of Independent Business .............................................................................. 198

Stypula, Donald J., Manager of Environmental Affairs, Michigan Municipal League, on behalf of National Association of Local Government

Environmental Professionals ....................................................................... 62

Williams, Jane, Chair, Waste Committee, Sierra Club ................................. 215

Material submitted for the record by:

Association of Metropolitan Water Agencies and the American Water

Works Association, letter dated October 8, 1999, to Hon. John Dingell .. 252

California Environmental Agency, letter dated October 12, 1999, to Hon.

Thomas J. Bliley, Jr ...................................................................................... 277

Campaign for Safe and Affordable Drinking Water, letter dated November 1, 1999 ..................................................................................................... 285

Children’s Health Environmental Coalition, letter dated November 1,

1999 ................................................................................................................ 282

Clean Water Action, letter dated October 26, 1999 ....................................... 284

Curtis, Jonathan G., President, Environmental Business Action Coalition,

letter dated September 7, 1999, enclosing response for the record .......... 129

Jennings, Jon P., Acting Assistant Attorney General, U.S. Department

of Justice, letter dated October 4, 1999, to Hon. Michael G. Oxley .......... 287

Lew, Jacob, Director, Office of Management and Budget, letter dated

October 12, 1999, to Hon. John Dingell ...................................................... 251

Salazar, Ken, Attorney General, State of Colorado, letter dated November

5, 1999, to Hon. Tom Bliley, enclosing material for the record ................ 272

Spitzer, Eliot, Attorney General, State of New York, letter dated October

12, 1999, to Hon. Tom Bliley, enclosing material for the record .............. 256

(III)

(1)

LEGISLATION TO IMPROVE THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT

WEDNESDAY, AUGUST 4, 1999

HOUSE OF REPRESENTATIVES,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON FINANCE AND HAZARDOUS MATERIALS,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2123, Rayburn House Office Building, Hon. Michael G. Oxley

(chairman) presiding.

Members present: Representatives Oxley, Greenwood, Largent,

Lazio, Shimkus, Wilson, Shadegg, Fossella, Blunt, Ehrlich, Bliley

(ex officio), Towns, Stupak, DeGette, Barrett, Luther, Markey, Hall,

Pallone, Rush, and Dingell (ex officio).

Staff present: Nandan Kenkeremath, majority counsel; Amit

Sachdev, majority counsel; Kristi Gillis, legislative clerk; and Dick

Frandsen, minority counsel.

Mr. OXLEY. The subcommittee will come to order. The Chair will

recognize himself for an opening statement.

Today we start the first day of a hearing for the 106th Congress

on legislation to improve the Comprehensive Environmental Response Compensation and Liability Act. For those who need a reminder, this is the same broken Superfund statute on which we

have had over 26 hearings in this committee over the past 7 years.

The sad truth is, during the nearly 20 years of CERCLA, we have

been cleaning up sites with greater speed and less waste, while

protecting people’s health and the environment.

Superfund creates disincentives and uncertainty for State and

voluntary cleanups, where a lot of the work is getting done these

days. As I have stated before, the quality of our Nation’s most

prominent cleanup program does matter. When sites stay abandoned because of Superfund’s vagaries, people suffer. Neighborhoods suffer, cities and towns suffer. The hardest task in politics

is fixing a broken environmental program.

Superfund, however, could not be a better case for reform. I still

believe there is a bipartisan majority in the house and a broad

number of stakeholders for significant changes to the Superfund

statute.

Many Members of Congress have worked on a bipartisan basis

over the last 6 years with State cleanup agencies, cleanup engineers and dozens of experts to develop statutory changes that

would make a real difference. The 105th Congress saw several seriVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00004 Fmt 6633 Sfmt 6633 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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ous bipartisan efforts in this regard, including H.R. 3000, which

was introduced with 19 original Democrat cosponsors. In this Congress we see that H.R. 1300, the Recycle America’s Land Act of

1999, now has 47 Democratic cosponsors and 47 Republican cosponsors.

Mr. Greenwood’s bill, the Land Recylcing Act of 1999, is a serious

bipartisan effort covering several areas, with 9 Democrat cosponsors and 7 Republican cosponsors. I commend the long and growing

list of Democratic and Republicans for their willingness to move

forward on a bipartisan basis. It is these efforts that the subcommittee must look to. For the 106th Congress if you cannot work

in a bipartisan fashion, it would appear that you do not want any

legislation at all. If you are willing, let’s start working now and

start showing the ability for a bipartisan compromise.

Today we will focus on certain provisions related to brownfields

issues. No one should take from this first day that I want to limit

the scope of Superfund reform efforts to these topics. To the contrary, Superfund is broken in a number of areas and there have

been positive bipartisan proposals in a number of these areas

which should be fully considered.

On today’s topic I would state that needless uncertainty and

counterproductive Federal rules have hurt the effort to clean up

brownfields. We must overcome the lack of trust that the administration and the national environmentalist activists continue to

carry for State cleanup programs. The record shows that big Federal Government is hurting, not helping; and States like Ohio and

Pennsylvania are moving ahead to protect the environment and

create jobs.

For example, 83 projects have been undertaken through Ohio’s

voluntary action program. These are non-NPL lesser contaminated

sites that might otherwise have languished and spread blight. Instead properties are being cleaned up and jobs are being created

from Cleveland to Columbus to Cincinnati.

I also recall an impressive brownfields project that I saw at the

Pfizer plant in Congressman Town’s district in New York City. We

need to respect the position of the State agencies and cleanup contractors who have the most experience in the brownfields area; otherwise we have just more unworkable prescriptions from Washington, DC.

Again, I will be turning to all of today’s witnesses, other stakeholders, on both sides of the Chair, for more information, the right

formula and the right opportunity for positive reforms. The Chair

is now pleased to recognize the ranking member, the gentleman

from New York, Mr. Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman. I want to

thank you for holding this hearing. If you recall at the subcommittee’s March 23 oversight hearing, many members on both sides of

the aisle expressed their interest in working on brownfields legislation. Recently the United States Chamber of Commerce has adopted a policy that urges Congress to focus on brownfields legislation

rather than comprehensive Superfund reform.

In early May, I, along with all of my colleagues on this side of

the aisle, introduced H.R. 1750, the Community Revitalization and

Brownfields Cleanup Act of 1999. It provides liability protection for

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the new purchasers and developers, innocent landowners and contiguous property owners. It also provides brownfields funding for

local governments and addresses the finality issue of current owners. I am pleased to say that H.R. 1750 has already obtained the

strong support of the President of the United States, the only

brownfields bill to do so—and I repeat, the only brownfields bill to

do so.

The mayors from big cities like Denver, Detroit, St. Louis, Newark, Philadelphia, and Elizabeth, New Jersey and other local government organizations have written to express their support of

H.R. 1750. Just this week, the National Association of Counties

and National Association of Towns and Townships endorsed H.R.

1750 and expressed their strong interest in legislation ratifying

EPA’s municipal settlement policy as well.

Finally, H.R. 1750 has received support from the National Realty

Committee, a member organization of leading real estate owners,

developers, investors and lenders throughout this Nation.

Mr. Chairman, if we keep our aim narrowly focused and targeted, and our approach based on obtaining a broad consensus, I

believe brownfields legislation can be signed into law in this Congress. The approaches taken by H.R. 1750 and H.R. 2580 on liability protection for new purchasers, liability clarification for innocent

landowners, and funding for site assessment grants and revolving

loan funds track very closely the difference in these important

brownfields provisions. It should be easily resolvable.

However, on several other provisions, there are significant differences in the bills. These will not be as easily resolvable as we

discuss these differences and State authority versus Federal authority. I urge the subcommittee to not forget the needs of citizens

and communities throughout this Nation when they fear that contamination at any site may be presenting a risk to their health and

welfare. Citizens want to have all of the necessary authorities

available to protect their health and the environment.

Mr. Chairman, again I thank you for holding this hearing and

I look forward to hearing from the witnesses. I yield back the balance of my time.

Mr. OXLEY. The Chair is now pleased to recognize the gentleman

from the full Commerce Committee, the gentleman from Richmond,

Mr. Bliley.

Chairman BLILEY. Thank you, Mr. Chairman. Let me commend

you for holding this hearing on legislation to improve Superfund.

Perhaps one of the hardest tasks in politics is fixing a broken environmental program. Superfund could not be a better case for reform. The statute is excessively litigious, slow, unrealistic, imposes

barriers to cleanups all across the Nation.

House Republicans and many Democrats agree on the need for

substantial reform. The 105th Congress saw several bipartisan efforts in this regard, including Chairman Oxley’s bill, H.R. 3000,

which was introduced with 19 original Democrat cosponsors.

Today we are holding a hearing on 3 bills to fix the Superfund

program. First we see that H.R., 1300 the Recycle America’s Land

Act of 1999, now has the same number of Democrat cosponsors as

Republicans: 47. Similarly, Mr. Greenwood’s bill, the Land Recycling Act of 1999 is a serious bipartisan effort.

4

This presents us with a gulf that must be bridged. We have a

bipartisan group that supports Superfund reform, and, on the other

hand, we have the House Democrats and the administration who

support partisan legislation. To bridge this gulf and finally enact

Superfund legislation, we must address both the substantive and

political differences.

On the substance, I see a program that takes 8 years to accomplish the identification and listing of a hazardous waste site, and

another 10 years to accomplish remedy selection. While the administration and some of my colleagues call this a satisfactory pace, I

see only waves and waves of litigation. Where the administration

sees vindication of the ‘‘polluter pays’’ principle, I see needless uncertainty and counterproductive Federal rules. On bipartisanship,

I note that it is not alive and well.

So the divide within the Democrat Party remains. There are

those who are willing to work on a bipartisan reform and those

that have not shown a desire to make Superfund work. It seems

to me for the 106th Congress, if you cannot work in a bipartisan

fashion, then you do not want change at all. We have a short time

to determine whether we will cross this divide. After 5 years, my

patience is running thin. If you are willing, let’s start working with

Chairman Oxley now and start showing the ability for a bipartisan

compromise.

Today is the first day of our legislative hearings on Superfund.

Today we will focus on the brownfields-related provisions of several

bills. I believe we must listen to State cleanup agencies and cleanup contractors who have the expertise to know what it takes to

bring life to the cleanup and redevelopment arena by reforming

Superfund. After years of trying and negotiating, we have developed workable bipartisan provisions that can make a difference.

I look forward to hearing from today’s witnesses and to moving

forward on Superfund reform. Thank you, Mr. Chairman.

Mr. OXLEY. I thank the Chair.

[The prepared statement of Hon. Tom Bliley follows:]

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Thank you, Mr. Chairman. Let me commend you for holding this hearing on legislation to improve Superfund.

Perhaps one of the hardest tasks in politics is fixing a broken environmental program. Superfund could not be a better case for reform. The statute is excessively

litigious, slow, unrealistic, and poses barriers to cleanups all across the Nation.

House Republicans and many Democrats agree on the need for substantial reform.

The 105th Congress saw several bipartisan efforts in this regard, including Chairman Oxley’s bill, H.R. 3000, which was introduced with 19 original Democrat cosponsors. Today we are holding a hearing on three bills to fix the Superfund program. First, we see that H.R. 1300, the Recycle America’s Land Act of 1999, now

has the same number of Democrat cosponsors as Republican: 47. Similarly, Mr.

Greenwood’s bill, the Land Recycling Act of 1999 is also a serious bipartisan effort.

This presents us with a gulf that must be bridged—on the one hand, we have the

bipartisan groups that support Superfund reform, and on the other hand, we have

the House Democrats and the Administration who support partisan legislation. To

bridge this gulf and finally enact Superfund legislation, we must address both the

substantive and political differences.

On the substance, I see a program that takes eight years to accomplish the identification and listing of a hazardous waste site, and another 10 years to accomplish

remedy selection. While the Administration and some of my colleagues call this a

satisfactory pace, I see only waves and waves of litigation. Where the Administration sees vindication of the ‘‘polluter pays’’ principles, I see needless uncertainty and

counterproductive Federal rules.

5

On bipartisanship, I note that it is not alive and well. So the divide within the

Democrat party remains. There are those who are willing to work on bipartisan reform and those who have not shown this desire to make Superfund work. It seems

to me that for the 106th Congress, if you cannot work in a bipartisan fashion, then

you do not want change at all.

We have a short time to determine whether we will cross this divide. After five

years my patience is running thin. If you are willing, lets start working with Chairman Oxley now and start showing the ability for a bipartisan compromise.

Today is the first day of our legislative hearings on Superfund. Today we will

focus on the brownfields-related provisions of several bills. I believe we must listen

to State cleanup agencies and cleanup contractors who have the expertise to know

what it takes to bring life to the cleanup and redevelopment arena by reforming

Superfund. After years of trying and negotiating, we have developed workable bipartisan provisions that can make a difference. I look forward to hearing from today’s

witnesses and to moving forward on Superfund reform.

Mr. OXLEY. The gentleman from New Jersey, Mr. Pallone.

Mr. PALLONE. Thank you, Mr. Chairman. I want to thank you for

holding this hearing on brownfields legislation. With certain Federal protections in place, along with State voluntary programs, we

can work to put abandoned or underused contaminated industrial

or commercial sites back into use. This not only spurs economic development, but avoids development of greenfields or pristine open

spaces.

In Long Branch, New Jersey, we recently received a $200,000

grant to participate in the pilot project that is part of EPA’s

brownfields initiative; and EPA’s national brownfields initiative

has already resulted in the assessment of 398 brownfields properties, cleanup of 71 properties and redevelopment of 38 properties.

Mr. Chairman, on the subject of the Superfund program, which

I know is not the subject of the hearing today, I just wanted to say

that I remain pleased with the direction of progress that EPA is

making, particularly in New Jersey and in my district. To try to

enact Superfund reforms at this time could delay progress. If anything, we need to ensure that our Federal Superfund program remains strong; that the burden of site cleanups remains with the

polluter, the potentially responsible party; that we avoid corporate

carveouts and ensure communities’ and children’s protection and

right to know.

I want to mention that I believe we should have a separate hearing on the Superfund right-to-know issue because it has been left

out of the Boehlert Superfund bill. In the meantime, we should act

to pass sound brownfields legislation.

Mr. Towns’ bill, H.R. 1750, is endorsed by President Clinton and

the National Association of Attorneys General support the

strengthening of State voluntary cleanup and brownfields redevelopment programs. Yet they oppose parts of the Boehlert bill, H.R.

1300, because potentially responsible parties would be able to avoid

enforcement too easily under that bill. Many State officials have informed me and other Congress members that the existing Federal

framework, with its liability and enforcement mechanisms, provides important incentives for private entities to voluntarily clean

up State sites. And I believe we must uphold the imminent and

substantial endangerment standard that exists in current Federal

and State statutes as well as in the memorandum of agreement between 12 States and the EPA in their State voluntary cleanup programs.

6

In fact, in my home State of New Jersey, our State environmental or Department of Environmental Protection may direct the

discharger to clean up and remove the discharge whenever any

hazardous substance is discharged. A substantial threat of

endangerment does not have to be proven. And it is important to

maintain a Federal safety net for sites where State cleanups failed

to adequately protect human health and the environment, as the

Environmental Defense Fund points out in its testimony.

The standard should be consistent with Federal enforcement authority to order cleanups under other Federal statutes, including

CERCLA, the Clean Air Act, the Clean Water Act, and the Safe

Drinking Water Act, as well as these memoranda of agreement.

And I want to say that the Towns bill provides such a safety net.

The other bills under consideration do not.

While current law may not adequately address targeted liability

relief for qualified parties, we must take care not to create exemptions that are too broad or that enable PRPs to avoid liability. In

H.R. 1750 we have carefully defined and provided limited liability

relief for innocent landowners, prospective purchasers and contiguous property owners, but only for these categories. The administration supports targeted liability relief for these parties. Other

bills under consideration today include inadequate and overly

broad exemptions for innocent landlords.

Finally, I would urge my colleagues to join me in passing

brownfields legislation that contains provisions that enjoy widespread support and consensus, and I believe and I urge full consideration and ultimate passage of the Towns bill for that reason.

Thank you, Mr. Chairman.

[The prepared statement of Hon. Frank Pallone follows:]

PREPARED STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW JERSEY

Thank you, Mr. Chairman. We need to keep this hearing, and any legislation the

Subcommittee and Committee might consider, focused on something we can pass,

namely Brownfields. With certain federal protections in place along with state voluntary programs, we can work to put abandoned or underused, contaminated industrial and commercial sites back into use. This not only spurs economic development

but avoids development of ‘‘greenfields,’’ or pristine, open spaces. In fact, Long

Branch, New Jersey, my home town, has received a $200,000 grant to participate

in a pilot project that is part of EPA’s Brownfields Initiative. This Initiative has already resulted in the assessment of 398 brownfields properties, cleanup of 71 properties and redevelopment of 38 properties.

In addition, I remain pleased with the direction of progress that EPA is making

in the Superfund program, particularly in New Jersey and in my district. To try to

enact major reforms at this time could delay this progress. If anything, we need to

ensure that our federal program remains strong, that the burden of site cleanups

remains with the polluter (the Potentially Responsible Party), that we avoid corporate carve-outs, and ensure communities’, and particularly children’s, protection

and right-to-know. I believe that we should have a separate hearing on the rightto-know issue. This issue has been completely left out of the Boehlert bill and the

current debate.

In the meantime, we should act to pass sound Brownfields legislation now. The

Democrats’ bill, H.R. 1750, is endorsed by President Clinton. And, the National Association of Attorneys General support the strengthening of state voluntary cleanup

and brownfields redevelopment programs. Yet, they oppose parts of H.R. 1300 because Potentially Responsible Parties would be able to avoid enforcement or listing

too easily under the bill. Many state officials have informed me and other

Congressmembers that the federal framework, with its liability and enforcement

mechanisms, provide important incentives for private entities to voluntarily clean

up state sites.

7

We must uphold the ‘‘imminent and substantial endangerment’’ standard that exists in current federal and state statutes as well as in Memoranda of Agreement

between 12 states and the U.S. Environmental Protection Agency (EPA) in their

state voluntary cleanup programs. In fact, in my home state of New Jersey, the

State Department of Environmental Protection may ‘‘. . . direct the discharger to

clean up and remove...the discharge’’ ‘‘whenever any hazardous substance is discharged.’’ A substantial threat of endangerment doesn’t even need to be proven. It

is important to maintain a federal safety net for ‘‘sites where state cleanups fail to

adequately protect human health and the environment,’’ as the Environmental Defense Fund points out in its testimony. And, the standard should be consistent with

federal enforcement authority to order cleanups under other federal statutes, including CERCLA, the Clean Air Act, Clean Water Act, and the Safe Drinking Water Act,

as well as these Memoranda of Agreement. H.R. 1750 provides for such a safety net;

the other bills under consideration today do not.

While current law may not adequately address targeted liability relief for qualified parties, we must again take care not to create exemptions that are too broad

or that enable PRPs to avoid liability. In H.R. 1750, we have carefully defined and

provided limited liability relief for innocent landowners, prospective purchasers, and

contiguous property owners, but only for these categories. The Administration supports targeted liability relief for these parties. Other bills under consideration today

include inadequate and/or overly broad exemptions for innocent landowners.

I urge my colleagues to join me in passing Brownfields legislation that contains

provisions that enjoy widespread support and consensus. I urge full consideration

and ultimate passage of H.R. 1750. Thank you, Mr. Chairman.

Mr. OXLEY. The Chair now recognizes the gentleman from Illinois, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman. As we know, there

seems to a breakthrough in Superfund with the Transportation

Committee. While I applaud my colleague’s work, I will fight vigorously to preserve the committee’s jurisdiction.

With a move of this committee on brownfields and hopefully

small business liability protection, I think we will start addressing

some of the major concerns of Superfund that the general public

understands. They understand that we ought to be able to clean up

industrial sites and reuse them for industrial sites and protect liability of future users.

As my colleague from New Jersey said, we ought to hold the primary responsible parties responsible, but we should not hold the

small restaurant owners for a million dollars’ worth of cleanup

costs, as we have seen in Quincy, Illinois.

I look forward to learning more about this entire issue and hopefully moving legislation sometime in this Congress. I appreciate the

opportunity to work on this, Mr. Chairman and I yield back the

balance of my time.

Mr. OXLEY. The gentleman yields back.

The gentleman from Michigan, Mr. Stupak.

Mr. STUPAK. Thank you. As we all know, the Superfund program

has been successful in helping to make our environment cleaner in

many communities across the country. Michigan has 82 sites on

the Superfund national priority list and over 60 percent have effectively completed all necessary construction activity.

By the end of this Congress, approximately 3 of every 4 Superfund sites in Michigan will be completed. In addition, EPA has performed over 150 cleanup actions at Michigan sites that are not on

the Superfund list under its removal program. The overall program

has made incredible progress, but we should not overlook the opportunity to make targeted changes to enhance and facilitate

brownfields cleanup.

8

The ranking member of this subcommittee has introduced legislation of which I am cosponsor, H.R. 1750. H.R. 1750 addresses

many of the same Superfund liability issues which I have worked

on in the past. In the last Congress I introduced legislation, along

with several Republican colleagues, to provide liability protection

for innocent landowners and bona fide prospective purchasers. We

have had a bipartisan consensus on these issues for many years,

and yet each Congress we are faced with the same debate.

It is time that we move targeted brownfields legislation forward,

without getting tied up in the other contentious Superfund issues.

But it is also important that any new legislation not construct additional obstacles to protecting health and welfare of our communities over the long term. For example, the use of new statutory

language in H.R. 2580 raises serious protection questions. This legislation may unreasonably limit the ability of Federal Superfund

enforcement authorities to take action against a responsible party

only when the response action is, and I quote, ‘‘immediately required to prevent or mitigate a public health emergency and for

which the State is not responding in a timely manner.’’

Twelve States, including Michigan, currently have memorandum

of agreement with the EPA regarding their voluntary cleanup programs. However, these agreements use the standard imminent and

substantial endangerment language which is found in all Federal

environmental laws and many State laws, including Michigan. If

these changes were to become law, how would these State agreements be affected? The elimination of a widely recognized environmental standard should be of concern for both those who are concerned about new legislation and citizens who rely on a Federal

safety net for protection of their health, safety and welfare.

Mr. Chairman, I look forward to the testimony and I welcome all

of our witnesses today. Mr. Chairman, I will be going back and

forth between another hearing, and I would ask unanimous consent

to enter into the record the opening statement of my colleague, Mr.

Hall, and that of Mr. Klink who is also at another Commerce Committee hearing.

Mr. OXLEY. Without objection all of the opening statements will

be made a part of the record.

Mr. STUPAK. Thank you, Mr. Chairman.

Mr. OXLEY. The gentleman from Pennsylvania, the sponsor of the

aforementioned legislation.

Mr. GREENWOOD. Thank you, Mr. Chairman.

I would like to take this opportunity to thank Chairman Oxley

for holding this hearing on my Land Recycling Act, as well as the

Towns and the Boehlert bills. While I believe the legislation I have

introduced represents a well-balanced approach to the brownfields

issue, I still do look forward to continuing to work in a bipartisan

manner toward overall reform of the Comprehensive Environmental Response Compensation and Liability Act, better known as

Superfund. The Land Recycling Act represents an important first

step toward that goal.

On July 21 I, along with a strong bipartisan group of cosponsors,

introduced the Land Recycling Act of 1999. The act is intended to

remove barriers to the cleanup of brownfields across the country.

Accelerating these cleanup efforts will spur investments and proVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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vide tools for State and local governments to tackle this problem.

These efforts will provide for more livable, secure neighborhoods.

The blight on both urban and rural areas can be cleansed. My bill

will bring about aggressive State reclamation and cleanup of

brownfields, abandoned or underutilized former industrial properties where actual or potential environmental contamination

hinders redevelopment or prevents it altogether. The U.S. Environmental Protection Agency estimates that there may be as many as

500,000 such sites nationwide.

In my Congressional district, the southern portion of Buck’s

County, Pennsylvania, we have 3 miles of abandoned or underutilized industrial property. Thus, these well-positioned, once productive industrial real estate sites pose continuing risks to human

health and the environment, erode State and local tax bases,

hinder job growth, and allow existing infrastructure to go to waste.

This subcommittee visited that portion of my district 3 years ago.

The Land Recycling Act of 1999 will revitalize these sites and is

based on the input of all of the stakeholders in the brownfields debate, the Federal Government, States, local governments, cleanup

contractors, sellers, buyers, developers, lenders, environmentalists,

community interests and others. And it is particularly based on my

own experiences in my district.

Among other things, the bill provides finality for brownfields

cleanup done pursuant to and in compliance with State programs

releasing buyers and sellers from liability and litigation under Federal law. In today’s testimony, the National Governors Association

and the State and Territorial Waste Management Association officials testify that H.R. 2580 ‘‘satisfies the goal of clarifying which

governmental entity is and should be responsible for deciding when

a cleanup is complete, and when a party is released from liability.’’

H.R. 2580 will also provide liability protection under Federal law

for a number of nonpolluters, including innocent landowners, prospective purchasers, contiguous landowners and response action

contractors, thus removing disincentives to cleanup and reuse. In

their May 12, 1999 testimony before the Subcommittee on Water

and the Environment, the Honorable Mark Morial, the Mayor of

New Orleans; the Honorable Michael Turner, Mayor of Dayton; and

the Honorable Jim Marshall, Mayor of Macon, testified that, ‘‘it has

been shown that Superfund’s liability regime unfairly threatens innocent parties and too often drives private sector investors from

brownfields to more pristine locations.’’ and we recognize, they

went on to say, that ‘‘this act helps fuel a development cycle that

imposes increasing burdens on all of us.’’this legislation will

streamline the Federal cleanup process and employ sound and objective science.

Finally the Land Recycling Act of 1999 will provide brownfields

grants to States, local governments and Indian tribes with the inventory and assessment of brownfield sites and the capitalization

of the revolving loan funds for cleanups.

I believe these straightforward solutions will provide an aggressive anecdote to the wasteful burden of brownfields in America,

and are part of an overall set of solutions that we must pursue to

reform the Nation’s broken hazardous waste laws. While I am confident that the Land Recycling Act will go a very long way, we in

10

Congress have also a larger task at hand, over all of the Superfund

program in its entirety, to ensure that we do not perpetuate the

brownfields problem across the country.

The Land Recycling Act of 1999 is only a piece of the puzzle. I

look forward to the chairman of the Commerce Committee, Mr. Bliley, and the chairman of this subcommittee, Mr. Oxley, for continued leadership on Superfund reform to address the areas that we

can and must address.

Thank you for holding this hearing today. I look forward to continuing to work with the committee on this issue.

Mr. OXLEY. The gentleman’s time has expired.

The Chair now recognizes the gentleman from Minnesota, Mr.

Luther.

Mr. LUTHER. Thank you, Mr. Chairman. I thank you very much

for holding the hearing today. This is an issue that I dealt with extensively in Minnesota as a member of the Minnesota legislature,

but this will be an opportunity to be directly involved here at the

Federal level. And being a new member of this subcommittee, I am

very much looking forward to the testimony. Thank you very much.

Mr. OXLEY. Thank you.

The Chair now recognizes the gentleman from New York, Mr.

Lazio.

Mr. LAZIO. Thank you, Mr. Chairman. I just want to add my

voice of compliments both to you for holding the hearing and to Mr.

Greenwood and Mr. Towns and Mr. Boehlert for their work on

Superfund reform and on the brownfields issue.

I think the primary reason why we need to address this issue

quickly and honestly is because it is a major opportunity for this

committee to speak to urban policy and to redevelop areas that

have the potential to be areas that can create jobs and be economic

magnets. And I think failure to act has the perverse impact of creating continued frustration for communities and continued disinvestments in some of the communities that most need investment. I think this is a great opportunity for this committee to be

speaking to an issue that is important to the environment and

quality of life of Americans, but, more importantly, speaks very

much to the economic quality of life of some of our urban areas. I

thank you for your concern in holding the hearings.

Mr. OXLEY. The Chair now recognizes the gentlewoman from Colorado, Ms. DeGette.

Ms. DEGETTE. Thank you, Mr. Chairman. I am gratified this

committee is addressing a variety of bills that deal with

brownfields specifically. When I was elected to Congress I was a little mystified why we didn’t pass brownfields legislation, since everybody loves it, particularly the environmentalists in my district

and the business communities in my district. I was dismayed to

find that the reason, apparently, we had not passed brownfields

legislation was that it was all tied up in a ball with Superfund reauthorization and some really knotty Superfund issues like liability.

I have maintained that we need to look at Superfund reform, but

we need to pass meaningful brownfields legislation as quickly as

possible because it can be helpful not just in urban areas like my

district, but also in suburban and rural areas around the country.

11

Areas that, luckily for the landowners don’t warrant Superfund

listing, but do need some kind of cleanup, and, frankly, areas

where the property owners are often scared to undertake any

cleanup because they are afraid of government enforcement actions.

This is an area I have worked on for a long time, as you may

know. When I was in the Colorado legislature in the mid-1990’s I

was the chief sponsor of the Colorado State Voluntary Cleanup Act,

which was one of the very first laws in the country that a State

passed to do brownfields-type legislation on a State level. I learned

a lot through sponsoring that legislation and, frankly, Colorado has

learned a lot ever since that was sponsored. We have now had over

70 applications under that State law for redevelopment and cleanup of property in Colorado. This is true even though we don’t have

Federal legislation providing liability relief, as is contemplated in

at least two of these bills.

People still think that it is worthwhile. The State has entered

into an agreement with the EPA, for example, that they will hold

off on any kind of EPA action while the State voluntary redevelopment and cleanup plan is being executed; and that has been really,

really successful for a number of property owners.

When I introduced the legislation in Colorado, I tried to give

more incentives to clean up these sites, other than the State restraining itself from any kind of enforcement action. I tried to give

tax relief, and I learned that it was unconstitutional under the Colorado Constitution. I tried to do other things and they didn’t work,

so I felt like we were sort of giving minor relief to these property

owners, but they felt that it was a big step out from under government regulation and it has been tremendously successful.

I think this experience gives us some clue as to what we should

do in terms of liability relief for bona fide purchasers. I do believe

that we should give some liability relief for bona fide purchasers

of contaminated properties, for innocent landowners, and for contiguous property owners. And I also support the establishment by

some States of voluntary cleanup programs to address sites that

don’t warrant Federal protection to protect human health and environment. But I am concerned about language that will preclude

Federal, State or local governments from taking action at any time

after the cleanup is started or completed, especially if new conditions or contamination is found.

And so as these bills go through the process, I look forward to

talking with Mr. Greenwood and others about how we can protect

the health and the rights of property owners around this property

to make sure we give appropriate incentives for cleanup, to make

sure that we give appropriate liability protection, but at the same

time that we protect the public health from unseen contamination

that may crop up during a cleanup.

I look forward to the testimony today. I look forward to hearing

how the Federal statute will interact with State statutes. With

that, Mr. Chairman, I yield back the balance of my time.

Mr. OXLEY. The gentlewoman yields back.

The gentleman from Illinois, Mr. Rush.

Mr. RUSH. Thank you, Mr. Chairman. I am delighted that the

committee is holding this very important hearing on select SuperVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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fund reforms. I believe we should not go into the summer recess

without addressing the issue of Superfund, especially as it relates

to brownfields.

In my congressional district in Chicago, there are many abandoned areas which once were the source of thriving communities

and thriving commerce. Mr. Chairman, there is one area in my district, the Engelwood area, that has the highest concentration of

brownfields in the city. But it also has the highest concentration

of those who don’t own homes in my city, as provided by Fannie

Mae, and I have a chart here. It has the lowest median household

income, the lowest median home value. Also the lowest—a number

of affordable housing in this area, which has the highest concentration of brownfields; the lowest owner-occupied housing units; the

highest rental-occupied housing units.

So as you can see, brownfields has a direct impact on the economic worth and survival of communities throughout the Nation,

especially in urban areas.

The cleanup of brownfields is not simply cleaning up abandoned

areas. However, it is a significant part of the revitalization of

blighted urban areas which can provide jobs and recreational opportunities to local residents.

I look forward to hearing the testimony by our distinguished panelists on this important issue of brownfields provisions as it relates

to H.R. 2580, H.R. 1300 and H.R. 1750. As you know, these bills

address a myriad of issues, including voluntary cleanup, availability of cleanup funds and liability of innocent parties. With that,

Mr. Chairman, I yield back the balance of my time.

Mr. OXLEY. The Chair now recognizes the gentleman from Maryland, Mr. Ehrlich.

Mr. EHRLICH. Mr. Chairman, this is an important issue for an

awful lot of members, particularly for me representing an area

right outside the city of Baltimore. I look forward to working with

the members of our subcommittee and the full committee in a bipartisan way to improve a very important piece of legislation. I

yield back the balance of my time.

Mr. OXLEY. The gentleman from Massachusetts, Mr. Markey.

Mr. MARKEY. Thank you, Mr. Chairman. Brownfields tend to be

in closer, nearer the inner city areas, because they were the original industrial sites. As we turn the corner from the Industrial Age

to the Information Age, many of these sites which were found to

be undesirable in the 1950’s and 1960’s and 1970’s because as the

high-tech companies were beginning to expand, obviously these

sites, the brownfields sites, were still being occupied. And so as a

result, the high-tech firms in the fifties and sixties went out to the

next beltway, out further. They would have preferred to be in nearer, but they were occupied.

As the sites have been left vacant by that industrial era type of

development, we have a responsibility to make sure that they become reusable. If they were reusable, I think many of those corporations that leaped all of the way out would much prefer to be

in closer to the universities and the inner city, as would many of

the workers. That is, that they would desire to work and live in

closer.

13

So the job that we have is to try to get to a commonsense, quick

resolution of this issue. Unfortunately, under H.R. 1300 and H.R.

2580, a current owner who has made a site into a toxic cesspool

could participate in a voluntary program, cleaning the surface but

leaving an underground mess, cleaning one piece of a large area,

and then would be free to walk away. No one, not the Federal Government, not the city or the neighbors, could intervene to make the

polluter clean up the rest of the site.

Under H.R. 2580, even if the EPA thought there was an imminent and substantial endangerment to public health or welfare or

the environment at an RCRA site, they could not do a thing. And

requirements for Federal permits under other laws such as wetlands protection would be waived.

The voluntary State programs were never meant to replace the

backstop of Federal action, and in many cases do not include full

cleanup requirements.

Finally, H.R. 2580 also seems to seep outside the boundaries of

what we usually call brownfields, to limit action on proposed

Superfund national priority list sites. Unlike the other major

brownfields bills, H.R. 2580 would prohibit Federal action at proposed Superfund sites, and it would require a Governor’s concurrence before a proposed site could be designated a Superfund site,

even if the contamination affects neighboring States, even if local

governments or citizens propose the listing, even if the State itself

caused the contamination and would be responsible for the cleanup.

We have a lot of work to do. These bills are a starting point, but

they clearly are not the finishing point if we are to be effective in

dealing with brownfields. Thank you, Mr. Chairman.

Mr. OXLEY. The Chair is pleased to recognize the ranking member of the full committee, Mr. Dingell.

Mr. DINGELL. First of all, Mr. Chairman, thank you for conducting this hearing on brownfields legislation. This is a subject

important to me and most members of the subcommittee. In the

Detroit metropolitan area alone, which is home to our country’s industrial strength for over 100 years, brownfields cover tens of thousands of acres of lands once occupied by mighty manufacturing facilities and thriving communities.

Today many of these properties are abandoned by once prosperous owners. They have become an eyesore, a threat to the livelihood and health of the citizens in the area. This is the fourth Congress in which we have considered reauthorization to the Superfund statute. In each Congress, among our many disagreements,

we have collectively, however, agreed that brownfield legislation is

needed. We have gone so far as to agree even on legislative language to clarify the liabilities of lenders, bona fide prospective purchasers, and innocent landowners.

Lender liability relief was enacted into law because we achieved

consensus among the stakeholders, the administration and members on both sides of the aisle.

By contrast, the many controversial provisions we have considered in the past Congress have never become close to becoming

public law. They have held hostage consensus provisions such as

prospective purchaser and innocent landowner relief. As many consensus provisions languish, some members of this body still wish

14

to tinker, thus sparking controversy where there was need for

none.

As the committee with primary jurisdiction over Superfund, it is

incumbent upon us to recognize that we have now an opportunity

to do something that is meaningful, rather than to tilt at windmills

and to fiddle around with Superfund, which has no prospect of enactment during this Congress. It should be noted that great success

has been achieved despite an awful lot of trouble with Superfund.

About three-quarters of all Superfund sites in Michigan will shortly

be completed. A higher percentage of sites in other States have already been completed.

As you know, Mr. Chairman, I have been a frequent critic of

Superfund and the program and its administration. Our oversight

efforts in the 1980’s emptied some people from the EPA and, I

would hope, taught the Agency some lasting lessons. At a time

when Superfund lawyers have now moved on to other specialties,

we do not want to give them reason to flock back to the Superfund

practice once again. But some of the legislation that we consider

today will create just that incentive by introducing new and vague

terms, and repealing well-settled law for no reason that I think

makes good sense.

I am pleased to report that brownfields development is occurring

as local governments, developers and citizens are finding creative

ways to build their own consensus and to rebuild our communities.

In Taylor, Michigan, an abandoned eyesore will be replaced by a

$9.8 million retail complex that will create 150 jobs. City officials

plan to clean up another contaminated site and create 250 jobs, 70

percent of which will be full-time. The city of Monroe is one of the

leading communities in redeveloping brownfields properties.

We can build upon this success, then, with carefully targeted

consensus legislation. The administration must be a part of this. Of

the three bills today, only H.R. 1750 has been endorsed by the

President. The bill has 168 cosponsors. It also enjoys the support

of mayors of numerous cities, including Mayor Dennis Archer of

Detroit and Mayor Wellington Webb, the current president of the

Conference of Mayors. The National Realty Committee which testified in Dearborn, Michigan on this subject, supports this bill. I note

that the National Association of Counties, with a number of other

government organizations, have endorsed H.R. 1750, and I hear

that the Chamber of Commerce has suggested that it is important

that we should move forward on brownfields and dispense with efforts with regard to Superfund.

I hope that we recognize from these facts that it is urgent for us

to commence addressing the problem of brownfields, to abandon a

failed tactic of trying to amend Superfund, proceed with that which

is possible, achieve a great success in the public interest and move

forward. And I thank you for recognizing me.

[The prepared statement of Hon. John D. Dingell follows:]

PREPARED STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN

Mr. Chairman, I thank you for conducting this hearing on brownfields legislation.

This subject is important to me, and to many of the Members of this Subcommittee.

In the Detroit metropolitan area alone—home to much of our country’s industrial

strength for over 100 years—brownfields cover tens of thousands of acres of land

15

once occupied by mighty manufacturing facilities and thriving communities. Today,

many of these properties are abandoned by their once-prosperous owners. They have

become an eyesore and, in some instances, a threat to the livelihood and health of

the citizens who live around them. This situation is not unique to the Detroit area,

nor to urban areas generally.

This is the fourth Congress during which we have considered the reauthorization

of the Superfund statute. In each Congress, among our numerous disagreements, we

have collectively agreed that brownfields legislation is needed. We have gone so far

as to agree on legislative language to clarify liability for lenders, bona fide prospective purchasers and innocent landowners. Lender liability relief was enacted into

law because we achieved consensus among stakeholders and the Administration,

and Members on both sides of the aisle. By contrast, the many controversial provisions we have considered in the past four Congresses have never come close to becoming public law—and they have held hostage consensus provisions such as prospective purchaser and innocent landowner relief. As these consensus provisions

languish, some Members in this body cannot resist the temptation to tinker, thus

sparking controversy where there was none.

As the Committee of primary jurisdiction over the Superfund statute, it is incumbent upon us to understand what needs to be done with this statute, and what does

not. While we have wasted time trying to build a better mousetrap that effectively

guts the Superfund program, the Superfund program itself has progressed substantially, particularly in the past six years. By the end of this Congress, cleanup construction at about three quarters of all the Superfund sites in Michigan will be completed. A higher percentage of sites already have been completed in many other

states.

As you know, Mr. Chairman, I have been a frequent critic of the Superfund program. Our oversight efforts in the 1980s taught the Agency some lasting lessons.

At a time when Superfund lawyers have moved on to other specialties, we do not

want to give them reason to flock to the Superfund practice once again. But, some

of the legislation we will consider today will create just that incentive by introducing new and vague terms, and repealing well-settled law, for no good reason.

I am pleased to report that brownfields redevelopment is occurring, as local governments, developers and citizens are finding creative ways to build their own consensus and to rebuild their communities. In Taylor, Michigan an abandoned eyesore

will soon be replaced by a $9.8 million retail complex that will create 150 jobs. City

officials plan to clean up another contaminated site and to create 250 jobs, 70 percent of which would be full-time. The city of Monroe also has been one of the leading

communities in Michigan in redeveloping brownfields properties.

We can build upon this success with targeted, consensus legislation. The Administration must be part of this consensus. Of the three bills we will consider today,

only H.R. 1750 has been endorsed by the President. The bill has 168 House cosponsors. It also enjoys the support of the mayors of numerous major cities, including

Mayor Dennis Archer and Mayor Wellington Webb, the current President of the

Conference of Mayors. The National Realty Committee, which testified in Dearborn,

Michigan on this subject back in 1995, also supports this bill. I am also pleased to

announce that the National Association of Counties along with a number of other

local government organizations have endorsed H.R. 1750 and expressed their strong

interest in legislatively ratifying EPA’s current municipal settlement policy. I ask

unanimous consent that the statements of these supporters of H.R. 1750, and others, be entered into the record.

We must stop holding our communities hostage to the inside-the-beltway poker

game that uses brownfields provisions as the ‘‘sweetened’’ for bills containing controversial provisions sought only by the special interests that have not yet met their

responsibilities to clean up their mess. The good people outside the beltway deserve

better. This Committee, having overseen the implementation of this program since

its beginning, is in the best position to identify the areas of agreement and to provide the states and local governments with needed additional tools to strengthen

their communities. Mr. Chairman, I thank you again for holding this hearing.

Mr. OXLEY. The gentleman’s time has expired.

The Chair would note that there are two votes on the House floor

and it would be my desire to recess at this time and return in approximately 20 minutes. The subcommittee stands in recess for 20

minutes.

[Additional statements submitted for the record follow:]

16

PREPARED STATEMENT OF HON. VITO FOSSELLA, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF NEW YORK

First of all, I’d like to thank the Chairman for having a hearing on such an important and timely issue. Legislation to Improve the Comprehensive Environmental Response, Compensation and Liability Act is much needed. Brownfields are generally

accepted to be abandoned or underutilized former industrial properties in which potential or real environmental contamination hinders or prevents redevelopment

reuse. One issue of particular concern to me is that of liability. It makes no sense whatsoever to saddle new owners with liability for pollution they did not cause or create.

One area of particular concern in my district is an area called Richmond Terrace.

While it has so much property available to potentially develop, business owners are

leery to buy the property for fear of being held liable for cleanup and damages and

banks and insurance companies are leery of putting any financial backing behind

potential investors. Even a GAO report from 1996 on Barriers to Brownfield Redevelopment affirmed this theory:

Superfund’s liability provisions make brownfields more difficult to redevelop, in

part, because of the unwillingness of lenders, developers, and property owners

to invest in a redevelopment project that could leave them liable for cleanup

costs. While brownfields usually are not contaminated seriously enough to become Superfund sites, these parties, still fear that they could be sued for cleanup costs if they become involved with a contaminated site. For example, as a

result of the liability problem and the general riskiness of investing in redeveloping brownfields, banks sometimes refuse to lend funds for this purpose.

United States General Accounting Office Report to Congressional Requesters,

RCED-96-125, Barriers to Brownfield Redevelopment, June 1996, Page 2.

In addition, I believe the States should be responsible for overseeing the redevelopment of Brownfields sites and that if a State registers a Voluntary Cleanup Program with the Federal Government, those Brownfields sites should be free of the

risk of being looked at by the EPA. As it stands now, businesses, municipalities and

potential landowners are fearful of the EPA second guessing the judgments of states

and having to face potential insurmountable problems down the road.

I quote again from that same GAO report:

Although most brownfields are no highly contaminated, cities, lenders, and developers cite the possibility that the liability provisions in CERCLA could be applied to these properties as a major barrier to redeveloping them. United States

General Accounting Office Report to Congressional Requesters, RCED-96-125,

Barriers to Brownfield Redevelopment, June 1996, Page 3.

I strongly believe that we must all work together to foster the redevelopment of

Brownfields sites and help small businesses and others utilize these properties and

therefore make them once again viable community areas as well as economically

productive. Businesses, the financial industry, government and environmentalists

have an excellent opportunity to work together to give these properties new leases

on life. We all need to strike a balance that safeguards the environment and guarantees that these sites are cleaned up thoroughly, and yet also provides businesses

with protection to take them over.

I look forward to working with the Chairman and the rest of the Committee Members on this issue that is not only important to Staten Island and Brooklyn, but to

New York City, New York, and every community around the country.

PREPARED STATEMENT OF HON. RALPH M. HALL, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF TEXAS

Thank you Mr. Chairman for calling this hearing today. I think it is important

that we take this opportunity to closely examine the strengths as well as the possible weaknesses in each of these three bills that address the problems currently

associated with clean-up at Brownfields sites. While voluntary actions seem to have

worked quite well in my home state of Texas, we have heard a great deal of criticism from other areas of the country where they have not been so fortunate, and

the regulations seem to have hindered more than promoted the goal of clean-up and

redevelopment.

I am a cosponsor of two of these bills, H.R. 2580, introduced by Representative

Greenwood, and H.R. 1750, introduced by Representative Towns. I think all reasonable minds agree that we should encourage property owners and developers to take

necessary actions to convert these properties into usable and productive resources

for the community. I think all reasonable minds can also agree that currently their

is a serious legal and political disincentive for property owners and developers to

17

initiate appropriate clean-up actions. While these three bills provide for varying degrees of autonomy to property owners in making certain clean-up decisions, they all

recognize the fact that if clean-up and redevelopment are to be accomplished, we

must move away from the philosophy that erects obstacles and undeserved penalties

toward a philosophy that promotes incentives for responsible action.

I think the Brownfields issue really symbolizes the overall inequity that can be

so easily perpetrated through unfair regulatory policies that seek to simply catch

‘‘the unlucky ones’’ in a trap. I think instead we must make a more honest effort

to attribute responsibility where it is actually due. And when that is not possible,

we must provide incentives rather than penalties to the innocent landowners and

bonafide purchasers who simply find themselves in the wrong place at the wrong

time.

We know that many of these sites serve as major sources of blight and as symbols

of hopelessness in urban areas where almost any kind of economic development

would be embraced enthusiastically by the residents of those communities. We have

a responsibility to encourage rather than penalize those people who would seek to

make this kind of redevelopment a possibility. For these reasons I look forward to

working in a bipartisan fashion, and where appropriate in concert with our colleagues on the Transportation and Infrastructure Committee, towards the goal of

marking up a bill that contains Brownfields provisions that will promote clean-up

and redevelopment, at these sites where people have hesitated to act in the past

due to unfair, punitive and outdated regulatory structures. Mr. Chairman, I thank

you again for scheduling this hearing, and I yield back the balance of my time.

PREPARED STATEMENT OF HON. RON KLINK, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF PENNSYLVANIA

I want to thank Subcommittee Chairman Michael Oxley, and Ranking Member

Edolphus Towns, for holding this hearing today. It is my hope that the Committee

will mark up a brownfields bill during this first session of Congress, and that the

provisions of H.R. 1750, the ‘‘Community Revitalization and Brownfields Cleanup

Act of 1999,’’ will be incorporated into any brownfields bill the Committee sends to

the House Floor. I was pleased to be an original co-sponsor of H.R. 1750, which was

introduced by Ranking Member Towns, Congressman Robert Borski of the 3rd District of Pennsylvania, and Congressman John Dingell, Ranking Democratic Member

of the Committee on Commerce.

The issue of brownfields cleanup is important in all 50 states, and certainly in

Pennsylvania, which has a history of heavy industrial production. Pennsylvania is

working to revitalize industry while taking a leading role in high tech and medical

research. I am pleased that all Democrats in the Pennsylvania congressional delegation have cosponsored H.R. 1750.

I deeply appreciate the endorsements of H.R. 1750 from key government officials

in Pennsylvania. We have received endorsement letters from Mayor Ed Rendell of

Philadelphia, Mayor Tom Murphy of Pittsburgh, and from several communities in

my District, the 4th of Pennsylvania: Mayor James Mansueti of the City of Aliquippa, Mayor William DeMao of the City of Arnold, Mayor Gilmore Hendrickson

of the Borough of Brackeridge, City Clerk Ronald Dinsmore of the City of Jeannette,

Mayor Dennis Kowalski of the City of Lower Burrell, Mayor William Shovlin of the

Borough of Midland, Mayor Timothy Fulkerson of the City of New Castle, Mayor

Patrick Petit of the City of New Kensington, and Mayor Matthew Cucinelli of the

Borough of Rochester.

These government officials recognize that when brownfields are cleaned up, new

businesses come in, jobs are created and the tax base is stimulated. The provisions

of H.R. 1750 provide the best chance for this to happen. Under H.R. 1750,

brownfield sites may include associated rivers, streams, lakes and mine-scarred

land. This is beneficial to Pennsylvania, with its history of coal mining.

I respect the fairness of Chairman Oxley in allowing three bills, with differing

viewpoints about brownfields clean up, to be considered at this hearing today: H.R.

1750, which I support, H.R. 2580 introduced by my Committee colleague from Pennsylvania, Jim Greenwood, and H.R. 1300, introduced by Sherwood Boehlert of New

York. While I respect the efforts and hard work of my colleagues Jim Greenwood

and Sherwood Boehlert, I differ with the provisions of their bills.

Regarding funding, we must recognize that sometimes local governments cannot

afford to clean up brownfields and need financial support. H.R. 1750 is the best bill

providing federal financial assistance. The authorization provisions of H.R. 1750 are

clearly stated.

18

In order to clean up brownfields, the sites must be assessed to determine the type

of contamination, and the level of contamination. H.R. 1750 authorizes $35 million

a year from general revenues, for five years, for grants to local governments for site

assessment. From these funds, local governments can receive a maximum grant of

$500,000 a year, and the local officials oversee the work.

In contrast, both H.R. 1300 and H.R. 2580 cap site assessment grants at

$200,000.

In order to capitalize local government revolving loan funds to clean up

brownfields properties, H.R. 1750 authorizes $65 million a year from general revenues, for five years. From these funds, local governments can receive $500,000 annually, with the Environmental Protection Agency (EPA) having discretion to increase the grant amount to $1,000,000 if significant economic and environmental

benefits would be achieved.

In contrast, H.R. 2580 simply authorizes ‘‘such sums as may be necessary.’’

In order to assist states in developing their voluntary clean up program, where

brownfield site owners or developers work cooperatively with the state, as opposed

to an enforcement driven program, H.R. 1750 authorizes $15 million a year from

general revenues, for five years, for the voluntary clean up program.

In contrast, H.R. 2580 does not authorize funding for voluntary clean up programs.

Regarding liability, H.R. provides liability protection for any person at a

brownfields site if the site is undergoing cleanup in a state cleanup program (including a voluntary cleanup program) as long as the program meets basic criteria such

as protection of human health and the environment, adequate state oversight, and

adequate certification indicating that the cleanup is complete.

In contrast, H.R. 1300 has no qualifying criteria for state cleanup programs.

These are a few instances of the differences that I hope we can iron out in a

markup. However, in this statement, I would rather focus on the positive role that

brownfields programs play in revitalizing blight, thereby protecting our rapidly disappearing green fields—those green spaces around our cities.

In Pittsburgh, Pennsylvania, we had a case we call ‘‘slag to riches.’’ Along the

riverfront what used to be 240 acres of land that was considered unusable, because

it was a former dumping area for industrial slag, will now be valuable residential

property with picturesque views. This is known as Nine Mile Run.

Total private investment in Nine Mile Run is expected to exceed $200 million,

which will be used to develop 713 new housing units, 100,000 square feet of new

neighborhood commercial retail space, and 80 acres of park land. By the time of the

projects’s completion, more than $240 million of new housing stock, $10 million in

new retail construction and 1,680 temporary and permanent jobs are anticipated.

All of this came from revitalizing the abandoned Lectromelt Electroplating plant.

The City of Pittsburgh received a $200,000 grant from the federal government to

begin site assessment.

However, if H.R. 1750 had been enacted into law, when the Nine Mile Run grant

was awarded, the ‘‘Slag to Riches’’ case could have received a $500,000 grant for site

assessment, allowing this procedure to begin earlier.

There are other brownfields success stories in Duquesne, McKeesport and Clairton, Pennsylvania, communities which were once the heart of the nation’s iron,

steel, coke, chemical, glass and electrical manufacturing industries, which experienced traumatic collapses beginning in the late 1970s and extending through the

1980s. This hurt smaller commercial businesses and ruined the communities’ prosperity.

The Steel Valley Authority listed 52 brownfields sites in the southwestern Pennsylvania area totaling 1,420 acres. The solid funding provisions of H.R. 1750 are a

key aspect in helping to build momentum toward economic development for the entire Monongehela Valley.

In addition, in a survey published in April of 1999 by the U.S. Conference of Mayors, the Mayors of 153 cities across the nation estimated that if brownfields were

cleaned up and redeveloped, a conservative estimate of potential tax revenues would

total $955 million annually.

In the survey, Mayors from many Pennsylvania cities—Bethlehem, Erie, our Capitol City of Harrisburg, Lancaster, McKeesport, Norristown, Philadelphia, and York

responded that a sum total of 38,875 jobs could be created for brownfields redevelopment in their communities.

In summary, H.R. 1750 is the best bill to meet the economic redevelopment potential in states like Pennsylvania, which have been hard hit with dying industries.

Not only does H.R. 1750 provide grants to local governments, as well as to site owners and developers, but it authorizes the EPA to provide technical assistance and

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training to individuals and organizations to inventory brownfield sites and conduct

site assessments or cleanups.

A key feature of H.R. 1750 is that the funds are taken from General Revenues,

rather than the Superfund Trust Fund, allowing the Superfund Trust Fund to be

used for National Priority Listing sites.

Because H.R. 1750 focuses strictly on brownfields, rather than the all-encompassing Superfund program, it has a much better chance to be enacted, because

Superfund reauthorization has been a divisive issue, especially when it comes to reinstating the Superfund taxes, as would be done under the provisions of H.R. 1300.

I fervently hope we can hammer out a bipartisan brownfields bill including the

good, solid provisions of H.R. 1750 in the areas of grants, and liability protections

for prospective purchasers, innocent landowners, and contiguous property owners,

while protecting the environment. H.R. 1750 is the most common-sense brownfields

bill, providing the financial assistance and liability protections communities need in

order to redevelop brownfields. Thank You.

Mr. OXLEY. The subcommittee will reconvene.

Having completed our opening statements from the members, I

now turn to our first panel. Let me invite an old friend and a frequent visitor here, Mr. Tim Fields, Assistant Administrator of the

Office of Solid Waste and Emergency Response with the U.S. Environmental Protection Agency.

Mr. Fields, welcome.

Mr. FIELDS. And Lois Schiffer will be joining me.

Mr. OXLEY. Ms. Lois Schiffer from the Justice Department as

well.

We are pleased to have you back, Mr. Fields, and you may begin,

and don’t be too concerned about the 5-minute rule.

STATEMENTS OF HON. TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY

RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY;

ACCOMPANIED BY LOIS SCHIFFER, ASSISTANT ATTORNEY

GENERAL, DEPARTMENT OF JUSTICE

Mr. FIELDS. I will be very brief, Mr. Congressman. Mr. Chairman, thank you for the time to be here to speak before this subcommittee. I am pleased to be here to offer comments on the three

pending bills before this subcommittee, H.R. 1750, H.R. 2580 and

H.R. 1300. I appreciate your leadership in having this hearing on

the very important topic of brownfields assessment, cleanup, redevelopment.

I am accompanied today by Assistant Attorney General Lois

Schiffer, who will be available with me to respond to questions

after this testimony.

The administration believes that environmental protection and

economic redevelopment can complement one another. We are

pleased to see that members of the committee from both sides of

the aisle are interested in enacting responsible brownfields legislation. The Clinton administration continues its support for the enactment of responsible brownfields legislation, and EPA Administrator Carol Browner has testified before both the House and the

Senate earlier this year in support of legislation that would promote brownfields cleanup and redevelopment through Federal

grants and loans, which encourage private sector investment by

providing appropriate liability protection to prospective purchasers

and contiguous property owners, and would clarify liability protection for innocent landowners.

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An enormous amount of bipartisan support has been generated

for these brownfields provisions, and I am confident that the President would sign legislation like H.R. 1750.

The administration did not wait for Congress to enact

brownfields legislation, however, to implement administrative reforms to encourage brownfields redevelopment. In 1995, EPA announced our brownfields action agenda, which has provided local

communities with brownfields assessment grants. It has clarified

liability issues. It has encouraged workforce development and job

creation. It has provided brownfields cleanup revolving loan funds

to communities across the country.

To date, we have awarded more than 300 brownfields assessment

grants and 68 revolving loan fund grants for cleanup. We have

changed policies for prospective purchasers, innocent landowners,

and contiguous property owners. We have created more than 3,000

jobs and allowed private and public sector investment of more than

$1.4 billion through based on EPA’s investment of roughly $100

million.

EPA and the Department of Justice are committed to removing

the barriers to brownfields cleanup and redevelopment. That is

why we have worked together on effective policy changes that clarify liability under the current statute.

For example, more than 110 prospective purchaser agreements

have been negotiated, resulting in the purchase of more than 1,500

acres of contaminated property and the redevelopment of much

more property. We have signed memoranda of agreement with 12

States. Seven more memoranda of agreement under development,

like the ones Congresswoman DeGette referred to earlier.

Mr. Chairman, I would hate to see the progress under that

brownfields agenda inhibited or curtailed by well-intentioned but

ill-conceived legislative proposals. We believe that we should not

inappropriately limit Federal response and enforcement authorities

or provide broad liability exemptions to owners of contaminated

property. We believe that the legislation should not limit EPA’s

ability to list Superfund sites on the national list, where appropriate.

The administration opposes H.R. 2580 and H.R. 1300 as currently crafted. Both bills go much too far in limiting Federal response and enforcement authorities at non-NPL sites. The American people have come to depend on a nationally consistent public

health and environmental safety net provided by Federal environmental laws. Superfund is no different. The Superfund program

and State cleanup programs work together hand in hand to clean

up waste sites. They are not mutually exclusive.

We sincerely appreciate the leadership of Congressman Greenwood on brownfields legislation. We congratulated him as he celebrated the completion of Superfund site number 600 in his district.

However, we are concerned about elements of H.R. 2580 that we

believe would prevent EPA and citizens from using our imminent

and substantial endangerment authority to protect public health

and the environment from serious risk. H.R. 2580, we believe,

would also limit the Federal Government’s authority at sites that

are proposed for Superfund listing. Coupled with the mandatory

Governor’s concurrence requirement for NPL listings, H.R. 2580

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provides an extremely narrow set of circumstances under which

EPA can come back in, even if it is needed, to protect public health

and the environment.

H.R. 2580 provides very minimal criteria for a State response

program, which we believe is inadequate. There are no State program requirements for public participation or adequacy of cleanup.

H.R. 2580 eliminates the requirement to obtain Federal permits

and permit revisions, even when the Federal Government is responsible for overseeing the permit.

The liability provisions in the bill, we believe, are better. With

some modification they could made acceptable, but we are concerned about the restrictions on Federal enforcement and response

capability.

Regarding H.R. 1300, we are concerned with the liability provisions. These provisions allow current owners that purchase property with the knowledge of contamination to avoid liability. This is

inconsistent with long-standing principles of common law and creates significant fiscal consequences for the trust fund.

Like H.R. 2580, H.R. 1300 would take away the Federal Government’s ability to use the imminent and substantial endangerment

standard as a mechanism for protecting public health and the environment. H.R. 1300 has no minimum, qualifying criteria for a State

response or voluntary cleanup program.

Mr. Chairman, we believe we can work together to pass a bill

that encourages people to redevelop brownfields properties by codifying responsible prospective purchaser liability protection, contiguous property owner protection and innocent landowner clarification, as well as other elements of an effective brownfields program.

The administration believes that Congressman Towns’ bill, H.R.

1750, has all the necessary elements of brownfields legislation that

can generate a broad consensus among a variety of local, State, and

private sector stake holders. We remain committed to working with

members of this committee and with Congress to enact brownfields

legislation that can be signed into law.

In H.R. 1750, funding is provided for State response programs

and brownfields grants are provided for assessment and for cleanup revolving loan funds. In H.R. 1750, prospective purchasers, innocent landowners and contiguous property owners are provided

with appropriate liability protections. Under H.R. 1750, crucial environmental safeguards for communities are provided by ensuring

the EPA has the authority to protect human health and the environment, where appropriate.

Mr. Chairman, we believe that brownfields legislation can be enacted that the President can sign. We believe that these three bills,

if modified pursuant to the administration’s comments today,

would be bills and legislation that we could live with. But right

now, we believe H.R. 1750 is the only one that currently meets the

minimal criteria that the administration would need.

Thank you, Mr. Chairman, for your time. Assistant Attorney

General Schiffer and I will be pleased to answer any questions you

and members of the subcommittee may have. Thank you very

much.

[The prepared statement of Hon. Timothy Fields, Jr. follows:]

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PREPARED STATEMENT OF HON. TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR,

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

INTRODUCTION

Good morning, Mr. Chairman, and Members of the Committee. I am pleased to

have this opportunity to appear before you today to: 1) share with you the substantial accomplishments EPA has achieved since the inception of the Brownfields Economic Redevelopment Initiative in 1995; and 2) address the legislative proposals

now before this Committee and the U.S. House of Representatives: H.R. 1300, H.R.

2580 and H.R. 1750.

BROWNFIELDS ECONOMIC REDEVELOPMENT INITIATIVE

Through the Initiative, EPA continues to promote redevelopment of abandoned

and contaminated properties across the country that were once used for industrial

and commercial purposes (‘‘brownfields’’). While the full extent of the brownfields

problem is unknown, the United States General Accounting Office (GAO\RCED-95-

172, June 1995) estimates that approximately 450,000 brownfield sites exist in the

United States. Virtually every community in the country, no matter what the size,

is grappling with the challenge of problems associated with recycling older, mostly

industrial properties. The presence of these properties fuels urban sprawl, luring investment and job development farther from city centers and inner suburbs.

The Administration believes that environmental protection and economic progress

are inextricably linked. The Brownfields Initiative seeks to bring all parties to the

table—and to provide a framework for them to seek common ground on a whole

range of challenges: environmental, economic, legal and financial. As the former Director of the Portland Oregon Brownfields Initiative said, ‘‘brownfields renewal is

one of the most important environmental and economic challenges facing our nation’s communities, calling for partnership among our federal and local governments, businesses and community and environmental leaders. We must work together to build a national brownfields partnership from the ground up.’’ The Agency’s multifaceted initiative represents a significant step forward by the Administration and, according to Renew America, represents ‘‘a new paradigm in locally-based

environmental protection that forges public-private partnerships, promotes innovation, and relies on market incentives and private sector actions.’’

The initial Brownfields Action Agenda announced on January 25, 1995, focused

on the award of Brownfields Assessment Demonstration Pilots; building partnerships to all brownfields stakeholders; clarifying liability and cleanup issues; and,

fostering local workforce development and job training initiatives. By mid-1996,

EPA completed all of its commitments on the initial Action Agenda and continues

to move forward. Let me briefly describe what we have done in the last four years.

Brownfields Assessment Demonstration Pilots

The Brownfields Assessment Pilots have formed a major component of the

Brownfields Initiative since its beginning. To date, EPA has selected 307 pilots in

states, communities and tribes, funded at up to $200,000 each. These two-year pilots

are intended to generate further interest in Brownfields redevelopment across the

country. Many different communities are participating, ranging from small towns to

large cities. In charting their own course toward revitalization, we are seeing many

positive results. The assessment pilot effort combined with our targeted state and

EPA site assessment efforts has resulted in the assessment of 845 brownfields properties. Our assessment pilots have reported the related cleanup of 91 properties, and

determined that more than 574 properties do not need additional cleanup. This has

led to known redevelopment of 51 properties. The assessment pilots have provided

information that they have leveraged more than $1.4 billion in redevelopment funds

and have been the catalyst for support for more than 3,000 jobs as a result of the

EPA program.

Chosen through a competitive process, these pilots are helping communities articulate a reuse strategy that demonstrates model opportunities to organize public

and private sector support, and leverage financing, while actively demonstrating the

economic and environmental benefits of reclaiming brownfield contaminated sites.

The Brownfield pilots enable recipients to take a unified approach to site assessment, environmental cleanup, and redevelopment, an approach that stimulates economic activity and the creation of jobs.

Stakeholders tell the Agency that many Brownfields redevelopment activities

could not have occurred in the absence of EPA efforts. For example:

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• On an abandoned, four-acre railroad site, the city of Emeryville, CA. and a development corporation are planning to construct 200 units of residential housing.

Approximately 100 construction workers have already been hired to build these

housing units. Within the next five years, construction of retail, hotel and office

complexes is expected to create as many as 10,600 jobs and nearly 4 million

square feet of new facilities, and provide an additional $6.4 million in annual

property tax revenues.

• In Shreveport, LA., as a result of $1.3 million in cleanup and redevelopment funding, the former HICA steel foundry and upgrade company has been upgraded

and renovated into the new HICA Steel Castings, LLC, with owners committed

to running an environmentally safe operation in the Cedar Grove neighborhood

of the city.

• In Birmingham, Alabama, efforts are underway to transform a run-down industrial area into a 150-acre industrial park, with 75 acres reserved for heavy industry, a 50-acre distribution center, a business park, and a full-scale retail center. Work on the distribution center is already underway, and by the project’s

completion, more than 2 million square feet of industrial and commercial facilities could be in place. Planners believe that ultimately the area will see the creation of more than 2,000 jobs.

Brownfields Cleanup Revolving Loan Fund Pilots

EPA is building on its experience with the assessment pilots through a ‘‘second

stage’’ brownfields pilot award. These pilots, called Brownfields Cleanup Revolving

Loan Fund (BCRLF) pilots, enable communities and coalitions of communities to

fundthe safe cleanup and sustainable reuse of brownfields through revolving loan

funds that EPA helps to capitalize. Again, EPA’s goal through these pilots is to develop revolving loan fund models in communities across the nation that can be used

to promote coordinated public and private partnerships for the cleanup and reuse

brownfields.

In fiscal year 1997, EPA’s used $10 million of its brownfields budget for the award

of BCRLF pilots at up to $350,000 each. Twenty-three pilots are now in various

stages of development. These early pilots have been the Agency’s pioneers of the

program, and many are expected to make their first loans soon.

As a result of our early experience with the BCRLF pilots, the Agency has determined that recipient of the most recent pilots would benefit from an increased capitalization of $500,000 each. Representing more than 60 communities as single pilot

communities or as coalitions of states and communities, forty-five (45) new BCRLF

pilots were announced just this past May. In ten of the new pilots, states like Massachusetts, Illinois, Arizona and California will assist cities in carrying out a variety

of activities under the BCRLF. We were extremely pleased to see in their applications an increased level of understanding of program parameters and needs and a

sophistication in infrastructure planning. We are confident that the program has

caught hold and can move forward to make loans for brownfields cleanups.

Job Training and Development Pilots

EPA initiated a third brownfields demonstration pilot program in 1998 to help

local citizens take advantage of new jobs created by assessment and cleanup of

brownfields. The Job Training and Development Demonstration Pilot program provides two-year grants of up to $200,000 to applicants located within or near one of

the existing assessment pilot communities. Colleges, universities, non-profit training

centers, and community job training organizations, as well as states, Tribes and

communities, were eligible to apply. Today, 21 job training pilots are in place. The

first 11 were awarded last year, and the most recent 10 pilot awards were announced in May.

The goal of these unique pilots is to facilitate cleanup of brownfields sites and prepare trainees for future employment in the environmental field. The pilot projects

must prepare trainees in activities that can be usefully applied to cleanup employing an alternative or innovative technology. Among the projects proposed in the first

round of pilots, the Jobs for Youth-Boston Brownfields Job Training and Development Pilot, awarded in September, 1998, has already graduated fifteen (15) trainees

from a 17-week training program designed to prepare graduates to work as environmental field and lab technicians, hazardous materials handlers and emergency response technicians. Half of the trainees (8) have obtained jobs, and the remainder

are currently interviewing for employment. In Clearwater, Florida, Career Options,

Inc., awarded a Brownfields Job Training and Development Pilot in September,

1998, graduated 11 trainees from its first class on May 20, 1999.

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Brownfields Partnerships Build Future Solutions

The Brownfields Initiative is clearly about partnerships—with other Federal,

State, and local agencies, and a diverse array of stakeholders. The EPA has undertaken partnership efforts with individual States as well as through broad organizational structures like the National Association of Development Organizations

(NADO), the National Governors Association (NGA), the National Association of

Local Government Environmental Professionals (NALGEP), the Conference on

Urban Economic Development (CUED) and the U.S. Chamber of Commerce. EPA

also forged working relationships with a vast spectrum of other stakeholders, including the Environmental Bankers Association, the Irvine Foundation’s Center for

Land Recycling, the International City/County Management Association (ICMA), to

mention but a few.

EPA continues to work closely with States and Indian Tribes as key partners in

the cleanup and redevelopment of contaminated properties. The Administration supports the continued growth of the State and Tribal regulated and voluntary programs which have greatly expanded the number of sites cleaned up to protect

human health and the environment. To date, 44 States have established voluntary

cleanup programs. Recognizing the important role that State environmental agencies have in encouraging economic redevelopment of brownfields, EPA has provided

$28.6 million in funding to States and Tribes to support the development of these

programs since FY 1997. EPA has proposed to continue to provide $10 million, in

FY00, 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 redevelopment. EPA

is also pleased with the progress it has made in signing MOAs with States. Twelve

States have now signed MOAs with EPA regarding sites to be cleaned up under voluntary cleanup programs. The most recent state to sign an MOA with EPA is Oklahoma in Region 6. Two additional MOAs are now close to signature.

Brownfields National Partnership

Early in the development of EPA’s Brownfields Initiative, the Agency realized

that it needed to find ways to further identify, strengthen, and improve commitments to brownfields, while continuing efforts toward a comprehensive, communitybased approach to clean up and redevelop contaminated property. We recognized the

important contribution of many of our Federal partners to brownfields through their

participation in the Brownfields National Partnership. Through the partnership

Federal departments and agencies can offer special technical, financial, and other

assistance that can be of great benefit to brownfields communities. More than 20

national partners are committing resources and assistance to brownfields. The Federal Home Loan Bank System, for example, is exploring ways to bring more private

investment to redeveloping brownfields properties and, along with the U.S. Conference of Mayors, has selected 50 cities to participate in a project to research opportunities, impediments, and successes by both cities and lenders to address

brownfields.

Many of the commitments by our federal partners were expressed through initial

Memoranda of Understanding (MOUs). EPA has signed MOUs with the Economic

Development Administration of the Department of Commerce, the Departments of

Labor, Housing and Urban Development, and Interior. EPA also is working with the

Agency for Toxic Substances and Disease Registry and county health officials to address the health concerns of brownfields communities. Our partnership with HUD

has been particularly beneficial for brownfields. The HUD Brownfields Economic

Development Initiative (BEDI) grants program is providing $25 million this year in

assistance to cities to redevelop contaminated industrial and commercial sites.

Showcase Communities

The Brownfields Showcase Communities project is an outgrowth of those early

partnership efforts and now forms an important component of the Brownfields Initiative. It represents a multi-faceted partnership among federal agencies to demonstrate the benefits of coordinated and collaborative activity on brownfields in 16

Brownfields Showcase Communities. For example, through the Showcase Community in Glen Cove, New York, a revitalization plan to convert brownfields and

Superfund sites into tourist destinations has been completed. State, Federal, and

local agencies have played a crucial role in securing $18 million in grants from various agencies. In addition, a prospective purchaser agreement was signed between

EPA and the Glen Cove Industrial Development Corporation for the Li Tungsten

and Captain’s Cove Superfund sites. Proceeds from selling the property will go toward repaying response costs.

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The report, Building A Brownfields Partnership from the Ground Up, by the National Association of Local Government Environmental Professionals, (February 13,

1997), presented the views of a network of local government brownfields leaders on

the value of EPA’s brownfields programs and policies. The report calls local government leaders ‘‘a key link in the success of brownfields partnerships, for it is the environmental, health, development and political leaders in our cities, counties and

towns who can best build a brownfields partnership ‘from the ground up’ ’’. EPA has

developed its brownfield capacity for outreach through each of its ten regions. Each

region has a designated ‘‘Brownfields Coordinator’’ to assist and oversee the

brownfields pilots and other actions under the Brownfields Initiative. We believe our

Brownfields Coordinators are the most effective link to communities and form the

linchpin of success under the Brownfields Initiative.

Brownfields Redevelopment and Environmental Justice

These partnerships and those that we will develop in the future represent new

ways of doing business with communities. We are working hard to continue to improve communication and coordination among all stakeholders. In this regard, we

are encouraged by the increasing linkage being made between brownfields redevelopment and environmental justice. EPA is working with the National Environmental Justice Advisory Council (NEJAC) to promote meaningful community involvement and environmental justice. This past June, EPA provided support for a

program held in South Carolina by the Medical University of South Carolina. The

conference, ‘‘Environmental Justice: Strengthening the Bridge between Economic

Development and Sustainable Communities,’’ sought to bring together stakeholders

to explore solutions to the dual achievement of environmental justice and economic

development. The conference also gathered findings for a report to be shared with

the Congressional Black Caucus.

Most recently, as a follow up to the February 1998 issuance by EPA of its ‘‘Interim

Guidance for Investigating Title VI Administrative Complaints Challenging Permits’’

for public comment, the Agency conducted studies to determine whether the guidance would prove to be a barrier to the redevelopment of brownfields if implemented. EPA undertook case studies at six of its Brownfields Assessment Demonstration Pilots. These case studies were recently released, Brownfields Title VI

Case Studies: Summary Report, June 1999, EPA 500-R-99-003, DRAFT. Title VI

complaints, according to the report, have been avoided at brownfields projects because a wide variety of governmental, community and business stakeholders are involved in brownfields cleanup and redevelopment decision-making. These case studies speak to the early and meaningful involvement of communities in the

brownfields process, redevelopment plans and activities for the revitalization of

blighted property.

Redevelopment Barriers—Addressing Liability Concerns

The Agency also committed to addressing the fear of liability and other barriers

impeding the cleanup and redevelopment of brownfields. Over the past several

years, EPA has announced a variety of guidance and initiatives that have had a

positive impact among Brownfields stakeholders in terms of removing uncertainties

often associated with brownfields properties. EPA is promoting redevelopment of

brownfields properties by protecting prospective purchasers, lenders, and property

owners from incurring Superfund liability.

EPA’s Prospective Purchaser Agreement (PPA) guidance issued in May 1995 has

been used to stimulate the development of sites where parties otherwise may have

been reluctant to redevelop due to liability concerns. Through agreements known as

‘‘prospective purchaser agreements,’’ EPA clarifies that bona fide prospective purchasers will not be responsible for cleaning up sites, provided they do not further

contribute to or worsen contamination. The 1995 guidance expanded the universe

of sites eligible for such agreements to include sites where EPA has undertaken, is

undertaking, or plans to undertake a response action. Approximately 110 PPAs have

been negotiated to date. Environmental justice advocates see these agreements as

a tool to promote environmentally sustainable enterprises or green spaces occupying

former brownfields sites next to residential areas.

In 1998, EPA undertook a survey effort to gather information on the impacts of

the PPA process. Preliminary survey data indicate that redevelopment projects

cover over 1252 acres, or 80% of the property secured through PPAs. EPA regional

personnel estimate that nearly 1600 short-term jobs (e.g., construction) and over

1700 permanent jobs have resulted from redevelopment projects associated with

PPAs. An estimated $2.6 million in local tax revenue for communities nationwide

have resulted from these projects. In addition, EPA regional staff estimate that

PPAs have resulted in the purchase of over 1500 acres of contaminated property and

26

have spurred redevelopment of hundreds of thousands of adjacent acres. Using the

survey results, EPA continues to develop ways to improve the PPA process. The

Agency is pleased to see the inclusion of prospective purchaser relief as a common

element of most brownfields legislation being considered by the Congress.

Property Owner Protections

Other guidance issued by the Agency to benefit brownfields assessment, cleanup

and redevelopment have included the ‘‘Policy Toward Owners of Property Containing

Contaminated Aquifers.’’ Prior to the issuance of this guidance in July 1995, people

owning property under which hazardous substances had migrated through groundwater also feared liability under the statute. EPA responded by announcing that it

will not take enforcement actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against owners of property situated above contaminated ground water, provided the landowner did not cause or

contribute to the contamination. Further, EPA also will consider providing protection to such property owners from third party lawsuits through a settlement that

affords contribution protection.

The Agency also is pleased to see the inclusion of innocent and contiguous landowner defenses as common elements of most brownfields legislative proposals. We

believe these liability relief provisions—innocent landowner, contiguous landowner

and prospective purchaser—will provide a great deal of certainty to homeowners,

buyers, and developers involved in the purchase and sale, and cleanup and redevelopment of brownfields properties.

Lender Protections

With respect to the lending industry and to governmental entities who acquire

property involuntarily, EPA was pleased to see the 104th Congress enact the ‘‘Asset

Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, which

included provisions to clarify the liability of lenders and fiduciaries under CERCLA

and other toxic waste laws. This reform, which was developed through a bipartisan

effort, was incorporated into a broader banking reform bill enacted in the final days

of the Congress as part of the continuing budget resolution. This change in the law

is providing significant relief to banks and lending institutions, expanding the availability of credit for small businesses, and greatly facilitating the assessment, cleanup, and redevelopment of brownfields sites. EPA’s lender liability policy clarifies the

steps a lender or governmental entity may take after acquiring contaminated property through, for example, foreclosure or involuntary acquisition.

EPA also is providing ‘‘comfort/status letters’’ in appropriate circumstances to requestors, including new owners, lenders, or developers to inform them of EPA’s intentions at a site. The Policy on the Issuance of Comfort/Status Letters is designed

to assist parties who seek to cleanup and reuse brownfields. EPA often receives requests from parties for some level of ‘‘comfort’’ that, if they purchase, develop, or

operate on brownfield property, EPA will not pursue them for the costs to clean up

any contamination resulting from the previous use. The policy contains four sample

comfort/status letters that address the most common inquiries for information EPA

receives regarding contaminated or potentially contaminated properties. The policy

aims at using such ‘‘comfort’’ toward facilitating the cleanup and redevelopment of

brownfields.

Supplemental Environmental Projects

In addition, EPA encourages the use of Supplemental Environmental Projects

(SEPs) to facilitate the reuse of brownfields through assessment and cleanup

projects at brownfield properties. SEPS are environmentally beneficial projects that

a defendant agrees to undertake in settlement of a civil penalty action, but that the

defendant is not otherwise legally responsible to perform. SEPs enhance the environmental quality of communities that have been put at risk due to the violation

of an environmental law.

Removing Sites From CERCLIS

Finally, EPA believes that the removal of sites from the active Federal inventory,

the Comprehensive Environmental Response, Compensation and Liability Information System (CERCLIS), is having positive repercussions for the Brownfields Initiative. To date, EPA has removed approximately 31,681 sites from CERCLIS. The removal of these sites eliminates the stigma of potential contamination and fear of liability associated with these sites, and allows stakeholders to focus on the future

land use and redevelopment of such sites.

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Brownfields Tax Incentive

EPA is pleased with the passage of the Brownfields Tax Incentive in the last Congress. Passage of the 1997 Brownfields Tax Incentive has enabled the federal government to level the economic playing field between brownfields and greenfield

sites. Under the tax incentive, environmental cleanup costs for properties in designated areas are fully deductible in the year in which they are incurred, rather

than capitalized. This incentive can reduce the capital cost for these types of investments by more than one half. We regard this tax provision as an essential element

of a complete and comprehensive brownfields program and hope it can be made a

continuing and broad tool for brownfields redevelopment in the future. Under current law, the incentive will expire on December 31, 2000. The FY 2000 Budget proposes to make it permanent.

The tax incentive is applicable to properties that meet specified land use, contamination, and geographic requirements. To satisfy the land use requirement, the property must be held by the taxpayer incurring the eligible expenses for use in a trade

or business or for the production of income, or the property must be properly included in the taxpayer’s inventory. To satisfy the contamination requirement, hazardous substances must be present or potentially present on the property. To meet

the geographic requirement, the property must be located in one of the following

areas: EPA Brownfields pilot areas designated prior to February 1, 1997; census

tracts where 20 percent or more of the population is below the poverty level; census

tracts that have a population under 2,000, have 75 percent or more land zoned for

industrial or commercial use, and are adjacent to one or more census tracts with

a poverty rate of 20 percent or more; and Empowerment Zones and Enterprise Communities. Both rural and urban sites qualify for the proposed incentive. Sites on

EPA’s National Priorities List are excluded. In West Chester, Pennsylvania, the tax

incentive was used to help a demolition and environmental service company relocate

its headquarters at a brownfield. This site was in a part of the town suffering a

29.6% poverty rate, well above the 20% poverty rate threshold set in the guidelines.

The company estimates that 100-200 jobs could be created.

Better America Bonds

Innovative approaches and solutions to the problems faced by communities are

manifested in every aspect of brownfields. Innovative financing efforts are no exception. Just as the federal government has helped the brownfields program through

the tax incentive, so, too, will the Clinton Administration’s latest effort through the

proposed Better America Bonds program. To build healthy, livable communities for

the 21st century, the federal government would provide new resources to communities to achieve their ‘‘smart growth’’ objectives. This proposal for FY 2000 seeks

to create $9.5 billion in bonding authority to state, local, and tribal governments

over 5 years. Communities will have access to zero-interest financing for smart

growth projects because investors who buy these fifteen year bonds will receive tax

credits in lieu of interest. The tax credits would total approximately $700 million

over five years. Communities would pay back the principal at the end of the 15-year

term of the bond.

To help communities preserve green space for future generations, protect public

health, and provide for greater economic development, Better America Bonds can be

used for three purposes:

• Preserve and Enhance Open Space: State, Tribal and local governments can create, restore, or enhance parks, preserve green spaces, and protect threatened

farmland and wetlands. Land can be protected either by acquiring title or purchasing permanent easements.

• Protect Water Quality: Rivers, lakes, coastal waters, and wetlands—and drinking

water sources—can be restored or protected through reducing polluted runoff,

the largest remaining threat to the nations’ waterways. Eligible projects to curb

runoff include purchase of sensitive lands, wetlands restoration, and the creation of planted or forested buffer strips along waterways.

• Clean Up Brownfields: Pressure to develop green space can be eased through

cleaning up and reusing brownfields. Communities can acquire and clean up

brownfields for use as open space, or for economic redevelopment in cases where

abandoned brownfields are acquired by the local government through tax foreclosure.

EPA believes Better America Bonds will further the Brownfields Economic Redevelopment Initiative by providing much needed flexible funding that communities

can use for brownfields activities and add an important funding source for site assessments and cleanups.

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KEY ELEMENTS OF BROWNFIELDS LEGISLATIVE REFORM

The Brownfields Economic Redevelopment Initiative has achieved much initial

success. The continuing value of the Brownfields Initiative is its evolution and

promise for the future. To build upon these successful first steps and launch others,

we must not lose sight of our overall goal to revitalize communities. 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

legislative proposals addressing brownfields.

Address Full Range of Brownfields Reforms

Brownfield reforms made under CERCLA should be codified, and should reaffirm

use of the Superfund Trust Fund to 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, innocent landowners of contaminated property and contiguous property owners, 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.

Support Brownfields FY 2000 Budget Request

The Administration has requested funding for the brownfields program in FY

2000 of $92 million to support additional assessment, cleanup and job training pilot

awards, to fund support for targeted brownfields assessments, and to continue support for State Voluntary Cleanup infrastructure and brownfields related job training

efforts. The United States Conference of Mayors has recently reiterated it’s earlier

statement that ‘‘the lack of cleanup funds’’ for brownfields is ‘‘the most frequently

identified impediment.’’ Recycling America’s Land, Volume II, April 1999. EPA urges

the Committee to support this component of the President’s Budget as we work together on other statutory changes that not only will enhance our ability to implement these proposals, but also will enable us to forge stronger partnerships with

States, local governments, communities, and private interests that successfully accelerate brownfields revitalization.

LEGISLATION

The Clinton Administration strongly supports the passage of brownfields legislation and views it as an important step toward restoring hope, opportunities, and

jobs to local communities and neighborhoods that are being held back by the presence of abandoned industrial sites. Through three rounds of administrative reforms,

the Superfund program has made significant progress in cleaning up hazardous

waste sites, protecting public health and the environment, as well as in the assessment and cleanup of brownfields sites.

In the past, the Administration supported brownfields legislation within the

framework for comprehensive legislative reforms to the Superfund program. In light

of the progress being made, the ever increasing need to meet and assist communities in their revitalization, as well as the apparent bi-partisan, and broad-based

public support for brownfields reform, the Administration now supports a targeted

legislative approach which addresses brownfields cleanup and redevelopment, and

specific liability provisions necessary to support brownfields. In addition, EPA

strongly supports the legislation that would reinstate the expired Superfund taxes.

These funds are needed for the ongoing Superfund cleanup effort and the

brownfields program.

EPA is encouraged by the focus that Congress has given to the problems engendered by brownfields and we look forward to working with Congress to enact this

very necessary legislation.

H.R. 2580

EPA is encouraged to see in H.R. 2580, the ‘‘Land Recycling Act of 1999’’, a focus

on the clean up and return of contaminated sites to productive uses. However, provisions in H.R. 2580 severely restrict EPA’s ability to ensure protective cleanups at

sites throughout the country. The Administration opposes the bill in its current

form.

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Enforcement Authority is Severely Restricted.

H.R. 2580 represents the strongest limitations on the Federal ‘‘safety net’’ to date.

While other bills, such as H.R. 1300, have reduced EPA’s (and other persons) ability

to take CERCLA enforcement actions, H.R. 2580 extends these prohibitions to citizens’ and EPA’s imminent and substantial endangerment enforcement authority

under §§ 7002 and 7003 of the Solid Waste Disposal Act. While HR 2580 leaves intact administrative judicial orders or decrees issued or entered into under CERCLA,

SWDA, FWPCA, TSCA, and SDWA before the commencement of a response action

under a state program, H.R. 2580 is ambiguous about the continued viability of

those authorities after the commencement of a response action under a state program.

Given the patchwork of authorities throughout the 50 states, if federal authorities

are eliminated, it is unclear what authorities would be available to protect public

health and the environment. For example, neither Arizona nor Idaho have RCRA

§ 7003-like authorities to address situations that pose an imminent and substantial

endangerment. Accordingly, the Administration strongly opposes the enforcement

bars present in HR 2580.

Further, the bill prescribes only minimal standards that a state cleanup program

must meet in order to trigger the broad prohibitions upon EPA’s and citizens’ ability

to take enforcement actions. In addition, these minimal standards require no demonstration, but instead can be met simply through self-certification. This represents

a significant departure from other environmental laws, which envision a role for

EPA review, and public comment on, a determination that a state program is adequate, and that a transfer of federal enforcement authority is appropriate.

While the inclusion of criteria is an improvement over H.R. 1300, which contains no criteria state programs must meet, we believe the criteria in HR 2580 are inadequate. Notably, while implementation of the program must be in a manner that

is protective of human health and the environment, there is no requirement that

response actions be protective of human health and the environment, as required by

H.R. 1750. Further, under H.R. 2580, a state must only certify the adequacy of its

financial and personnel resources at the point in time when it submits its certification to EPA. There is no assurance that a state ensure adequate resources in the

future, as opposed to H.R. 1750, which requires states to maintain consistency with

the program criteria. This requirement is critical, as state cleanup requirements can

vary widely, and resources can fluctuate over time. In fact, we are aware of several

states whose resources for hazardous waste cleanup programs have been significantly diminished in recent years.

Also of great concern, H.R. 2580’s criteria lack any requirement for public involvement in program development or the selection of response actions. The permitting

process under environmental statutes triggers public participation requirements.

Thus, if an operating facility wants to change their discharge limits under a Clean

Water Act NPDES permit or modify their RCRA permit, the public would have an

opportunity to participate in that decision. Given that the bill also cuts off citizens’

rights under RCRA and CERCLA, H.R. 2580 leaves the citizens most likely to be

affected by contamination in their community with no voice, and no assurances of

a federal ‘‘floor’’ of protection. Accordingly, the Administration objects to the criteria

set forth in HR 2580 as inadequate to ensure protection of human health and the

environment.

The exclusion of the public is exacerbated in H.R. 2580 by its elimination of the

requirement for any federal permit—including RCRA corrective action permits—or

permit revision for the on-site portion of response actions. Although superficially

similar to existing language in CERCLA section 121(e)(1), CERCLA’s current on-site

permit exemption does not negate the role of the public, as the CERCLA remedy

selection process, which requires significant public involvement, acts as an equivalent to the role of the public in the permitting process. However, state programs

may not provide for public participation. Out of 17 state voluntary cleanup programs it surveyed, GAO found that 8 had no requirements for public participation.

GAO/RCED-97-66, Apr. 6, 1997 ‘‘Superfund: State Voluntary Programs Provide Incentives to Encourage Cleanups.’’ If the state programs have no public participation

requirements, then HR 2580’s language rendering federal permits inapplicable represent a further blow to citizen’s rights. Taken as a whole, the bill would allow

states to operate their cleanup programs without adequate public scrutiny, contrary

to the approach taken in all other major federal environmental laws.

In addition to the limitations on public involvement, we are concerned with other

negative effects which will result from the permit waiver. The bill would entirely

extinguish the applicability of permits in states not authorized to administer federal

programs, such as the Clean Water Act NPDES or § 404 permits for dredging and

filling wetlands, or RCRA. For example, not all states are authorized for all compoVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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nents of RCRA, meaning that federal permits issued in states without their own

permitting abilitity will be useless. States and territories not authorized for either

the base RCRA program or corrective action include Iowa, Hawaii, Alaska, Puerto

Rico, Virgin Islands,American Samoa, and the Northern Mariana Islands. States not

authorized for corrective action include Connecticut, Massachusetts, Rhode Island,

New Jersey, Maryland, Pennsylvania, Delaware, Virginia, West Virginia, District of

Columbia, Florida, Mississippi, Tennessee, Kansas, Nebraska, and Montana. In addition, in many cases, a facility in an authorized state may still require a Federal

permit for those aspects of the RCRA program for which the state has not yet been

authorized. Thus, Under H.R. 2580, most RCRA permits, as well as any permit

modifications, would be invalid.

In addition, H.R. 2580 removes the requirement for federal permits and permit

revisions, even when the federal government is responsible for overseeing the permit. H.R. 2580 limits EPA’s ability to respond to emergencies that affect the environment and sets a high and unclear standard for EPA emergency response. For example, EPA issued a Section 7003 order at two adjacent facilities (that did not have

federal or state permits) to address lead and chrome contamination from Lead Products, a battery reprocessing facility and Dixie Electroplating, a plating facility. The

metals from the facility contaminated residential yards. The lead contamination becoming airborne was of particular concern because the citizens’ yards did not have

grass and the streets were not paved. The state’s (Texas) voluntary cleanup program

stopped at the facilities’ boundaries and would not require off-site cleanup. EPA’s

federal RCRA authority provided for the coordination of off-site response with the

State(of Texas)’s on-site facilities.

Inadequate Reopeners Limit Federal Safety Net and Will Cause Litigation.

The Administration is opposed to the provisions in H.R. 2580 regarding state response/voluntary cleanup programs. The bill would eliminate the authority of EPA

and other federal agencies to respond to releases of hazardous substances whenever

a state remedial action plan has been prepared, whether under a voluntary response

program, or any other state program. It is critical that EPA retain its ability and

capacity to respond to threats that may present an imminent and substantial danger to the public health or welfare or the environment.

This federal response ability or federal safety net, has several important aspects.

The federal safety net enables EPA, through its emergency response capacity, to

quickly mobilize and perform a removal because the state does not have the resources to conduct and/or complete removals. The federal safety net also establishes

federal requirements for public participation. These federal requirements offer communities a recourse should a community perceive that the state is excluding the

community from meaningful involvement This bill could eliminate community involvement if none is provided at the state level. The federal safety net provides for

federal permits, which are important protections to human health, welfare, or the

environment. These are important aspects of the federal program that we think

should be retained.

Under HR 2580, where a state law or state-lead cleanup falls short, or a local

community seeks a federal response, EPA will be unable to address public health

or environmental concerns, except under the strictest of circumstances. Unlike other

legislative proposals, HR 2580 extinguishes ‘‘any authority’’ of CERCLA. Thus, HR

2580 eliminates EPA’s ability to fund-finance a response action when necessary.

This is a further departure from H.R. 1300, which would not extinguish EPA’s authority under § 104 of CERCLA.

Further, as noted above, HR 2580 extinguishes EPA’s (and citizens’) imminent

and substantial endangerment authority under both CERCLA and RCRA, a standard that has withstood more than 20 years of judicial interpretation in cases occurring under both CERCLA and RCRA. In addition, this standard is common to most

other major environmental laws, including the Clean Air Act (§ 303), the Clean

Water Act (§ 504), and the Safe Drinking Water Act § 1431. It has been an important attribute in the ‘‘federal safety net’’ that has ensured protection of human

health and the environment for all citizens.

As a result in the departure from the current standard of ‘‘imminent and substantial endangerment,’’ we have serious concerns with the enforcement bar in both H.R.

2580 and H.R. 1300. While it is important to ensure that federal liability does not

inhibit brownfields cleanup and redevelopment, such an inhibition should not come

at the expense of protecting human health and the environment. Our concerns are

exacerbated by the breadth of sites that may be subject to the enforcement bar. H.R.

2580 excludes from the enforcement bar only sites that are listed on the NPL (as

well as federal facilities, and facilities subject to orders or decrees under other environmental statutes). HR 1300, by comparison, at least also excludes sites proposed

31

for listing on the NPL. When combined with the provision in H.R. 2580 that allows

an absolute governor veto on further NPL listings, the bill could include even highrisk sites into the universe of those subject to the enforcement bars. H.R. 2580 is

also unclear as to what type of ‘‘response action’’ is sufficient to trigger the enforcement bar. For example, a site at which a surface removal had been done would appear to be sufficient to trigger the enforcement bar, even if extensive underlying

groundwater contamination continued to threaten nearby drinking water wells.

Compounding the problems above is the new standard for allowing EPA to take

action under H.R. 2580. On those occasions where a state doesn’t request EPA assistance, H.R. 2580 would create a new, and burdensome, standard for EPA enforcement action that would require EPA’s satisfaction of essentially a three-pronged

test: 1) response actions must be immediately required; 2) response action may only

be used in the case of a public health emergency; and 3) the State is not responding

in a timely manner. This new standard will likely cause significant and contentious

litigation. ‘‘Public Health Emergency’’ is not defined in current law nor in H.R. 2580.

The term appears only in CERCLA 104(a)(4) in the context of an exception to

CERCLA § 104(a)(3), which limits EPA from responding to releases that are naturally occurring; that are from products which are part of a building; or that result

from deterioration of a drinking water supply system. EPA has never used 104(a)(4)

to justify a response action. As a result, there is no precedent to define the term.

Additionally, it is not clear how the word ‘‘immediacy’’ differs from the word ‘‘imminence’’. Finally, it is likely that additional litigation will ensue regarding whether

a State is responding in a timely manner. The Administration believes it is inappropriate to risk public health by barring EPA intervention until conditions have become sufficiently (or legally) dangerous enough to lift the enforcement bar.

Targeted Liability Provisions

The Administration generally supports the targeted liability relief provisions of

H.R. 2580 for qualified parties that builds upon the current success of the Superfund program. The Administration generally supports the provisions in HR 2580

that address prospective purchasers, innocent landowners and contiguous property

owners. While these provisions are close to H.R. 1750, there are concerns with the

provisions in H.R. 2580 as written.

We are concerned, for instance, that some of the preferable language in H.R. 1750,

was excluded from H.R. 2580. For example, with regard to the bona fide prospective

purchaser exemption, HR 1750 provides the United States with the ability to place

a lien on other property to recover its costs. Regarding the innocent landowner defense, H.R. 1750 confirms that persons seeking to assert the defense must, in addition to satisfying the requirements of § 107(b)(3) as to care and precautions, must

also demonstrate that they performed an appropriate inquiry as described in

§ 101(35) before buying the property, to demonstrate that they did not know or have

reason to know that the property was contaminated when they bought it.

We are concerned with HR 2580’s approach towards contiguous landowners. We

prefer the approach in HR 1750, which creates an affirmative defense for these parties, whereas HR 2580 gives them an outright exemption. In addition, H.R. 2580’s

provisions relating to contiguous property owners have been severely weakened, creating the opportunity for parties to ‘‘game the system.’’ By removing any requirement for an appropriate inquiry, prospective purchasers can acquire contiguous

property at a substantial discount with full knowledge of the contamination and still

avoid the potential for a windfall lien. H.R. 2580 also removes any care requirement,

due, appropriate, or otherwise, which allows contiguous property owners to turn a

‘‘blind eye’’ to contamination on their property for which they are getting an exemption. Finally, H.R. 2580 omits the requirement that a contiguous property owner not

exacerbate the release. Such requirements are appropriate in this context for parties

seeking a release from liability under CERCLA.

NPL Listing Is Severely Restricted

We continue to oppose provisions that restrict EPA’s ability to list sites on the

NPL without a Governor’s approval. This approval requirements applies even in situations where Tribal, local community, or interstate impacts exist, or where the

State is a PRP. We currently are working with States in a very successful voluntary

effort to seek their approval before listing a site on the NPL. In addition, HR 2580

prohibits listing of sites to the NPL if a Governor assures the site is being addressed

or will be addressed in the future. The bill has no provision for when in the future

a promised action to address contamination might occur.

State Response Program Provisions

See above discussion on federal safety net.

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EPA is developing MOAs with concerned States to ensure that its response authorities complement and encourage rather than duplicate or discourage, voluntary

cleanups. This approach, we believe, strikes the right balance between Federal and

State programs while continuing to provide the needed protection of public health

and the environment for our communities.

Brownfields Assessment and Remediation Grant Programs

H.R. 2580 provisions authorizing EPA to issue grants for assessment and to capitalize revolving loan funds is similar to language in H.R. 1300. The bills provide

funding for assessment grants ($200,000 per grantee) and for capitalization of revolving loan funds ($1M per grantee). Although EPA supports the grant programs

for brownfields, there are several problems we have identified with H.R. 2580 in

this regard. Among the concerns identified: (1) ranking criteria for brownfield grant

eligibility are onerous and call for information that may not become available until

site assessment is completed; (2) the bill requires State matching funds for remediation grants of 50% for receipt of State revolving loan fund grant; (3) political subdivisions of a state could be deemed ineligible to receive loans under remediation

grant program as written; (4) eligible entities for brownfield remediation grants may

include parties who have caused or contributed to contamination; and (5) references

to ‘‘remedial actions’’ preclude removals at brownfields sites. States may receive

grants to capitalize revolving loan funds for ‘‘remedial actions’’ but not removals at

brownfields sites. In addition, we are concerned about the level of funding that

would be provided for the Brownfields grant program since the bill provides for

‘‘such sums as are necessary.’’

Breadth of Current Brownfields Program.

EPA is concerned that H.R. 2580 addresses only portions of the current

brownfields program and is limited to the grant program for assessments and revolving loan funds. In particular, the bill omits technical support and funding for

job training and workforce development.

Although the Committee did not request specific comment on the remedy provision of H.R. 2580, the Agency has provided a brief summary of concerns on section

9.

Remedies Are Less Protective

Superfund cleanups must be protective of human health and the environment

over the long term. H.R. 2580’s remedy title weakens current law and could result

in a Superfund program that would not adequately protect human health and the

environment.

Under the current statute, remedies are required to ‘‘utilize permanent solutions

and alternative treatment technologies or resource recovery technologies to the

maximum extent practicable.’’ Under H.R. 2580, the word ‘‘maximum’’ is stricken.

This change effectively eliminates the importance of selecting permanent remedies

and permanent protection for communities.

Under H.R. 2580 the preference for treatment does not apply to treatment remedial alternatives ‘‘that would increase risk to community or to worker’s health’’.

Under the current law, protection of community and workers is addressed under:

(1) the NCP remedy selection criteria of protection of human health and the environment, and short-term effectiveness; (2) the ARAR waiver of greater risk to

human health and the environment; and (3) worker protection standards. The bill’s

imposition of a separate test for treatment remedies may weaken long-term protection of remedies by reducing treatment, inviting additional litigation, and delaying

cleanups.

Groundwater Is Not Protected

Contaminated ground water is a problem at more than 85 percent of Superfund

sites. With roughly fifty percent of the U.S. population relying on ground water for

their drinking water, the Administration strongly believes that this critical resource

must be protected. Legislation should not weaken the goal of restoring ground water

to beneficial uses, wherever practicable. H.R. 2580 replaces this goal with a much

lower standard. H.R. 2580 creates uncertainty and will cause litigation over what

or how contaminated ground water should be restored. By including the term ‘‘at

reasonable points of compliance,’’ the bill invites disputes over whether drinking

water standards should be met in the groundwater or at the tap. The use of ‘‘reasonable’’ will inspire endless arguments, may let polluters off the hook for cleaning up

ground water, and will force EPA to determine what groundwater a community will

need in the future.

In addition, remedies selected under H.R. 2580 would not keep contaminated

ground water from spreading to uncontaminated ground water. Inappropriate use

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of land use planning principles ‘‘under-protect’’ ground water resources for the future. In fact, H.R. 2580 creates a bias against protecting uncontaminated ground

water and minimizes the need for cleanup because ground water is to be protected

only for its ‘‘reasonably anticipated’’ future use. Current practice and proper nomenclature for ground water should be ‘‘current or potential beneficial use.’’

Cleanups May Be Delayed

Under H.R. 2580 new and confusing provisions and terminology regarding risk assessments will delay cleanups and generate costly new litigation. Risk assessments

under H.R. 2580 must be based on ‘‘best’’ scientific and technical information, and

include site-specific bioavailability data. This new terminology may cause time consuming and costly litigation as the meaning and relevance of new terms are fought

over in the courts. The new language will not improve the quality of remedies; rather, parties involved at sites could needlesslyl tie up cleanups by litigating what is

meant by the word ‘‘best.’’

H.R. 1750

H.R. 1750, the ‘‘Community Revitalization and Brownfields Cleanup Act of 1999,’’

was introduced by Mr. Towns and is co-sponsored by 167 Members. As EPA Administrator Carol Browner stated in her letter of May 10, 1999, ‘‘this brownfield redevelopment legislation is an important step toward restoring hope, opportunities and

jobs to local communities and neighborhoods that are being held back by the presence of abandoned industrial sites.’’ Accordingly, Administrator Browner expressed

the Clinton Administration’s strong support for the approach taken in HR 1750,

which would promote brownfields cleanup and redevelopment by providing grants

and loans, and providing appropriate liability protection to prospective purchasers,

contiguous property owners and innocent landowners; and preserves critical safeguards for communities by ensuring EPA has authority to protect human health and

the environment.

A June 4, 1999 letter from Bill Clinton to the Hon. Deedee Corradini and the Nation’s Mayors echoes the sentiments expressed in Administrator Browner’s letter.

Administrator Browner’s letter notes the broad consensus of Congressional and public support enjoyed by brownfields reform proposals, and requests the opportunity

to continue to work with Representative Towns on appropriate resource levels and

other refinements to the bill. Mr. Clinton’s letter likewise remarks that HR 1750

offers the best prospect for broad public support, because it focuses on those proposals that reflect substantial consensus in Congress and among communities; and

confirms his commitment to continue to work with Representatives Boehlert and

Borski, as well as senators Chafee and Baucus, to achieve truly bipartisan

brownfields legislation.

Many of the provisions in H.R. 1750 find some reflection in those of H.R. 2580

and, as such, both emphasize the appropriateness of targeted legislative solutions

for brownfields. H.R. 1750 also provides relief for prospective purchasers of

brownfields properties, protection to innocent landowners, and defenses to liability

for contiguous landowners, as well as funding brownfields assessment and cleanup

grant programs.

EPA has identified several provisions of H.R. 1750 that are of particular merit. The bill provides $500,000 for brownfields assessment grants and $500,000—up to

$1million—for grants for the capitalization of revolving loan funds. Unique to the

legislation, however, are provisions which (1) ensure grant funding support for local

governments, consortiums, and regional councils; (2) provide opportunities to support projects and programs with particular significant environmental and economic

benefits; (3) make awards to states as determined necessary to facilitate receipt of

funds by one or more local governments and (4) simplify the grant application and

review procedures conducted by the Agency.

In the last case, H.R. 2580 so laboriously details the review and ranking process

for brownfields grants it is doubtful that either the applicant or the Agency would

ever succeed in actually awarding a grant. In many instances, the ranking criteria

in these other bills are onerous and would call for information that may not become

available until a site assessment is completed. These processes require information

like economic projections, employment opportunities, and tax revenue forecasts that

neither EPA nor the applicant could make. H.R. 1750, by contrast, avoids this stumbling block by simply recognizing that a grant application procedure is needed, requiring the Agency to establish one and attaching such grant conditions as may be

appropriate.

H.R. 1750 also limits the procedural requirements of the NCP in brownfields ‘‘to

the extent that those requirements are relevant and appropriate to the program...’’

Refinements to the brownfields program, such as this one, reflect and express the

34

insights and experience we have gained from our brownfields pilots. H.R. 1750 removes yet another barrier to the redevelopment of properties in distressed urban

areas and small towns.

H.R. 1750 provides funding support to states for the development of their voluntary cleanup programs and further clarifies the circumstances under which the

EPA may have a role at a brownfields site, while maintaining a ‘‘safety net’’ in the

event the Agency must act at a site presenting an imminent and substantial

endangerment to the community or the environment. Qualified state programs are

ones where the state is ensuring: adequate site assessment and protection of human

health and the environment; opportunities for technical assistance; meaningful opportunities for public participation; streamlined procedures for expeditious voluntary response actions; adequate oversight and enforcement; and mechanisms for

approval of response action plans. EPA is pleased to see the bill ‘‘grandfather’’ existing memoranda of understanding between states and the Agency. We look forward

to working with Representative Towns on appropriate resource levels consistent

with the President’s Budget and certain refinements to the bill.

H.R. 1300

The Administration has previously commented on HR 1300. EPA Administrator

Carol Browner testified on the bill at a hearing before the House Water Resources

and Environment Subcommittee, and supplied a May 11, 1999 letter from Jon Jennings, Acting Assistant Attorney General, for the hearing record. For purposes of

the present hearing, we will reiterate some of our concerns with HR 1300’s

brownfield provisions.

With regard to liability relief, HR 1300’s treatment of contiguous landowners is

problematic, first, because it creates an exemption rather than an affirmative defense, as set forth in HR 1750, and second, because it lacks most of the eligibility

requirements contained in HR 1750, indeed, it contains fewer than in HR 2580.

We remain particularly concerned with HR 1300’s ‘‘innocent landowner’’ provision,

which essentially collapses into one the innocent landowner defense and the bona

fide prospective purchaser exemption that have both appeared in numerous legislative proposals. Although we generally support protection for both groups, we are

gravely concerned that HR 1300’s provision of relief for current owners that knowingly bought contaminated property is inconsistent with longstanding principles of

common law. Those principles recognize that owners are often in the best position

to address hazardous substances on their property; and that they must take steps

to address hazards on their property even if they did not themselves create the condition. In addition, many of these owners acquired the property, not only with

knowledge of contamination, but also with knowledge of a responsibility for performing a cleanup. Relieving these parties of this responsibility constitutes an enormous windfall for these parties, and creates significant fiscal consequences for the

Trust Fund, especially at sites where the current owner is the only major viable responsible party.

CONCLUSION

The Agency’s administrative reforms have fundamentally improved the Superfund

program. Brownfields reforms made under CERCLA should be codified, and Congress should reaffirm use of the Superfund Trust Fund to address the full range of

brownfield issues. We fully support targeted legislation that will address

brownfields and liability relief provisions for qualified parties that builds upon the

current success of the Superfund program.

The federal attention directed at brownfields redevelopment over the past four

years reflects a growing realization that yesterday’s eyesore is today’s opportunity.

For EPA and the federal government, it is an opportunity to demonstrate that environmental protection can also promote economic development. For communities and

cities, it is the opportunity to return a wasted asset to productivity, job creation and

revenue generation. For local contractors and developers, brownfields redevelopment

is an opportunity to expand their work, to clean up sites and to build new facilities.

For local lenders, it is the opportunity to meet their community reinvestment needs,

often at much less of a credit risk than they might otherwise anticipate. But the

biggest opportunity is for the people who live withbrownfields sites every day. Eyesores are cleaned up. Frequently, potential threats to health are substantially reduced, if not altogether eliminated The value of property increases. And often

brownfields redevelopment provides the neighborhood’s residents with a new sense

of hope.

Thank you. I would be happy to answer any questions on brownfields you may

have.

35

Mr. OXLEY. Thank you, Mr. Fields, once again, for your appearance and for your testimony.

Let me begin with perhaps the mother of all questions in terms

of length at least, and so bear with me.

The Governors, States and the State cleanup agencies, the mayors, cleanup contractors and the GAO state that the broad liability

and uncertainty from potential second guessing caused by Superfund is and has been part of the brownfields problem for almost 2

decades. We have had that discussion before.

I want to provide you some quotes on the relationship of the

Superfund statute to brownfields cleanups. Some of these quotes

are from written testimony of witnesses on today’s second panel,

and other quotes are from witnesses in other hearings or statements in other forums. Without objection, I would like this document placed into the record, and without objection, so ordered.[The

information referred to follows:]

QUOTES ON THE BARRIERS SUPERFUND POSES FOR BROWNFIELDS CLEANUPS

Mayors and Municipal Cleanup Agencies

‘‘Most mayors will tell you that the major impediment in securing private capital

for the clean up and redevelopment of brownfields is Superfund’s liability regime.

We believe that...[i]t is time to free innocent parties, both public and private entities, from Superfund’s unfair liability strictures. Parties that had no part in causing

the contamination at individual sites should no longer be held liable under federal

law . . . It is time to create more certainty for the current owners of contaminated

properties—the hundred of thousands of sites in every place in America that are

likely to be brownfields at some time in the future—by providing them certainty in

their cleanup costs and liability exposure.’’

—The Honorable Jim Marshall in testimony before the United States Senate

Environment and Public Works Committee, May 25, 1999

‘‘We have been living under a federal statute and its strict liability regime—although well-intended and largely aimed at more contaminated properties posing

greater threats to the public—that has dramatically slowed progress by all parties

in coming to terms with lesser contaminated properties, sites we generally describe

as brownfields . . . It has produced a legacy of inaction by property owners, be they

innocent or responsible parties, which we now measure in terms of thousands of

properties and millions of acres... Rhetoric and political advantage will not cleanup

one brownfield, but bipartisan legislative action will... ‘‘[F]inality’’ must be provided

to prompt current owners to move forward and cleanup contaminated properties...The price of keeping EPA over-empowered in this area is simply too high.’’

—The Honorable Jim Marshall in testimony before the United States Senate

Environment and Public Works Committee, May 25, 1999

‘‘It has been shown that Superfund’s liability regime unfairly threatens innocent

parties and too often drives private sector investors from brownfields to more pristine locations. And, we recognize that this Act helps fuel a development cycle that

imposes increasing burdens on all of us.’’

—The Honorable Marc Morial, Mayor of New Orleans, The Honorable Michael

Turner, Mayor of Dayton, The Honorable Jim Marshall, Mayor of Macon,

testimony before the Subcommittee on Water and the Environment, May 12, 1999

‘‘We know that Superfund’s liability regime too often drives private sector investors from brownfields to more pristine locations. We know these rules punish innocent parties, fueling a development cycle that is unsustainable. We know that current law must be reformed to undo the bias toward new land resources over recycling land that is already urbanized or developed. Mitigating the effects of this nearly twenty-year Superfund policy will require actions on several fronts.’’

—The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of the U.S.

Conference of Mayors, testimony before the Subcommittee on Finance and

Hazardous Materials, August 4, 1999

‘‘We have learned that liability under Superfund is their dominant concern. Despite progress in securing ‘‘comfort letters’’ at many sites, lender liability reforms

36

and growing confidence in state program efforts, there is real anxiety, and we would

wish otherwise, among bankers and other lenders on these issues. The specter of

Superfund liability severely limits their ability to increase the flow of private capital

into these projects.’’

—The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of the U.S.

Conference of Mayors, testimony before the Subcommittee on Finance and

Hazardous Materials, August 4, 1999

‘‘We also strongly support liability reforms contained in H.R. 1300 and H.R. 2580

to address the many circumstances whereby cities and other local governments have

acquired brownfield properties in the past. Under these provisions, cities and other

public agencies are rightly afforded innocent party relief in the performance of local

government functions.’’

‘‘We hope that the legislation that is adopted by this Committee, as provided in

H.R. 2580, will encourage states to use these funds to place more priority on efforts

to bolster state programs in support of brownfield cleanups.’’

—The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of the U.S.

Conference of Mayors, testimony before the Subcommittee on Finance and

Hazardous Materials, August 4, 1999

‘‘Without this certainty on state authority, we can’t hope ever to provide the necessary assurances sought by private investors in brownfield sites, let alone secure

final decisions on the hundreds of thousands of brownfields sites we are seeking to

clean up and redevelop. Mr. Chairman, we also want to indicate our interest in seeing provisions that would help accomplish more cooperation and integration of applicable federal laws and standards. One of the areas that H.R. 1300 does not address

is the applicability of RCRA and LUST specifically at brownfield sites. Mayors have

been very consistent in urging more attention in federal policies to a ‘one-stop’

brownfields regulatory program at the state level, where states, which are vested

with delegated authority, can provide more coordinated and integrated programs.

Such an approach would respond to the realities of the contaminants and types of

problems that localities encounter at these sites.’’

‘‘I would note that H.R. 2580 provides authority for RCRA waivers to allow states

to integrate this law’s permit requirements with cleanups of brownfields. I understand that this provision does not diminish or alter RCRA requirements, but is intended to give states some flexibility in delivering a more responsive and coordinated regulatory program in addressing brownfields. This or some variant of this

provision would be very helpful to those of us at the local level who often find ourselves confronting increased complexity at specific sites as we work to return them

to productive use.’’

—The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of the U.S.

Conference of Mayors, testimony before the Subcommittee on Finance and

Hazardous Materials, August 4, 1999

‘‘Legal authority for qualified states to play the primary role in liability clarification is critical to the effective redevelopment of local brownfield sites. A state lead

will increase local flexibility and provide confidence to developers, lenders, prospective purchasers and other parties that brownfield sites can be revitalized without

the specter of Superfund liability or the involvement of federal enforcement personnel. Parties developing brownfields want to know that the state can provide the

last word on liability, and that there will be only one ‘‘policeman,’’ barring exceptional circumstances.’’

‘‘Therefore, in delegating brownfields authority for non-NPL caliber sites to the

states, NALGEP proposes that: EPA should provide that it will not plan or anticipate further action at any site unless, at a particular site, there is: (1) an imminent

and substantial threat to public health or environment; and (2) either the state response is not adequate or the state requests U.S. EPA assistance.’’

—Donald J. Stypula, Manager, Environmental Affairs, National Association of

Local Government Environmental Officials, testimony before the Subcommittee on

Finance and Hazardous Materials, August 4, 1999

The Governors and State Cleanup Agencies

‘‘There is no question 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. Many potential developers of brownfields sites have been deterred because even if a state is completely satisfied that the site has been properly

addressed, and even if the site is not on the NPL, there is the potential for EPA

to take action against the cooperating party under the CERCLA liability

scheme . . . In considering how to restore brownfields sites to productive use, please

37

remember the importance of state voluntary cleanup programs in contributing to the

nation’s hazardous waste cleanup goals.’’

—Tom Curtis, Director of the Natural Resources Group, National Governor’s

Association, in testimony before the Senate Committee on Environment and

Public Works, May 25, 1999

‘‘H.R. 2580 succinctly mandates that U.S. EPA must receive a Governor’ concurrence prior to listing a facility on the National Priorities List. We support this provision as it is clear, unambiguous and satisfies our goal of clarifying the role of the

federal Superfund program in the future.’’

‘‘Both the National Governors’ Association and ASTSWMO oppose provisions

which allow the U.S. EPA to review and approve existing, established State voluntary cleanup programs.’’

‘‘It is our belief that we can no longer afford to foster the illusion that State authorized cleanups may somehow not be adequate to satisfy federal requirements.

The potential for U.S. EPA overfile and for third party lawsuits under CERCLA is

beginning to cause many owners of potential Brownfields sites to simply ‘mothball’

the properties.’’

‘‘H.R.2580 satisfies the goal of clarifying which governmental entity is and should

be responsible for deciding when a cleanup is complete and when a party is released

from liability.’’

—The National Governors Association and the Association of State and Territorial

Waste Management Officials in testimony before the Subcommittee on Finance

and Hazardous Materials, August 4, 1999.

‘‘Another provision that is important to the nation’s Governors concerns the requirement for a Governor to request the listing of a site before a state’s site may

be added to the NPL... Because states are currently overseeing most cleanups, listing a site on the NPL when the state is prepared to apply its own programs and

authorities is not only wasteful of federal resources, it is very often counterproductive, resulting in increased delays and greater costs. The Governors fear a

case where there will be ‘two masters’ of the cleanup process . . . To avoid this we

advocate that Governors should be given the statutory right to concur with the listing of any new NPL sites in their states.’’

—Tom Curtis, Director of the Natural Resources Group, National Governor’s

Association, in testimony before the Senate Committee on Environment and

Public Works, May 25, 1999

The Cleanup Contractors

‘‘I am here to tell you that, in actuality, the true Brownfields market has not kept

pace with expectations. Why? We have been asking our clients just that. Our clients’

responses are fairly unanimous. They fear that EPA will ‘‘second guess’’ Brownfield

cleanups, and require costly site rework at a later date to reach a different site

cleanup standard so they ‘‘hold onto’’ lightly contaminated parcels instead of turning

them over to beneficial reuse. Moreover, there remains potential down-stream liability associated with that reuse which further retards the process. These concerns result in owners of such properties not undertaking redevelopment efforts at viable

Brownfields sites. While EPA has indicated a willingness to enter into, on a caseby-case basis, prospective purchaser agreements at Brownfields sites, the process to

enter into those agreements is quite time consuming and there is no certainty in

the end that EPA will agree to a prospective purchaser agreement.

‘‘H.R. 2580’s provisions in Section 3 provide the finality in Brownfields decisions

that are truly needed in this market, and the actual cleanups, are to accelerate...This provision is very important to spurring increased voluntary cleanup actions at Brownfields sites across the country and reducing possible risks to nearby

populations that are currently not addressed, expressly because of the fear of federal

liability.’’

‘‘The permit waiver for on-site response actions that is contained in H.R. 2580

would remove the barriers to actual on-site cleanup and significantly increase the

pace of Brownfields cleanups.’’

—The Environmental Business Action Coalition in testimony before the

Subcommittee on Finance and Hazardous Materials, August 4, 1999.

Realtors and Property Owners

‘‘One common incentive provided by these programs is liability relief. Typically,

the state will provide some form of liability relief once it has approved a cleanup.

In Ohio, relief comes in the form of a ‘‘No Further Action’’ letter from the state EPA.

Unfortunately, there is no guarantee that the federal EPA will not assert authority

at a future date and require additional cleanup. Without the certainty of knowing

that they are protected from federal as well as state liability, property owners and

38

developers are very reluctant to undertake development of a site which is or might

be contaminated. Let me illustrate with an example. I recently had a contract as

listing agent to sell a large warehouse property. The property was adjacent to a government-owned landfill. There were concerns about contamination on the property

due to migration of heavy metals from the landfill. If we only had to comply with

Ohio law, the government entities that owned the landfill would have removed the

contamination, and the property would have been sold in a reasonable time. However, because of uncertainty over federal liability, the lender and the purchaser were

reluctant to go forward. As a result, it took five years to close the deal, and only

after we found a new buyer and a new lender willing to face the risk of future liability.’’

—National Association of Realtors, May 12, 1999

‘‘The Superfund liability scheme has clearly exacerbated the difficulty of bringing

brownfields back to productive use. Moreover, that liability scheme itself is responsible for the creation of many brownfields. This system makes the owners of contaminated properties liable for millions of dollars in cleanup costs even if they had

nothing to do with contaminating the site and they purchased the property decades

after the contamination occurred. It exposes landowners not only to Superfund actions by EPA, but also to lawsuits decades in the future by as-yet unanticipated parties who incur costs to clean up the property. Concerned about this ‘‘trailing’’ liability, owners of the properties that may be contaminated hold these properties back

from the market. This practice has been referred to as ‘‘mothballing,’’ bringing to

mind the useless hulks of rusting ships set aside by the U.S. Navy after World War

II. When properties which carry the stigma of contamination become available for

sale, most developers avoid them out of concern for exposure to endless uncertainty

and undue financial liability.’’

—Barry J. Trilling, National Association of Industrial and Office Properties,

testimony before the Subcommittee on Water Resources and Environment, May

12, 1999

‘‘The example of states like Pennsylvania, Michigan, Indiana, and others with voluntary cleanup programs support this view. In Pennsylvania, for example, NAIOP

actively participated in the legislative process that resulted in Act 2, the Land Recycling and Environmental Remediation Standards Act. Under that statute, parties

may choose to clean up contaminated properties to one or more of three different

levels, after which they receive a release from liability under state environmental

laws. The remediation standards of Act 2 apply both to voluntary cleanups and

mandatory remedial actions under the state’s version of Superfund. The Pennsylvania statute has been adopted as model legislation by the American Legislative Exchange Council, an organization represented by legislators from all 50 states. Under

Pennsylvania’s program, in effect since July, 1995, 267 sites have already been

cleaned up and nearly 500 sites are in the process of remediation. State voluntary

remediation and revitalization efforts, such as Pennsylvania’s, are significant steps

forward, but these state programs do not protect our members from liabilities arising under the federal Superfund statute.

—Barry J. Trilling, National Association of Industrial and Office Properties,

testimony before the Subcommittee on Water Resources and Environment, May

12, 1999

The General Accounting Office and Others

‘‘Lenders and developers are wary of investing in such contaminated property because, under the environmental laws, they could be held liable for cleaning up the

contamination. They have often cited the liability provisions in the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA), commonly

known as Superfund, as one of the major disincentives to redeveloping brownfields.’’

—United States General Accounting Office Report to Congressional Requesters,

RCED-96-125, Barriers to Brownfield Redevelopment, June 1996, Page 1.

‘‘Superfund’s liability provisions make brownfields more difficult to redevelop, in

part, because of the unwillingness of lenders, developers, and property owners to invest in a redevelopment project that could leave them liable for cleanup costs. While

brownfields usually are not contaminated seriously enough to become Superfund

sites, these parties still fear that they could be sued for cleanup costs if they become

involved with a contaminated site. For example, as a result of the liability problem

and the general riskiness of investing in redeveloping brownfields, banks sometimes

refuse to lend funds for this purpose.’’

—United States General Accounting Office Report to Congressional Requesters,

RCED-96-125, Barriers to Brownfield Redevelopment, June 1996, Page 2.

39

‘‘Although most brownfields are not highly contaminated, cities, lenders, and developers cite the possibility that the liability provisions in CERCLA could be applied

to these properties as a major barrier to redeveloping them.’’

—United States General Accounting Office Report to Congressional Requesters,

RCED-96-125, Barriers to Brownfield Redevelopment, June 1996, Page 3.

‘‘The liability for the costly cleanup of environmental contamination is a barrier

to brownfield redevelopment because it discourages lenders, developers, and property owners from participating in these projects.’’

—United States General Accounting Office Report to Congressional Requesters,

RCED-96-125, Barriers to Brownfield Redevelopment, June 1996, Page 7.

‘‘Perhaps the greatest barrier to industrial site reuse, however, is the 1980 Comprehensive Environmental, Response, Compensation, and Liability Act—commonly

known as Superfund.’’

—‘‘Restoring Contaminated Industrial Sites’’ by Charles Bartsch and Richard

Munson, Issues in Science and Technology, Spring 1994 Issue.

‘‘Superfund laws actually reduce the reuse, supply of, and demand for brownfield

properties.’’

—Unlocking the Brownfields: Overcoming Superfund Barriers to Redevelopment,

by Ross Macfarlane, Jennifer Belk and J. Alan Clark, a Report Done By the Law

Firm of Preston Gates & Ellis, Seattle, Washington.

Mr. OXLEY. This document sets out a clear and unambiguous

point that Superfund creates problems for brownfields and voluntary cleanup programs. Let me read just a few so that the subcommittee can get an understanding of where I am coming from.

This is from the cleanup contractors.

Quote, ‘‘The true brownfields market has not kept pace with expectations. Why? We have been asking our clients just that. These

are the people who are trying to develop these brownfields. Our clients’ responses are fairly unanimous. They fear that EPA will second guess brownfields cleanups and require costly site rework at a

later date to reach a different site cleanup standard so they hold

on to lightly contaminated parcels instead of turning them over to

beneficial reuse. Moreover, there remains the potential downstream

liability associated with that reuse which further retards the process. These concerns result in owners of such properties not undertaking redevelopment efforts at viable brownfields sites. While EPA

has indicated a willingness to enter into on a case-by-case basis

prospective purchaser agreements at brownfields sites, the process

to enter into these agreements is quite time-consuming, and there

is no certainty in the end that EPA will agree to a prospective purchaser agreement.

Continuing to quote, ‘‘H.R. 2580’s provisions in section 3 provide

the finality in brownfields decisions are truly needed if this market

and the actual cleanups are to accelerate. This provision is very important to spurring increased voluntary cleanup actions at

brownfields sites across the country and reducing possible risk to

nearby populations that are currently not addressed expressly because of the fear of Federal liability.’’

Now, this is what the State cleanup agencies say.

Quote, ‘‘It is our belief that we can no longer afford to foster the

illusion that State-authorized cleanups may somehow not be adequate to satisfy Federal requirements. The potential for U.S. EPA

over-file and for third party lawsuits under CERCLA is beginning

to cause many owners of potential brownfields sites to simply

mothball the properties.’’

The State cleanup agencies aalso state: ‘‘H.R. 2580 satisfies the

goal of clarifying which governmental entity should be responsible

40

for deciding when a cleanup is complete when a party is released

from liability.’’

Now, do you disagree with the Governors and the State cleanup

agencies, the mayors, the cleanup contractors and the GAO that

the liability provisions and uncertainty posed by Superfund is inhibiting remediation activities?

Mr. FIELDS. I don’t agree with the comments that have been

made. I would like to clarify why I don’t.

We believe that finality and assurance can be provided if you

enact the type of legislation that we support. We believe that finality can be provided for prospective purchasers, for innocent landowners, and contiguous property owners if legislation were enacted

like H.R. 1750. We endorse voluntary cleanup program memoranda

of agreement with minimal criteria for State programs. We have already signed 12 memorandums of agreement, and we are negotiating with others.

We support liability relief along the lines of Federal legislation

that we endorse and memoranda of agreement for signing off and

agreeing to an acceptable State program that is managing sites no

longer of Federal interest. We believe those are the kind of elements that would provide the kind of the cleanup community, State

officials and those who are being regulated.

We believe there needs to be retention of what we call the Federal safety net, the ability to come in, where appropriate, when imminent and substantial endangerment situations do occur.

This is my last point, and Attorney General Schiffer may want

to add something. The last point I would like to make is this.

Brownfields cleanup and redevelopment are occurring now, even

without the legislation that we support. We think the legislation

we support would make it go even faster. Right now in communities across the country more than 845 properties have been assessed. Many of them are being cleaned up. Much redevelopment

is occurring: 3,000 jobs, $1.4 billion in private sector investment for

cleanup. So I don’t think brownfields cleanup and development are

not occurring. It is occurring in communities across the country,

and the type of legislative proposals we are supporting we believe

would make that go faster.

Mr. OXLEY. So you don’t agree then with the folks who are out

in the field trying to make cleanup occur. In fact, there are a lot

of these parcels being set aside and warehoused, because of the

fear that EPA will come in and second guess the decisions by the

local people as well as the State?

Mr. FIELDS. I would just add that my information is also gathered by people in the field, and I have been to many of these cities

and communities. Over the last 4 years we have implemented

changes to policy, to guidance on prospective purchaser agreements

and contiguous properties, and we have tried to make sure we clarify liability so these deals can occur.

We support the types of provisions in both Mr. Towns’ bill and

Mr. Greenwood’s bill to limit liability for those parties. We want to

limit liability in the statute so we don’t have to worry about working through all the 110 prospective purchaser agreements, through

policy and guidance, as we have under the current statute for the

last many years. We think that Federal legislation would go a long

41

way toward alleviating that fear people have about entering into

deals for prospective purchaser agreements or comfort letters or

other types of comfort that we currently are providing to people

who want to get enter into real estate transactions.

Mr. OXLEY. Well, according to the contractors, they don’t have a

whole lot of comfort, nor do their client.

Let me ask you this. Is there some fear at the EPA that somehow

the States will collude with the contractors and the developers in

developing a site that is not clean enough for your standards? Is

that basically it?

Mr. FIELDS. No. It is very clear that we work real closely with

the States. Many of the States have indicated to us they want a

strong Federal environmental program. They want that as a backstop when they need to become involved. We have entered into

partnerships with 12 States. Seven more are being negotiated. We

believe that, with minimum criteria for what a State response program should be, we are willing to sign off and reach an agreement

with the State with respect to the sites in that State.

Mr. OXLEY. Right, under the current law. I understand that.

I think we are going to have testimony from the second panel,

from at least one of our witnesses from Michigan who will indicate

that, given the choice of an agreement with EPA or supporting legislation from Mr. Greenwood, they would support the ability of the

State of Michigan to make those decisions. They feel that they are

qualified, and they have a distinct interest in not only protecting

the public health and the environment but at the same time fostering job creation in Detroit, as the gentleman, Mr. Dingell, mentioned. Is there some disconnect here between the States and the

contractors and the EPA?

Mr. FIELDS. I think, Mr. Chairman, the issue is that not all

States are created equal. I know the witness——

Mr. OXLEY. You trust some States and don’t trust others?

Mr. FIELDS. No. We have entered into agreement with 12 States.

Michigan—and the witness that will be testifying is from Michigan—is one of those, and we have a very good partnership. We

have agreed to defer on certain sites to that State because we have

a memorandum of agreement with an understanding, however,

that if there is an imminent and substantial endangerment situation in the State of Michigan, the Federal Government would have

the ability to come in and take action if appropriate to protect citizens.

Mr. OXLEY. Isn’t the State qualified to determine a substantial

endangerment and deal with the issue?

Mr. FIELDS. Not all States are going to be capable.

Mr. OXLEY. Which ones are and which ones aren’t? How about

Ohio?

Mr. FIELDS. I don’t want to name States.

Mr. OXLEY. How about Ohio? Are we capable of doing that?

Mr. FIELDS. We are talking to the State of Ohio about whether

we can get a similar agreement. I know you have met with the

EPA Regional Administrator alliance recently, and we want to

work with the State of Ohio to see if we can come together on an

agreement. The State of Ohio is the only one among the region’s

42

five States that we don’t currently have a memorandum of agreement with.

Mr. OXLEY. Who has a bigger interest? What entity has a bigger

interest in making certain that these sites are cleaned up properly,

the State or Washington, DC, Federal Government?

Mr. FIELDS. Well, as overall environmental stewards, we believe

this is a shared responsibility. We have a mandate to protect

human health and the environment. We want to work with States,

with local governments, and with the regulated community to

make sure that mandate is carried out. We work very closely with

States and agencies to implement all of our environmental statutes, whether it is air, water, toxic waste, or RCRA. They are very

important partners in environmental waste management as well as

environmental cleanup. But, in some cases, States don’t have the

requisite staffing, enforcement authorities, or public participation

requirements in place to assure that the people in that particular

State are going to be protected.

Mr. OXLEY. Do you believe those situations demand that the

State provide that kind of ability? If I were living in a State and

I were concerned about human health and the environment,

wouldn’t I, through the electoral process, make certain that the

State address those issues?

Mr. FIELDS. That is exactly what is happening in the State of

Ohio. As you know, there are citizens in the State of Ohio who

have urged us to make sure that, if we negotiate a memorandum

of agreement with the State of Ohio, there be an effective process

for public involvement.

One of the major issues that has been raised in the discussions

with the State of Ohio and Region 5 on negotiating a memorandum

of agreement is that there needs to be a better process for public

participation around voluntary cleanup in brownfields sites in

Ohio. We are trying to work with the State of Ohio to see if we can

craft an agreement that will be satisfactory to the citizens in that

State. You are right. It is very important the citizens who live in

a particular State are comfortable that their environment and their

health is going to be protected.

Mr. OXLEY. Right. And who do they hold accountable? You or the

State officials, the elected State officials? Who is accountable?

Mr. FIELDS. I don’t think we can say it is one or the other. I

think we feel some accountability.

Mr. OXLEY. How so?

Mr. FIELDS. If a major public health threat occurs in Ohio, we

are often called upon by the State, by the way, to take Federal response action. That is something we do all the time. We have taken

a number of Federal emergency response actions in the State of

Ohio at the State’s request.

Mr. OXLEY. Well, Mr. Greenwood’s bill does cover major public

health threats, so that is not really an issue. The issue is the dayto-day operations.

Mr. FIELDS. But his bill does not provide for the flexibility to prevent a major emergency from occurring. We believe that the Federal ability, the Federal standard, ought to be imminent and substantial endangerment in terms of the Federal Government’s ability to come back in.

43

Mr. OXLEY. So we have a philosophical difference. Some of us

think that the States are accountable and have the ultimate responsibility to protect the citizens of their particular State, and you

think that it ought to be the Federal EPA.

Mr. FIELDS. I think it is a shared responsibility but I believe that

to assure even-handed and consistent protection for all citizens

across the country there needs to be an ability for the Federal Government to come back in if there is an imminent and substantial

endangerment situation that is not being addressed.

Mr. OXLEY. Which Mr. Greenwood’s bill covers, by the way.

My time has expired. I am sorry.

Let me turn to my friend from New York, the gentleman from

Brooklyn.

Mr. TOWNS. Thank you very much, Mr. Chairman.

Let me just say that I think the argument has really been made

here very strongly, and you have assisted us, that H.R. 1750 should

be the bill that we move forward with, and I think that by now Mr.

Greenwood probably also agrees with the fact that because mine

will allow them to come back in, and I think that is very, very important. So I want to just make that point before I ask this question.

Mr. Fields, if the Federal EPA is not allowed to act at a site after

a State has performed some action there, no matter how complete

the State’s actions, then the citizens around the site may find

themselves without a resource they now rely upon to address their

concerns. This could be a step backwards for the communities disproportionately affected by an usually high number of contaminated sites. In other words, it could make environmental justice

concerns even worse, to be frank. Where a State may have allowed

the disproportionate siting of a number of facilities that polluted

the community in the first place, then that same State may not be

as responsive to the citizens’ request for more cleanup. Does your

agency hear directly from citizens about the fears they may have

about polluted properties?

Mr. FIELDS. Yes, Congressman. We do hear from citizens who

live in States across the country about the need for the Federal

Government to make sure that, before they delegate, before they

authorize, before they enter into an agreement to transfer responsibility to State programs that environmental justice, community involvement, public participation, and adequacy of cleanup issues be

addressed. So that is a concern and one of the reasons we believe

that there needs to be an ability for the Federal Government to be

able to come back in is to assure that the citizens in the situation

that you point to are going to be protected if the State does not do

so.

Mr. TOWNS. Thank you very much.

Ms. Schiffer, it appears that the innocent landowner provision of

H.R. 2580, section 5, of course in H.R. 1750 which will be section

201, are very similar in providing certainty and clarifying the steps

necessary to qualify for liability protection as an innocent landowner. Would you agree?

Ms. SCHIFFER. I do agree that the innocent landowner provisions

of your bill, Congressman, and Congressman Greenwood’s bill are

quite similar, yes.

44

Mr. TOWNS. However, H.R. 1300 contains a very different innocent landowner provision which the National Association of Attorneys General have commented on, and let me quote. It says it

would obliterate the current owner/operator category from

CERCLA Superfund liability. The State Attorney General also stated that this would be contrary to one of the important tenets of the

CERCLA liability scheme. What is your opinion on the innocent

landowner provision of H.R. 1300?

Ms. SCHIFFER. The innocent landowner provision of H.R. 1300,

which is really an innocent owner provision, is a very drastic

change. And basically what it would have the effect of doing is

retroactively repealing owner liability under the Superfund law,

rather than focusing on what we are trying to achieve with

brownfields, which is to say that if somebody comes in, wants to

be a new purchaser of a property, takes reasonable steps and then

goes ahead and develops the property, that that is a person who

we think shouldn’t be liable, which is what your proposed legislation does and Congressman Greenwood’s proposed legislation does

on notifying a prospective purchaser.

And H.R. 1300 basically says that if people currently own property or in the past owned property and it was contaminated and

they were owners of it and they knew perfectly well they were

going to have to clean up, now we are going to create an exception

for liability. And that is not fashioned in any way to help address

any concerns that there might be about brownfields, and it really

does completely upset the apple cart on the kinds of payment principles, polluter-based principles that have operated effectively

under Superfund.

Mr. TOWNS. Right. Thank you very much.

Let me ask one other question, Mr. Chairman. I think it was on

May 24, 1999, the National Association of Attorneys General commented on H.R. 1300 as follows. They said, H.R. 1300 allows a potentially responsible party to deflect enforcement actions, including

listing on the NPL, so long as it is merely conducting a response

action or engaged in a response action that is under way pursuant

to the identified undefined concept of a State response program.

Such provisions allow PRP many easy routes to avoid enforcement

of listings.

Do you agree with that?

Mr. FIELDS. Well, we are very concerned about that provision,

and we do believe it could interfere with the ability of EPA to list

sites. We are concerned particularly about the requirements for

governor commerce on listing.

Mr. TOWNS. Thank you very much.

Mr. Chairman, I yield back.

Mr. OXLEY. The gentleman yields back.

The Chair now recognizes the sponsor of one of the pieces of legislation before us, Mr. Greenwood.

Mr. GREENWOOD. Thank you, Mr. Chairman.

And let me say to my friend Mr. Towns that I am leaning a little

bit your way on some of this testimony right now, but I suspect

when the next panel gets up you will start leaning my way, and

my bill is going to start looking good.

45

Mr. Fields, in response to Chairman Oxley’s question where he

basically laid out the concerns by a variety of groups about the fact

of the liability and the uncertainty posed by Superfund does inhibit

remediation, your response was twofold. You said essentially that

the Towns’ bill would fix that, and then you also pointed to your

ability to do prospective purchaser agreements, and I think EPA

has done 85 of those and comfort status letters, which I think you

have done 250 or something like that.

Two concerns about that in terms of the adequacy of the comfort

status letters and the prospective purchase agreements. One of

them is that they don’t prevent third parties from intervening

under Federal law, isn’t that right? I mean, that gets EPA off my

back, but it doesn’t give me certainty that other entities won’t use

the statute to come and expose me to liability; is that not correct?

Ms. SCHIFFER. In general, the Superfund statute is one that is

very focused on EPA being the entity that tries to get people to undertake the cleanups, and so we are not aware of a lot of instances

where when there has been no EPA cleanup and the site isn’t contaminated at the level where there would be EPA involvement that

there nevertheless are third parties who are trying to get other

people to cause problems for other people.

Mr. FIELDS. And when these 110 prospective purchaser agreements and 250 comfort letters have been signed, we are not aware

of situations where people have been affected by third party litigation. Most of the time they have been very effective. They have resulted in major redevelopment at these sites. And because of the

due diligence requirements and the requirements that they contribute and be part of the cleanup, we don’t think litigation is a big

issue.

The problem is trying to make sure that prospective purchaser

agreements are being signed and processed in a timely way. It has

taken us, historically, 9 months on the average to effectuate one.

We are doing it faster now because of efforts by Lois Schiffer and

the EPA staff, but we want to make sure it does go faster. We don’t

think litigation has been a major concern, once an agreement is

signed.

Mr. GREENWOOD. I think one of the intangibles about this whole

issue is what we cannot measure, is the number of property owners

who don’t go that route because they are concerned about litigation, and it is somewhat of an imponderable.

The other concern I have is simply that if we have 500,000 of

these sites and you have 250, 300 agreements out there, that that

order of magnitude, at the pace we are going, that would take thousands of years to get such an agreement on each one of these,

which is why in our legislation we try to shift some of the responsibilities to the States because we think it is a volume question,

that the EPA cannot possibly get through 500,000 sites using that

fairly slow and tedious, one-at-a-time Federal nexus in each instance.

Mr. FIELDS. We should just clarify that the prospective purchaser

agreements are not for brownfields sites. These agreements are

mostly sites that are on the Superfund toxic waste list. You are not

going to go the prospective purchaser agreements route for the typical brownfields site.

46

Mr. GREENWOOD. You just use comfort status letters in that?

Mr. FIELDS. Okay.

Mr. GREENWOOD. You are employing the comfort status letters?

Mr. FIELDS. We use comfort letters, status letters and memoranda of agreement between the State and EPA to provide the kind

of comfort that the developers and others need for those types of

sites. They don’t need a PPA for those brownfields sites.

Mr. GREENWOOD. How many EPA employees are involved in reviewing State cleanup decisions, and how many hours does it take,

and how does EPA select which sites it will perform such a review

for?

Mr. FIELDS. Well, it is difficult to give you a quick answer. I will

respond more fully for the record.

Just put in place, for example, that many of these cleanups are,

for example, RCRA, corrective action, 32 States, one territory has

the authority. We have 18 States that we have the authority to

provide oversight for a RCRA cleanup. Forty-four States have voluntary cleanup programs that are being overseen primarily by

State officials. There are several hundred, but we will get back to

you with more precise numbers. But we have got to keep in mind

there is a shared responsibility between EPA and the States in

terms of the oversight, whether you are talking Superfund, RCRA,

or voluntary cleanup programs.

Mr. GREENWOOD. I see my time has expired.

It points to the fact that we have got to somehow get to a bipartisan solution on this because EPA cannot possibly deal with these

hundreds of thousands of sites in our lifetime using those methodologies. I yield back.

Mr. OXLEY. The gentleman’s time has expired.

The gentleman from Michigan, Mr. Stupak.

Mr. STUPAK. Thank you, Mr. Chairman.

Ms. Schiffer, it appears that both H.R. 1300 and H.R. 2580 restrict the Federal Government’s ability to respond to the needs of

citizens when a site, even after some type of voluntary cleanup,

when a site may present an imminent and substantial

endangerment to human health or the environment.

In my opening, I cite the State of Michigan which uses the same

imminent and substantial endangerment standard as contained in

H.R. 1750, and Michigan has signed an agreement with the EPA

in June 1996 that clearly reserves Federal authority over

brownfields sites where an imminent and substantial

endangerment to human health is present or an emergency situation. My question is this, is the imminent and substantial

endangerment an appropriate standard to preserve for Federal action? And, if so, explain why is it important to use this standard

rather than what I believe to be the more narrowly focused standard of immediately required to prevent or mitigate a public health

emergency as set forth in section 3 of H.R. 2580 and a similar provision found in section 104 of H.R. 1300. Can you explain why it

is important to keep that standard?

Ms. SCHIFFER. Yes, Congressman Stupak.

What the ‘‘imminent and substantial endangerment’’ authorities

to protect public health and the environment do is mean that the

Federal Government can come in and stop an accident before it

47

happens, that it doesn’t have to wait until the barrels that may appear to be leaking actually spill, until an explosion actually occurs,

until a fire actually happens before it can go in and use authorities

to stop the problem and get the polluter to pay to fix the problem.

It is a tried and true standard. It has been in the laws for 20 years.

It has been tested in court. People know what it means.

What it is important for and why it is so important to have that

authority is it means that we can go and see that there is a problem and stop the problem before the accident happens.

The emergency standard—by saying that the Federal Government can’t come in and reopen, that federal authorities are not

triggered until there is an emergency—that is in Congressman

Greenwood’s legislation and Congressman Boehlert’s legislation,

may well mean that, basically, the government would have to wait

until the accident happened before it could go in, and that just

seems to be very bad public policy if what you are trying to do is

protect public health and the environment. It is unfortunately the

difference between saying somebody has to commit the violation before you can go after them and that we have laws that prevent the

attempt to commit it so that you can go in and stop it before the

real problem occurs.

Mr. STUPAK. Well, if we are looking to reopen this standard, it

is my understanding that the State of Texas has agreed to a Federal safety net reopener with the EPA that is actually broader than

Michigan’s. It has three circumstances where the State acknowledged that it is proper for the EPA to take action, and they were,

No. 1, where it is determined that the site poses a threat to human

health or the environment; No. 2, or the site poses an imminent

and substantial endangerment; or No. 3, in an emergency situation.

Now, this seems a little broader perhaps, this compassionate conservative Texas reopener. Would that be a basis to look at it, as

opposed to the standards we see proposed in other pieces?

Ms. SCHIFFER. We certainly think that a standard that includes

imminent and substantial endangerment for the Federal Government to go back in, and that includes the other two circumstances

you outlined, is vastly preferable to saying that there has to be an

actual emergency before the bar drops and lets the Federal Government come back in and do the cleanup.

I might add also, Congressman, a response to some of the earlier

questions about ‘‘do we not trust the States.’’ We certainly trust the

States; and, as Mr. Field said, it is a Federal-State partnership

that does it in terms of getting sites cleaned up. But what is really

the keystone is to be sure what we are doing collectively, Federal

Government and State government together, is protecting public

health and the environment; and what we really don’t want is a

system where, because we focused on who has the responsibility between the governments so much, what happens is the public health

gets adversely affected and we don’t have tools to go in and clean

it up.

Mr. STUPAK. You indicated, if I may, Mr. Chairman, the imminent substantial endangerment standard has been litigated, it has

been around for a number of years. If we used a different standard

set forth in H.R. 2580 or H.R. 1300, would that probably open the

door to litigation to determine what this standard is, how it is

48

going to be applied? It seems to me if we have 25 years of case law

and application that has been successfully used, why would we go

to another standard that would be challenged probably in court and

where we really would delay, would we not, cleanups?

Ms. SCHIFFER. I, of course, love lawyers, but I do have to say that

when you have a standard that is pretty well settled in the law,

it does reduce litigation because people know what it means, and

they can go ahead and apply it and lawyers can sort of settle their

cases. But, if you put in place a new standard, you are opening the

doors to lawyers arguing about what it means and leaving it to the

courts to develop law for a while. So, it certainly will be one more

step to putting the lawyers back in Superfund, which we have

made major efforts to take out.

Mr. OXLEY. The gentleman’s time has expired.

Mr. GREENWOOD. I would ask unanimous consent that the gentleman be granted an additional minute and ask if he would yield

to me on this very narrow point.

Mr. OXLEY. Without objection.

Mr. STUPAK. If I could, the standards of the State statutory authority to order cleanups just make it part of the record, the 12

States that I had mentioned, and we have them mentioned right

here, if I may.

Mr. OXLEY. Without objection.

Mr. STUPAK. And then I would yield to Mr. Greenwood.

Mr. GREENWOOD. Thank you for yielding.

Let me just clarify something if I may.

First off, the standard is not that there is an imminent and substantial endangerment. It is that there may—that the threat of release may present, and the problem that some on this side of the

aisle have is that we think that that is big enough to drive a very

wide truck through. And given the fact that Mr. Towns’ bill reiterates the existing standard, we don’t see it as making a difference

at all in being any assistance to the States in getting finality.

Would you respond to that?

Ms. SCHIFFER. I think ‘‘it may present an imminent and substantial endangerment’’ is the phrase both in the Superfund law and

in the Resource Conservation and Recovery Act, which is the hazardous waste regulatory statute; and it is a standard in other statutes as well. So it is a tried and true standard. And while one

might set forth a parade of horribles that might suggest it is a very

wide-open standard, as you say, the truth of it is that it has been

applied in a way that gives the government—and I will say this is

also State governments who have similar provisions and have the

same provisions in their laws—the ability to go in and stop the accident from happening, to see the drums that are likely to leak and

to get them cleaned up before they actually leak.

The problem with the standard of an actual emergency, which is

what is proposed in your legislation and Congressman Boehlert’s

legislation, is that we may well have to wait until the drums leak,

until the fire happens, until the explosion occurs, before we can use

authorities to go in and clean it up, and that isn’t very protective

of public health and the environment. That is preventing the problem from happening rather than stopping it before it actually happens.

49

Mr. GREENWOOD. Well, I don’t want to abuse my time here, but

there certainly is a difference between imminent and may present

imminent, and I think that is a difference that needs some further

discussion.

Mr. OXLEY. The gentleman’s time has expired.

The Chair now recognizes the gentleman from Illinois, Mr.

Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman. I am going to follow

the same line of comments, and if the gentleman from Pennsylvania wants to jump in, please do.

I guess the question that will come up in the next panel is that

the phrase ‘‘may’’ and ‘‘endangerment’’ is actually used to basically

run an ordinary cleanup program and that the States and the

cleanup contractors and the State legislators and the local government entities are saying that that is the big truck that my colleague Mr. Greenwood is saying that needs to be tightened up. So

if it is a regular cleanup program, that the ‘‘may’’ and the

‘‘endangerment’’ aspects of this do not close down the possibility of

cleanup, and I will throw that out for comment.

Mr. FIELDS. I think we have to look at the track record here. As

Lois has said, this has been used in many environmental statutes

for a number years. In implementing this provision, all of the 12

memoranda of agreement that we have signed with State officials

and State agencies include language that says that we may come

back in if there is a situation involving imminent and substantial

endangerment. We have never done that in the more than 6 years

we have had memoranda of agreement in place. We have never intervened in a State program inappropriately where we have had a

memorandum of agreement and that State is overseeing cleanup.

So the practice is such that people should not fear Federal interaction. As we sign a memorandum of agreement, we make it very

clear which sites in the State are of Federal interest and which

sites are not of Federal interest, and we operate in a partnership

with the State. But we believe that the imminent and substantial

endangerment language is critical to maintain environmental protection for all American citizens, particularly where you don’t have

an effective State program in place to provide and assure that protection. States need the backstop of the Federal Government with

the ability to come in when these situations do occur, when we see

a threat about to occur.

Mr. SHIMKUS. And you refused to address a question earlier. I

would like to know, one, which States want a strong Federal

backup, as you have used numerous times, and you have mentioned that there are 12 States that have signed memorandums of

agreement. Are those the 12 States? And, if not, are those 12

States that have memorandums of agreement, are they in support

of a strong Federal backup, and—you know, just kind of connecting

back with the comments from my colleague from the State of Ohio.

I would like to know the facts. I would like to know. We have got

50 States. Which States have come to you and have stated on

record that they want a strong Federal backup and that they need

you and they cannot do the job themselves?

Mr. FIELDS. Well, actually, the information was given to the General Accounting Office in the study commissioned by Congress.

50

That General Accounting Office study, which was completed in December, 1998, is what I was referring to or what Ms. Schiffer was

referring to when we said that State officials commented to the

General Accounting Office that they wanted a strong Federal

backup.

Mr. SHIMKUS. So if I go to that GAO report, that is going to tell

me which State officials said that on the record?

Mr. FIELDS. It will tell you some of the States that indicated they

wanted a Federal backup, yes.

Mr. SHIMKUS. You don’t know the number?

Mr. FIELDS. We don’t know the number of States or which States

specifically. I understand we can provide for the record.

Mr. SHIMKUS. I will have the staff pull up that report.

Mr. FIELDS. I can read them off if you want me to.

Mr. SHIMKUS. Is it 10 percent of the States, 50 percent of the

States, 100 percent of the States?

Mr. FIELDS. I don’t know the precise number of the States.

Quickly, on your second question, we have the list of the 12

States that have signed memoranda of agreement with EPA. I will

be happy to give them to you for the record or read them to you

now if you wish.

Mr. SHIMKUS. Are those the similar—that want the strong Federal backup and feel they cannot do the job without it?

Mr. FIELDS. I don’t know how this set of States correlates with

the States that are in the GAO study. I would have to go back and

compare that study with this list of 12 States that we have entered

into memoranda of agreement for.

Mr. SHIMKUS. Okay. Thank you, Mr. Fields. My time has expired.

Mr. OXLEY. The gentlewoman from Colorado, Ms. DeGette.

Ms. DEGETTE. Thank you, Mr. Chairman.

You know, frankly, I think that Mr. Greenwood’s point about

property owners being concerned about cleaning up, if they think

that the EPA is going to come in, is a good one. I would like you

to comment, if you can, about the effect that you have seen in the

12 States that have signed the memoranda of agreement versus the

States that haven’t. Have you seen more cleanup activities under

the State plans in those States?

Mr. FIELDS. Right. One of those States is Colorado, where we

have signed a memoranda of agreement. We have never overfiled

or intervened in a State cleanup program that has a memorandum

of agreement. Congressman Greenwood’s legislation and Congressman Towns’ legislation on liability for prospective purchasers, innocent landowners, contiguous property owners is very similar in

many respects.

So we support that kind of liability relief. But our history, Congresswoman DeGette, has not been that people should fear the

EPA is going to come back in and take further action when a cleanup is being done pursuant to a State voluntary cleanup program,

as in the State of Colorado. Our history has not been to come back

in.

Ms. DEGETTE. Following up on the previous question, it seemed

to me in Colorado people wanted to do this memorandum of agreement, not because they wanted strong Federal backup, but to get

51

the EPA threat out of their hair. So I think these memoranda of

agreement can work both ways. They can work to give property

owners an assurance that the EPA is not going to come tromping

in and, at the same time, it can give the States that kind of backup

that they want to get. I think it can be a win/win.

Mr. FIELDS. But we don’t sign the memorandum of agreement

unless they satisfy 6 criteria. Those criteria are similar to what is

in H.R. 1750. We believe before we sign a memorandum of agreement, a State ought to meet certain minimum criteria in terms of

involvement and cleanup, et cetera.

Ms. DEGETTE. It is my understanding from looking at these bills

that while these criteria are enunciated in 1750, they are not enunciated in 1300 or 2850; is that right?

Mr. FIELDS. That is correct.

Ms. DEGETTE. The National Association of Local Government

Environmental Professionals called for qualifying criteria under

State voluntary cleanup programs to be established before Federal

authority could be limited or restricted. Have these criteria ever

been promulgated by NALGEP? And, similarly, are they roughly

similar to the criteria you folks use?

Mr. FIELDS. NALGEP, which is a great organization, has recommended that there be qualifying criteria for State programs that

enter into a memorandum of agreement with EPA. They never promulgated that. They did publish a report that contained those criteria, and those criteria are the kinds of criteria that we support

and have been utilizing for State memoranda of agreement. We

think that recommendation by NALGEP is consistent with what is

in H.R. 1750.

Ms. DEGETTE. It seems to me, and Mr. Greenwood and I are

going to talk about this later, but it seems to me that it wouldn’t

be too hard to come up with some criteria that both the locals and

the States and the Federal Government would all like.

Let me just follow up on one point, a confusion that I think we

have had in this hearing. The prospective purchaser and innocent

landowner provisions are the same in the Towns bill and the

Greenwood bill, essentially; would that be correct?

Ms. SCHIFFER. They are similar. There are some differences, particularly in the contiguous landowner provisions. We can probably

bridge the gap with discussions. We have some concerns about that

being created as an exception in Congressman Greenwood’s bill

rather than being a defense; but, in general, they are in the same

direction and we think that the differences could be bridged.

Ms. DEGETTE. Mr. Chairman, may I have another minute?

Mr. OXLEY. Without objection.

Ms. DEGETTE. Thank you.

So we are really not talking about prospective purchasers being

chilled from buying land under this. What we are really talking

about is who maintains the ultimate liability: Is it the polluter, the

original person who put the contamination on the property, or is

it the public who would pay for it—isn’t that the real issue that we

are talking about here?

Ms. SCHIFFER. Yes, that is the real issue; that is, if the site has

not been effectively cleaned up and it is a seriously contaminated

52

site, who is going to bear the obligation to clean it up and who is

going to have to pay for it?

Ms. DEGETTE. No one thinks that it should be an innocent purchaser or some adjoining landowner or somebody like that; right?

Mr. FIELDS. We agree that liability relief ought to be provided to

those people. We support that kind of liability protection.

Ms. DEGETTE. Thank you. Thank you, Mr. Chairman.

Mr. OXLEY. The gentlewoman from New Mexico, Mrs. Wilson.

Mrs. WILSON. Thank you. I want to explore the Federal and

State responsibilities a little bit and this concept of safety net. Is

it your belief under your approach to this that States should have

the authority to reopen Federal selection decisions when the States

believe that they have a better plan? Does it work both ways?

Mr. FIELDS. Well, under the Superfund statute under which both

our Superfund and the brownfields programs are administered,

Congress has clearly defined that the Federal Government is the

lead decisionmaker regarding cleanup decisionmaking. But the law

that Congress gave us to administer does very clearly make State

acceptance——

Mrs. WILSON. We are talking about making some amendments to

that law, and I am trying to figure out what the philosophical point

of view is here. If the issue is a safety net and protection of public

health, if your agency is inadequate at protecting that health, can

the States intervene and override your decisions?

Mr. FIELDS. You are talking about brownfields, the 500,000-plus

low-to-moderate contaminated properties across the country. For

brownfields, as a policy matter, we are trying to give as much authority and responsibility and support to State programs. We fund

these programs at $10 million to $15 million a year.

We support voluntary cleanup programs. We believe the best way

to deal with this is for States to enter into a memorandum of

agreement with EPA that clearly says the sites covered by the

memorandum of agreement are those that the States are going to

take the lead on and that we, the Federal Government, will only

get involved if there is an imminent endangerment situation

where, to protect public health, the Federal Government’s resources need to be provided to do so.

Ms. SCHIFFER. And under existing laws that affect brownfields,

States can have more stringent remedies at sites if they want. All

of the environmental laws are set up so that if States want to have

standards that are more stringent, they are certainly welcome to

put those into place.

Mrs. WILSON. Let’s talk about that question of imminent and

substantial endangerment and particularly as it relates to Superfund. And, Mr. Fields, we have had discussion about Superfund,

and after 7 years of inaction, that site in Albuquerque is being

cleaned up, an action which you admit was inadequate; the response should have gone much faster.

Mr. FIELDS. I would agree with that, yes.

Mrs. WILSON. I take that from your testimony, so I assume that

you will agree with it.

Is it your view, should we change the Superfund law so when the

EPA fails to act on its responsibilities to clean up these sites, that

States can assume the authority for doing so? It is really a question

53

of federalism? Your attitude seems to be that the Federal Government can override the States. Should the States also have the authority to override failure to protect public safety by the Federal

Government?

Ms. SCHIFFER. Maybe we can take a step back for a moment, because I don’t think that what we are saying is that the Federal

Government should be able to override the States. What we are

talking about is when a person wants to buy or work on a

brownfields site which, as Mr. Fields has said, are not the seriously

contaminated sites, what assurance are they going to have if they

go in and effectively clean up that site—and the State says it is an

effective cleanup—that the Federal Government is not going to

come back and say it was not an adequate cleanup?

I might point out if the person cleans up the site to the adequate

level for its use, we haven’t come back, and we don’t come back into

it because we want the site cleaned up, not a Federal role. But

what we are talking about is not overriding the State but, rather,

if the site continues to present an imminent and substantial

endangerment so there is a serious threat to public health and the

environment, giving the Federal Government the authority to go in

and get that site cleaned up so the public health is protected, and

then having the person who caused the contamination pay for it.

It is not the Federal Government overriding the State; it is looking

to be sure that there is a way to get that site cleaned up.

Mrs. WILSON. The question of liability is a different one, but I

think this exchange shows just how far apart we are on a philosophical basis of the relationship between Federal authority and

State authority, and that I am not even able to communicate conceptually that there is a federalism question here, and that if the

Federal Government and the all-powerful EPA comes down with a

decision about what the site cleanup should be, it doesn’t seem—

I don’t seem to be able to communicate to you that perhaps a State

should have the authority to override a Federal decision, because

this pyramid seems to go only in one way. That is one of the fundamental differences that makes it difficult to come up with legislation that will work.

Thank you, Mr. Chairman.

Mr. FIELDS. Just to add one thing to what Ms. Schiffer indicated.

To further address this issue, I think this ought to be a partnership. I don’t think it ought to be an issue of one level of government overriding the other. I think the Federal Government and the

State government ought to sit down together and decide jointly

how they will address the universe of sites.

As you said, Mr. Chairman, there are 500,000-plus of these

brownfields sites across the country. It ought to be a partnership

between the Federal and the State Government where we decide

together what is the best delineation of responsibilities for the

sites. We have been able to do that in many States, and I believe

we can continue to do that in many more States through entering

into a memorandum of agreement which clearly demarcates responsibilities in the State. It ought to be working together in partnership.

Mr. OXLEY. Mr. Fields and Ms. Schiffer, we thank you for your

testimony. Members may submit questions in writing. Without obVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00056 Fmt 6633 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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jection, the hearing record will remain open for 60 days for members to submit written questions and provide extraneous material

for the record. Without objection, so ordered.

Thank you for your participation.

Mr. FIELDS. Thank you.

Ms. SCHIFFER. Thank you.

Mr. OXLEY. The Chair will now call the second panel. On the second panel we have the Honorable Paul Helmke, Mayor of Fort

Wayne, Indiana, on behalf of the U.S. Conference of Mayors; Mr.

Don Stypula, Manager of Environmental Affairs, Michigan Municipal League, on behalf of the National Association of Local Government Environmental Professionals; Claudia Kerbawy, Section

Chief, Superfund, Environmental Response Division, Michigan Department of Environmental Quality, on behalf of the Association of

State and Territorial Solid Waste Management Officials here in

Washington, DC; Teresa Mills, on behalf of the Buckeye Environmental Network, Grove City, Ohio; Jonathan Curtis, President, Environmental Business Action Coalition Washington, DC; Ms. Karen

Florini, Senior Attorney, Environmental Defense Fund, Washington, DC; and Mr. Gary Garczynski, Treasurer, National Association of Home Builders, Washington, DC.

STATEMENTS OF PAUL HELMKE, MAYOR OF FORT WAYNE, INDIANA, ON BEHALF OF THE U.S. CONFERENCE OF MAYORS;

DONALD J. STYPULA, MANAGER OF ENVIRONMENTAL AFFAIRS, MICHIGAN MUNICIPAL LEAGUE, ON BEHALF OF NATIONAL ASSOCIATION OF LOCAL GOVERNMENT ENVIRONMENTAL PROFESSIONALS; CLAUDIA KERBAWY, SECTION

CHIEF, SUPERFUND, ENVIRONMENTAL RESPONSE DIVISION,

MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY, ON

BEHALF OF ASSOCIATION OF STATE AND TERRITORIAL

SOLID WASTE MANAGEMENT OFFICIALS; TERESA MILLS, ON

BEHALF OF THE BUCKEYE ENVIRONMENTAL NETWORK;

JONATHAN G. CURTIS, PRESIDENT, ENVIRONMENTAL BUSINESS ACTION COALITION; KAREN FLORINI, SENIOR ATTORNEY, ENVIRONMENTAL DEFENSE FUND; AND GARY

GARCZYNSKI, TREASURER, NATIONAL ASSOCIATION OF

HOME BUILDERS

Mr. HELMKE. Thank you, my name is Paul Helmke. I am the

Mayor of Fort Wayne, Indiana. I am appearing on behalf of the

United States Conference of Mayors. I am the past president of the

Conference of Mayors and I am the present and co-chair of our

Conference’s Mayors and Bankers Task Force dealing particularly

with the brownfields issue.

You have got my full statement. Let me touch on a few issues.

First of all, Chairman Oxley, I want to thank you for your leadership on the brownfields issues; and Mr. Towns and Mr. Greenwood,

your bills, we appreciate the discussion that is going on today. We

share a common view that our older industrial communities are

struggling to recycle these sites. We know the value and the importance of the farmland that is often needlessly placed at risk.

As spokesperson for the Nation’s mayors and other community

leaders, I hope we can have some legislation successfully enacted

this year. Our communities need help. These are dead zones. These

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brownfields sites exist everywhere and cause problems. Securing

bipartisan consensus on the legislation is a top priority for the Conference of Mayors. We feel that we are making some progress,

thanks to the efforts of this committee, Mr. Greenwood, you and

others in Congress.

I also want to recognize EPA Administrator Browner and other

members of the administration for their efforts in this area as well.

As a Nation we are making progress, but we don’t feel that it is

quick enough or substantial enough. The problem of brownfields

lying fallow, coupled with our Nation’s appetite for use of greenfields, is epidemic proportions. We think the answer lies in getting

a bipartisan agreement moving through this Congress.

This effort will be advanced later today when the bipartisan leadership of the House Transportation and Infrastructure Committee

announce their agreement which has been referred to already tomorrow. That committee will act on a very broad, consensus-based

bipartisan agreement: H.R. 1300, the Recycle America’s Land Act.

This was the legislative effort led by Sherry Boehlert. There is a

lot at stake for all of us in recycling these sites. Each of the bills

is intended to move the Nation forward. Representative Greenwood

and Towns, thank you for your efforts. Let me make a couple of important points.

The time has come to stop punishing innocent parties under

Superfund. And the time has come to undo the bias in favor of

open space that we have in current law and start recycling

brownfields. The time has come to take seriously the unnecessary

consumption of our open spaces, be it farms, forests or other lands.

The time has come to help us level the playing field between greenfields and brownfields. The time has come to help us redeploy properties that take fuller advantage of taxpayers’ prior investments,

the road and street networks, the public transit and rail capacities,

the water and sewer systems, the existing housing stock and the

like. The time has come to help us make welfare reform really

work by recycling properties and creating jobs close by the neighborhoods where the people are living and having the business districts there. The time has come to change policies that drive businesses to look first for greenfields, not brownfields. I know you are

all aware of these efforts.

The Conference of Mayors recently released our second annual

brownfields survey which shows part of the problems that are here

today. One hundred eighty cities reported more than 19,000

brownfields sites representing more than 178,000 acres. This is

larger than the cities of Seattle, San Francisco and Atlanta combined.

We feel that there are close to 500,000 sites nationwide. Cities

were asked to provide estimates of how many people they could absorb if we redeveloped brownfields. One hundred fifteen cities reported they could absorb more than 3.4 million people without appreciably adding to the infrastructure. That is equal to the population of the city of Los Angeles. It is equal to 16 months of our

Nation’s population growth.

In the area of job creation, the 168 cities responding estimated

that reuse of brownfields cogenerate more than 675,000 jobs. It is

important to get something done and get something done now. We

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have got a partnership with bankers, but they have told us that

they are not willing to move forward on brownfields, on lending to

brownfields, unless there is legislative effort. They are concerned

about the liability issue. They are willing to put the investment in

if the liability issue and some of the other brownfields issues that

we are discussing are taken care of.

Let me comment on the legislation. We want to emphasize, first

of all, the importance of liability reforms. In addition to the prospective purchaser provisions, which is a common element in the

pending bills and absolutely crucial, we strongly support the liability provisions contained in H.R. 1300 and 2580 to address the circumstances where cities and other local governments have acquired

brownfields in the performance of their legislative functions, our

government functions. We need the funding for cleanup. We need

to strengthen the voluntary cleanup programs and clarify the balance between State and Federal authority. And you might want to

look at the Transportation Committee’s agreements on these issues

to see the balance. We need some sense of finality.

We have urged more attention to Federal policies that provide for

a one-stop brownfields office. The basic problem that we face, and

I have listened to the debate earlier today on liability, is that these

brownfields sites are staying in our cities. They are dead zones.

They become cancer zones and take down our neighborhoods. And

while folks are arguing at the Federal level or other levels about

who is responsible, basically people are not coming in to develop

these properties because they are not getting finality and they are

concerned about liability.

If we can get some help on liability and finality, we feel in H.R.

1300 we can help redevelop these properties and strengthen our

neighborhoods and cities and stop eating up our farmland. Thank

you for the opportunity to testify.

[The prepared statement of Paul Helmke follows:]

PREPARED STATEMENT OF HON. PAUL HELMKE ON BEHALF OF THE U.S. CONFERENCE

OF MAYORS

Mr. Chairman, I am Paul Helmke, Mayor of Fort Wayne, Indiana.

I am pleased to appear today on behalf of The U.S. Conference of Mayors, a national organization that represents more than 1,050 U.S. cities with a population

of 30,000 or more.

The Conference and its member mayors have been involved extensively in the legislative debate on brownfields redevelopment and related efforts to enact much

needed reforms to the nation’s ‘‘Superfund’’ law.

I presently serve as a as co-chair of the Conference’s Mayors and Bankers Task

Force which is focusing on financing brownfield redevelopment deals. I am also a

Past President of the Conference of Mayors.

Mr. Chairman, the Conference’s statement addresses a number of areas pertaining to the legislation before this Subcommittee today.

• First, it discusses why we believe Congress needs to act on legislation to further

the efforts of cities and other communities in recycling brownfield properties.

• It presents new information documenting the scale of the brownfields problem and

the many benefits that can be achieved by federal policy changes in support of

our efforts.

• It explains what mayors have been learning in our continuing work with bankers

and other financial interests, particularly how legislative reforms can help stimulate additional private sector investment in these sites.

• Finally, it reviews how pending legislation responds to the many issues raised by

mayors and others who are seeking to redevelop these sites.

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WHY CONGRESS NEEDS TO ACT ON LEGISLATION

Mr. Chairman, I would like to begin by acknowledging your continuing efforts,

and those of others on this Committee, to address the many issues pertaining to

brownfields redevelopment and selected reforms to the nation’s Superfund law.

Securing bipartisan consensus on legislation on these matters is a top priority for

The U.S. Conference of Mayors. Mr. Chairman, we believe the time has come to act

decisively and promptly on brownfields and selected Superfund reforms.

Mr. Chairman, the Conference also acknowledges and appreciates the many efforts by the Administration, particularly U.S. EPA Administrator Carol Browner,

and those of you in Congress who have supported policies and initiatives, such as

funding for local brownfield programs, to further our efforts to recycle America’s

land. These programs and policies have certainly helped, and again let us underscore that we are very appreciative of these efforts. But, as a nation, we are not

making progress at a rate that is quick enough or substantial enough given other

considerations, which we discuss further in this statement.

The problem of brownfields lying fallow, coupled with our nation’s appetite for

open space, is of epidemic proportions. To date, our collective actions are inadequate

in meeting these and other challenges before the nation.

Anyone who examines the brownfields issue acknowledges the need for broader

strategies to promote the redevelopment of these sites. They also share a sense of

urgency in acting promptly to address this national problem.

Need for Bipartisan Action

For our part, we have tried to articulate why bipartisan action and leadership by

the Congress and the Administration are needed. The Conference has also focused

its efforts in support of broad, bipartisan legislative initiatives.

Since I served as Conference President, the nation’s mayors have worked with

Representative Sherwood Boehlert to support his efforts to secure bipartisan agreement on these issues. It now appears that these efforts have helped produce a consensus-based bipartisan agreement. Tomorrow, the House Transportation and Infrastructure Committee is expected to act decisively on its pending legislation, H.R.

1300, the ‘‘Recycle America’s Land Act.’’

The agreement that will come before that committee affirms our view that a national strategy to deal brownfields necessarily requires broad consensus among

Democrats and Republicans. We believe that such a consensus needs to be enduring

over time, because the nature of this problem does not lend itself to a one-time legislative correction.

Each of the bills before you today is intended to move the nation forward in dealing with brownfields. We know that this legislation is not an endpoint. We anticipate working with you and future Congress’ on redirecting the tax code, infrastructure investment patterns particularly in transportation, and other policies in the environmental and housing arenas, to make recycling our nation’s land part of the nation’s development life cycle.

We also envision an enduring bipartisan commitment by the Congress to challenge investment practices and public, private and individual decision-making that

unnecessarily consume our precious greenfields as brownfields are discarded.

Effects of Current Policy

We know that Superfund’s liability regime too often drives private sector investors

from brownfields to more pristine locations. We know these rules punish innocent

parties, fueling a development cycle that is unsustainable. We know that current

law must be reformed to undo the bias toward new land resources over recycling

land that is already urbanized or developed.

Mitigating the effects of this nearly twenty-year Superfund policy will require actions on several fronts. The legislation before you today is the first step in reversing

or slowing down our predisposition for pristine land. Foremost among these provisions are protections for innocent party developers and others as well as resources

and other incentives to help us undo the stigma on these properties and begin to

reshape investment decisions by the private sector.

We also share the view that the problem of brownfields is national in scope and

transcends more localized interests in reusing these properties.

Let us explain further. As I have so often discussed in my speeches on this subject, we see a nation where our open spaces—farms, forests and other lands—are

being consumed at an alarming rate. At the same time, we know that the nation’s

already substantial and growing inventories of previously developed lands, most notably brownfields, are vast and can be tapped to slow our nation’s demand for open

space.

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We see a nation where existing communities, particularly our older industrial centers, suffer unreasonably from the lingering effects of economic shifts and prior land

uses. Once-productive lands lay fallow or underutilized, as inventories of

brownfields grow relentlessly all across the nation. And, adding Superfund to the

mix is one more burden added on. All of us know that this cycle—abandoning used

properties in favor of pristine greenfields—can’t be sustained without serious consequences for the nation.

At the same time, with your support in the Congress and in the Administration,

mayors are dealing with public education and public safety, updating their infrastructure, initiating other investments and improvements to make our cities more

attractive to private investors, families and individuals.

All of us increasingly understand that our patterns of urbanization are already

saddling our citizens and our nation with unanticipated and unacceptable burdens,

promising only more of the same in the not too distant future. Shrinking open

spaces in areas where most Americans live and work is just one symptom of the

many ills brought about by this cycle of using and disposing of our land.

Consider some examples of this such as declining air and water quality, escalating

flood control and transportation investment needs, and threats to drinking water

supplies. As one indicator, consider that of the more than 1,050 U.S. cities with a

population of 30,000 or more, nearly two-thirds of them are in areas that exceed national air quality standards for ozone. We know our development patterns are aggravating efforts to combat air pollution in areas where so many Americans now live

and work. And, such patterns challenge us in other important areas, such as in the

transportation arena where we are working to increase mobility, improve air quality

and grow the economy.

To illustrate this point further with brownfields, we have sites that are already

situated to take advantage of road and street networks, public transit and rail capacities, as well as other assets that come with reusing properties in existing communities. At the same time, we are investing at a feverish pace to build new roads,

new streets, new schools and other new systems to serve fewer people living farther

away from existing and established communities.

We all know where this development cycle is taking us and the stresses it continues to place on existing communities, our natural resources and available public

and private capital resources. How we consume the nation’s land resources, including our failure to effectively recycle brownfields, is at the core of this.

We also see a nation where existing communities which are repositories for so

much of our nation’s human, economic, environmental and cultural resources needlessly placed at risk, as we, collectively, turn a blind eye to the wasteful use of our

nation’s land.

Each of us here today, and mayors and local officials across this country, can testify to these realities and offer perspectives on the broader challenges before the nation. For most of us, it is about renewal and the sustainability of existing communities, where so many Americans now live and work and upon which all of us depend. It is where we have invested generations of the taxpayers dollars and where

we continue to extract so much of the wealth that keeps the national, state and regional economies growing.

It is also about meeting the challenge of making welfare reform work where jobs

are being created and retained in close-by neighborhoods and business districts, not

just an exercise in terminating public assistance and sentencing our most vulnerable citizens to endless bus trips elsewhere in search of jobs and income.

For many mayors, redevelopment of these sites is about securing a fairer share

of state and federal resources to upgrade infrastructures—water, sewer, roads and

streets, school buildings—to make their communities more competitive in the marketplace. This is about leveling the playing field, offering some comparability in the

quality of public facilities and infrastructures. We now offer modern and new infrastructures in our growing areas, but we do so by directing substantial shares of the

public’s capital to these areas, while depleting the asset base of our existing communities.

Just to cite a few examples of many. We would point out how Clean Air standards

are now applied to the established and denser, closer-in areas of the non-attainment

areas, not the outlying and developing areas which have gone unnoticed in air models. Or, consider the application of municipal stormwater requirements to the preponderance of larger and established communities, like cities with a population of

100,000 or more, not the faster growing and newer developing areas where options

are more plentiful and can be deployed more readily at less cost. These are examples of federal policies which further motivate businesses to look for greenfields,

where too often our transportation and other infrastructure investment dollars are

more plentiful or soon will be captured.

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For our discussion this morning, consider what we know about Superfund and

how its liability provisions have scared private sector investors away from already

urbanized lands, much of which is viewed as ‘‘tainted’’ property or brownfields, and

toward our greenfields.

Yet, despite this record before the Congress and this Committee, and the acknowledgement by so many policy-makers of the effects of brownfields on the nation, we

continue to search for ways to break out of the Congressional impasse. We are very

hopeful that the House Transportation and Infrastructure Committee’s agreement

on H.R. 1300 will demonstrate that there is a way out of this impasse.

Mr. Chairman, we know that you and the Members of this Subcommittee are well

attuned to these issues, as evidenced by the very important provisions included in

the legislation before you today. We believe it is crucial that you act, and act in a

bipartisan way, to help change the way we use land in America.

We must adopt these reforms, and do so this year, to provide more parity for decisions affecting how our land resources are used. Such reforms will help us to grow

smarter in the future.

These reasons explain why the nation’s mayors are so strongly in support of bipartisan legislative efforts to redirect federal policies and further engage with our

communities in tackling the brownfields problem.

NEW INFORMATION ON SCOPE OF BROWNFIELDS PROBLEMS AND BENEFITS OF POSITIVE

POLICY REFORMS

Mr. Chairman, I am pleased to report to you and this Subcommittee on the findings of the Conference’s Second Annual Brownfields Survey. Information from this

report supports many of our statements about why legislation is needed. It also substantiates many of the key provisions of the pending legislation, be it H.R. 1300,

H.R. 1750 or H.R. 2580, before the Subcommittee today.

Mr. Chairman, let me now provide you with some of the key findings to amplify

further what we believe are some of the key issues before this Subcommittee today

as you prepare for action on pending legislation.

First, the findings confirm that brownfields are a national problem and broad in

scope. Our results are drawn from more than 220 cities, a sample of cities, both

large and small, in 39 states and Puerto Rico.

In our survey, 180 cities, collectively, reported more than 19,000 brownfields sites

totaling more than 178,000 acres, a land area that is larger than the cities of Seattle, San Francisco and Atlanta combined. This sample size represents a relatively

small universe of the nation’s more than 28,000 municipalities, suggesting a scale

to the problem that is disturbing at best.

Cities were asked to identify obstacles to redeveloping brownfields in their communities. Of the top three responses, the need for cleanup funds was identified as

the number one obstacle, followed by liability issues and the need for environmental

assessments. The relative ranking of obstacles is the same as last year’s survey of

about 140 cities.

Mr. Chairman, we note that the pending legislation deals directly with the top

three issues that were identified in our survey. Each of the bills address a range

of liability issues affecting innocent public and private parties and they also authorize funding for assessment of these sites and to clean up brownfields.

We also found that three out of every four cities expressed the view that their

communities will need additional resources beyond cleanup funds and assessment

funds in support of their efforts to redevelop brownfields. This finding underscores

earlier points in our testimony about the need to look at the tax code and incentives

here as well as how infrastructure investment dollars are being deployed.

The survey also documented the substantial benefits that can be realized for cities

and the nation through the redevelopment of these sites. About two-thirds of the

respondents provided estimates of local revenue gains which could be realized

through redevelopment of brownfields. Collectively, they estimated the potential

local revenue gains of nearly $1 billion annually under a conservative estimate and

about $2.7 billion annually under an optimistic estimate.

In a related area of inquiry, cities were asked to provide estimates of how many

new people they could absorb without adding appreciably to their existing infrastructure. While 180 of the respondents indicated they could absorb more people,

only 115 provided actual numbers.

Astoundingly, these 115 cities reported that they could absorb more than 3.4 million without adding appreciably to their infrastructure, a population about equal to

the City of Los Angeles, our nation’s second largest city. To put these numbers in

context, this capacity is equal to about 16 months of the nation’s population growth.

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In a relatively small sample of municipalities nationwide, albeit generally larger

ones, the survey provides clear evidence of the substantial, incumbent carrying capacity of existing communities. If we can find ways to tap these capacities, and we

believe that brownfields redevelopment is a key piece to this equation, we can realize substantial savings for all of the nation’s taxpayers. Consider the potential savings to the nation if we can minimize the public and private costs of building the

equivalent of one new Los Angeles City every 16 months over the next decade.

And, consider the implications of this in terms of our consumption of land. If we

pursue policies, like an expanded commitment to brownfields redevelopment and

other means to reinforce existing communities, we can slow the nation’s consumption of farmlands and open spaces. Today, the nation is growing in ways that uses

more and more land to serve fewer and fewer people.

In the area of job creation, 168 cities estimated that reuse of these brownfields

could generate more than 675,000 jobs. This supports our claims that there are vast

opportunities to develop jobs in existing urban areas and neighborhoods, a particularly important finding as we continue to implement welfare reforms emphasizing

welfare to work.

Finally, in our findings on the status of state voluntary cleanup programs, cities

reported that where such programs were in effect, a sizable majority indicated that

these programs were at least satisfactory, if not better.

Alternatively, you can describe these results more negatively by combining cities

that indicated the questions on state voluntary programs were not applicable with

those giving their state a ‘‘not very good’’ or ‘‘poor’’ ranking. Under this method,

more than one-half of the respondents indicated that voluntary cleanup programs

didn’t apply or they were ranked poorly. This assessment suggests the need for further investment in state voluntary cleanup programs, as provided in the pending

legislation before you.

PERSPECTIVES ON BANKING AND LENDERS SUPPORT FOR BROWNFIELDS

Mr. Chairman, as you know, the Conference has been working extensively with

bankers and other financial interests to explore ways to increase investment in

brownfields redevelopment.

Last year the Conference formed a Mayors and Bankers Task Force to work with

representatives of the Federal Home Bank System and others to examine ways to

facilitate investment by member banks in brownfields.

We have learned that liability under Superfund is their dominant concern. Despite progress in securing ‘‘comfort letters’’ at many sites, lender liability reforms

and growing confidence in state program efforts, there is real anxiety, and we would

wish otherwise, among bankers and other lenders on these issues. The specter of

Superfund liability severely limits their ability to increase the flow of private capital

into these projects.

We have heard repeatedly—in our work with members of the Federal Home Loan

Bank System through our Task Force and in our other efforts with financial interests—that lenders are not willing to move aggressively on brownfields until there

are legislative reforms to Superfund. They have told us that the private sector is

prepared to substantially increase capital flows to projects on brownfield sites as

soon as Congress enacts legislation that explicitly shields innocent parties from Superfund’s liability scheme.

Today, we are enjoying the benefits of one of the longest economic expansions in

our nation’s history. If there is a time to enact changes to stimulate private sector

investment in these sites, it is now. This is the time to demonstrate to investors

and others—when private capital is plentiful and available for new investment opportunities—that brownfields redevelopment can be successful. Such successes will

help carry our future efforts to attract investment in brownfields during the leaner

times which will inevitable come as the economy moves to other cycles.

Mr. Chairman, when mayors talk about brownfields, our federal partners sometimes only hear us asking for federal partnership resources in support of

brownfields redevelopment, as if mayors are suggesting that public resources alone

will solve the brownfields problem. As you know, mayors are fairly attuned to the

realities of our market economy. We know that the private sector is the dominant

investor and the pivotal actor in determining how successful we, as a nation, will

be in recycling brownfields. It also explains the particular priority we place on ensuring that any legislation include liability protections for innocent third parties.

However, conversely, we also know that a market economy, fueled by liability reforms, doesn’t respond fully to the problem either. There are many types of

brownfields in all circumstances and locations. For these reasons, we also know that

public investment is crucial in defining our success in recycling these sites. Again,

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Mr. Chairman, the bills before you account for these realities by providing resources

directly to communities to help us assess and clean up these sites, providing us with

added resources and capacities to partner with the private sector.

PERSPECTIVES ON THE LEGISLATION

Mr. Chairman, finally, we want to amplify further some of our views on specific

provisions of the legislation before this Committee.

We have described throughout this testimony why legislative action is needed.

The following further describes some of the priority issues of concern to the mayors

in acting on legislation affecting brownfields.

First, we want to reemphasize the importance of liability reforms, an area that

was just discussed in this statement. These provisions address a number of circumstances where cities and other public agencies unfairly find themselves subject

potentially to Superfund’s strict liability standards.

In addition to the prospective purchaser provisions, which is a common element

in each of the pending bills and an absolutely critical element of any package of reforms, we also strongly support liability reforms contained in H.R. 1300 and H.R.

2580 to address the many circumstances whereby cities and other local governments

have acquired brownfield properties in the past. Under these provisions, cities and

other public agencies are rightly afforded innocent party relief in the performance

of local government functions.

Local governments routinely acquire such properties through condemnation proceedings to protect public health and safety or in settling tax disputes. There are

also circumstances whereby their economic development functions result in taking

title to these properties. These are important provisions that should be included in

any legislation you adopt.

The pending bills also authorize funding for both assessment efforts and local

cleanup programs, providing criteria to help U.S. EPA determine how to provide

these funds in support of local programs. Provisions of H.R. 1300, which we support,

place no limit on future federal funding for either purpose, providing Congressional

appropriators with flexibility in future years to increase commitments to these activities.

We are pleased that each of the bills authorize resources to help states further

strengthen their voluntary cleanup programs. We hope that the legislation that is

adopted by this Committee, as provided in H.R. 2580, will encourage states to use

these funds to place more priority on efforts to bolster state programs in support

of brownfield cleanups. Considering the many thousands of such sites all across the

country, we are hopeful that these funds will help states move to address

brownfields more responsively.

We are also pleased that this legislation clarifies the balance between state and

federal program authority, providing more certainty for the private sector and local

officials about the state’s authority to make final decisions affecting brownfields. We

need to concentrate U.S. EPA’s efforts on sites where the level of contamination

rises to a federal interest. Without this certainty on state authority, we can’t hope

ever to provide the necessary assurances sought by private investors in brownfield

sites, let alone secure final decisions on the hundreds of thousands of brownfields

sites we are seeking to clean up and redevelop.

This issue, known as ‘‘finality,’’ is particularly important to local officials seeking

to redevelop these sites. The mayors and others continue to emphasize that for virtually every non-NPL site, there is no real federal presence today, other than the

perceived ‘‘potential’’ of federal interest or action. In taking action on legislation to

deal with finality, these provisions must be clear and decisive so that the private

investors, local officials and others understand that the state can act. This was

among the most challenging issues for the Transportation and Infrastructure Committee in structuring its broad, bipartisan agreement on H.R. 1300. We would encourage panel members to examine how this Committee balanced state and federal

authority in this area, providing a balanced and bipartisan approach to this issue.

Mr. Chairman, we also want to indicate our interest in seeing provisions that

would help accomplish more cooperation and integration of applicable federal laws

and standards. One of the areas that H.R. 1300 does not address is the applicability

of RCRA and LUST specifically at brownfield sites. Mayors have been very consistent in urging more attention in federal policies to a ‘‘one-stop’’ brownfields regulatory program at the state level, where states, which are vested with delegated authority, can provide more coordinated and integrated programs. Such an approach

would respond to the realities of the contaminants and types of problems that localities encounter at these sites.

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I would note that H.R. 2580 provides authority for RCRA waivers to allow states

to integrate this law’s permit requirements with cleanups of brownfields. I understand that this provision does not diminish or alter RCRA requirements, but is intended to give states some flexibility in delivering a more responsive and coordinated regulatory program in addressing brownfields. This or some variant of this

provision would be very helpful to those of us at the local level who often find ourselves confronting increased complexity at specific sites as we work to return them

to productive use.

While the focus of this hearing is on brownfields-related provisions, I wanted to

note particularly our support for liability reforms that limit municipal liability at

Superfund sites where municipal solid waste was disposed and for transporters and

generators of municipal solid waste (MSW). We also have an interest in securing

liability relief for wastewater treatment operations.

Finally, we want to note our support for provisions in H.R. 1300 that extend the

Superfund taxes as part of the legislation. Meaningful reform is dependent upon a

reliable revenue stream to ensure that highly contaminated sites are cleaned up and

the land is restored to productive uses.

CLOSING COMMENTS

Mr. Chairman, we want to express again our thanks to you and Members of this

Subcommittee for holding this hearing today and your continuing efforts to move

this important legislation during the First Session of the 106th Congress.

The nation’s mayors believe that the time has come for bipartisan action on

brownfields and selected Superfund reforms. In moving broad bipartisan legislation

forward, you can count on the support of the nation’s mayors in this regard.

On behalf of The U.S. Conference of Mayors, we appreciate this opportunity to

share the view of the nation’s mayors on these important issues.

Mr. GREENWOOD [presiding]. Thank you very much.

Mr. Stypula.

STATEMENT OF DONALD J. STYPULA

Mr. STYPULA. Representative Greenwood and Representative

Towns, my name is Donald Stypula. I am the Manager of Environmental Affairs for the Michigan Municipal League which represents all 534 cities and villages in the State of Michigan. One of

my prime responsibilities in that capacity is to help communities

across the State deal with the brownfields issues, and we have

done that quite successfully.

I am pleased to testify here today on behalf of the National Association of Local Government Environmental Professionals, or

NALGEP. We represent city and county environmental managers

and more than 120 local government entities across the country.

NALGEP members include many of the leading brownfields communities, including many that are represented by members of this

subcommittee, such as Baltimore; Chicago; Lima, Ohio; San Diego;

Des Moines, Dade County, Florida; Milwaukee; Boston; and Los

Angeles.

NALGEP has been working actively with local governments since

1995 when we began a project which led to the publication of our

first report which was referenced earlier. It was entitled ‘‘Building

a Brownfields Partnership from the Ground Up: Local Government

Views on the Value and Promise of National Brownfields Initiatives.’’ and the organization continues to work on brownfields,

Smart Growth and other environmental projects.

Today I will offer comments about how local governments need

Federal brownfields legislation and additional Federal funding for

the assessment, cleanup, and development of brownfields across

the Nation. The cleanup and redevelopment of brownfields is one

of the most exciting and challenging opportunities facing the NaVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00065 Fmt 6633 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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tion, and I would like to compliment the members of this subcommittee and the full committee for their leadership in promoting

legislative solutions to this important issue.

Virtually every community in this Nation faces a brownfields

challenge. There has also been tremendous progress at the State

and local level to remove the barriers to brownfields revitalization.

My own State of Michigan provides an example of how State leadership, in cooperation with Federal incentives and local coordination, can make a difference in brownfields redevelopment.

Michigan has one of the Nation’s best voluntary cleanup programs, and in cities—like my hometown of Lansing—Marquette

and Detroit, brownfields projects have revitalized entire sections of

those communities. A survey of just 33 of our communities across

the State shows that our brownfields program in Michigan has already resulted in more than $1 billion of private investment and

the creation of more than 5,000 new jobs across the State.

However, despite countless examples of brownfields success, local

communities across the Nation still need Federal legislation to clarify the continuing spectrum of Superfund liability, to authorize

more State leadership on voluntary brownfields cleanup in cooperation with the Federal Government, and to provide additional Federal resources for the assessment, remediation and redevelopment

of these blighted sites.

Certainly, brownfields leaders in this Congress, including a member of this subcommittee, have reached a consensus on most of the

important brownfields issues. NALGEP and its local government

members hope that the remaining bridges can be gapped and that

progress can be made on this critical issue in this Congress.

There are two points that I wish to emphasize. First, local communities badly need additional Federal resources to support the assessment, cleanup and redevelopment of brownfields. Brownfields

are a smart investment by the Federal Government in partnership

with local and State governments and the private sector.

Brownfields investment can yield a bountiful harvest of revitalized

neighborhoods, new jobs, economic development, increased tax

base, the protection of public health and the avoidance of sprawling

development on the fringe of our cities, as the mayor noted.

NALGEP has found a need for Federal resources to continue

local site assessment activities, to support the capitalization of local

brownfields remediation revolving loan funds, to bring Federal

agencies together to support infrastructure and economic development in brownfields, and to provide remediation grants to local

governments for brownfields cleanup. NALGEP emphasizes the

need for brownfields remediation grants to local governments to

help fill the well-known gap in remediation funding at the local

level.

We emphasize that in the Senate, both Republicans and Democrats have developed solid, much-needed proposals for cleanup

grants.

Second, there is a clear need for Federal legislation to clarify and

promote the critical role that States play in the voluntary remediation of brownfields properties. NALGEP has found that States

with effective voluntary cleanup programs, like my own, and the

ability to resolve liability issues at these sites is necessary to give

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confidence to purchasers, lenders, developers, and municipalities in

brownfields revitalization. Thus, we believe there is a need for Congress to further clarify and limit liability for nonresponsible parties

such as innocent landowners, prospective purchasers and owners of

contiguous properties.

There is also a need for Congress to allow qualified States that

meet minimum requirements to take the lead in clarifying

brownfields liability and issuing no further action decisions for

local or for non-NPL sites, and we believe that there is a need for

Congress to provide a continued safety net of Federal authority for

those exceptional circumstances in which a voluntary cleanup is

not sufficient to protect public health and the environment, and the

State is not willing nor is it able to ensure adequate remediation.

EPA would——

Mr. GREENWOOD. I am going to have to ask you to summarize.

Mr. STYPULA. We also believe that EPA should have the ability

to retain its ability to reopen its involvement in a particular

brownfields site under some very exceptional circumstances. Anyone who has watched this program, who has followed the program

of the brownfields issue in this Nation, knows that the opportunity

for us to achieve great environmental economic and community

benefits from revitalization of brownfields exists, and the time is

now in this Congress to get the work done.

NALGEP and local governments across the Nation thank you for

the opportunity to talk with this subcommittee on this important

issue. Together we should be able to help things get better in our

Nation’s brownfields in a manner consistent with the goals of this

committee and this Congress. I will be happy to answer any questions.

[The prepared statement of Donald J. Stypula follows:]

PREPARED STATEMENT OF DONALD J. STYPULA, MANAGER OF ENVIRONMENTAL AF- FAIRS, MICHIGAN MUNICIPAL LEAGUE, ON BEHALF OF THE NATIONAL ASSOCIATION

OF LOCAL GOVERNMENT ENVIRONMENTAL PROFESSIONALS

Mr. Chairman and distinguished members of the Subcommittee, my name is Donald Stypula, and I am the Manager of Environmental Affairs for the Michigan Municipal League, which proudly represents 534 cities and villages across the State of

Michigan. I am here today to testify on behalf of the National Association of Local

Government Environmental Professionals. or ‘‘NALGEP.’’ NALGEP appreciates the

opportunity to present this testimony on the views of local government officials from

across the nation on the need for additional federal incentives to promote the cleanup, redevelopment and productive reuse of brownfields sites in local communities.

NALGEP represents local government officials responsible for ensuring environmental compliance, and developing and implementing environmental policies and

programs. NALGEP’s membership consists of more than 120 local government entities located throughout the United States, and includes environmental managers,

solid waste coordinators, public works directors and attorneys, all working on behalf

of cities, towns, counties and municipal associations. Our members include many of

the leading brownfields communities in the country such as Portland, Salt Lake

City, Dallas, Cuyahoga County and others. NALGEP members also include communities represented by distinguished members of this Subcommittee that are engaged

in brownfields revitalization initiatives, including Baltimore; Chicago; Lima, Ohio;

San Diego; Des Moines; Dade County, Florida; Denver; Milwaukee; Boston; and Los

Angeles. In Michigan, NALGEP members include 12 municipalities, including Bangor, Bay City, Detroit, Escanaba, Farmington Hills, Grand Rapids, Hudsonville,

Ionia, Lansing, Troy, Washtenaw County and Wayne County.

In 1995, NALGEP initiated a brownfields project to determine local government

views on national brownfields initiatives such as the EPA Brownfields Action Agenda. The NALGEP Brownfields Project culminated in a report entitled Building a

Brownfields Partnership from the Ground Up: Local Government Views on the Value

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and Promise of National Brownfields Initiatives, which was issued in February,

1997. Since that time, NALGEP has testified on brownfields issues to this Committee as well as to the House Transportation and Infrastructure Committee and

the Senate Environment and Public Works Committee.

During the past two years, NALGEP has continued its work on brownfields

through coordinating work groups of local officials to address the following issues:

(1) Brownfields Cleanup Revolving Loan Funds; (2) use of HUD Community Development Block Grants for Brownfields; (3) building partnerships between business

and local government officials to reduce spill and promote smart growth; and (4) implementing the Administration’s Brownfields Showcase Community initiative. As a

result of these efforts, NALGEP is well qualified to provide the Committee with a

representative view of how local governments, and their environmental and development professionals, believe the nation must move ahead to create long-term success

in the revitalization of brownfields properties.

NALGEP’s testimony today will focus on the following areas: (1) the continued

need for federal funding to support the cleanup and redevelopment of brownfields

sites across the country; (2) the need for further liability clarification, including for

State leadership on the voluntary remediation of brownfields, to encourage the private sector to step forward and revitalize more sites; and (3) the need to facilitate

the participation of other federal agencies (e.g., Army Corps of Engineers, Department of Transportation, HUD) in supporting local brownfields initiatives.

The cleanup and revitalization of brownfields represents one of the most exciting,

and most challenging, environmental and economic initiatives in the nation.

Brownfields are abandoned, idled, or under-used industrial and commercial properties where expansion or redevelopment is hindered by real or perceived contamination. The brownfields challenge faces virtually every community; experts estimate

that there may be as many as 500,000 brownfields sites throughout the country.

The brownfields issue illustrates the connection among environmental, economic

and community goals that can be simultaneously fostered through a combination of

national leadership, state incentives, and the innovation of local and private sector

leaders. Cleaning up and redeveloping brownfields provides many environmental,

economic and community benefits including:

• expediting the cleanup of thousands of contaminated sites;

• renewing local economies by stimulating redevelopment, creating jobs and enhancing the vitality of communities; and

• limiting sprawl and its associated environmental problems such as air pollution,

traffic and the development of rapidly disappearing open spaces.

MICHIGAN’S BROWNFIELDS INITIATIVES

The Michigan brownfields program is one of the most active and successful in the

nation, demonstrating the value of coordinated state, local and federal regulatory incentives. In 1995, at the request of the Michigan Municipal League and the state’s

mayors, the Michigan Legislature adopted sweeping amendments to the state’s contaminated site cleanup law that have accelerated the identification, assessment and

cleanup of environmentally impacted properties and fostered the reuse and redevelopment of those parcels for job-producing enterprises.

The new Part 201 of our state environmental code clarifies liability to ensure that

those responsible for contamination are liable for its cleanup. The 1995 amendments

also yielded a more common sense approach to cleanup criteria and gave municipalities and redevelopers an expanded menu of cleanup remedies that tailor site cleanups to zoning and land uses.

The results of these changes to Michigan’s law were stunning and immediate.

Within hours of the Governor’s signature on the package of bills, the City of Ionia,

Michigan signed an agreement to remediate and redevelop a parcel of abandoned

industrial property considered the ‘‘gateway’’ to the city. Where once visitors were

greeted by a contaminated and rusting industrial eyesore, they now lodge at a new

hotel and dine at new restaurants.

In 1996, again at the urging of the state’s mayors, the Legislature enacted a

unique brownfields financing mechanism that allows municipalities to create

brownfields redevelopment authorities to ‘‘capture’’ property tax revenues on targeted parcels for up to five years and use that revenue to finance remediation and

redevelopment activities. Finally, in November, 1998, Michigan voters overwhelmingly approved a $675 million, six-year bonding program that funnels more than

$300 million into brownfields remediation and redevelopment activities.

Over the past four years, a large number of Michigan’s 534 cities and villages and

83 counties have taken advantage of one of more of these new tools to identify, investigate, remediate and spur the redevelopment of abandoned industrial complexes,

66

auto repair shops and dry cleaners. For example, in 1996, the City of Lansing used

the new Michigan law to investigate and remediate a collection of contaminated parcels and developed a new minor league baseball stadium that draws more than

6,000 spectators to nightly games. Earlier this year, the City of Marquette

partnered with redevelopers to convert a long-abandoned and contaminated industrial complex into new upscale housing, shops and restaurants on the shores of Lake

Superior. And, as I present this testimony, the City of Detroit is using Michigan’s

Part 201 cleanup program to remediate a large parcel of property in the heart of

downtown that will soon be home to more than 6,000 new, highly-paid employees

of a global computer software firm relocating from the western suburbs.

According to survey data from just 33 Michigan cities, compiled by the Michigan

Department of Environmental Quality (MDEQ), the state’s brownfields program has

channeled significant levels of private investment into Michigan’s core cities. Projected development in the 33 cities surveyed in 1999 totaled $1,024,988,000 in private investment, an increase of 223 percent over 1997. More importantly, this private investment on brownfields sites led to the creation of 4,796 jobs, an increase

of 40 percent over the projected 1997 job creation numbers.

Despite these dramatic gains, however, some urban redevelopment projects ranging from large factory sites in Detroit to corner gas stations in small Upper Peninsula towns, are still hampered by a lack of financial resources and the fear of Superfund liability.

As a founding member of NALGEP, the Michigan Municipal League strongly supports NALGEP’s view on the need to clarify Superfund liability for state-administered brownfields programs, facilitate participation of and coordination with other

federal agencies in brownfields revitalization efforts, and provide federal financial

resources to communities across the nation that seek to remediate and encourage

redevelopment of brownfields sites.

BROWNFIELDS LEGISLATIVE NEEDS

I. Ensuring Adequate Resources for Brownfields Revitalization

NALGEP finds that to ensure long-term success on brownfields, local governments

need additional federal funding for site assessment, remediation and economic redevelopment. The costs of site assessment and remediation can create a significant

barrier to the redevelopment of brownfields sites. In particular, the costs of site assessment can pose an initial barrier that drives development away from brownfields

sites. With this initial barrier removed, localities are much better able to put sites

into a development track. In addition, the allocation of public resources for site assessment can provide a signal to the development community that the public sector

is serious about resolving liability issues at a site and putting it back into productive reuse.

The use of public funds for the assessment and cleanup of brownfields sites is a

smart investment. Public funding can be leveraged into substantial private sector

resources. Investments in brownfields yield the economic fruit of increased jobs, expanded tax bases for cities, and urban revitalization. And the investment of public

resources in brownfields areas will help defer the environmental and economic costs

that can result from unwise, sprawling development outside of our urban centers.

The following types of federal funding would go a long way toward helping local

communities continue to make progress in revitalizing our brownfields sites:

• Grants for Site Assessments and Investigation: EPA’s Brownfields Assessment Pilot grants have been extremely effective in helping localities to establish

local brownfields programs, inventory sites in their communities, investigate the

potential contamination at specific sites, and educate key stakeholders and the

general public about overcoming the obstacles to brownfields redevelopment.

Additional funding for site assessments and investigation is needed to help

more communities establish local brownfields programs and begin the process

of revitalizing these sites in their communities.

• Grants for Cleanup of Brownfields Sites: There is a strong need for federal

grants to support the cleanup of brownfields sites across the country. The U.S.

Conference of Mayors’ recent report on the status of brownfields sites in 223 cities nationwide indicates that the lack of cleanup funds is the major obstacle to

reusing these properties. For many brownfields sites, a modest grant targeted

for cleanup can make the critical difference in determining whether a site is redeveloped, creating new jobs and tax revenues, or whether the site remains polluted, dangerous and abandoned.

• Grants to Capitalize Brownfields Cleanup Revolving Loan Funds: In addition to grants, federal funding to help localities and states to establish revolving

loan funds (RLFs) for brownfields cleanup is another effective mechanism to leVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00069 Fmt 6633 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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verage public and private resources for redevelopment. EPA deserves credit for

championing brownfields RLFs as a mechanism for helping communities fill a

critical gap in cleanup funding. Unfortunately, the effectiveness of the EPA’s

current brownfields cleanup RLF program is severely undermined by the lack

of new federal brownfields legislation. Under current law, localities are required

to jump through and over numerous National Contingency Plan (NCP) bureaucratic hoops and hurdles to establish their local RLFs. These NCP requirements

were originally established for Superfund NPL sites and not for brownfields

sites. Consequently, we strongly recommend that any new legislation make it

clear that local brownfields RLFs are not required to meet the NCP requirements established for Superfund sites.

II. State Leadership on Liability Clarification at Brownfields Sites

On the issue of federal Superfund liability associated with brownfields sites,

NALGEP has found that the Environmental Protection Agency’s overall leadership

and its package of liability clarification policies have helped establish a climate conducive to brownfields renewal, and have contributed to the cleanup of specific sites

throughout the nation. It is clear that these EPA policies, and brownfields redevelopment in general, are most effective in states with effective voluntary cleanup programs. Congress can enhance these liability reforms by further clarifying in legislation that Superfund liability does not apply to certain ‘‘non-responsible’’ parties such

as innocent landowners, prospective purchasers and contiguous property owners.

NALGEP has also found that States are playing a critical lead role in promoting

the revitalization of brownfields. More than forty states, like Michigan, have established voluntary or independent cleanup programs that have been a primary factor

in successful brownfields cleanup. The federal government should further encourage

States to take the lead at brownfields sites. States are more familiar with the circumstances and needs at individual sites. Moreover, it is clear that U.S. EPA lacks

the resources or ability to provide the assistance necessary to remediate and redevelopment the hundreds of thousands of brownfields sites in our communities.

The effectiveness of state leadership in brownfields is demonstrated by those

states that have taken primary responsibility for brownfields liability clarification

pursuant to ‘‘Superfund Memoranda of Agreement’’ (MOAs) with U.S. EPA. These

MOAs defer liability clarification authority to those states. In order to further facilitate brownfields cleanups across the country, NALGEP finds that Congress should

create clear legal standards under which States that meet minimum criteria can assume the primary role for resolving liability and issuing no further action decisions

for brownfield sites.

Legal authority for qualified states to play the primary role in liability clarification is critical to the effective redevelopment of local brownfields sites. A state lead

will increase local flexibility and provide confidence to developers, lenders, prospective purchasers and other parties that brownfields sites can be revitalized without

the specter of Superfund liability or the involvement of federal enforcement personnel. Parties developing brownfields want to know that the state can provide the

last word on liability, and that there will be only one ‘‘policeman,’’ barring exceptional circumstances.

At the same time, local officials are also concerned about too much cleanup authority too fast to states that have not clearly demonstrated the ability to play a

primary role. States vary widely in the technical expertise, resources, staffing, statutory authority and commitment necessary to ensure that brownfields cleanups are

adequately protective of public health and the environment. If brownfields sites are

improperly assessed, remediated or put into reuse, it is most likely that the local

government will bear the largest impact from any public health emergency or contamination of the environment. NALGEP believes that the U.S. EPA has a role to

play in ensuring that liability authority over brownfields sites should only be delegated to states that demonstrate an ability and commitment to ensure protection

of public health and the environment in the brownfields redevelopment process.

To foster expanded redevelopment of brownfields sites while ensuring the protection of public health and the environment, NALGEP finds that there should be

three components to federal law giving States the ability to play the lead role in

brownfields liability clarification. First, the law should clearly distinguish between

Superfund NPL sites and other sites subject to enforcement under CERCLA or

RCRA on one hand, and the remaining sites that can be put on a ‘‘brownfields

track.’’ The delegation of liability authority to states should focus on these

‘‘brownfields track’’ sites. Putting sites on a brownfields track will allow the application of policy tools specifically designed to foster expedited, cost-effective brownfields

redevelopment.

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Second, NALGEP finds that liability authority over brownfields sites should be

granted only to state cleanup programs that can ensure protection of public health

and the environment. NALGEP suggests the following types of criteria that should

be demonstrated by states desiring to play the lead role in brownfields liability clarification:

1. Mechanisms to ensure adequate site assessments early in the process.

Good site assessments will help prevent unanticipated problems from surfacing,

and facilitate efforts to direct particular sites into a ‘‘brownfields track.’’

2. Adequate state technical expertise, staff and enforcement authority to ensure effective implementation of cleanup activities.

3. Use of risk-based cleanup standards, that can be tied to reasonably anticipated land use, established through an adequate public approval process.

4. Institutional controls such as deed restrictions, zoning requirements or other

mechanisms that are enforceable over time to ensure that future land uses tied

to certain cleanup standards are maintained.

5. Commitment to establish community information and involvement proc- esses. 6. Commitment to build the capacity, through training and technical assistance, of

local government health and environmental agencies to effectively participate in the brownfields development process and ensure protection of public

health and environment.

7. Adequate mechanisms to address unanticipated cleanups or orphaned sites

where liability has been eliminated.

NALGEP believes that it is appropriate for legislation to require U.S. EPA to review

and approve the certification of qualified states for lead brownfields authority. However, such an EPA approval process should not have the effect of delaying qualified

states from stepping forward, nor impose ‘‘one-size-fits-all’’ requirements on states

with different needs and different effective approaches to brownfields redevelopment.

Finally, NALGEP believes that EPA’s ability to reopen its involvement at a particular brownfields site in a certified state should be limited to situations where

there are exceptional circumstances and the state is not effectively addressing the

problem. An EPA reopener for particular sites is necessary to ensure that EPA can

become involved at any sites at which the state is unable or unwilling to adequately

respond to a substantial and imminent threat to public health or the environment.

At the same time, the reopener must be sufficiently limited to permit the state to

take the lead role at brownfields sites, and to give confidence to developers, prospective purchasers, lenders and local governments that EPA will not improperly hinder

or interfere in state liability decisions.

Therefore, in delegating brownfields authority for non-NPL caliber sites to the

states, NALGEP proposes that: EPA should provide that it will not plan or anticipate further action at any sites unless, at a particular site, there is: (1) an imminent

and substantial threat to public health or the environment; and (2) either the state

response is not adequate or the state requests US EPA assistance.

III. Facilitating the Participation of Other Federal Agencies in Brownfields Revitalization

The cleanup and redevelopment of a brownfields site is often a challenging task

that requires coordinated efforts among different government agencies at the local,

state and national levels, public-private partnerships, the leveraging of financial resources from diverse sources, and the participation of many different stakeholders.

Many different federal agencies can play a valuable role in providing funding, technical expertise, regulatory flexibility, and incentives to facilitate brownfields revitalization. For example, HUD, the Economic Development Administration, the Department of Transportation, and the Army Corps of Engineers have all contributed important resources to expedite local brownfields projects. The U.S. EPA and the Administration have provided strong leadership through the Brownfields Showcase

Community project that is demonstrating how the federal government can coordinate and leverage resources from many different federal agencies to help localities

solve their brownfields problems.

Congress can help strengthen the national brownfields partnership by further

clarifying that the various federal partners play a critical role in redeveloping

brownfields and by encouraging the agencies to work cooperatively to meet local

needs. For example, Congress should be commended for legislation passed last year

to clarify that HUD Community Development Block Grant funds can be used for all

aspects of brownfields projects including site assessments, cleanup and redevelopment. This simple step has cleared the way for communities across the country to

use these funds in a flexible fashion to meet their specific local needs. Similarly,

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Congress should consider clarifying that it is appropriate and desirable for the Army

Corps of Engineers to use its resources and substantial technical expertise for local

brownfields projects. In addition, Congress should consider clarifying that Department of Transportation funds can be used for cleanup activities associated with various transportation projects. Congress also should work with EPA to determine how

other agencies can help facilitate more brownfields revitalization. By taking these

steps, Congress can give communities additional tools, resources, and flexibility to

overcome the many obstacles to brownfields redevelopment.

CONCLUSION

In conclusion, local governments are excited to work with the federal government

to promote the revitalization of brownfields, through a combination of increased federal investment in community revitalization, further liability clarification and authority for qualified States, and other mechanisms to strengthen the national partnership to cleanup and redevelop our communities. It is clear that there is substantial agreement among the parties and the many stakeholders seeking further

brownfields revitalization in our communities. NALGEP thanks the Committee for

this opportunity to testify, and looks forward to working with you as the process

moves forward.

Mr. GREENWOOD. Thank you, Mr. Stypula.

Ms. Kerbawy, please proceed.

STATEMENT OF CLAUDIA KERBAWY

Ms. KERBAWY. Good morning, members of the subcommittee. I

am Claudia Kerbawy. I am chief of the Michigan Superfund program, and I am also primary spokesperson for reauthorization

issues for ASTSWMO. I am here today representing both

ASTSWMO and NGA.

State regulatory agencies have the primary responsibility for ensuring the remediation of the vast majority of brownfields. Our

goal here today is to ensure that Federal legislation is enacted

which will help facilitate, not complicate or impede the cleanup of

non-NPL universe of sites.

We believe this goal can be achieved by clearly defining the role

of the Federal Superfund program in the future, clearly defining

which governmental agency will be given the responsibility for determining when a site is fully remediated and providing the means

for State agencies to maintain the role of primacy of brownfields

sites.

It is ASTSWMO and the NGA’s position that Governors should

be given the statutory right to concur with any new NPL listing in

their State. A recent ASTSWMO survey found that more than 90

percent of an identified universe of over 27,000 sites were being addressed under 33 State programs. States today employ a triage system whereby the worst sites are addressed first, and most sites

that could qualify for listing on the NPL are already being worked

on.

The question before the subcommittee is what should be the appropriate role of the Federal Superfund program in the future. Although more than 40 States have State Superfund or voluntary

cleanup programs, Federal Government assistance will still be warranted in situations where States choose not to develop a program

or where there are sites that, due to either technical or legal complexity or cost, a State cannot or would prefer to have the Federal

Government address. In addition, there will always be the need for

the Federal Government to serve as the gorilla in the closet.

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With the current status of State programs, the choice as to

whether a site is addressed by the Federal Government or the

State government should be determined by the State. While it is

current U.S. EPA policy to routinely seek concurrence from the

Governor before a site is listed on the NPL, it is not mandatory

that that concurrence be received. Although it is rare when a dispute does occur, cleanup of the site gets delayed and both the State

and Federal Government can lose credibility.

H.R. 2580 succinctly mandates that U.S. EPA must receive a

Governors’ concurrence prior to listing a facility on the NPL. We

support this provision as it is clear, unambiguous, and satisfies our

goal of clarifying the role of the Federal Superfund program in the

future.

On the other hand, ASTSWMO and NGA do not support the NPL

listing provisions of H.R. 1300 and 1750, which both contain more

cumbersome and intrusive mechanisms for addressing this issue

that do not accommodate the variety of successful State cleanup

program provisions.

Today the Federal Superfund statute technically applies to any

site where a release occurs. However, the reality is that the States

are responsible for ensuring the remediation of all the sites that do

not score above 28.5 under the hazard ranking system. Congress

needs to decide definitely whether U.S. EPA should retain a role

in the remediation of non-NPL sites. Although the majority of these

typically brownfields sites will never be placed on the NPL, they

are still subject to CERCLA liability even after a site has been

cleaned to State standards. States should be able to be released

from both Federal and State liability once a site has been cleaned

to State standards. Emergency actions should be the only exceptions from any releases from Federal liability.

It appears to States that both H.R. 1300 and H.R. 2580 satisfy

the goal of clarifying which governmental entity is and should be

responsible for deciding when a cleanup is complete and when a

party is released from liability. H.R. 1750’s provisions regarding finality are not satisfactory to the States. ASTSWMO and NGA do

not support the provisions requiring State voluntary cleanup programs to be approved by the U.S. EPA. In addition, the exceptions

provided for by the language in 1750 are not clear or precise.

If a State agency can effectively address the contamination from

a non-NPL site, that is one less site that will require Federal resources. The results of a recent ASTSWMO survey indicate that 33

responding States alone have completed 6,768 sites in just the last

4 years, and that they are working on approximately 4,700 sites at

any given time. Clearly, providing Federal resources to State agencies to maintain their infrastructure will ultimately save Federal

resources and ensure that sites are returned to productive use in

an efficient manner.

Both H.R. 1300 and 2580 provide grants to States for brownfields

site assessments and for establishing revolving loan funds for response actions. H.R. 1750 does award grants to States, but only if

the administrator determines that a grant to the State is necessary

in order to facilitate receipt of funds by one or more local units of

government. We do agree that local units of government should be

allowed funding. That should be provided. However, we don’t think

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that Congress should overlook the efficiency factor in using well-established programs at the State level.

ASTSWMO and NGA appreciate the opportunity to testify today

on a topic of extreme importance to the States. We are encouraged

that the subcommittee is examining these issues and look forward

to working with you as you continue in the process of developing

brownfields legislation. I would be happy to answer any questions

you may have.

[The prepared statement of Claudia Kerbawy follows:]

PREPARED STATEMENT OF CLAUDIA KERBAWY, CHIEF, ENVIRONMENTAL RESPONSE DI- VISION, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY ON BEHALF OF THE

ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE MANAGEMENT OFFICIALS

Good morning Mr. Chairman and members of the Subcommittee. I am Claudia

Kerbawy and I am the Chief of the Michigan Superfund program. I am also the primary spokesperson on reauthorization issues for the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) and am here today representing both ASTSWMO and the National Governors’ Association (NGA) with

whom this statement was jointly prepared. ASTSWMO is a non-profit association

which represents the collective interests of waste program directors of the nation’s

States and Territories. Besides the State cleanup and remedial program managers,

ASTSWMO’s membership also includes the State regulatory program managers for

solid waste, hazardous waste, underground storage tanks, and waste minimization

and recycling programs. Our membership is drawn exclusively from State employees

who deal daily with the many management and resource implications of the State

waste management programs they direct. As the day-to-day implementors of the

State and Federal cleanup programs, we believe we can offer a unique perspective

to this dialogue and thank you for recognizing the importance of the State perspective.

We understand that the subject of today’s hearing is Brownfields. State regulatory

agencies are responsible for ensuring the remediation of the vast majority of

Brownfield sites, therefore, our primary goal is to ensure that federal legislation is

enacted which will help facilitate the cleanup of the non-NPL universe of sites. We

believe this goal can be achieved by 1) clearly defining the role of the federal Superfund program in the future; 2) clearly defining which governmental entity will be

given the responsibility for determining when a site is fully remediated; and 3) providing the means for State agencies to maintain a role of primacy at brownfield

sites. I will focus my testimony on these three issues and examine how they are addressed in H.R. 2580, ‘‘The Land Recycling Act’’; H.R. 1300, ‘‘ Recycle America’’s

Land Act of 1999’’; and H.R. 1750, ‘‘The Community Revitalization and Brownfield

Cleanup Act of 1999.’’

The Future Role of the Federal Superfund Program:

ASTSWMO supports the National Governors’ Association position that Governors

should be given the statutory right to concur with any new National Priority Listing

(NPL) in their State. We believe the facts support that position. States today employ

a triage system whereby the worst sites are addressed first. For example, only 8.9

percent (2,426) of the total sites (27,235) identified by a recent ASTSWMO survey

were classified as inactive. (Summary of results contained in Attachment A). It is,

therefore, the strong belief of the ASTSWMO membership that most sites that have

been identified within a State that could qualify for listing on the NPL are already

being worked on by the State.

We believe the views of our membership were also validated by the recent U.S.

General Accounting Office (GAO) Report entitled, ‘‘Hazardous Waste: Unaddressed

Risks at Many Potential Superfund Sites.’’ In this report the GAO reviewed the status of 3,036 sites that had pre-scored above 28.5 but for a variety of reasons, had

not been placed on the NPL. Out of a total of 3,036, sites only 7.6 percent (232)

were estimated by both the U.S. Environmental Protection Agency (U.S. EPA) and

State officials to potentially warrant listing on the NPL. This confirms that the U.S.

EPA regional staff had utilized good judgment in not placing the vast majority of

these sites on the NPL; it also confirms that the hazard ranking system could be

improved.

Therefore, the question before this Subcommittee is what should be the appropriate role of the federal Superfund program in the future? While there may be

forty-plus States with State Superfund programs and Voluntary Cleanup programs,

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there will always be States that choose not to develop a program and federal government assistance may be warranted. There will also be sites that due to either technical or legal complexity or cost, a State either cannot address or may prefer to have

the federal government address, and there will always be the need for the federal

government to serve as the ‘‘gorilla in the closet.’’ The point I wish to stress is that

with the current status of State programs the choice as to whether a site is addressed by the federal government or State government should be determined by the

State. A Governor should be able to make the determination of whether a site will

be listed on the NPL. While it is U.S. EPA policy to routinely seek concurrence from

the Governor before a site is listed on the NPL, it is not mandatory that the concurrence be received. If a dispute should arise between U.S. EPA and a Governor, the

process within U.S. EPA is to have the Assistant Administrator for OSWER make

the final determination. Frankly, that is not a satisfactory policy.

Fortunately, there are very few sites where the States and U.S. EPA disagree;

however, when a dispute does occur the site quickly becomes high profile and both

the State and federal government can lose credibility. As indicated by the

ASTSWMO survey and GAO survey, the States have clearly become the primary

regulators for overseeing site remediation. The NPL should be reserved for those

sites that both the State and federal governments believe warrant expenditure of

federal resources. The NPL is no longer reserved for the ‘‘worst of the worst’’ sites;

rather the NPL has shifted to a venue for remediating sites which require federal

resources. The criteria for listing sites on the NPL may quickly shift from one based

solely on risk determinations to one that considers resource needs.

H.R. 2580: H.R. 2580 succinctly mandates that U.S. EPA must receive a Governor’s concurrence prior to listing a facility on the National Priorities List. We support this provision as it is clear, unambiguous and satisfies our goal of clarifying

the role of the federal Superfund program in the future.

H.R. 1300: H.R. 1300 requires the President to generally defer listing on the National Priorities List facilities at which a cleanup that provides ‘‘long-term protection

of human health and the environment is underway at that facility under a State

response program.’’ H.R. 1300 also allows the President to defer listing of ‘‘a facility

on the National Priorities List if the State is attempting to obtain an agreement

from a person or persons to perform a remedial action that will provide long-term

protection . . .’’ Unlike the language in H.R. 2580, this provision does not clearly address the future role of the federal Superfund program. For example, we question

what the terms ‘‘underway’’ and ‘‘attempting’’ actually mean? Must the ‘‘agreement’’

in the State Voluntary Cleanup program be enforceable? Many State Voluntary

Cleanup programs enter into agreements that are non-binding on either party; in

other words, either the State or voluntary party can exit the site from the State voluntary cleanup program and the site will then be subject to traditional State Superfund enforcement. H.R. 1300 also allows the President to place the site on the NPL

if, after a one-year time deferral, the State has not made reasonable progress in obtaining an ‘‘agreement’’. States routinely perform work on a site, including completion of the remedial investigation/feasibility study, without responsible party involvement. States are reimbursed for their costs once the responsible party enters

into an agreement with the State. This arbitrary one year period does not account

for work completed by the State, and we cannot support this provision.

H.R. 1750: H.R. 1750 states the President shall not list ‘‘a portion of a facility subject to a response action plan approved under a State program qualified under subsection (i)’’ while ‘‘substantial and continuous voluntary response actions are being

conducted in compliance with the plan at that portion of the facility; or after response activities conducted in compliance with the plan at that portion of the facility

have been certified by the State as complete.’’ Again, this provision is not as clear

as H.R. 2580. For example, this provision states that States must approve a response action plan. Many States approve response action plans prior to commencement of work, and many merely review the plans but provide certifications upon

completion. As we read this language, only a site at which a response action plan

has been approved could be remediated free of U.S. EPA interference. A State that

only certifies a cleanup is complete could be subject to having its sites listed on the

NPL during remediation activities. Also, this provision is only available to States

that have had their voluntary cleanup programs approved by the U.S. EPA. Both

the National Governors’ Association and ASTSWMO oppose provisions which allow

the U.S. EPA to review and approve existing, established State voluntary cleanup

programs. There is no comparable voluntary cleanup program model at the federal

level and we question why programs which were developed without federal government interference and with local stakeholder involvement should be subject to federal approval? We cannot support this provision.

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The Issue of ‘‘Finality’’

Today the federal Superfund statute technically applies to any site where a release occurs. However, the reality is that States are responsible for ensuring the remediation of all sites that do not score above 28.5 using U.S. EPA’s Hazard Ranking

System (HRS)—the cutoff for federal listing on the NPL. The U.S. EPA removal program is able to address some sites that are not listed on the NPL, but the program

is designed to stabilize a site, not to ensure its full remediation. The U.S. EPA can

not expend fund money for remediating a site not listed on the NPL. Consequently,

the State is often still responsible for completing the remediation of a site even after

an U.S. EPA removal action has been performed at a site.

It is our belief that Congress needs to decide definitively whether U.S. EPA

should retain a role in the remediation of non-NPL sites. While in practicality U.S.

EPA has little or no role at these sites and as our survey indicated, the States are

addressing the large universe of non-NPL sites, the statute still maintains a role

for U.S. EPA in theory. Although the majority of these sites (typically brownfield

sites) will never be placed on the NPL, they are still subject to CERCLA liability

even after the site has been cleaned up to State standards. It is our belief that we

can no longer afford to foster the illusion that State authorized cleanups may somehow not be adequate to satisfy federal requirements. The potential for U.S. EPA

overfile and for third-party lawsuits under CERCLA is beginning to cause many

owners of potential Brownfields sites to simply ‘‘mothball’’ the properties. We believe

it is imperative that Congress seek to clarify the State-Federal roles and potential

liability consequences under the federal Superfund program. States should be able

to release sites from both federal and State liability once a site has been cleaned

up to State standards. In situations that are deemed emergencies and in which the

State requests assistance, we believe the federal government should be able to address the site and, if necessary, hold the responsible party liable consistent with liability assigned under State cleanup law. Emergency actions should be the only exceptions to such releases from federal liability.

This has been a very contentious issue and we understand that objections have

been raised to provisions of this nature. We do not agree with the basis for these

objections for several reasons. First, U.S. EPA does not have the ability to compel

parties to take remedial actions at sites not listed on the NPL, except for removal

actions. Second, the majority of these sites will never be listed on the NPL; therefore, U.S. EPA does not have authority to spend fund money at these sites to perform the necessary remedial actions. Third, if a State should release a site from

State liability (of course, all States have standard reopener provisions contained in

their liability releases), and a situation should develop that warrants federal attention, the State can be trusted to act responsibly and contact U.S. EPA. It is in the

State’s financial interest to contact U.S. EPA should a situation develop that exceeds the State’s financial or technical capabilities. While it is clear in emergency

situations that U.S. EPA should have the ability to enter a site, we believe the second prong of the condition must also be met, i.e., the State must concur, similar to

our recommendation for listing sites on the NPL. We wish to avoid duplication as

much as possible and therefore believe that if a State is capable of addressing the

emergency then there is no need to utilize U.S. EPA’s resources. The States have

proven they act responsibly in these situations, and it is to the State’s advantage

to notify U.S. EPA when either the State’s financial, legal or technical resources are

not sufficient to adequately address the problem.

We believe the universe of sites to be addressed by State Cleanup (State Superfund and State Voluntary Cleanup) programs and the sites eligible for releases from

federal liability is the non-NPL universe of sites. It seems only practical to officially

exclude proposed and listed NPL sites simply for the fact that much work has already ensued in order to place these sites on the NPL. Some suggest that the nonNPL universe can be divided into two categories, NPL-caliber and low risk sites. We

are the primary regulators for non-NPL sites and we can assure you that there is

no clear line that differentiates such categories of sites. Many would suggest the

bright line should be a score of 28.5 (as determined by the HRS), but there are two

problems with using this arbitrary cutoff. First, 28.5 is the quantitative scoring factor used to determine if a site qualifies for placement on the NPL. However, this

figure is based on an arcane hazard ranking system which many U.S. EPA and

State managers admit is flawed, so much so, that U.S. EPA and State managers

in the GAO study identified only 7.9 percent of the 3036 pre-scored universe of sites

for potential listing on the NPL. Second, in order to use the quantitative NPL-caliber designation, States would have to score sites prior to admitting them to a voluntary cleanup program (a suggestion we understand one U.S. EPA Region has

made to a State). Clearly, the pre-scoring of a site as a condition for entering a State

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untary Cleanup program and would not serve to move this large universe of sites

to cleanup nor to facilitate economic redevelopment of brownfields. Essentially, the

program has operated for years on a ‘‘you know it when you see it basis’’ in identifying NPL-caliber sites. This is bad public policy and should not be acceptable for

differentiating State and U.S. EPA roles and for providing certainty to the process.

If a site is not to be listed or proposed for listing on the NPL, then the State should

be free to address the site without U.S. EPA interference and the site should be eligible for the same benefits as any other site, such as liability releases. We believe

legislation is needed and hope that Congress chooses to recognize the benefits of

State programs which have had over 18 years to grow and mature and which clearly

have become the leaders in site remediation today.

H.R. 2580: It appears to States that H.R. 2580 satisfies the goal of clarifying

which governmental entity is and should be responsible for deciding when a cleanup

is complete and when a party is released from liability.

H.R. 1300: It appears to States that H.R. 1300 satisfies the goal of clarifying

which governmental entity is and should be responsible for deciding when a cleanup

is complete and when a party is release from liability.

H.R. 1750: H.R. 1750’s provisions regarding ‘‘finality’’ are not satisfactory to

States for the following reasons. First, as indicated in our previous comment,

ASTSWMO and NGA do not support any provision requiring State Voluntary Cleanup programs to be approved by the U.S. EPA. Second, the exceptions provided for

by this language are not clear or precise. For example, in both exceptions (C) and

(D), either the Administrator or the State may determine that, due to the conditions, the response action does not protect human health or the environment. Our

goal is to achieve finality and to expressly decide once and for all which governmental entity will be vested with the authority to determine a cleanup is complete.

The language in H.R. 1750 will not resolve this issue or achieve true finality. For

example, what will happen in situations in which the State and U.S. EPA disagree?

Lastly, H.R. 1750 will exclude ‘‘NPL-Caliber’’ facilities from being eligible to receive

finality determinations. In this case, NPL-Caliber is defined as ‘‘a facility for which

the President, in consultation with the State concerned, has prepared or is preparing a hazardous ranking system scoring package or that satisfies such other definition as the Administrator may promulgate by regulation.’’ In 1997, U.S. EPA proposed federal guidance on developing memorandum of agreements between State

Voluntary Cleanup programs and the U.S. EPA. To determine NPL-Caliber sites,

the Agency proposed a tiering system for sites. ASTSWMO, the Environmental

Council of States and the National Governors Association strongly opposed the provisions in this guidance, particularly the proposed tiering system of categorizing

sites and the guidance was ultimately withdrawn. We have no reason to believe that

under the language provided for in H.R. 1750 that U.S. EPA would not seek to repropose the same language.

Funding for State Programs addressing Brownfields:

From our perspective as State Waste Managers and Governors, we view State programs as effective ‘‘NPL prevention’’ programs. If a State agency can effectively address the contamination from a non-NPL site, that is one less site that will require

federal resources. The results of a recent ASTSWMO survey of 33 States indicated

that States have completed 6,768 sites in the last four years alone (1993-1997) and

that they are working on approximately 4,700 sites at any given time. We conclude

from these results that providing federal resources to State agencies to maintain

their infrastructures will ultimately save federal resources and ensure that sites are

returned to productive use in an efficient manner.

H.R. 2580: H.R. 2580 provides grants to States for Brownfield site assessments

and for establishing revolving loan funds for response actions. We concur with these

provisions.

H.R. 1300: H.R. 1300 provides grants to States for Brownfield site assessments

and for establishing revolving loan funds for response actions. We concur with these

provisions.

H.R. 1750: H.R. 1750 only awards grants to State governments for site assessments if ‘‘the Administrator determines that a grant to the State is necessary in

order to facilitate the receipt of funds by one or more local governments that otherwise do not have the capabilities, such as personnel and other resources, to manage

grants under the program.’’ U.S. EPA should receive credit for assisting the majority

of States (40+) in establishing effective site assessment programs. These programs

are limited in their ability to perform work only by a lack of resources. It does not

make sense that Congress would propose to fund States for site assessments only

if a local unit of government could not perform the task. State programs have been

established and should be utilized to their maximum potential. We agree that local

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units of government should be provided funding, but Congress should not overlook

the efficiency factor in using well established programs. For these reasons, we do

not support the funding provisions contained in H.R. 1750.

CONCLUSION:

ASTSWMO and NGA appreciate the opportunity to testify today on a topic of extreme importance to States. We are encouraged that the Subcommittee is examining

these issues and look forward to working with you as you continue the process of

developing Brownfields legislation.

Mr. GREENWOOD. Thank you for your testimony.

Mr. Towns said he is beginning to see the wisdom of my legislation.

For the benefit of the members, I think we can allow Ms. Mills

to complete her testimony, and then we will break for the vote and

return as soon as the vote is over. Ms. Mills, please proceed.

STATEMENT OF TERESA MILLS

Ms. MILLS. Thank you to the committee for the opportunity given

to me today. My name is Teresa Mills. I represent the Buckeye Environmental Network. We are a network of grassroots groups

across the State of Ohio working with other citizens to address

their environmental concerns.

Our experience with the Ohio Voluntary Action Program has

been very discouraging for the citizens of Ohio. I am here to ask

that you maintain a strong Federal oversight role in these programs to prevent the breakdown in the public confidence that the

citizens of Ohio have had to endure.

Ohio’s VAP program is completely unbalanced in favor of corporations hoping to avoid their cleanup responsibilities as cheaply

and as secretly as possible. It is a nightmare program for the

neighborhoods around these facilities, with their dubious cleanup

options, lack cleanup standards, negligible State oversight, lack of

public notice and participation, and extensive secrecy provisions

provide no reasonable confidence that a site addressed by these

programs will not continue to be a health or environmental danger.

The program is dangerous and badly needs to be overhauled from

top to bottom.

The Ohio program authorizes private contractors working solely

for the polluters to design and implement both the site investigation and the remedy, with no involvement by the State. To keep

the secrecy privilege, the facts discovered must be kept secret from

both the government and the neighborhood. At the conclusion of

the site work, the contractor is simply to file a brief document with

the State, certifying that he has followed the State’s broad regulations on the site and that no further action is needed. Based only

on this letter, the Ohio EPA is then required to issue an order

granting a covenant not to sue to the contractor’s employer within

30 days. The only oversight of this program is a random audit system where the Ohio EPA is to review 1 site out of 4. There IS minimal funding for this oversight and, at best, it is a review of the

contractor’s paperwork.

There is no provision whatsoever for the community surrounding

the site to be made aware of the cleanup or its long-term impact

on their neighborhood. There is no public notice, no provision for

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ments, health professional or individual citizens. The affected citizens are left out of this process.

Over the past 7 years, I have asked both the Ohio EPA and the

U.S. EPA the same question on several occasions. My question has

been: Name me one site in the State of Ohio that has been cleaned

up that was not prompted by a citizen. To date, my question remains unanswered. The Ohio program gives the party conducting

the cleanup a right to keep all information and documents generated completely secret even in court proceedings. This is true

even if the ‘‘no further action letter or covenant’’ are not issued.

The surrounding community will never know what contaminants

were at the site, the extent of the contamination, or the amount of

contamination that remains after the remedy is complete.

In short, the Ohio program purposely keeps the public in the

dark about critical issues regarding their own health, and their

rights as State citizens are voided. I do not remember ever giving

up my right to know what was in my community or what my family was exposed to. When did this happen? You can see why some

citizens in the State of Ohio consider this program to be sinister

and ethically perverse.

In 1989 the Ohio EPA created the Division of Emergency and Re- medial Response. Our State lawmakers agreed to add a $1 tax per

every ton of waste generated in the State of Ohio. This was to go

into a quick cleanup fund. Our State legislature took $11 million

from the fund and never replaced it. The citizens of Ohio know all

too well when a good idea goes bad. When State agencies put the

interest of the polluter over the interest of the public, it is the same

as a law enforcement officer taking the word of a mugger over the

word of a victim.

I still have more of my testimony, but I see my time is running

short.

Scores of sites in Ohio have now received release of liability

under the State law. You have it in your power to protect the families who live around these sites by ensuring that Federal law will

stay securely in place, not only for protecting the public health

from environmental contamination, but also to ensure that the

right of Americans to participate in the public decisions where they

have a vital personal interest will be honored by the State legislatures.

I believe that Ohio’s sorry experience with VAP proves that minimum Federal standards for public participation, openness of information, protective cleanup standards, reliability of remedy, adequacy of Federal and State oversight, must be guaranteed to all

Americans. We do not support the restrictions on citizens or the

Federal Government’s enforcement authority that are contained in

any of the bills being considered by the subcommittee. We pray

that the Members of Congress will keep our health and welfare in

mind when considering legislation. Thank you.

[The prepared statement of Teresa Mills follows:]

PREPARED STATEMENT OF TERESA B. MILLS, BUCKEYE ENVIRONMENTAL NETWORK

Thank you Mr. Chairman for the opportunity to address this committee. My name

is Teresa Mills, I represent the Buckeye Environmental Network. We are a network

of grassroots groups across the state of Ohio working to assist citizens with their

environmental concerns.

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Our experience with the Ohio Voluntary Action Program (VAP) has been very discouraging for citizens of Ohio. I am here to ask that you maintain a strong federal

oversight role in these programs to prevent the breakdown in public confidence that

the citizens of Ohio have had to endure.

Ohio’s VAP program is completely unbalanced in favor of corporations hoping to

avoid their clean up responsibilities as cheaply and as secretly as possible. It is a

nightmare program for the neighborhoods around these facilities as its dubious

cleanup options, lack clean up standards, negligible state oversight, lack of public

notice and participation, and extensive secrecy provisions provide no reasonable confidence that a site addressed by the program will not continue to be a health or environmental danger. This program is dangerous and badly needs to be overhauled

from top to bottom.

The Ohio program authorizes private contractors working solely for the polluter

to design and implement both the site investigation and the remedy with no involvement by the state. To keep the Secrecy Privilege, the facts discovered must be kept

secret from both the government and the neighborhood. At the conclusion of the site

work, this contractor simply is to file a brief document with the state certifying that

he has followed the state’s broad regulations on the site and that no further action

is needed. Based only on this letter the Ohio EPA is then required to issue an order

granting a covenant not to sue to the contractor’s employer within thirty days. The

only oversight of this program is a random audit system which the Ohio EPA is to

review one site in every four. There is minimal funding for this oversight so at best

the review is only a review of the contractor’s paperwork.

There is no provisions whatsoever for the community surrounding the site to be

made aware of the cleanup or its long term impact on their neighborhood. There

is no public notice, no provision for a public hearing, and no provision for comment

for local governments, health professionals, or individual citizens, the effected citizens are left out of the process. Over the past seven years I have asked both the

Ohio EPA and the US EPA the same question on several occasions. My question

is, can you name me one site in Ohio that has been cleaned up that has not been

prompted by a local citizen? My question remains unanswered.

The Ohio program gives the party conducting the cleanup a right to keep all information and documents generated completely secret, even in court proceedings. This

is true even if the ‘‘no further action letter or covenant’’ are never issued. The surrounding neighborhood will never know what contaminants were at the site, the extent of the contamination or the amount of contamination that remains when the

site ‘‘remedy’’ is complete.

In short, the Ohio program purposely keeps the public in the dark about critical

issues regarding their own health while their rights as state citizens are voided. I

don’t remember giving up my right to know what was in my community or what

my family is exposed to. When did this happen? You can see why many Ohio citizens consider the program to be sinister and ethically perverse.

In 1989 the Ohio EPA created the Division of Emergency and Remedial Response.

One of the goals of this division was to clean up contaminated sites faster. State

lawmakers agreed to a $1 per ton tax on all solid waste generated in Ohio. Up to

$14 million a year was to be placed in a cleanup fund. While this might sound like

a lot of money, in the 10 years that this tax has been in place only 10 sites have

been cleaned. In 1992, in order to avoid a budget shortage the General Assembly

took $11 million from the fund never replacing it. Little by little the people of Ohio

see the fund dwindle. The fund is used for programs that have very little to do with

cleaning up Ohio’s 1,192 contaminated sites. Last October, the Columbus dispatch

conducted an extensive investigation and the headlines of one article read, ‘‘Ohio’s

toxic tally: 10 cleaned up 1,192 to go’’. (see attached) The Ohio EPA has acknowledged publicly that its clean up program failed to meet expectations.

Citizens of Ohio know all too well what happens when a good idea goes bad. When

state agencies put the interest of the polluter above the interest of the public it is

the same as a law enforcement officer taking the word of a mugger over the word

of the victim. I’m sure these laws can work well, but only if they maintain a balance

between corporate and community interests and produce reliable and adequate results. We’ve missed an excellent opportunity for real environmental progress in Ohio

because our program serves only a narrow economic interest while the broad public

interest is excluded. Ohio’s weak VAP program can promote deceit within the corporate community while giving no peace of mind to Ohio’s mothers and fathers that

a contaminated site is no longer a source of the worst sort of anxiety they should

ever have to bear. A traditional VAP would be welcomed by Ohio’s citizens. This

would apply to sites with low-level contamination, offer the benefits of a streamlined

bureaucracy (but with some oversite), the benefits would be given in exchange for

redevelopment (under Ohio’s Law there is no quid pro quo required).

78

Scores of sites in Ohio have now received a release of all liability under state law

for contamination that is likely still there. You have it in your power to protect the

families who live around these sites by insuring that federal law will stay securely

in place, not only for protecting the public health from environmental contamination, but also to insure that the right of Americans to participate in public decisions

where they have a vital personal interest will also be honored by state legislature.

I believe that Ohio’s sorry experience with the VAP proves that minimum federal

standards for public participation, openness of information, protective clean up

standard, reliability of remedy and adequacy of state and federal oversight must be

guaranteed to all Americans.

Citizens who live around these sites oppose any restricting or weakening of existing federal enforcement authority. Later this week a report titled ‘‘Hidden from the

Public’’, the distortion of the Ohio EPA’s mission will be released. Part of this report

is testimony taken from a citizens public hearing on their dealings with different

programs in Ohio EPA. I will forward a copy of this report when it is released.

We do not support the restrictions on citizens or the federal governments enforcement authority that are contained in any of the bills that are being considered by

the Subcommittee. We pray that the members of Congress will keep our health and

welfare in mind when they consider this legislation.

Thank you for your time, I will be happy to answer any question you might have.

Mr. GREENWOOD. Thank you for your testimony, Ms. Mills.

The subcommittee will recess for the vote and return at approximately 10 to 1.

[Brief recess.]

Mr. OXLEY. The subcommittee will reconvene.

Mr. Curtis, I understand that you are the next witness.

Mr. CURTIS. Yes, sir.

Mr. OXLEY. You may proceed.

STATEMENT OF JONATHAN G. CURTIS

Mr. CURTIS. Mr. Chairman, members of the subcommittee, my

name is Jonathan Curtis. I am president and CEO of CDM Federal

Programs Corporation in Fairfax, Virginia. I am here today in my

capacity as president of the Environmental Business Action Coalition, EBAC, formerly known as HWAC.

EBAC is a national business trade organization whose mission is

to serve and promote the interests of firms practicing in multimedia environmental management. Our firms employ over 60,000

professionals trained in all aspects of the environmental field, and

have extensive experience and knowledge in hazardous waste

cleanup.

Let me clarify the position from which we speak. We are the implementers of the hazardous waste laws and regulations. Let there

be no misunderstanding on anybody’s part: We are not polluters.

We typically do not own or operate the sites where Superfund or

brownfields cleanups are to be performed. We were not involved in

the generation of the waste. We are the firms hired to perform

cleanup actions at sites across the country, and our clients are interested in hazardous waste cleanup and environmental protection.

We commend this subcommittee and its chairman and the full

Commerce Committee for the tireless efforts undertaken to examine ways to make the Superfund program more readily

implementable and to seek enactment of comprehensive and workable Superfund reform legislation.

Turning now to the purpose of this hearing, brownfields redevelopment is one area, I hope all agree on a bipartisan basis, where

more needs to be done to spur reuse of abandoned and underutilized properties throughout this country. This testimony focuses on

79

the brownfields provisions of H.R. 2580, Congressman Greenwood’s

Land Recycling Act of 1999. EBAC is already on record as strongly

supporting H.R. 1300, which also contains strong brownfields provisions as well as overall reforms to Superfund.

The other brownfields bill that is under consideration by this

committee is H.R. 1750. While my testimony only addresses 2580,

I am prepared to answer questions regarding components of all

three bills.

Mr. Chairman, as you referred to in our written testimony, our

clients fear that EPA will second-guess State-approved brownfields

cleanups. Moreover, there remains the potential downstream liability associated with reuse that further retards the process. Willingness by EPA to negotiate prospective purchaser agreements on a

case-by-case basis is not enough.

H.R. 2580’s provisions in section 3 provide the finality in

brownfields decisions that are truly needed if this market and the

actual cleanups are to accelerate. Decisions made by certified

States would not be subject to second-guessing by EPA. We believe

this provision is very important to spurring increased voluntary

cleanup actions at brownfields sites across the country and reducing possible risks to nearby populations that are currently not addressed, expressly because of the fear of Federal liability.

The permit waiver for onsite response actions that is contained

in H.R. 2580 would remove the barriers to actual onsite cleanup

posed by the often-conflicting provisions of RCRA and Superfund.

I must go on record with EBAC’s strong disagreement with the requirement of H.R. 2580 for innocent landowners to undertake environmental site assessment in accordance with the standards set

forth in the ASTM Standard E1527-94 titled ‘‘Standard Practice for

Environmental Site Assessments Phase 1 Environmental Site Assessment Process.’’

We do not believe that this is an appropriate standard for the

brownfields situation. We recommend that you drop the requirement for using ASTM Standard E1527-94. We urge that the legislation require EPA to undertake a rulemaking, using an open,

transparent process and incorporating substantial input from the

professionals who practice in this field to identify the professional

judgment required for qualification as an innocent landowner within a limited specific period of time after passage of the bill.

In terms of the liability net of Superfund, EBAC understands the

need for any brownfields legislation to define innocent landowners

and bona fide prospective purchasers as well as provide liability relief. However, letting everyone off the hook for liability relief can

have the unintended consequence of only leaving one entity responsible for site liabilities, and that is the cleanup firm. We know Superfund’s harsh liability consequences, and the provisions that

have been presented in H.R. 1300 are vital for encouraging and accelerating brownfields cleanups and Superfund cleanups.

We continue to support the provision of financial and technical

assistance to States to develop and administer brownfields programs and grants. Although remedy selection is not the subject of

this hearing, EBAC is convinced that reform and remedy selection

provisions in Superfund is critical to accelerating any program, including brownfields. We hope to be invited back to a subsequent

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hearing to discuss why the remedy reform provisions of H.R. 2580

will accelerate cleanups while ensuring protection of human health

and the environment and should be adopted by this committee.

In conclusion, EBAC appreciates the opportunity to testify before

your subcommittee today. We believe that the time to legislate on

brownfields and overall Superfund reform is now, before the program funding that remains in the Superfund trust fund is exhausted and the total burden of the Superfund program falls to the

States. The health, safety, and economic well-being of the country

are more important than politics.

I remain available to answer any questions you may have. Thank

you.

[The prepared statement of Jonathan G. Curtis follows:]

PREPARED STATEMENT OF JONATHAN G. CURTIS, PRESIDENT, ENVIRONMENTAL

BUSINESS ACTION COALITION

Mr. Chairman, members of the Subcommittee, my name is Jonathan Curtis. I am

President and Chief Executive Officer of CDM Federal Programs Corporation in

Fairfax, Virginia. I am here today in my capacity as President of the Environmental

Business Action Coalition (EBAC), formerly known as the Hazardous Waste Action

Coalition (HWAC). As you know, EBAC is a national, Washington, D.C. based notfor-profit business trade organization whose mission is to serve and promote the interests of engineering, science and construction firms practicing in multimedia environmental management and remediation. EBAC operates as a coalition of the 5,000

firm American Consulting Engineers Council.

The multimedia environmental industry employs more than 1.3 million Americans and generates $181 billion annually in products and services. EBAC members include many of Engineering News-Record Magazine’s Top 200 environmental firms,

who alone generate $24.1 billion of that revenue. EBAC members employ over

60,000 engineers, hydrologists, geologists, chemists, and other specialists trained in

all aspects of the environmental field. Our members have vast experience and extensive knowledge in hazardous waste cleanup. We have pioneered improved methods

of waste management and remediation in this country, and today we are developing

and implementing tomorrow’s solutions for environmental problems worldwide.

Let me clarify the position from which we speak. We are the implementers of the

hazardous waste laws that you enact and the regulations that EPA develops. Let

there be no misunderstanding on anyone’s part—we are not the polluters. We typically do not own or operate the sites where Superfund or Brownfields cleanups are

to be performed. We were not involved in the original generation of the waste that

has resulted in the need for a site investigation or cleanup. We are the firms hired

to perform cleanup actions at sites across the country—from the highly complex

sites on the National Priorities List, to the high level waste and mixed waste sites

operated by the Department of Energy, to the former and current military bases and

facilities operated by the Department of Defense, to state-listed sites, to manufacturing and commercial facilities, landfills, and other environmental projects. Our clients are the federal government, state governments, private commercial and industrial customers, local governments, citizens groups, and others interested in hazardous waste cleanup and overall environmental protection.

We commend this Subcommittee and its Chairman, as well as Chairman Bliley

of the full Commerce Committee, for the tireless efforts undertaken to examine

ways to make the Superfund program more readily implementable from an engineering, scientific, and construction viewpoint, and to seek enactment of much-needed, comprehensive, and workable Superfund reform legislation. We appreciate being

called back to testify this year after testifying last year in favor of Chairman Oxley’s

comprehensive Superfund reform legislation, H.R. 3000. In our testimony last year,

we stated that H.R. 3000 ‘‘will ensure that innovations are applied to cleanups, will

provide incentives for new technologies at hazardous waste sites, and will spur essential state and local voluntary cleanup programs that sometimes languish due to

the shadow of potential CERCLA liability that runs from the Beltway to every

Brownfields site in this country.’’ Mr. Chairman, last year you quoted directly from

our testimony in your opening statement. Your opening statement indicated that the

cleanup contractors believe that ‘‘from a technical, scientific, and engineering perspective, this bill will do more to spur environmental cleanup in a safe and protective manner than could possibly be accomplished under current law.’’

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1 A National Report on Brownfields Redevelopment, Volume II (April 1999), published by the

U.S. Conference of Mayors.

We are proud to be here and able to provide our technical engineering expertise

to the complex, and often emotional, debate regarding hazardous waste cleanup.

Our overriding concern is protection of human health and the environment. We believe that the federal Superfund law and related cleanup activities, including

Brownfields activities, should focus primarily on cleanups. All too often, the debate

becomes lost amid the ‘‘who pays’’ rhetoric. As the CEO of one of our largest members said most eloquently several years ago, ‘‘Superfund is not designed to fix problems, it is a program designed to fix blame.’’

Turning now to the purpose of this hearing, which is Brownfields redevelopment.

Brownfields is one area I hope all agree, on a bipartisan basis, where more needs

to be done to spur reuse of abandoned or underutilized properties throughout this

country. This testimony focuses on the Brownfields provisions of H.R. 2580, Congressman Greenwood’s Land Recycling Act of 1999. EBAC is already on the public

record as strongly supporting H.R. 1300, the bipartisan Recycle America’s Land Act

of 1999 introduced by Chairman Sherwood Boehlert containing over 60 cosponsors.

It also contains strong Brownfields provisions as well as other, much-needed overall

reforms to the Superfund program (including remedy and liability reforms) that

would significantly improve the program’s operations. The other Brownfields bill

that is being considered by this Committee is H.R. 1750, the Community Revitalization and Brownfields Cleanup Act of 1999. While this written testimony only addresses H.R. 2580, I am prepared to answer your question regarding the

Brownfields components of all three bills.

The U.S. Conference of Mayors, who you will also be hearing from today, has been

compiling Brownfields statistics for the past several years. Their most recent

Brownfields report 1 indicates that 180 cities alone estimated that they have over

19,000 Brownfields sites. The report points out that the largest obstacles to

Brownfields cleanups are (1) funding problems, (2) liability concerns associated with

redevelopment, and (3) the need to determine the extent of contamination at the

sites identified.

Our members have been analyzing the Brownfields marketplace for the past several years. In 1998, EBAC released the ‘‘Environmental Market Report and Market

Survey.’’ The survey results indicated that survey respondents anticipate an average

27% growth in Brownfields cleanups in the next five years. State clients identified

the highest expectations for Brownfields cleanups in the next five years, indicating

that the market is likely to grow by 57% in that time period.

I am here to tell you that, in actuality, the true Brownfields market has not kept

pace with expectations. Why? We have been asking our clients just that. Our clients’

responses are fairly unanimous. They fear that EPA will ‘‘second-guess’’ Brownfields

cleanups, and require costly site rework at a later date to reach a different site

cleanup standard so they ‘‘hold onto’’ lightly contaminated parcels instead of turning

them over to beneficial reuse. Moreover, there remains the potential down-stream

liability associated with reuse that further retards the process. These concerns result in owners of such properties not undertaking redevelopment efforts at viable

Brownfields sites. While EPA has indicated a willingness to enter into, on a caseby-case basis, prospective purchaser agreements at Brownfields sites, the process to

enter into those agreements is quite time consuming and there is no certainty in

the end that EPA will agree to a prospective purchaser agreement.

H.R. 2580’s provisions in Section 3 provide the finality in Brownfields decisions

that are truly needed if this market, and the actual cleanups, are to accelerate.

Under the bill, states self-certify that they have enacted a Brownfields program that

is adequately funded and appropriately staffed, and will result in cleanups that are

protective of human health and the environment. Brownfields decisions made by

certified states would not be subject to second-guessing by EPA under the authority

of either the federal Superfund law or the federal RCRA law. This provision is very

important to spurring increased voluntary cleanup actions at Brownfields sites

across the country and reducing possible risks to nearby populations that are currently not addressed, expressly because of the fear of federal liability.

Another significant problem associated with cleanup activities is the often conflicting provisions of RCRA and Superfund during site cleanup activities. Of particular note is the need to obtain permits for management of remediation waste during cleanup activities. Remediation waste management is the subject of RCRA reform discussions that your staff and EBAC have been involved in for some time. The

permit waiver for on-site response actions that is contained in H.R. 2580 would remove the barriers to actual on-site cleanup and significantly increase the pace of

Brownfields cleanups. Cleanup actions would still be protective of human health and

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the environment and subject to regulatory review and approval, of course, under

such a scenario.

I must go on record with EBAC’s strong disagreement with the requirement of

H.R. 2580 for ‘‘innocent landowners’’ to undertake environmental site assessments

‘‘in accordance with the standards set forth in the American Society for Testing and

Materials (ASTM) Standard E1527-94, titled ‘Standard Practice for Environmental

Site Assessments: Phase I Environmental Site Assessment Process.’ ’’ Please note

that this standard is also proposed to be codified in Chairman Boehlert’s bill, H.R.

1300, and in H.R. 1750. EBAC, ACEC, and other professional organizations strongly

disagree with the premise that the so-called ASTM Phase I ‘‘standard’’ is actually

a ‘‘standard.’’ A practice labeled as a ‘‘standard’’ implies that it is a ‘‘tried and true’’

practice which, if followed, yields reliable and trustworthy results and is endorsed

by the professionals who use it. Nothing could be further from the truth. The scientists and engineers who, for the last several decades, have investigated contaminated sites know that it is foolish, even dangerous, to assume that using ‘‘cookbook’’

assessment procedures will uncover all significant contamination. Except for a few

simple sites, the technology required to peer underground and locate all significant

sources of contamination has not been invented.

Left with these uncertainties, the right thing to do is let the practitioners apply

professional judgement to what is truly needed for responsible site cleanup. We recommend that you drop the requirement for using ASTM Standard E1527-94. If some

kind of assessment guidelines are deemed necessary, then we ask that they be developed by EPA, using an open, transparent process, and incorporating substantial

input from the licensed engineers who practice in this field.

The legislation allows EPA to set up an ‘‘alternative standard’’ through a formal

rulemaking process. However, as long as the legislation identifies the specific ASTM

standard that qualifies for ‘‘innocent landowner’’ status, we believe that EPA will

never get to the rulemaking stage to create an alternative standard. We urge that

the legislation delete the ASTM standard, and require EPA to undertake a rulemaking to identify the professional judgment required for qualification as an ‘‘innocent owner’’ within a limited, specific period of time after passage of this bill.

In terms of the liability net of Superfund, EBAC understands the need for any

Brownfields legislation to define ‘‘innocent landowners,’’ and ‘‘bona fide prospective

purchasers,’’ as well as to provide liability relief for contiguous property owners and

state and local governments. Letting everyone off the hook for liability for site cleanup is good public policy for it will enable reuse of these valuable properties and revitalization of urban areas. However, letting everyone off the hook for liability for site

cleanup could have the unintended consequence of leaving only one involved participant with any potential responsible for site liabilities—the cleanup firms. We would

be remiss in this testimony by not adding here, briefly, that the federal Superfund

law’s harsh liability consequences have resulted in imposition of unfair liability on

cleanup contractors merely because of their involvement in site cleanups. Last year’s

H.R. 3000, and this year’s Superfund legislation sponsored by Chairman Boehlert

of the Water Resources and Environment Subcommittee (H.R. 1300), thankfully included provisions that would address contractor liability issues. These protections

are vital for encouraging and accelerating Brownfields cleanups and Superfund

cleanups. We look forward to robustly addressing contractor liability and remedy selection issues with you in further detail at a subsequent hearing, and discussing

why addressing these issues will help spur Brownfields cleanups and other environmental remediation activities.

H.R. 2580 requires EPA to provide financial and technical assistance to states to

develop and Administer Brownfields programs, as well as continues the funding of

Brownfields grants. EBAC strongly supports both of these initiatives. State assistance and Brownfields grants will help ensure that strong Brownfields programs continue to operate across this country. While we recognize that tax matters are not

the responsibility of this Committee, EBAC urges the Congress to explore maximum

use of economic and other incentives to assure that developers will become eagerly

engaged in the process of transforming currently wasted and under-utilized urban

properties into productive ones. Please note, however, that we expect that the proposed lien on facilities in the amount of the unrecovered response costs could pose

a continued obstacle to Brownfields cleanup efforts.

Finally, please note that the fact that we have not addressed Section 9 of H.R.

2580—the Remedy Selection portion of the bill—in this testimony is not an oversight. Remedy selection is not the subject of this hearing. However, as our testimony

last year on H.R. 3000 demonstrates, EBAC is convinced that reforming key remedy

selection provisions in Superfund is critical to accelerating any cleanup program,

whether it be Brownfields cleanups, voluntary cleanups, or Superfund cleanups. We

hope to be invited back to a subsequent hearing to be able to inform this SubVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00085 Fmt 6633 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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committee, in detail, why Section 9’s remedy reform provisions should be adopted

by this Committee and the full Commerce Committee, and why these provisions will

accelerate cleanups while ensuring protection of human health and the environment.

In conclusion, EBAC greatly appreciates the ability to testify before your Subcommittee today on H.R. 2580. We believe that the time to legislate on Brownfields

and overall Superfund reform is now, before the program funding that remains in

the Superfund Trust Fund is exhausted, and the total burden of the Superfund program falls to the states. The health, safety, and economic well-being of the country

are more important than politics. I remain available to answer any questions that

you may have.

Mr. OXLEY. Thank you.

Ms. Florini.

STATEMENT OF KAREN FLORINI

Ms. FLORINI. On behalf of the Environmental Defense Fund and

its 300,000 members, thank you for this opportunity to testify.

Mr. Oxley, I would like to ask if perhaps rather than hearing

from me, you might wish to hear from Ms. Mills, as you were not

in the room, or at least you were not in the chair when she presented her testimony. I can summarize my remarks in about 30

seconds and I would—I think it is extraordinarily important that

you personally hear her remarks.

Mr. OXLEY. I read her testimony, so if you would proceed.

Ms. FLORINI. All right.

Before turning to the specific bills under discussion today, I

would like to make four general points:

First, the Environmental Defense Fund and all members of the

environmental community think that proper reutilization of

brownfields is a very good idea, for the reasons stated a number

of times. It not only improves the quality of life and communities

otherwise that have these underutilized properties, but also, of

course, prevents the redevelopment or the development in greenfield sites.

But the lessons of history make plain that Superfund is not the

sole cause or even the primary cause of urban blight. Slums existed

long before Superfund did. It is axiomatic in real estate that the

three most important factors are location, location, location. Everything else, including preexisting contamination, comes a distant

fourth.

Third, the term ‘‘brownfields’’ means different things to different

people, and we have already observed that today. To some, it

means every formerly used property, regardless of whether the

property is grossly contaminated or virtually pristine. To others.

Brownfields properties are only those that have low levels of contamination. Whichever way the term is used, it is essential to the

protection of public health and the environment that we not wind

up with policies that are suitable only for low-contaminationsites

also being applied to more highly contaminated sites.

Fourth, State programs vary significantly in quality. In a study

released by the Conference of Mayors just 3 months ago, nearly

one-third of the responding cities gave a low rating to their State’s

voluntary cleanup program; 23 percent rated it as not very good,

and 6 percent as poor. Another 44 percent rated their State’s program as merely satisfactory. In short, the mere existence of a State

program is no guarantee of a trouble-free outcome.

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This leads to my most important point. Brownfields redevelopment must not be used as an excuse to roll back protections and

safeguards provided under Federal law. In particular, the Environmental Protection Agency, local governments, and citizens must retain their ability to respond to an imminent and substantial

endangerment as provided by existing law. It is a necessary Federal safety net in those instances where cleanups under State programs don’t work. Where they do work, there will not be any imminent substantial endangerment and the question will not arise.

With those general points, I will turn to the three bills under discussion today. First, we strongly oppose H.R. 2580. We regard it as

an extreme bill. It would dramatically limit the ability to use Federal statutory authorities at sites subject to cleanup under a State

program. This approach eviscerates the Federal safety net. It says

that federalism is more important than public health. This is a values question and one where the Environmental Defense fund believes that it is essential to come down squarely on the side of saying public health and environmental protection is more important

than federalism, not vice versa.

In addition, H.R. 2580 would effectively repeal portions of other

environmental authorities, including key provisions relating to

cleanup, or corrective action, as it is known at hazardous waste

treatment, storage and disposal facilities. It also eliminates permanent requirements for onsite activities occurring under State cleanup programs, thus eviscerating public participation.

And as we have heard from Ms. Mills in Ohio, there is no other

mechanism for public participation under a State cleanup program.

Lack of permits also turns compliance with substantive requirements under these programs into a ‘‘trust but don’t verify’’ situation in many instances.

The supposed protections built into H.R. 2580 are profoundly inadequate. There is no review of the State programs, just a requirement that States provide a one-time self-certification. EPA cannot

reject the certification either initially or at a later time, even if the

State program is entirely defunded.

And as indicated in my written testimony, a participant in the

Ohio brownfields program at the local government level testified

before the Ohio legislature, indicating that already due to inadequate funding, there has been substantial attrition in the State

program.

Finally, we oppose the requirement for Governors’ concurrence.

We believe this is a solution in search of a problem, as EPA already routinely consults with Governors. Making Governors’ concurrence mandatory, we regard simply as a further erosion of the

Federal safety net.

We have also got serious concerns with a number of H.R. 1300

brownfields-related provisions. Chief among our concerns are the

inadequate reopeners, which again cut holes in the Federal safety

net. It also has got innocent party provisions which are far more

sweeping than those in 2580 or in 1750.

Finally, we think that H.R. 1750 is much more focused and contains sensible criteria for approving State programs and appropriate reopeners and avoids the sins of commission and omission

in the other bills. Thank you.

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1See the Hazardous Air Pollutants section of EDF’s Scorecard web site, www.scorecard.org.

Scorecard is a free public information service based on more than 250 electronic data sets, including data from the Environmental Protection Agency’s Cumulative Exposure Project (CEP),

which provides localized estimates of exposures to 148 air toxics. Scorecard multiples the exposure levels by chemical-specific potency values based on authoritative sources to present countyspecific health risks from mobile, area, and point sources of air toxics. (CEP is based on a 1990

emissions inventory, but comparison of the CEP exposure levels with available monitoring data

for the late 1990s shows close agreement. See http://www.scorecard.org/env-releases/def/hap—

compare.html.)

[The prepared statement of Karen Florini follows:]

PREPARED STATEMENT OF KAREN FLORINI, SENIOR ATTORNEY, ENVIRONMENTAL

DEFENSE FUND

On behalf of Environmental Defense Fund (EDF) and its more than 300,000 members, I appreciate this opportunity to testify regarding the brownfields provisions of

H.R. 2580, H.R. 1300, and H.R. 1750. Most of my testimony focuses on the relationship between brownfields legislation and other federal environmental statutes, including Superfund and the Resource Conservation and Recovery Act (RCRA). EDF

has been actively involved in the Superfund reauthorization process, serving on

EPA’s NACEPT Committee on Superfund and on the National Commission on

Superfund, and testifying repeatedly on Superfund during the last three Congresses.

We have also long participated actively in matters affecting RCRA, the nation’s hazardous waste statute.

I. INTRODUCTION: BROWNFIELDS—CAUSES, EFFECTS, AND THE CONTEXT OF STATE

CLEANUP PROGRAMS.

In the last several years, the term ‘‘brownfields’’ has become widely used to mean

abandoned or under-utilized urban areas with known or suspected contamination

from prior industrial or commercial use. (There is considerable confusion about

whether this term refers to sites with only minor contamination, or to the full range

of contaminated sites.) In some circles, it is fashionable to assert or imply that, but

for Superfund and other federal laws, these properties would be restored to productive use forthwith.

Such an assertion is nonsense. Urban properties become abandoned or under-utilized for a variety of complex reasons, of which environmental contamination—real

or perceived—is only one, and typically a minor one at that. Anyone familiar with

the writings of Charles Dickens, not to mention American history, is well aware that

slums existed long before Superfund did. It is axiomatic that there are three things

that matter in real estate: location, location, and location. Crime patterns, availability of transportation and other infrastructure, and contamination concerns follow

along behind.

That said, however, carefully crafted legislation may provide some incremental

benefit in promoting brownfields redevelopment—an objective we support for many

important reasons. First and foremost, abandoned and under-utilized urban properties impair quality of life for urban communities. Getting those sites back into

beneficial use can provide jobs, services, or recreational opportunities to local residents (though siting polluting facilities near residences can be far worse than leaving the site unoccupied).

In addition, failure to redevelop in existing urban areas also creates greater pressure for development on new ‘‘greenfield’’ sites in rural areas. Doing so disrupts

farmland and wildlife habitat (habitat loss is the primary threat to biodiversity, including endangered species). It also contributes to sprawl, which in turn means

more traffic, which means more tailpipe emissions of global warming gases, smog

precursors, and toxic air pollutants. Indeed, on a national basis, about half of the

health risk from air toxics comes from mobile sources.1

In short, redeveloping brownfields—if done well and with meaningful community

involvement—provides a host of community, public health, and environmental benefits.

At the same time, however, it is important to note that the word ‘‘brownfield’’ is

just that: a word. Calling a site a ‘‘brownfield’’ does not lessen its toxicity by one

iota. You can’t fool Mother Nature; ignoring contamination does not detoxify it. Indeed, if brownfields programs result in more-intensive utilization of still-contaminated properties, they can result in increased exposure to toxics.

With land, as with lead-acid batteries and many other materials, bad recycling is worse than no recycling. What’s needed are good recycling programs

for land—ones that (i) assure adequate cleanups before the site is put into use, (ii)

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2 U.S. Conference of Mayors (April 1999). Recycling America’s Land: A National Report on

Brownfields Redevelopment, Volume II, p. 12. 3 U.S. General Accounting Office (April 1997). Superfund: State Voluntary Programs Provide

Incentives to Encourage Cleanups. GAO/RCED-97-66. 4 Id. p. 39.

5Testimony of Virginia Aveni Before the Senate Finance and Financial Institutions Committee, May 26, 1999, p. 3. 6 In addition, section 1’s ‘‘Findings’’ contain a number of seriously erroneous and misleading

statements, and fail entirely to acknowledge the dangers of improperly conducted brownfields

cleanups for both current and future generations. Likewise, Section 8’s provisions on contiguous

properties suffers from several important sins of omission, such as failure to require (i) use of

appropriate care in stopping ongoing releases and exposures, (ii) provision of notice, (iii) no exacerbation of release, and (iv) appropriate inquiry at the time of acquisition. 7While we do not oppose liability protections for contiguous-property owners, we prefer the

provisions in H.R. 1750 to those in H.R. 2580, since the former are less susceptible to abuse.

build in safeguards because cleanups sometimes don’t work as expected, and (iii)

fully involve the affected community.

The Committee is to be commended for having a hearing on the right topic:

brownfields, as opposed to Superfund reauthorization. The Environmental Defense

Fund concurs with the Administration and with the U.S. Chamber of Commerce

that the time for comprehensive reauthorization has come and gone. Rather than

continuing to hold brownfields legislation hostage to the chimera of Superfund reauthorization, it is time to move forward with legislation that serves the legitimate

needs of the public, business, and all levels of government.

But while the brownfields problem warrants Congress’s attention, it cannot become an excuse for rollbacks of important environmental safeguards

and evisceration of the polluter-pays principle. Unfortunately, one of the bills

under consideration in this hearing, H.R. 2580, would have just such an effect. H.R.

1300, though less draconian, would also have serious adverse consequences. By contrast, H.R. 1750 is a sensibly tailored approach to the specific issues. All three bills

are discussed in more detail below.

Before turning to those bills, it is useful to remind ourselves that state voluntary

programs differ substantially in their quality. Indeed, in a study released by the

Conference of Mayors just three months ago, nearly one-third of the responding cities gave a low rating to their state’s voluntary cleanup program (23% rate it as ‘‘not

very good’’ and 6% as ‘‘poor’’).2 Another 44% rates their states program as merely

‘‘satisfactory’’. In short, cities themselves are less than ecstatic about most state

brownfields programs, making clear the continuing need for a federal safety net.

Further illustration of this point comes from a recent study of voluntary programs

by the General Accounting Office. 3 Although the majority of 17 states surveyed

typically use standards based on industrial-use scenarios in cleaning up sites, only

two monitor the land-use restrictions that must be concomitantly imposed on such

sites to keep non-industrial uses from occurring.4 Likewise, in 8 of the 17 states,

most cleanups use non-permanent cleanup methods but received only limited monitoring, primarily in the form of periodic reports by the facility owners.

In addition, resource constraints can pose serious problems. Just two months ago,

the manager of the Brownfields Redevelopment Project for Ohio’s Cuyahoga County

Planning Commission testified that the pending budget for Ohio’s voluntary cleanup

program ‘‘reflects no commitment to staff the program’’. Since the beginning of the

year, the [voluntary program] has been in a mode of attrition. As of this week staff

has been cut—reducing its size from 25 to 16 FTEs statewide.’’ 5

In short, the existence of a state cleanup program is no guarantee that

cleanups under that program will prove effective. When they aren’t, federal

authorities must be available to provide a safety net for communities.

II. H.R. 2580: UNDERCUTTING THE FEDERAL SAFETY NET FOR BROWNFIELD CLEANUPS

Unfortunately, H.R. 2580 eviscerates the federal safety net. Sections 3 and 4 are

particularly objectionable.6 Our opposition to these provisions dramatically outweighs our longstanding support for the concept of bona fide prospective purchaser

protections such as those in section 6. Likewise, while we support protection of innocent parties, section 5 of H.R. 2580 should be strengthened by adding requirements

(such as those in H.R. 1750) that the purchaser take reasonable steps to prevent

ongoing or future releases, and cooperate with parties conducting a cleanup at the

site.7

Our major concerns with sections 3 and 4 are set forth below.

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a. H.R. 2580’s Inappropriate Limitations on Federal Authority at State Voluntary Cleanup Sites.

Section 3 bars EPA, citizens, and local governments from bringing an action

under Superfund and parts of RCRA with regard to a release at a facility that is

or has been the subject of a response action under a state program.

Such restrictions go far beyond the Superfund liability protection for bona fide

prospective purchasers, a concept which EDF has long supported as noted above.

Those provisions allow parties that have no prior connection to the site, and that

meet certain common-sense requirements, to be assured that they will not become

liable as an owner/operator under Superfund for pre-existing contamination at the

site. This provision should help further spur brownfield redevelopment.

Unfortunately, Section 3 of H.R. 2580 goes much further. It not only limits all

Superfund enforcement authorities, but also key RCRA enforcement authorities—

ones that enable both EPA and citizens to take action against parties that are mismanaging solid or hazardous wastes to the extent of presenting an ‘‘imminent and

substantial endangerment.’’

At the same time, it is far from clear what ‘‘release at a facility that is, or has

been, the subject of a response action pursuant to a State program’’ actually means.

Does the prohibition apply even if the State response action covered a completely

different release at a facility (i.e., does ‘‘subject’’ modify ‘‘release,’’ or does it modify

‘‘facility’’)?

Likewise, what does ‘‘the subject of’’ mean? What if the response action was

planned years ago, but no steps to implement it were ever taken? Or if action

stopped after initial studies were completed? Or if a cleanup was carried out, but

failed to achieve required cleanup levels? Or wasn’t maintained as required by the

state cleanup plan? These questions will also require years of litigation to resolve.

Polluters will seek the broadest possible construction of these phrases to escape

liability under Superfund and RCRA. As discussed below, these concerns are particularly acute in light of the breadth of Section 3’s scope, as well as the profound

weakness of its certification and re-opener provisions.

1. Letting Federalism Trump Public Health

Remarkably, Section 3 limits EPA from taking any action at all—even at its own

expense—at sites where action under a state program has proven ineffective.

This provision is based on a fundamentally flawed premise: that contaminated

sites addressed under state cleanup programs should be above the law, immune

from all Superfund and some RCRA enforcement authorities, unless certain limited

conditions are met. The result is that private cleanups with no governmental oversight can completely bar use of RCRA and CERCLA safeguards—no matter how serious a threat the site poses.

This approach undercuts the federal safety net for cleanups and elevates

principles of federalism above protection of public health and the environment. If cleanups under state programs don’t work, the federal government should

be able to act, under the same standard that applies across the board. There is not

a shred of evidence that, following action under a state program, EPA has insisted

on post-cleanup cleanups that serve no purpose to protect health and environment.

Indeed, EPA has seldom if ever required additional action following completion of

a cleanup under a state program, except where the state itself has requested EPA

intervention.

Simply put, it is not acceptable to restrict the ability of federal and local

governments and citizens to respond to imminent and substantial

endangerments at sites where cleanups under State programs have occurred. By definition, those cleanups didn’t work—if they had, the site

would not be presenting an imminent and substantial endangerment.

2. Undercutting Incentives for Effective Voluntary Programs

Under current law, the authority of EPA, local governments, and citizens to act

following an unsuccessful state cleanup itself creates an important incentive for

more-rigorous cleanups, and for minimizing abuses within state cleanup programs.

The very fact that this authority now exists decreases the likelihood it will be needed. Conversely, removing or limiting that authority makes it more likely that problems will arise—and be harder to deal with.

Superfund clearly creates powerful incentives for action. The Cleveland Plain

Dealer recently ran a story about the Ashtabula River Partnership, a group working

to avoid a potential Superfund listing by creating what they regarded as ‘‘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

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8 ‘‘Toxic Cleanup: Ohioans Aim to Skirt Superfund Listing,’’ Greenwire (electronic newsletter),

June 14, 1995 (synopsis of story from June 11 Cleveland Plain Dealer). 9GAO, p. 3.

10See for example, Coffey, ‘‘Environmental Firms Assume Cleanup Risks,’’ Seattle Daily Journal of Commerce, 02/11/97 [Retrieved from ttp://www.djc.com/data/news/19970211/10020180.htm

2/27/97]. The article describes a ‘‘radically different approach to soil and groundwater cleanups

that is slowly catching on in the environmental industry. A handful of firms are guaranteeing

cleanup costs for their clients and, in some cases, providing definite dates for when the cleanup

work will be finished.’’ The article continues, ‘‘Not only are these companies promising to bring

sites up to [Washington] Department of Ecology standards within a certain amount of time, they

also are assuming the financial risks involved if the schedules for site closures can’t be met.

This new approach is being hailed as the missing link needed to get the state’s hundreds of

abandoned contaminated properties, or ‘brownfields,’ cleaned up and redeveloped.’’ Similarly,

conferences with titles such as ‘‘Realizing Profits in Brownfields,’’ which advertise a ‘‘unique opportunity for all parties involved with Brownfields properties to locate and initiate their next

profit making real estate deal,’’ are increasingly common. [Flier for conference scheduled for

April 10-11, 1997, Philadelphia PA].

Superfund itself. Without Superfund, however, most parties wouldn’t even be at the

table.’’ 8 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.’’ 9

Just as Superfund creates incentives for voluntary action, so continued applicability of Superfund reinforces incentives for high-quality voluntary action. These incentives should not be discarded.

3. Granting Windfall Waivers of Liability.

In addition, Section 3 provides a windfall waiver of Superfund liability for current

and past owners and operators of the site, as well as all generators and transporters, who would otherwise be liable for cleanup costs at the site. Even if one accepts the argument that current site owners will be reluctant to re-develop or sell

their property unless States can relieve them of liability under federal law—an argument we find singularly unpersuasive—there is no justification whatsoever for extending the waiver of liability to past owners, or to generators or transporters.

Relieving current owners of liability is itself highly objectionable, since in many

instances it is these very parties who are most responsible for conditions at the site.

In EDF’s view, the only liability limitations that are warranted are those for bona

fide prospective purchasers. Even without prospective-purchaser limitations, the private market is increasingly providing mechanisms for moving forward with

brownfield redevelopment today.10 Until and unless objective evidence demonstrates

that liability relief for bona fide prospective purchasers is insufficient to promote

adequate brownfields redevelopment, this provision can only be regarded as a giveaway to parties who have known they were potentially liable for two decades.

Finally, it must be noted that the approach taken in Section 3 substantially undercuts the prospective-purchaser provisions in Section 6 of H.R. 2580, since liability

is blocked even if Section 6’s requirements are not met.

b. H.R. 2580’s Implicit Repeals of Other Environmental Authorities.

Unlike other brownfields bills, H.R. 2580’s limitations on Superfund and RCRA

enforcement authorities apply to a wide range of sites at which there is a clear preexisting federal interest. For example, H.R. 2580 fails to provide that sites cannot

be diverted into state programs once they have been proposed for listing on the National Priorities List, providing opportunities for gaming the system.

In addition, the bill fails to preserve the applicability of a host of other federal

environmental important laws that may affect contaminated sites:

• RCRA authorities, e.g., relating to corrective action and closure of land-disposal

units (such as liners, leachate collector systems, and landfill covers);

• TSCA authorities, e.g., for cleanup of PCB contamination;

• Clean Water Act authorities, e.g., relating to wetlands; and

• Safe Drinking Water Act authorities, e.g., relating to underground injection.

These glaring omissions means that state voluntary programs which may completely lack public participation and substantive standards to trump provisions of

other major federal environmental laws—each of which has evolved specific implementing regulations, with extensive public participation, over many years.

Most egregiously, H.R. 2580 undercuts the RCRA corrective action program. Since

enactment of the 1984 amendments to RCRA, owners and operators of hazardous

waste facilities have known that they have a legal obligation to clean up existing

messes at their facilities in conjunction with getting their facility permit. Under

H.R. 2580, these 15-year-old requirements arguably could be circumvented by a far

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11See http://www.epa.gov/epaoswer/osw/cleanup.htm#ca program. 12See http://www.epa.gov/epaoswer/osw/cleanup.htm#baseline. 13 Nor does H.R. 2580 have any mechanism for assuring the adequacy of a state’s public participation program, even if it the state nominally has one.

weaker voluntary cleanup with no public participation. Such a rollback of existing federal requirements is completely unacceptable.

The scope of this issue is significant, as approximately 3,700 RCRA sites may require corrective action.11 EPA recently designated 1,712 corrective action sites for

priority attention through 2005.12 A state that wants primacy in directing action at

these sites (and other RCRA corrective action sites) has a clear means of obtaining

it: become authorized to administer the corrective action program, as 30-plus states

have done already.

Exacerbating all these problems, H.R. 2580 contains a sweeping exemption to permitting for all on-site activities conducted under a voluntary response plan [§ 3(e),

p.7]. This provision offers a massive loophole for evading requirements of RCRA, the

Clean Air and Clean Water Acts, and a variety of other federal protections.

In many instances, eliminating permit requirements eliminates public participation—and H.R. 2580 conspicuously fails to require that state programs provide meaningful participation (or indeed any at all).13

Although the bill purports to require that the substantive standards be met, this

is meaningless since the only way the public (or state or federal regulators) are likely to be able to tell if the standards are met are through inclusion of specific standards in the permit. Under many of the affected statutes, the substantive regulatory

standards have been promulgated in relatively general form, so that they may be

applied in a site-specific manner through the permit (or provides for site-specific exceptions to generally-applicable standards). Obviating the permit will often leave

site owners with unfettered discretion to pick a numerical standard that allows

them to minimize the cost of cleanup. At the same time, H.R. 2580 fails to require

any active state oversight. This is a recipe for disaster.

This provision is by no means analogous to Superfund’s exemption for permitting

for on-site activities. Under Superfund, there is a high level of active governmental

oversight and public participation, making the Superfund remedy-selection process

at least the equal of federal permitting processes other environmental programs (indeed, Superfund exceeds all other programs inasmuch as it allows citizens to obtain

Technical Assistance Grants.) By contrast, H.R. 2580 conspicuously fails to assure

any level of public participation in state voluntary programs, just as it fails to require any level of active state supervision of the cleanup. Moreover, under Superfund it is EPA that makes cleanup determinations—the same body that develops

the substantive standards underlying the waived permits. In the brownfields context, it is States or site owners that make cleanup determinations—groups that may

have little interest in assuring that the underlying substantive standards are indeed

met.

In short, even if one assumes that federal Superfund authorities should be limited

at some sites in order to promote brownfield redevelopment (an assumption we do

not share), that constitutes no justification for indirectly repealing significant portions of other major federal laws. Any limitations on Superfund authorities must be

accompanied by explicit preservation of authority under these other major federal

environmental programs, as well as by adequate certification and re-opener provisions as discussed in the next section, and retention of existing permit requirements.

c. H.R. 2580’s Inadequate Certification and Re-opener Provisions

1. Weak Self-Certification Provisions

Although Section 3’s reach is purportedly limited by provisions that set both preconditions (State certification) and criteria for re-openers, both sets of provisions are

seriously flawed.

The State certification requirements are almost meaningless. The state need only

submit a three-part self-certification: that a voluntary response program has been

enacted; the State has committed financial and personnel needed to carry it out; and

such program will be implemented in a manner protective of human health and the

environment (§ 3(b), p.4). For all the bill says to the contrary, the Governor could

write these phrases on a post card and mail it to Administrator Browner—and

achieve automatic, irrevocable, permanent designation as a State response program

for purposes of barring EPA, citizen, and local government action under Superfund

and RCRA’s imminent-hazard provisions.

EPA has no authority to reject the self-certification, no matter how inaccurate.

Moreover, there is no requirement for public participation of any kind in

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14See, e.g., Arizona (Arizona Statutes § 49-287(E)); Arkansas (Arkansas Statutes § 8-7-409(a));

California (California Superfund act, § 25358.3(a)); Colorado (Colorado Statutes § 25-15-

301(4)(a)); Hawaii (Hawaii Statutes § 128(D)-4(2)); Louisiana (Louisiana Revised Statutes

30:2275(A)); Maryland (MD Environmental Statutes § 7-222 (2)(iii)); Michigan (Michigan Statutes § 324.20119(1)); Minnesota (Minnesota Statutes 115B.18 Subdivision 2); Montana (Montana

Statutes 75-10-711(1)(a)); New Hampshire (New Hampshire Statues Annotated § 147-A:13); New

Mexico (New Mexico Statutes Annotated § 74-4-13(A)); Oregon (Oregon Statutes § 465.260(5)(b));

Pennsylvania (Pennsylvania Statutes 35, § 6020.501(g)); South Carolina (South Carolina Statutes Annotated § 44-56-50); Texas (Solid Waste Disposal Act § 361-272(a)); West Virginia (West

Virginia Statutes § 22-18-18)a)). 15 E.g., Memorandum of Agreement Between the Texas Natural Resource Conservation Commission and the U.S. EPA, Region 6; and similar agreements in Colorado, Illinois, Michigan,

Minnesota, Missouri, Wisconsin. 16Statement of David Levy before the Subcommittee on Commerce and Finance of the House

Commerce Committee, Committee Print p. 114.

the State program (much less provision of technical assistance resources), nor is

there any opportunity for the public to provide EPA with comment on the adequacy

of the state program. Nor is there any requirement that the state provide any oversight of private parties’ cleanup activities. And even if the State has committed adequate resources at the time of the certification, there is no requirement for regular

re-certification, or notifying EPA if resources cease to be adequate (e.g., due to dramatic budget cuts).

2. Inadequate Re-openers.

The appropriateness of the re-openers is one of the most vital aspects of any ‘‘finality’’ provision—and an area where H.R. 2580 is particularly flawed (§ 3(d), p.5).

The finality provision (which applies even to sites already proposed for listing under

Superfund) is limited only where:

• The site has been listed under Superfund (but unlike all other brownfields bills,

not for sites already proposed to be listed);

• The Governor requests EPA action;

• The site is a federal facility;

• Prior to commencement of action under a state program, a federal administrative

or judicial order was issued under Superfund, RCRA, the Clean Water Act,

TSCA, or the Safe Drinking Water Act; or

• ‘‘response actions are immediately required to prevent or mitigate a public health

emergency and...the State is not responding in a timely manner.’’

This last proviso is a plum ripe for corporate litigators to pluck, again and again,

first as to its general meaning, and then as to its applicability in specific factual

settings whenever their clients want to circumvent attention by EPA, citizens, or

local governments. What does ‘‘immediately’’ mean? What is a ‘‘public health emergency’’? Why is there no consideration of the environment? What is a state ‘‘response’’? What is a ‘‘timely manner’’?

All this fodder for the litigation mill is unnecessary. EPA should be able to act

without restriction at voluntary cleanup sites, just as it can anywhere else. Where

a voluntary cleanup is efficacious, EPA will have no need (or motive) to act—but

where the cleanup doesn’t work, a federal safety net should be readily available,

under the familiar ‘‘imminent and substantial’’ standard (which is also found in numerous state cleanup laws 14 and in Memoranda of Agreement between EPA and

several states regarding state voluntary programs 15). In addition, prior testimony

to this committee by the National Association of Local Government Environmental

Professionals has also endorsed the inclusion of a reopener based on the ‘‘imminent

and substantial’’ standard.16

d. Disempowering the Public: Governor’s Concurrence

In another highly objectionable feature of the bill, new sites can be added to the

Superfund list only upon the concurrence of the Governor of the State in which the

site is located [§ 4, adding CERCLA § 105(h), p.8].

While it may be appropriate to give states ‘‘first dibs’’ on cleanups at sites that

will be appropriately addressed through state action, this provision goes much too

far. A state could, through simple inaction, bar action under Superfund even though

the site will not otherwise be cleaned up. This invites potential abuses (if, for example, a major potentially responsible party at the site also happened to be a campaign

contributor to a high-ranking State official).

This provision effectively repeals section 105(d) of CERCLA, under which citizens

and local governments can petition EPA to list sites on the NPL. Where prompt

state action has been forthcoming, no such petition is needed. But where it is lacking, Governors should not be able to cut a hole in the federal safety net. Notably,

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17 Comments of the National Association of Attorneys General on H.R. 1300, as transmitted

by Lynne M. Ross, Deputy Director, NAAG, by letter of May 24, 1999, to Chairman Sherwood

Boehlert of the Water Resources and Environment Subcommittee, p. 2.

the majority of NPL sites in Louisiana have resulted from citizen petitions, highlighting the importance of this mechanism.

As above, EPA’s authority to list absent the Governor’s concurrence serves as a

useful incentive, and makes it less likely that EPA will actually have to do so. In

1995, EPA established a formal policy for coordinating with states in deciding

whether to list. Since that time, no site has been listed over a Governor’s objection.

However, if EPA were unable to list absent concurrence, states would find themselves under much greater political pressure to object to NPL listing—even if the

state’s program was indeed strapped for resources.

In short, the requirement for the Governor’s concurrence is a solution in

search of a problem—and one that will itself create a number of problems.

III. H.R. 1300: ANOTHER SET OF HOLES IN THE FEDERAL SAFETY NET.

Though the brownfields-related provisions of H.R. 1300 are less extremist than

those of H.R. 2580, they are still far from acceptable. Our most serious concerns involve the limitation on use of Superfund authorities found in section 104 [adding

CERCLA § 129, p.17], in tandem with the inadequate re-opener provisions. As discussed above with regard to H.R. 2580, we oppose creating a more-restrictive standard for action under Superfund, which will delay further action at sites with ineffectual voluntary cleanups and also prompt litigation over this new terminology (i.e.,

action is ‘‘immediately required’’ to address ‘‘an emergency’’ and ‘‘there is an immediate risk to public health or welfare or the environment’’ (p.19)).

These concerns are exacerbated by the fact that H.R. 1300 applies its limitations

on Superfund cost-recovery authorities to state programs sight unseen. Those limits

apply to any state law ‘‘that specifically governs response actions for the protection

of public health and the environment’’ [p.18], regardless of whether those programs

actually achieve their objectives, have adequate resources, or provide for any public

participation at all. There is no opportunity for EPA to review those programs, or

gather communities’ views on their adequacy. As noted above, almost one-third of

cities responding to a survey for the U.S. Conference of Mayors rated their state

voluntary cleanup programs as less than satisfactory, so the blanket approval

awarded by H.R. 1300 is plainly unwarranted.

In addition, section 105’s requirement for a one-year delay in finalizing an NPL

list is not desirable, since more-rapid listing may be appropriate in some cases.

(§ 105, adding CERCLA § 105(h), p. 19]. We concur with the National Association

of Attorneys General that such provisions allow potentially responsible parties ‘‘too

many easy routes to avoid enforcement or listing.’’ 17

In addition, we strongly oppose portions of the innocent-party provisions of H.R.

1300, found in section 303. EDF has long supported tailored provisions, such as

those in section 202(a) of H.R. 1750 and section 5(a) of H.R. 2580, that provide liability relief for truly innocent parties, though we strongly prefer H.R. 1750 because

it appropriately requires that parties take reasonable steps to stop ongoing and prevent future releases and exposures, and to provide cooperation and access for the

cleanup. By contrast, Section 303 of H.R. 1300 changes Superfund’s basic defenses

to liability to include consideration of ‘‘generally accepted good commercial and customary standards and practices at the time’’—a sure-fire way to expand litigation

while everyone argues about what that means, and to shift cleanup costs to the general taxpayer—and also contains an unworkable site-specific basis for assessing

whether the party made all appropriate inquiry [section 303(a), amending CERCLA

107(b)(4), p.64].

In sum, while H.R. 1300 is less draconian than H.R. 2580, it is still far from acceptable.

IV. H.R. 1750: A MODERATE AND TAILORED BILL

By contrast, H.R. 1750 takes a measured approach. Unlike H.R. 2580, it places

no restrictions on RCRA authorities; with regard to Superfund, it limits only Superfund’s cost-recovery provisions, but not EPA’s authority to take direct action. In addition, H.R. 1750 has much more reasonable re-opener provisions. These include

(among others) the existing standard for action, namely ‘‘imminent and substantial

endangerment,’’ as well as new conditions that result in a lack of protection of the

environment.

Likewise, H.R. 1750 has far more robust criteria for state programs. Rather than

the one-time self-certification provided by H.R. 2580 (which blocks all use of SuperVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00094 Fmt 6633 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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fund and some RCRA authorities), H.R. 1750’s limitations on cost-recovery authority

apply only if a program is approved. Criteria for program approval include public

participation and technical assistance, protective site assessment and cleanups, adequate oversight and enforcement, prior approval of cleanup plans, and certification

of completion of the cleanup.

In addition, H.R. 1750 provides that a previously-approved program can be disapproved if changed circumstances warrant, a sharp distinction to H.R. 2580’s onceand-forevermore approach. In short, H.R. 1750 avoids both the sins of omission, and

the sins of commission, found in H.R. 2580 and H.R. 1300.

V. CONCLUSION

We appreciate this opportunity to testify.

Mr. OXLEY. Mr. Garczynski.

STATEMENT OF GARY GARCZYNSKI

Mr. GARCZYNSKI. Mr. Chairman, my name is Gary Garczynski. I

am the Vice President and Secretary of the National Association of

Home Builders and the senior officer with oversight over the Smart

Growth Initiative. I speak to you today on behalf of President

Roma, who could not be here due to other business concerns, and

he apologizes to you and promises you a round of golf, but watch

his handicap.

Redeveloping brownfields revitalizes economically depressed

areas, and cleans up the environment as well. That is why we as

home builders have made brownfields redevelopment one of the key

components of our Smart Growth strategy. In fact earlier this year,

the Home Builders joined in an initiative with the U.S. Conference

of Mayors and HUD to produce 1 million homes in the inner cities

over the next decade. Fixing our brownfields problem will go a long

way toward promoting Smart Growth initiatives throughout this

country.

Last month, your House Real Estate Caucus hosted the national

real estate organization’s Annual Conference on Smart Growth. I

strongly suggest you review that transcript. The last hour of that

meeting did nothing more than talk about the need for legislative

reform so that real estate companies and the community can engage in cleaning up and redeveloping brownfields sites. Taking advantage of brownfields would ease pressure to develop on the

fringes of the suburbs, thus slowing the rate of suburban expansion.

We appreciate the opportunity to discuss the three bills before

you as well as some of our proposals that focus exclusively on

brownfields redevelopment.

First, legislation to promote brownfields redevelopment does not

necessarily need to be linked to legislation that reauthorizes Superfund. Most Superfund bills, including the ones before your subcommittee, are, by and large, aimed at providing protection for a

person who already owns or is otherwise connected to a contaminated site through no fault of his or her own. That is an important

reform.

But as builders we don’t look at brownfields purely in terms of

escaping liability. Indeed, we see brownfields as an opportunity to

get involved and turn unproductive land into livable communities,

promoting urban renewal, improving the environment and giving

communities more options in growth smart.

93

It makes no sense for us to become involved in a site when we

face the added cost of cleanup and the legal uncertainties of Superfund, not to mention a host of other Federal laws and regulations.

If Congress is genuinely interested in involving us in the cleanup

and reuse of sites, then it should take a look at incentives and

guarantees to make up for the risk inherent in developing contaminated sites.

One principle which we can all agree upon is that State-run programs are the most effective means for bringing about brownfields

cleanup. To date, over 35 States have adopted legislation or promulgated regulations that use innovative risk-based cleanup standards that drive down the cost of cleanup while protecting public

health and the environment. These programs also give the necessary liability protections and assurances to attract us builders.

More States are creating voluntary cleanup plans each year.

In encouraging the use of State programs, EPA’s role must be

clearly defined in terms of its ability to interfere with the cleanup

that is underway, or reenter a completed plan. Any developer’s top

priority before beginning a project is to define. All potential costs

or delays in a project. To that end, the more certainty a builder

has, the better he or she can plan a project and the more likely he

or she will engage in a project.

With this in mind, we find Congressman Greenwood’s and Congressman Boehlert’s bills the most useful. While all three bills provide some certainty as to EPA’s role in State programs, both of

these bills provide more certainty as to exactly what circumstances

allow EPA to get involved in a particular State program.

Certainly we understand Congressman Towns would like EPA to

have oversight over State brownfields programs. However, we

worry that this will exact from States concessions that will ultimately rob them of the advantages of their—that their programs

would offer.

It has been our experience that the EPA has been very reluctant

to give States the kind of guarantees that would empower their voluntary cleanup programs to the extent necessary to make them

viable. We believe that EPA’s role in brownfields should be dependent upon the level of contamination present on a site. It should retain authority over the most contaminated sites, but less contaminated sites should simply be removed from their authority all together.

In reality, few builders have the money or the technical expertise

to take on truly contaminated sites. These sites require the expertise and deep pockets of a government agency for remediation. But

less contaminated sites can be effectively remediated by developers

or other interested parties by working through a State program.

The National Priorities List, as created by Superfund, is an excellent way of rating these sites and clarifying which belong under

the care of Superfund and which should not be part of EPA’s authority. Both Congressman Towns’ and Congressman Greenwood’s

bills implicitly acknowledge this principle.

If Congress truly wants to promote brownfields redevelopment to

its fullest extent, it should consider a definition of brownfields that

covers other contaminants not covered by Superfund.

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Foremost among these are contaminants that come from petroleum products. Our estimation suggests that nearly half the redevelopment brownfields sites in this country are contaminated not

with Superfund-related toxins but rather petroleum-related toxins.

Unfortunately, none of the legislative proposals you are considering address these sites. Indeed, to be thorough, Congress should

address not only petroleum contaminants——

Mr. OXLEY. Could you summarize, please?

Mr. GARCZYNSKI. [continuing] but all federally covered contaminants.

I am suggesting ultimately that Congress should recognize that

EPA does have a legitimate role in protecting the public health and

the environment, and it should not be hamstrung when generally

attacking these hazards for public safety. The most hazardous sites

should still be supervised by the agency since it has the resources

and expertise to make sure the cleanup is done right, but those

that actually cause the contamination contribute their fair share to

the cleanup.

But, in conclusion, brownfields redevelopment is a win-win situation for everybody, and it is unfortunate that we have not, as a

Congress and administration and a community, been able to channel our resources for solving this problem. I hope that we are going

to do that here and now.

Thank you. I am ready to answer any questions, Mr. Chairman.

[The prepared statement of Gary Garczynski follows:]

PREPARED STATEMENT OF GARY GARCZYNSKI, NAHB VICE PRESIDENT/TREASURER ON

BEHALF OF THE NATIONAL ASSOCIATION OF HOME BUILDERS

Mr. Chairman and members of the Subcommittee, I am pleased to represent the

197,000 members of the National Association of Home Builders today and talk about

brownfields legislation.

Importance of Brownfields and Smart Growth

As you know, redeveloping brownfields not only revitalizes economically depressed

areas but cleans up the environment as well. That is why the homebuilders have

made brownfields redevelopment one of the key components of our smart growth

strategy. In fact, earlier this year the homebuilders joined in an initiative with the

U.S. Conference of Mayors and the Department of Housing and Urban Development

that will produce one million new homes in cities and inner suburban rings over

the next decade. Solving our nation’s brownfields problem would greatly facilitate

this effort by opening up to redevelopment areas that desperately need economic revitalization.

In fact, fixing our brownfields problem would go a long way toward promoting

smart growth initiatives throughout the country. Last month the House Real Estate

Caucus hosted the National Real Estate Organization’s annual conference on Smart

Growth. We spent most of the last hour of that meeting talking about the need for

legislative reform so that the real estate community can engage in cleaning up and

redeveloping these sites. Taking advantage of brownfields would ease pressure to

develop on the fringes of our suburbs, thus slowing the rate of suburban expansion.

Addressing H.R. 1300, H.R. 1750 and H.R. 2580

You have indicated today that you would like us to testify on three bills your subcommittee will soon take up. H.R. 1300, sponsored by Congressman Boehlert (RNY); H.R. 1750, sponsored by Congressman Towns (D-NY); and H.R. 2580, sponsored by Congressman Greenwood (R-PA). We appreciate the opportunity to discuss

these bills with the Subcommittee as well as present our own proposal that focuses

exclusively on brownfields redevelopment.

NAHB has devoted significant time and resources toward finding the best way to

bring about brownfields redevelopment. Our first observation is that legislation to

promote brownfields redevelopment does not necessarily need to be linked to legislation that reauthorizes Superfund. Most Superfund bills, including the ones before

95

your subcommittee, are by and large aimed at providing protection for a person who

already owns or is otherwise connected to a contaminated site through no fault of

his or her own. This is important reform.

But our builders do not look at brownfields purely in terms of escaping liability.

Instead, we see brownfields as an opportunity to get involved and turn unproductive

land into livable communities. This is something we want to do for all the right reasons: to promote urban renewal, to improve the environment, and to give communities more options in growing smart. But it makes no sense for us to become involved in a site when we face the added costs of cleanup and the legal uncertainties

of Superfund, not to mention a host of other federal laws and regulations. If Congress is genuinely interested in involving us in the cleanup and reuse of these sites,

then it should look for incentives and guarantees to make up for the risks inherent

in developing contaminated sites. Fortunately, all three bills we are discussing

today acknowledge that fact to one degree or another.

The Importance of State Voluntary Cleanup Programs

One principle I which we can all agree upon is that state run programs are the

most effective means for bringing about brownfields cleanup. To date over 35 states

have adopted legislation or promulgated regulations that use innovative risk-based

clean-up standards that drive down the costs of cleanup while protecting public

health and the environment. These programs also give the necessary liability protections and assurances to attract builders. More states are creating voluntary cleanup

plans each year.

In encouraging the use of state programs, EPA’s role must be clearly defined in

terms of its ability to interfere with a cleanup plan that is underway or re-enter

a completed plan. Any developers’ top priority before beginning a project is defining

as best possible all potential costs or delays in a project. To that end, the more certainty the builder has, the better he or she can plan a project and the more likely

he or she will engage in a project.

With this in mind, we find Congressmen Greenwood and Boehlert’s bills the most

useful. While all three bills provide some certainty as to EPA’s role in state programs, both the Greenwood and Boehlert bills provide more certainty as to exactly

what circumstances allow EPA to get involved in a particular cleanup project sponsored by a state program.

Certainly, we understand why Congressman Towns would like EPA to have oversight over state brownfields programs—much as it exercises this oversight in state

Clean Water programs; however, we worry that this will exact from the states concessions that will ultimately rob them of the advantages their programs offer. It has

been our experience that EPA has been very reluctant to give states the kind of

guarantees that would empower their voluntary cleanup programs to the extent necessary to make them truly viable.

EPA’s Role in Cleanups

This brings us to another important principle that is implicit, to varying degrees,

in all three proposals before you today. We believe that EPA’s role in brownfields

should be dependent upon the level of contamination present on the site; it should

retain authority over the most contaminated sites but the less contaminated sites

should simply be removed from its authority altogether.

In reality, few builders have the money and technical expertise to take on truly

contaminated sites. These sites require the expertise and deep pockets of a government agency for remediation. But the less contaminated sites can effectively be remediated by developers or other interested parties by working through a state program. The National Priorities List, as created under Superfund, is an excellent way

of rating these sites and clarifying which belong under the care of Superfund and

which should not be a part of EPA’s authority. Both Congressmen Towns and

Greenwood implicitly acknowledge this principle in their bills.

A Definition of Brownfields that Includes Petroleum Contaminants

And finally, I want to discuss the definition of a brownfield. Here, again, we see

a distinction between legislation to reform Superfund and legislation to encourage

the development of brownfields. Under both Congressmen Boehlert’s and Towns’

bills we find a definition of brownfields based largely on the presence of toxins covered under Superfund. However, these are not the only toxins that create the type

of uncertainty and liability risks that make a site unattractive for redevelopment.

If Congress truly wants to promote brownfields redevelopment to the fullest extent, it should consider a definition of brownfields that covers other contaminants

not covered by Superfund. Foremost among these are contaminants that come from

petroleum products. Our estimations suggest that nearly half the redevelopable

brownfields sites in this country are contaminated not with Superfund related toxVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00098 Fmt 6633 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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ins, but rather petroleum related toxins. Unfortunately, none of the legislative proposals you are considering address these sites. Indeed, to be thorough, Congress

should address not only petroleum contaminants, but any federally covered contaminant.

In addressing these other contaminants in a brownfields redevelopment bill, Congress should follow the same principles I have already mentioned. EPA should

maintain authority over the more contaminated areas. But in lesser contaminated

areas, EPA should have no authority, leaving the states to develop innovative and

flexible approaches to remediate these sites and make them productive. EPA’s resources would remain focused on finding and cleaning up the most dangerous sites,

and the agency would only be limited when it cannot find severe contamination on

a site.

In this regard, the approach I am suggesting is very close to Congressman Greenwood’s bill. While his bill does not cover all of the contaminants we would like to

see covered, it does establish in section three a clear delineation of authority between EPA and the states based primarily upon the level of contamination a site

contains. His bill also does not limit itself in defining brownfields under Superfund.

This simple approach leaves intact EPA’s legitimate need to protect human health

and the environment while freeing states and developers to tackle those sites that

have much less contamination.

Finding a Political Compromise

Ultimately, if Congress and the Administration are serious about promoting

Smart Growth and, as part of that goal, cleaning up brownfields, then we need to

get past the rhetoric that has stood in the place of reform. I think we all know the

truth about promoting brownfields redevelopment. Eventually, EPA will have to recognize that just because it has not interfered with a state’s voluntary cleanup program in the past does not mean it will not get involved in the future. Comfort letters and other promises cannot give us the certainty we need before engaging in

brownfields redevelopment, and it makes no sense to get involved when we can

build elsewhere without the cost or risk that brownfields present. In fact, EPA’s opposition to the legal certainty we need is tantamount to telling the redevelopment

community that, indeed, our fears are legitimate.

At the same time, Congress should ultimately recognize that EPA has a legitimate

role in protecting the public health and environment, and it should not be hamstrung when genuine hazards threaten public safety. The most hazardous sites

should still be supervised by the agency since it has the resources and expertise to

make sure the cleanup is done right and those who actually caused the contamination contribute their fair share to the cleanup.

Conclusion

In conclusion, let me reiterate our commitment to solving the problems associated

with brownfields and our desire to promote smart growth. Brownfields redevelopment presents a win-win, and it is unfortunate that we have not been able to get

from Congress and the administration the reforms homebuilders need so as to devote our resources toward solving this problem.

I am grateful to speak to you today on this important issue, and I await any questions you might have.

Mr. OXLEY. Thank you, Mr. Garczynski.

The Chair would recognize himself for a round of questions.

Ms. Mills, I wasn’t here for your testimony, but I did have an opportunity to review it, and the charges that you made against the

Ohio cleanup program, from my perspective, simply don’t ring true.

For those of us who have served at the Federal and State level, my

experience has been that our agencies and our legislators have a

core mission of public health protection and, in fact, they take that

very seriously. Do you actually believe that Ohio’s legislators and

environmental agencies have, quote, sinister motivations and want

to cause intentional harm?

Ms. MILLS. Yes.

Mr. OXLEY. And what do you have to back that up?

Ms. MILLS. Mr. Oxley, my original environmental endeavors

when I started in Ohio was with the Columbus Trash Burning

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try. The Ohio EPA did a risk assessment of our trash plant that

showed the trash plant only impacted one in a million residents.

We had to turn to the U.S. EPA. The U.S. EPA did the same risk

assessment and showed that the risk from the trash burning power

plant was 450 out of a million would actually be impacted by the

trash plant. I have worked with citizens across the State of Ohio.

We had generally almost always, on any situation, not just

brownfields but in our air division, always had to rely on the U.S.

EPA.

Mr. OXLEY. So that there was a difference of opinion. As a matter

of fact, that trash burning power plant was closed down, was it

not?

Ms. MILLS. Yes, sir, it was closed by a unilateral order by the

U.S. EPA.

Mr. OXLEY. Was that the only example that you have? That was

a difference of opinion between the Ohio EPA and the Federal EPA

you believe that was somehow sinister?

Ms. MILLS. Well, I don’t know if I can answer if it was a difference of opinion between Ohio and the U.S. What I am

saying——

Mr. OXLEY. Are you saying the Ohio EPA deliberately misled

based on their study?

Ms. MILLS. I don’t think that the Ohio EPA necessarily lied, but

I don’t think they necessarily gave us all of the information

that——

Mr. OXLEY. How many years does that go back?

Ms. MILLS. The plant itself or my involvement?

Mr. OXLEY. Your involvement.

Ms. MILLS. My involvement, 1993, but there were many other

issues. There is the Marion issue where there is a lack of citizen

trust in the Ohio EPA. There is Elyria, Ohio, with chemical——

Mr. OXLEY. Let us talk about Marion, Ohio. What is that all

about?

Ms. MILLS. That is a former military site.

Mr. OXLEY. I am aware of that.

Ms. MILLS. Right.

Mr. OXLEY. Do you live in Marion?

Ms. MILLS. No, I do not, but I have worked with the citizens in

Marion.

Mr. OXLEY. And so have I.

Ms. MILLS. Okay.

Mr. OXLEY. And there is a problem there, but it is being dealt

with.

Ms. MILLS. It is being—well, I question how it is being dealt

with.

Mr. OXLEY. You obviously have a right to your opinion.

Ms. MILLS. Sure.

Mr. OXLEY. But to come into this committee and say that the

Ohio EPA or the Ohio General Assembly has sinister motives or

that they want to cause intentional harm is frankly outrageous and

not backed up by any facts.

Let me ask you this.

Ms. MILLS. That is my opinion. I am entitled to my opinion.

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Mr. OXLEY. You are entitled to that opinion. As wrong as it may

be, you are entitled to your opinion.

According to Ohio EPA, no further action letters were submitted

for 83 sites, of which 38 have resulted in covenants, 2 were denied,

8 with withdrawn and 35 are pending. This appears to contrast

with your testimony that only 10 sites have been addressed by

Ohio EPA under the voluntary action program. The reality is that

prior to the Ohio program, these sites weren’t being cleaned up at

all; isn’t that correct?

Ms. MILLS. The 10 sites that were cleaned up were not necessarily through the——

Mr. OXLEY. None of these sites have been cleaned up before the

voluntary action program have been put into effect; isn’t that correct?

Ms. MILLS. The 10?

Mr. OXLEY. Any of them. Isn’t it a fact that before the voluntary

action program was set up none of these sites had ever been addressed?

Ms. MILLS. Sites that I know—that I am aware of such as

Bakerwoods in Marion, such as the Stickles property in Columbus,

such as several other sites, the Ohio EPA has asked the U.S. EPA

to come in and do the cleanup, do the initial cleanup.

Mr. OXLEY. What happened before the voluntary action program?

What happened with these sites? Or were they just in the middle

of neighborhoods and were unattended and didn’t have any——

Ms. MILLS. Possibly, I know of a couple that the company took

it upon themselves to go ahead and clean it up.

Mr. OXLEY. So the question is, is it better to do nothing as what

happened for years or is it better to get these sites cleaned up

under well-accepted standards and put to productive use as a new

industrial site?

I visited one of these sites under a voluntary action program in

Columbus a couple of years ago.

Ms. MILLS. Columbus Auto?

Mr. OXLEY. Columbus, Ohio. Contaminated site, just north of

downtown.

Ms. MILLS. Is that Columbus Auto? I was just clarifying, is it Columbus Auto?

Mr. OXLEY. It was an old copper smelting operation, and we visited it. It had been cleaned up under the voluntary program in

Ohio. The employees I talked to were very pleased to have a job

and work in a safe environment, and the mayor was there and

other officials who went through the entire process of how this was

able to be cleaned up. I was very impressed, as well as the other

members of the committee who attended that hearing and the site

visitation. So I am a little concerned that——

Ms. MILLS. May I clarify just one thing, Mr. Chairman? Please

do not misunderstand me that I do not think that these sites

should be cleaned up. Indeed, they must be cleaned up. What I am

so concerned of with the Ohio program is the lack of public knowledge and public participation.

Mr. OXLEY. Let me address that, if I can, because in your statement you state that the Ohio program is shrouded in secrecy and

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prevents the public from participating effectively. The information

about the sites in the program is not available to the public.

However, based on information provided by the Ohio EPA, that

appears to be in error. According to information submitted by Ohio

EPA—which I offer for the record and without objection is so ordered—information about Ohio’s sites under the voluntary action

program is not secret.

[The information referred to follows:]

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Mr. OXLEY. In fact, when Ohio EPA receives a no further action

letter, the letter and all supporting documentations becomes part

of the public record. This includes an environmental site assessment and information regarding remediation of site contamination.

As a matter of fact, when we visited that site in Columbus, we

saw a lot of that paperwork because they were trying to explain to

us how the program worked. And so I would suggest you might

want to go back and do your homework and that this information

is available to the public, to your group, to you individually, to me

as a Member of Congress or anybody else, and I think it is important to point that out for the record.

My time has expired. Let me recognize the gentleman from New

York.

Mr. TOWNS. Thank you very much, Mr. Chairman.

Let me just ask Ms. Mills. Ms. Mills, are you saying that U.S.

EPA is more responsive to your calls and concerns than the State

of Ohio?

Ms. MILLS. That would be correct, yes. The U.S. EPA has been

more responsive.

Mr. TOWNS. Why would you say that? I mean, could you expound

on it just a little?

Ms. MILLS. I would have to go back again to my first original

issue with the Columbus power plant, Columbus Trash Burning

Power Plant. The remarks that I received when I first approached

the Ohio EPA with my concerns was—one EPA official said, I don’t

understand, I don’t drive by the trash plant and see people falling

over dead.

To me that was an insult to my intelligence. Of course, you don’t

see people driving by dead. But that was the type of response that

we or I as a citizen received. Dioxin was no more toxic than peanut

butter. Well, I as a citizen know that that was an insult to me.

However, when we approached the U.S. EPA, they were much

more receptive of our concerns on the trash plant. The U.S. EPA

was much more receptive on our concern on the Stickles property

which was an old junk yard that had quite a bit of contamination

on it. They were more receptive on Marion. They were more receptive on a site that I had been working on in Elyria, Ohio.

So I guess maybe the Ohio EPA doesn’t like me for some reason,

but in any issue that I have been involved with, I have always had

much better reception from the U.S. EPA than from the Ohio EPA.

Mr. TOWNS. Let me just ask you this, and then I am going to

leave that alone because that is Ohio, and the chairman certainly

will take care of Ohio. I am not even worried about that. But, Ms.

Mills, could you respond to the chairman’s statement that Ohio has

adequate public participation? Could you respond to that? He said

that Ohio has adequate public participation. Very briefly, if you

could respond to that.

Ms. MILLS. Do you mean in regards to the brownfields program?

Mr. TOWNS. In the cleanup, in terms—he just used the statement

that Ohio has——

Ms. MILLS. The one site that I am most well aware of is the Nationwide Arena site which was the old State pen site. When we

contacted the VAP program in Ohio, we said we have known for

years that the pen site was highly contaminated. So we immeVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00110 Fmt 6633 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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diately began to contact the VAP program coordinator saying, you

know, what is going to happen at the pen site? You know, what is

going to happen with the contamination? What kind of contamination is there?

The response from the Ohio EPA says, we don’t know, we don’t

know if they are going to enter the voluntary action program or

not.

So you have citizens that knew that this site was contaminated

but could not get any information on it because the Ohio EPA at

that time didn’t have any information on it.

My understanding from the voluntary action program in Ohio is,

yes, there is certain information that is available after it is given

to the Ohio EPA, but a company can go clear through the process

prior to giving that information to the EPA.

Mr. TOWNS. Thank you very much.

Let me just—Mr. Garczynski, let me say that my legislation,

H.R. 1750, covers more contaminants than the others and also to

say to you that I am willing to put petroleum in, you know, now.

So I want to let you know I have no problem with that at all.

Mr. GARCZYNSKI. I appreciate that, Mr. Towns—or Congressman

Towns, because we find that petroleum-related contaminants are

on quite a number of sites that aren’t highly contaminated, but we

feel that kind of goes back to if we can define brownfields and expand the listing of contaminants, you know, we can go a long way

to revitalizing our cities, which is our goal.

Mr. TOWNS. Mr. Curtis, very quickly, the light is on, so ASTM,

why do you oppose it?

Mr. CURTIS. The ASTM, quote, standard was developed with a

prescriptive approach to site investigations and was originally intended to be for real estate property transactions. We do not believe that you can take one prescriptive approach and say it fits

sites of varying complexity, varying contaminants and that professional judgment needs to be applied to the array of sites rather

than a prescriptive standard.

And we took great exception with ASTM in the development of

that standard. They have agreed with us that they would insert

some caveats, making it clear that this was not to be universally

applied without professional judgment. Yet those caveats have not

yet been inserted in the standard. So we have very real concerns,

as the professionals involved with hazardous waste sites, that that

standard was not appropriately developed.

Mr. TOWNS. Could I have 30 seconds? I just want to ask Mr.

Stypula quickly, within the legislative recommendations contained

in your testimony, you recommended several types of Federal funding for local communities seeking to assess and clean up

brownfields sites: A clear distinction between Superfund, NPL sites

and other sites subject to enforcement under RCRA or CERCLA,

and the remaining sites that can be put on a brownfields track;

also, the criteria for State cleanup programs that should be demonstrated by the States and reviewed and approved by the EPA

and an assurance by the EPA that it will not plan further action

at a site unless there is an imminent and substantial threat to

public health or the environment, and, No. 2, either the State response is not adequate or the States request EPA’s assistance.

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Among the three bills that we are looking at today, which bill

most closely tracks your recommendations?

Mr. STYPULA. Congressman, NALGEP normally doesn’t take a

position on a piece of legislation, but we have reviewed all three

pieces of legislation and feel that our basic concerns and the needs

and desires of that have been identified by our membership are addressed in one form or another in all three bills, and that would

include your piece of legislation, H.R. 1750.

Mr. TOWNS. I yield back Mr. Chairman. I definitely yield back.

Mr. OXLEY. The gentleman from Pennsylvania, Mr. Greenwood.

Mr. GREENWOOD. Thank you, Mr. Chairman.

We have heard testimony from—I would like to address this

question to Ms. Kerbawy. Mills is easy.

We heard testimony from other witnesses about the current use

of memorandums of agreement, MOAs, to establish deferral of

cleanup authorities to States, and I would like to submit for the

record correspondence between the Association of State and Territorial Solid Waste Management officials and EPA, Mr. Chairman,

without objection.

Mr. OXLEY. Without objection.

[The information referred to follows:]

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Mr. GREENWOOD. I would like to ask if you could elaborate on the

problems that you see with that system as the primary mechanism

for redevelopment of the hundreds of thousands of non-NPL

brownfields.

Ms. KERBAWY. The memorandum of agreement process is being

utilized to try to fix a problem that is created by the current law.

The States have not been extremely satisfied with what they can

accomplish in the memorandum of agreement. We do have one with

Region 5 EPA. It is better than most States can get now, but it still

doesn’t do what we would have liked to have been able to, and I

think that there still is a need to really fix the law in dealing with

who has authority at what sites.

The non-NPL universe isn’t going to be addressed by EPA in

most situations. The removal program can do some work but generally doesn’t take a site for cleanup, and we are dealing with a

situation where we tried to reach closure with people but if there

is still a specter of EPA being able to come in at some point in

time, can we really cut the full deal? I think that is a really big

issue.

The MOA helps. We have been able to do more with it in place

than we were able to without it, but it doesn’t do what is really

necessary.

Mr. GREENWOOD. And I take it you assume that the legislation

that I have introduced, Mr. Boehlert introduced, enables you to get

that finality——

Ms. KERBAWY. Yes, it does.

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Mr. GREENWOOD [continuing] and to move forward.

If I could turn to Ms. Florini. You set up a duality which was

we have to somehow choose between federalism or public health,

that that is a choice, that somehow they are mutually exclusive.

Well, you did say that, as a matter of fact, that we have to——

Ms. FLORINI. No. Actually, what I intended to say was if there

is a conflict, then public health should win.

Mr. GREENWOOD. Well, it presumes that there is a conflict, and

it seems to me to be an extraordinary choice. Because when I think

of my State and I think of the thousands of ways, as we speak, that

the State of Pennsylvania is protecting, is responsible exclusively

in a whole variety of arenas for the protection of public health, hygienic standards at restaurants, the health care of seniors in nursing homes, the quality of care delivered in hospitals, variety of

State regimes with regard to solid waste and air and water, we are

not making a choice in Pennsylvania.

The State—we have federalism in place in more ways than not

and a very good record on protection in public health, and it seems

to me that the alternative here is we either allow these 500,000

sites to sit with whatever contamination is there, continuing to permeate into the water table, being released into the atmosphere, because EPA will never get to them, never get to them.

Ms. FLORINI. On the other hand, it is very clear from a number

of other witnesses’ testimony today that, in point of fact, in many

other locations around the country under current law brownfields

redevelopment is indeed happening to a significant degree.

The only point that I am making is we should not change the law

to take away the Federal safety net that now exists. I do not believe it is necessary or appropriate to go that far. We have supported and we continue to support provisions on bona fide prospective purchasers, including the provisions that are in your bill, provisions on innocent landowners, although we think that there need

to be some modest modifications to what is in your bill, and the

provisions on innocent landowners. We are objecting strongly to

two particular provisions of your bill: section 3, which we think

goes way too far in undercutting the Federal safety net that now

exists; and section 4, which makes Governor’s concurrence mandatory.

We think that there are things that can and should be done with

respect to other changes under existing law that would, in fact, further facilitate brownfields, but we do not think it is necessary or

appropriate to take away the Federal safety net as part of that.

Mr. GREENWOOD. The Federal safety net implies Federal reopener, and it implies that that can happen at virtually any time.

If you believe any of the other witnesses who have testified today,

they said that is a chilling factor in their ability to develop these

brownfields site and clean them and reclaim them. And that is the

bottom line, and that is what the disagreement is all about, and

I don’t know if we can bridge it, but we will try.

My time has expired.

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Thank you, Mr. Chairman.

Mr. OXLEY. The gentleman’s time has expired.

We want to thank all of you for your excellent testimony and for

sitting through some floor votes and some other inconveniences,

but we appreciate it very much.

And the Chair notes that some members may have additional

questions of this panel which they may wish to submit in writing.

Without objection, the hearing record will remain open for 60-days

for members to submit written questions to these witnesses and to

place their responses in the record and to provide extraneous material for the record. So ordered.

Again, thank you; and this subcommittee is adjourned.

[Whereupon, at 1:40 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

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(137)

LEGISLATION TO IMPROVE THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT

WEDNESDAY, SEPTEMBER 22, 1999

HOUSE OF REPRESENTATIVES,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON FINANCE AND HAZARDOUS MATERIALS,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:10 a.m., in room

2123, Rayburn House Office Building, Hon. Michael G. Oxley

(chairman) presiding.

Members present: Representatives Oxley, Gillmor, Greenwood,

Largent, Bilbray, Ganske, Shimkus, Wilson, Fossella, Blunt, Ehrlich, Towns, Stupak, Engel, DeGette, Barrett, Luther, Markey, and

Pallone.

Staff present: Nandan Kenkeremath, majority counsel; Amit

Sachdev, majority counsel; Kristi Gillis, legislative clerk; and Richard Frandsen, minority counsel.

Mr. OXLEY. The subcommittee will come to order.

The Chair will begin with an opening statement.

Welcome to yet another legislative hearing on Superfund. The

difference is that I hope that this will be the last legislative hearing we will need to hold in the Commerce Committee after four

Congresses.

We have seen many good proposals to reform this badly broken

program, and the House and Senate have held hearings on these

proposals. We know what needs to be done. We know that there

are members on both sides of the aisle who want to get something

done. So it is time for Congress to fulfill its responsibility through

bipartisan legislation.

The bills we continue to review today are strongly bipartisan.

The Greenwood-Hall bill has nine Democrat and seven Republican

cosponsors. The Boehlert-Dooley bill has 60 Democrat and 60 Republican cosponsors. It was reported out of the Transportation

Committee with a 69-2 vote. Last Congress Mr. Condit and I introduced strong bipartisan Superfund reform legislation with 19

Democrats and 19 Republicans.

It is unfortunate that after 5 years of extensive process and numerous opportunities of negotiation, the administration has not

been able to find agreement with any bipartisan Superfund bill in

any committee in either body of Congress. Even today we find some

of the unfortunate rhetoric about bills that have attracted strong

bipartisan support and only provide incremental reforms.

138

Whether it is the Conference of Mayors, the Governors, the State

cleanup agencies, cleanup contractors, small businesses, and many,

many others, all support provisions in bipartisan legislation to significantly reform Superfund. These groups can tell us from firsthand experience that the current Superfund program is wasteful

and unfair. But what distinguishes these groups is that they are

willing to work to find constructive solutions. The time has long

since past when you can claim to be for Superfund reform but

against all bipartisan efforts.

Superfund continues to haunt individuals, small businesses, and

communities across the country. We must provide liability relief

and not unfairly shift costs to other parties at the site. H.R. 3000

did this primarily by limiting liability to those generators or transporters who provide significant contributions of waste. Their overall amount would be picked up by the Federal orphan share. Under

this model, EPA would issue orders to the significant parties, but

neither those parties nor EPA would have incentive to pursue further endless waves of litigation. It was a practical and fair approach.

H.R. 1300 looks more at specific circumstances and contexts.

Nonetheless, it meets important criteria by getting numerous parties out of the system and not unfairly shifting responsibility to

other parties at the site.

H.R. 1300, H.R. 2580, and H.R. 3000 from last Congress focus on

sound science, reasonably anticipated land use, and site-specific

risk management. H.R. 2580 and H.R. 3000 ensure that the preference for treatment is guided by practicality, and that it never

overrides concerns to the health and safety of the local community

and workers. All of these bills eliminate the needlessly bureaucratic and so-called relevant and appropriate requirements and

provide for reasonable points of compliance.

These are important and reasonable changes that have been supported by States, cleanup contractors, and many others. These

changes will streamline and improve remedy selection for new sites

added to the NPL for site cleanup secured under section 104 or 106

and for sites that use contribution authority under the liability provision of section 107. Unless you are prepared to terminate funding

under section 104, administrative orders under section 106, or the

liability provisions of section 107, you cannot legitimately argue

that remedy selection does not need repair.

I note that we have a relatively short final hearing today. Over

the course of 7 years, however, we have had over 27 hearings and

275 witnesses appearing in the subcommittee, some of them multiple times, like our friend from EPA today, Mr. Fields. Moreover,

numerous parties have submitted statements for the record.

The basic point is that this has been an extraordinarily open

process that I am basing my position and efforts on, the record

taken as a whole. While my door has been open for negotiations for

nearly three consecutive Congresses, some 5 years, and I am getting old in the process, I believe we are at this point where the

major proposals out there to reform the program are eminently

modest and reasonable.

It is time that we moved past the rhetoric and right at least a

few of the Superfund wrongs. I look forward to hearing from toVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00141 Fmt 6601 Sfmt 6601 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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day’s witnesses, particularly those who have or support specific

changes for significant reform.

The Chair’s opening statements are completed. I now turn to our

distinguished ranking member, the gentleman from New York, Mr.

Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman. And I want

to take that thank you back, really. What I would like to do is applaud you for your determination and commitment. You know, I am

not sure after 27 hearings, you know, I am not certain that I want

to thank you for more hearings.

First of all, I would like to welcome our witnesses today to our

hearings on reauthorization of the Superfund program.

Mr. Chairman, as I have indicated previously, I believe it would

be unwise and counterproductive to make comprehensive changes

to the Superfund program at this point. Such changes would also

slow Superfund cleanups. This is a concern that we will probably

hear from some of our witnesses. This is a result I hope none of

us want.

Even though delay may suit the interests of some of those responsible for contamination of certain sites, we should not subscribe to it or support it. I hope the subcommittee members can

agree that where possible we should be treating or eliminating the

most toxic or mobile hazardous wastes at these sites, and doing our

utmost to provide permanent cleanups so that our citizens and particularly our children do not have to fear for their health.

According to the former head of the Agency for Toxic Substances

and Disease Registry, Dr. Barry Johnson, approximately 1.3 million children under the age of 6 live within 1 mile of a Superfund

site. Cleanups will also assist redeveloping these properties for the

full economic benefit of our communities, which I think is extremely important.

Just last week the General Accounting Office released a report

on their survey of all the non-Federal Superfund sites. According

to the GAO, half of all the sites have completed all cleanup construction activities. The GAO results are consistent with the U.S.

Chamber of Commerce position that I now quote:

‘‘The Federal hazardous site program established by the Comprehensive Environmental Response, Compensation and Liability

Act of 1980 is expected to achieve its goal of restoring the highestpriority cleanup sites to environmental health within the next 3 to

5 years.’’ With the significant progress occurring in the Superfund

program, I hope we can put our forces on the Brownfields issue

that were the subject of our August hearing. Mr. Greenwood and

I have agreed to try to work out our differences in our two bills,

H.R. 1750 and H.R. 2580. I hope that after this hearing we can

again refocus on our efforts to do that.

Mr. Chairman, I look forward to hearing from the witnesses, and

I am extremely pleased today that we have a witness from Brooklyn, New York, who happens to be employed by the attorney general’s office and will be representing the attorney generals across

this country, Mr. George Johnson. I am anxious and eager to hear

from him, because he happens to reside in my district.

Thank you, Mr. Chairman. I yield back.

Mr. OXLEY. The gentleman yields back.

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The gentleman from Pennsylvania, and one of the authors of the

legislation we are dealing with.

Mr. GREENWOOD. Thank you, Mr. Chairman. I would first like to

thank you for holding today’s hearing on the remedy selection and

the liability provisions in my bipartisan land recycling act, H.R.

2580, as well as Mr. Boehlert’s legislation, H.R. 1300.

While I believe the legislation that I have introduced represents

a well-balanced approach to the issues at hand, I still look forward

to continuing to work in a bipartisan manner toward an overall improvement in the Comprehensive Environmental Response, Compensation and Liability Act, better known as Superfund.

The Land Recycling Act represents an important first step toward that goal. Mr. Chairman, as you know, last Congress the

remedy selection provisions in H.R. 3000, which was your bipartisan Superfund reform bill, were based on extensive work and the

support of the National Governors Association, the State cleanup

agencies, and the trade association for cleanup contractors. In fact,

the Governors stated that the remedy title would ‘‘enhance the efficiency and quickness of cleanups.’’ The State cleanup agencies stated that the remedy title ‘‘seeks to promote a commonsense, streamlined approach to remediating sites,’’ and that ‘‘we believe this title

most adequately reflects the lessons learned over the last 18

years.’’

In addition, the Commission on Risk Assessment and Risk Management stated that the risk principles would move us toward a

‘‘remedy selection process that is based on objective science-based

risk characterization.’’

Finally, the cleanup contractors stated that H.R. 3000 would ‘‘do

more to spur environmental cleanup in a safe and protective manner than could possibly be accomplished under current law.’’

As you may recall, the cleanup contractors specifically supported

provisions on scientifically objective risk-assessment consideration

of future land use, and modification of the preference for permanence and treatment.

Mr. Chairman, based on aforementioned recommendations and

your work with all stakeholders, I have produced an important subset of bipartisan remedy selection changes in H.R. 2580. These

changes are aimed at improving the cleanup process for all manner

of sites.

However, it is worth mentioning that any remedial action under

CERCLA must comply with section 121, regardless of whether or

not a site is on the National Priorities List. Furthermore, under

section 107, any non-Federal party cleaning up a site and seeking

to use CERCLA to obtain contributions from potentially responsible

parties must show that the remedial action costs are ‘‘consistent

with the national contingency plan.’’

Therefore, even in the universe of voluntary cleanups, CERCLA’s

remedy selection requirements can have legal relevance in court.

Overall I firmly believe that H.R. 2580 will streamline the Federal cleanup process by ensuring that regulators require treatment

to the extent practicable, consider future land use, consider risks

to the community and workers’ health, require compliance with

drinking water standards at reasonable points of compliance, are

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not hampered by needless bureaucratic relevant and appropriate

standards, and employ sound and objective assessment practices.

While I am confident that the Land Recycling Act will go a very

long way, we in Congress have a larger task in hand, improving

the Superfund program in a way that is protective of human health

and the environment, reduces litigation, unfairness, and waste, and

removes the Federal barriers to toxic waste cleanup. The Land Recycling Act of 1999 is only a piece of the puzzle.

Once again, Mr. Chairman, I thank you for holding this hearing,

and I look forward to continuing to working in a bipartisan committee on the issue, and, Mr. Towns, you and I keep saying that

we want to work this out together. When we get our staff to come

to the same level of agreement that you and I have agreed to, I

think we will get this done.

Mr. OXLEY. The gentleman’s time has expired.

The gentleman from New Jersey, Mr. Pallone.

Mr. PALLONE. Thank you, Mr. Chairman.

We are here again of course with many of the same witnesses

and members as at prior Superfund, and I just want to say that

my attitude about Superfund remains the same. I think the Superfund program is now one of our most successful environmental programs, particularly as a result of the efforts of the Clinton administration, and therefore I believe we should not be making substantial changes at this time that could interfere with the progress that

is well under way. That is why 175 members have signed on to Mr.

Towns’ bill, H.R. 1705, the Brownfields bill, and I want to mention

also Diana DeGette’s involvement in efforts on that, and that bill

addresses a combined set of issues that would facilitate environmental cleanup and industrial development and that enjoys widespread support here in the House.

However, if we are to make any changes to the Superfund law,

we must strengthen the program, not roll back years of progress,

and that is why just a few moments ago some of my colleagues and

myself held a press conference outside the room to announce the

impending introduction of the Children’s Protection and Community Cleanup Act of 1999, a pro-community Superfund reform

measure. Our bill would truly strengthen current law by requiring

real cleanups, making polluters pay, ensuring environmental justice, and protecting children’s health. If this subcommittee insists

on taking up broader Superfund issues, we will insist on measures

that uphold the fundamental principles on which the Superfund

was based, and that is protection of human health and the environment.

Nearly a fourfold increase has occurred in the number of Superfund sites that have been cleaned up—in other words, where construction has been complete—since 1992, 592 sites, including Federal facilities. A large number of the sites in my home State of New

Jersey at which work has been completed may not have been deleted from the NPL only because long-term monitoring is still ongoing or because long-term treatment of groundwater is still under

way. But such efforts are critical to protect human health and resources for current and future generations.

Remedial measures undertaken now will help minimize the extent and cost of future remedial actions. Moreover, many State offiVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00144 Fmt 6601 Sfmt 6601 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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cials have informed me and other Congress members that the Federal framework with its liability and enforcement mechanisms now

provide important incentives for private entities to voluntarily

clean up these sites.

Particularly, Mr. Chairman, we have noticed in the aftermath on

the east coast of Hurricane Floyd, we are reminded that we must

be vigilant in ensuring that Superfund cleanup efforts remain

strong. Following the hurricane, officials are confronting floating

chemical containers, and we are still waiting for officials to determine whether flood waters that washed over hazardous waste sites

carried contamination to nearby land and subsequently into water

pathways.

My point is that we can’t allow Superfund site cleanup to be held

hostage to special interest groups, nor can we permit sham Superfund reform legislation. Families need real cleanups so that sites

in their communities can be reused and redeveloped, not simply

capped and fenced off.

I wanted to say briefly that the legislation being considered

today by this subcommittee is opposed by nearly 60 groups—the Sierra Club, the Environmental Defense Fund, U.S. PIRG—the list

goes on. H.R. 1300 claims to be a Brownfields bill, but only 18

pages of the bill’s 166 pages fall within the Brownfields title. Moreover, H.R. 1300 would seriously undercut the ‘‘polluter pays’’ principle, increase litigation, slow the pace of current cleanups, and

weaken Brownfields provisions.

More specifically, H.R. 1300 would eliminate State maximum

contaminant levels, MCL’s, for groundwater, that are more stringent than Federal MCL’s, and would eliminate State MCL’s where

no Federal MCL exists when determining the standard for ground

water cleanup. The bill would eliminate the ability of the Federal

and local governments and citizens to bring enforcement actions

after any action has occurred under a State voluntary cleanup program, even in situations that continue to present an imminent and

substantial endangerment.

Another important issue which was incorporated in a letter initiated by Congressman Markey, DeGette, and myself to the EPA

sought clarification on the preference of treatment of the most toxic

or mobile hazardous substances as part of a remedy at Superfund

sites. Selection of treatment as part of a remedy has dropped from

70 percent in the early nineties to 32 percent of the sites in 1997.

The Greenwood bill would reduce the options available to local

communities for reuse and redevelopment. The preference for treatment found in current law is supported by the EPA, the Association of Metropolitan Water Agencies, and other organizations and

community representatives.

And finally, Mr. Chairman, my point is simply that we cannot

tolerate these rollbacks. We must support H.R. 1750, the Towns

bill, that provides real Brownfields cleanup and community redevelopment provisions. If we are going to continue to discuss the socalled Superfund reforms, we must ensure true protection of children’s health, inform communities about exposure to toxic chemicals, encourage their participation in the cleanup process, and

make sure polluters pay for cleanups and not the taxpayers.

Thank you, Mr. Chairman.

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Mr. OXLEY. The gentleman’s time has expired.

The gentleman from Illinois, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman. So many issues, so little time on this Superfund debate, and most people know I focused

on the small business liability. So today I am pleased to see that

the committee has extended an invitation to Mr. Mike Nobis of JK

Creative Printers in Quincy, Illinois.

For those who have been following this issue in this Congress,

Quincy now is a community that is being well known based upon

the EPA’s involvement with a site there, and I have come to know

Mike since the EPA went into Quincy earlier this year and announced that 149 companies in this small town were big polluters.

Mike, thanks for coming to Washington for this hearing. Your

testimony is important today, and it is good to see you again. I

hope that the EPA will stay around to hear your testimony. I know

that your written testimony is inserted in the record, but also hearing the testimony is very important, because by hearing, you really

understand the emotive background that the small businesses have

had to fight in the Quincy situation.

We will hear from Mike that most if not all the trash that was

contributed to the municipal landfill was legally deposited and that

the EPA cannot even tell my constituents exactly how much of the

trash they deposited was harmful.

But they have done zero to promote that issue. Thank you.

Mr. OXLEY. Thank you.

Mr. SHIMKUS. Mr. Chairman, I think it should be an interesting

hearing. I yield back my time.

Mr. OXLEY. The gentleman yields back. The gentleman from

Massachusetts, Mr. Markey.

Mr. MARKEY. Thank you, Mr. Chairman, very much, and I as

well am glad—you know, with the end of the baseball season what

they are able to do is begin to compare statistics for how this season and the things that happened this season compared with past

seasons and with the lifetime statistics as well. I always kind of

enjoy that right at the end of the baseball season, so I was trying

to figure out if we have had more lifetime hearings on electricity

restructuring, Glass-Steagall restructuring, or Superfund restructuring in the committee, and it is tough because we are basically

hitting that ‘‘sixty barrier’’ on each one of the areas, but I don’t

think the Superfund quite matches up to electricity restructuring,

unfortunately. It is kind of like the Sammy Sosa of this year, you

know?—just a little bit behind.

I want to thank you for taking up the Recycle America’s Land

Act and without question I am all in favor of recycling including

recycling America’s land by cleaning up and redeveloping

Brownfields sites, but H.R. 1300 merely recycles provisions from

old, failed Republican Superfund proposals.

It will leave toxic waste sites contaminated but clean up polluters’ regulatory rap sheets with a wide array of expensive liability exemptions and limitations. These measures should be dumped,

not recycled. They have no further use.

Let us look at just what would happen if H.R. 1300 became law.

Suppose you discover dioxin-laden black sludge in your basement,

as at Love Canal. Or you realize your children and your neighbors’

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children are dying of cancer, as happened in Woburn—in my district in Massachusetts. You look across to the malodorous cesspool

next door and want to get the mess cleaned up and make your children safe, so you go to the EPA, and after the site is surveyed they

declare it a Superfund site.

Now you think it is ready for cleanup, but you are wrong. H.R.

1300 reduces incentives for polluters to settle, and for many sites

it requires a new and untested allocation process, so while more

ooze seeps into your basement, you may have to wait for EPA to

issue a cleanup order, or wait for polluters to play ‘‘hot potato’’ over

liabilities in the new process.

When financial arrangements are settled, it is finally time to select a remedy, but does this mean that the waste actually will be

cleaned up? Despite the preference for treatment in the Superfund

law, the percentage of sites using treatment has declined from 70

percent at the beginning of the decade down to 32 percent in 1997.

H.R. 1300 would make it easier to avoid treatment even if that

would make the groundwater in the neighborhood undrinkable, for

relevant and appropriate standards and would no longer apply.

So under H.R. 1300 they may decide just to cap that cesspool and

to leave it in place. Well, let us say that against the odds the cesspool next door is cleaned up. Who will pay? Of course, the polluter

should, but under H.R. 1300 the polluter is exempt if it is one of

the vast majority of businesses that are under the cutoff of 75 employees or $3 million in revenue, even if this small business left a

large mess.

The polluter is exempt if it is a used oil generator or transporter

even if it is as large as Exxon.

In addition, an owner that bought land it knew was contaminated and would have to be cleaned up, that got a bargain deal because the land was contaminated, is exempted from any responsibility for the cleanup—a nice windfall for owners that may have sat

on toxic waste sites for a couple of decades.

Under Superfund when the actual polluter cannot be held liable,

other polluters are supposed to pay through a pollution tax, but

this tax expired in 1995 and H.R. 1300 does not renew it, so while

the polluters are given a tax holiday other taxpayers will be stuck

with the bill. In other words, the victims will have to pay for part

of the cleanup of that toxic black sludge in their basements.

We need a targeted bill to foster Brownfield cleanups and help

truly innocent parties reuse these sites, but H.R. 1300 will delay

or prevent cleanups of Brownfields and Superfund sites, let polluters off the hook and stick that hook in the side of taxpayers.

I hope that after hearing about Superfund today that we will return to the subject of a previous hearing and focus our efforts on

legislation to clean up Brownfields without making taxpayers pay

for the mess Superfund polluters have made.

I thank you, Mr. Chairman.

Mr. OXLEY. The gentleman’s time has expired. The gentlelady

from New Mexico.

Mrs. WILSON. I have no opening statement, Mr. Chairman.

Mr. OXLEY. The gentleman from Ohio, Mr. Gillmor.

Mr. GILLMOR. Thank you very much, Mr. Chairman, and I appreciate you calling this hearing on a subject that has plagued us now

145

for nearly 20 years, and that is the operation and the ramifications

of Superfund, and this is not the first time our panel has sought

to take some action to reform the program, and I am hopeful at

some point the other end of Pennsylvania Avenue will wake up to

the need for real reform in a failed program.

Superfund is the archetypical government program in that it

spends too much and it achieves too little. The program was created in 1980 to clean up the worst hazardous waste sites in the

country. That is 19 years ago and the record is a program that has

(1) failed to achieve its purpose, (2) consumed billions of dollars in

the process of that failure, and (3) spent less than half of those billions of dollars to cleaning up the environment, with the rest going

for regulatory costs and attorney fees.

Today the plan is to focus on the core Superfund issues of liability, remedy selection, and I believe these are two areas that call

out for legislative reform.

For example, I have long been a supporter of repealing retroactive liability and as someone who cares about the environment

I think that is a very responsible position. After listening to 8 years

of testimony before this panel I have no feeling other than to see

this punitive system eliminated.

Our current system is designed to punish the innocent party who

followed the law at the time the material was disposed of.

I have introduced a bill in the past to create a standard in which

only those entities which caused the release would be held liable.

I first introduced that bill, as well as a bill to require that more

money be spent on actual cleanup, 2 years ago, and I asked both

the U.S. EPA and the Justice Department for their input. I am still

waiting.

The administration’s approach has basically been to defend the

status quo and not to reform a failed program.

In regard to remedy selection, this again is an area where Superfund has failed. Most of us had breakfast this morning. I am a big

fan of ‘‘Shredded Wheat’’ and I thought I would bring in a box.

From all that I have read and seen, this stuff is supposed to be

good for you. Well, you know, a simple reading of the ingredients

list on this box shows that if we dumped it on the ground and we

dropped a lot of boxes on the ground we could participate in the

designation of a Superfund site.

I have long supported science-backed, risk-based criteria for determining what constitutes a danger and which methods ought to

be used to clean it. We do not need gold-plated solutions to problems that can be safely solved for much less.

So Mr. Chairman, I again thank you for calling this hearing. I

think making Superfund work requires a person to ask two simple

questions, do I want to see hazardous waste remediated, and the

answer is yes, and the second question is is the current system

working, and the answer is clearly no.

Thank you, Mr. Chairman.

Mr. OXLEY. The gentleman’s time has expired. The gentlelady

from Colorado, Ms. DeGette.

Ms. DEGETTE. Thank you, Mr. Chairman.

Mr. Chairman, I am pleased that we are having this hearing

today to talk about the liability and remedy selections of H.R. 1300.

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I am concerned that, as we heard from Mr. Markey and others, the

provisions fail to adequately address some of the needs in current

law. We should find ways to make the Superfund run more efficiently and effectively rather than undercut the things that have

made it successful.

For example, by the end of the year 2000 four times as many

sites will have finished construction in the 8 years of the Clinton

administration as compared to the first 12 years of the program.

I am particularly concerned that the bill seeks to capitalize on the

success of the Brownfields program by gutting the Superfund in

the name of Brownfields legislation.

Brownfields programs are successful in part because they pick up

where the Superfund leaves off, and they complement the program.

I do not think that it makes sense to gut one program in favor of

another one. As I have said in many of these hearings, I don’t

think we need Superfund legislation, which will be very difficult to

pass on a bipartisan basis, to pass successful Brownfields legislation.

We should not gut Superfund to pass Brownfields. I have talked

some to Mr. Greenwood and others. I think we can come up with

a bipartisan Brownfields bill. Our business communities want it,

our citizens want it, and we should do it.

I have got to say I think that we want to encourage the successful aspects of Brownfields that promote cleanup of previously ignored sites like inner city industrial sites, but I do not think that

by initiating cleanups we should absolve polluters of all liability.

Current liability provisions that target polluters work and fewer

Superfund sites have been created since these provisions were enacted.

We should protect the people who want to do the right thing and

clean up polluted sites for reuse, like prospective purchasers or innocent land owners, but we also need to ensure, as Mr. Markey

said, that polluters will clean up their mess without leaving the

taxpayers with the bill.

I don’t think H.R. 1300 does enough to strike this balance.

I am also deeply concerned by H.R. 1300’s alterations to remedy

selection provisions, particularly its attempt to eliminate the relevant and appropriate provisions of CERCLA. The relevant and appropriate definitions have proved useful in avoiding disputes about

applicability of solutions and provided standards that ensure that

remedies are protective. Relevant and appropriate is by its nature

site-specific, a critical component to a successful remedy.

I point to the Shattuck Superfund site in my district as an egregious example of a site where the ARARs were not met. As a result, the remedy has completely failed the community. At Shattuck

the constituents contained within the contaminated soils and waste

materials were never adequately characterized nor were groundwater ARARs ever attained as required. The entire onsite disposal

could be seen as a violation of cleanup laws because of its failure

to comply.

Now new reports indicate that even the EPA is beginning to believe that the remedy at Shattuck is inadequate. I am sure there

are few people in this room who agree that leaving radioactive

waste capped with clay and stone in the middle of a residential

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neighborhood in a large metropolitan area was either a relevant or

appropriate remedy for the people of the Overland Park community.

The problem is because of that initial failure to follow standards,

the cleanup is going to be extra expensive mainly for the taxpayers

because now that this stuff has been scraped onto a football field

and covered up with some concrete it is now going to have to be

moved at a cost maybe twice what the original cost was. That is

why we need to get these statutes right the first time, and that is

why we need to enforce them adequately.

I hope today’s hearing is going to lead to a better understanding

of what works for Superfund today and that this committee can

work together to ensure that all of these pieces of legislation, not

just H.R. 1300, can adequately address the real needs of environmental cleanup standards.

Thank you, Mr. Chairman. Oh, Mr. Chairman, by the way, there

is another hearing going on and I know many of our colleagues

would like to stay for this important hearing. I, myself, am going

to have to leave for this hearing after the questioning and I just

want to apologize in advance to the witnesses, because I know this

is very important.

Mr. OXLEY. The gentlelady’s time has expired.

The Chair would ask unanimous consent that all of the members’

opening statements be made part of the record. Without objection,

so ordered.

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. BILLY TAUZIN, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF LOUISIANA

Mr. Chairman, I am very pleased that you are holding this hearing today on an

issue that many of us have been grappling with for almost a decade. Clearly, Superfund needs to be reformed, and it needs to be reformed now. I am pleased to see

that several Superfund initiatives this Congress include legislative language that I

have introduced in the past to ensure that certain small businesses are no longer

burdened by litigation under Superfund’s draconian liability scheme.

Unfortunately, however, both H.R. 1300 and H.R. 2580 fail to address the current

inadequacies of the Natural Resource Damage (NRD) program under CERCLA. Failing to address the current inadequacies of the NRD program will, in my opinion,

amount to replacing one litigation nightmare with another. Let me explain.

No one, including the business community, opposes expeditious restoration of natural resources. Unfortunately, trustees have been more interested in maximizing

damage claims than restoring resources. Trustees have asserted claims for hundreds

of millions of dollars and, in a few cases, over a billion dollars based on theories

that there was necessarily compensable damage to the ‘‘public psyche.’’ These socalled ‘‘Non-use’’ damages are simply unfair to named ‘‘Potentially Responsible Parties (PRPs)’’ in that they impose a degree of liability which, in most cases, exceeds

the actual harm done. Mr. Chairman, the result is a program mired in excessive

litigation with few if any success stories.

This problem has recently manifested itself in my home state of Louisiana, where

concerns over very low levels of pollutants in the Sediments of the Calcasieu River

have led to a near paralysis of critical navigation projects, as well as essential environmental restoration efforts to protect the marshes of South Louisiana. Efforts by

industry to step up to the plate and do the right thing have been rebuffed in favor

of a bureaucratic, litigious approach that will at best leave the Calcasieu River-bed

unrestored for a decade or more. This is not the proper approach to the restoration

of our critical resources or a way to promote the nation’s economic vitality.

We all know that the federal government, particularly the Departments’ of Defense and Energy, is liable for more contaminated sites than any private party. An

unreformed NRD program therefore also poses a significant threat to the federal

treasury and to national security. This threat is already becoming a reality. One

state, Mr. Chairman, recently notified the Departments of Defense and Energy that

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it intends to file a $260 million NRD claim against them at one site for contaminated groundwater that these Departments are already paying to clean up under

Superfund. The total NRD liability could be very large—as much as $20.5 billion

for DOE alone according to GAO—and GAO’s estimate does not include DOE’s largest and most expensive sites.

Given this threat to our nation’s environmental and fiscal health I believe that

reform of the NRD program, in addition to more general Section 107 reforms, is essential to any meaningful Superfund legislation.

Thank you Mr. Chairman.

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Thank you, Mr. Chairman. Let me first commend you for your continued diligence

and persistence in continuing our long-standing effort to reform Superfund.

I’ve said this many times—perhaps one of the hardest tasks in politics is fixing

a broken environmental program. The Superfund law is a prime example of such

a program. It is unjust, costly, slow, unrealistic, and poses barriers to cleanups all

across the Nation. Its liability scheme has created a litigation nightmare which has

hurt individuals, small businesses, and communities, and has delayed the cleanup

of toxic waste sites. Superfund has created barriers to voluntary cleanups and redevelopment of brownfields across the country. Mr. Chairman, you only have to review

the extensive record that your Subcommittee has compiled over the past five years

to know that Superfund has been a public policy embarrassment.

I’ve said this too many times before, but I’ll say it once again—it is time to get

on with the business of cleaning up America’s toxic waste sites. We have bipartisan

legislation before the Subcommittee that will go a long way towards making the federal program more fair, effective and efficient, and that eliminates many of the barriers to redevelopment and cleanup.

But unfortunately we are still at odds with the Administration. Where I see a program that takes too long to identify and cleanup hazardous waste sites, the Administration, and some of my colleagues, see a program moving at a satisfactory pace.

Where I see waves and waves of unjust litigation, the Administration sees its ‘‘polluter pays’’ principle in action. Where I see needless uncertainty and counterproductive Federal rules, the Administration and the national environmental groups

see unprotective State cleanup programs.

The fact is that today there is simply no reason for politics to continue to stand

in the way of meaningful Superfund reform. Thanks to the efforts on both sides of

the aisle, there is already significant bipartisan support in Congress for Superfund

legislation. H.R. 1300, the Recycle America’s Land Act of 1999, introduced by our

colleague Sherry Boehlert, currently has 60 Democrat and 60 Republican cosponsors. It was reported last month from the Transportation and Infrastructure Committee by a vote of 69-2. H.R. 2580, The Land Recycling Act of 1999, introduced by

Mr. Greenwood, also enjoys strong bipartisan support with 9 Democrat and 7 Republican cosponsors. States, local governments, cleanup engineers, dozens of experts, and Republicans and Democrats alike agree on the need for substantial reform.

Today, we will be completing our legislative hearings on these two bills. They contain provisions addressing the major components of the Superfund program, including brownfields, the liability scheme, remedy selection, public participation, and

grant programs. These bills represent the product of years of negotiating to achieve

a workable compromise. I look forward to hearing from today’s witnesses, and to

moving forward with legislation to fix this broken program and save countless others from the litigation nightmare that has befallen so many of our constituents.

PREPARED STATEMENT OF ELIOT L. ENGEL, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF NEW YORK

The Superfund has experienced many changes since it was created in 1980. The

Congress has modified this important program a number of times and is continuing

in that tradition. Superfund is not a perfect program; determining the party responsible for contamination is a slow process, and the actual cleanup of a contaminated

site takes even longer. I, too, believe we must continue to streamline the Superfund

and make it as efficient as possible, but the proper structure is already in place.

Targeted reforms, as proposed in Congressman Towns’ bill, are the appropriate

means of refining the Superfund. The unnecessary reforms, before the committee

today, change Superfund’s basic structure and will diminish its ability to conduct

cleanups.

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Although off to a slow start through the 1980’s, the Superfund has experienced

a tremendous increase in the number of construction completions in the last six

years. We must continue to move forward with this program, not backwards. Unfortunately, the comprehensive reforms proposed in H.R. 1300 will reverse the progress

made over the past 19 years. Many of the sites that would be cleaned under the

existing provisions, may be left untouched for many years. H.R. 1300 is a regressive

piece of legislation that overreaches and undercuts Superfund’s ability to effectively

clean up contaminated sites. This committee should be focusing on H.R. 1750, Congressman Towns’ legislation, which concentrates on brownfields cleanups.

H.R. 1750, institutes the brownfield assessment grants and revolving loan fund

grants programs, which help local governments conduct inventory and make site assessments of brownfields. This legislation also adds liability protection to innocent

parties, such as landowners who did not contribute to contamination of the site, as

well as prospective purchasers. Targeted reforms will make the Superfund more efficient by providing better assessment and reduce litigation by providing liability protection to innocent parties. These are the types of reforms needed to make the

Superfund a more effective program in the future. Therefore, I urge this Committee

to focus on the targeted reforms in the Towns bill.

PREPARED STATEMENT OF HON. LOIS CAPPS, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF CALIFORNIA

Thank you Mr. Chairman for holding this important hearing to improve the

Superfund program.

During hearings held by the Committee both in March and August, a common

theme emerged on brownfields. There appeared to be bipartisan consensus for the

Committee to act on targeted legislation on the issue of brownfields. However, unfortunately, the legislation that we are debating today goes further than merely addressing the issue of brownfields, and in some instances threatens important provisions in our nation’s Superfund law to protect public health and the environment.

As you will hear today, the Administration and environmental groups also share

these concerns.

There is no question that the current Superfund program is in need of reform and

historically there has been frustration at the pace of Superfund cleanup. Reform is

needed to save in the cost and time of cleanup of Superfund sites. There also exists

a need in our country to provide important incentives to redevelop brownfield sites,

bringing economic revitalization of neighborhoods across the nation. However, this

reform should be a targeted one. We have an opportunity to pass consensus legislation in this Committee as long as we keep it focused on brownfields.

I am proud to be a cosponsor of H.R. 1750, the Community Revitalization and

Brownfield Cleanup Act of 1999, along with a number of my colleagues here on the

Committee and urge other members on the Committee to work together in a bipartisan fashion and move forward with brownfields legislation.

I think it is safe to say that we all share the same goal of cleaning up our nation’s

waste sites as quickly and cost effectively as possibly. We should pass legislation

to provide incentives for prospective redevelopment of Superfund sites, particularly

as it relates to brownfields. But let’s not weaken our nation’s laws to protect public

health and the environment in the process.

I look forward to working with my colleagues in the Committee to pass important

brownfields legislation.

Mr. OXLEY. The gentleman from Oklahoma, Mr. Largent.

Mr. LARGENT. No.

Mr. OXLEY. The gentleman from Wisconsin, Mr. Barrett.

Mr. BARRETT. No opening statement.

Mr. OXLEY. We will then turn to our witness, Mr. Tim Fields, Assistant Administrator for the Office of Solid Waste and Emergency

Response, from U.S. EPA. Mr. Fields, welcome back and you may

begin.

150

STATEMENTS OF HON. TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY

RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY;

ACCOMPANIED BY STEVE HERMAN, ASSISTANT ADMINISTRATOR, OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE

Mr. FIELDS. Thank you, Mr. Chairman. I have with me Assistant

Administrator Steve Herman from the Office of Enforcement and

Compliance Assurance at EPA. We will both make brief opening

statements, if you don’t mind.

Mr. OXLEY. Without objection.

Mr. FIELDS. Thank you.

We would like also to enter into the record our written statement

but we also have letters commenting on the subject before us today

from the Department of Justice, the Department of Agriculture,

and the Department of Interior. We would like to have these letters

into the record as well.

Mr. OXLEY. Without objection, so ordered.

[The letters follow:]

DEPARTMENT OF AGRICULTURE

OFFICE OF THE SECRETARY

August 4, 1999

The Honorable JAMES L. OBERSTAR

Ranking Democratic Member

Committee on Transportation and Infrastructure

U.S. House of Representatives

2165 Rayburn House Office Building

Washington, D.C. 20515-6256

DEAR CONGRESSMAN OBERSTAR: In light of the Committee on Transportation and

Infrastructure markup scheduled for tomorrow on H.R. 1300, the Recycle America’s

Land Act of 1999, we would like to provide you with an overview of the concerns

of the U.S. Department of Agriculture (USDA) and the U.S. Department of the Interior (DOI) with this bill, as well as with the proposed Amendment in the Nature

of a Substitute to be offered by Subcommittee Chairman Sherwood L. Boehlert and

Subcommittee Ranking Member Robert A. Borski. We appreciate your efforts to

move the Superfund reauthorization process forward. However, the USDA and DOI

strongly oppose the bill for the reasons discussed below.

USDA and DOI are seriously concerened by the loss of enforcement authority on

Federal lands that would result from H.R. 1300 and the Substitute. In particular,

Section 104 limits Federal authority when there is State action; this provision would

effectively undermine the Federal Government’s ability to manage and set priorities

for Federally-managed lands, and restrict the ability of the Federal land-management agencies to respond effectively and efficiently to environmental hazards.

As you may know, decisions about appropriate environmental response activities

must be coordinated with the full range of land-management decisions that the Federal land-management agencies are charged with making. It is critical that we have

the ability to integrate environmental response with the Agencies’ overall mission.

Although it certainly makes sense to coordinate our response activities with those

of State authorities, the Federal land-management agencies must retain their leadagency enforcement authority under CERCLA with respect to hazardous releases affecting Federal lands to ensure that appropriate response activities are carried out

effectively along with other land-management responsibilities. Given the limited

amount of appropriated agency funds that are available to perform environmental

response activities on Federal lands, it is essential that the Federal land-management agencies retain enforcement authority under CERCLA in order to induce the

responsible parties to either undertake or pay for the site cleanups for which they

are responsible. Without adequate enforcement authority we will be unable to maintain the current pace of cleanup on Federal lands, and the ‘‘polluter pays’’ principle

will be undermined.

In addition, we strongly oppose Section 301 of the bill and the Substitute, which

would prevent an agency from using its delegated authority under Section 106 of

CERCLA to address a release or threatened release of hazardous substances at a

151

site where the agency may be a potentially responsible party (PRP) under CERCLA.

The Federal land-management agencies’ ability to address serious threats to human

health and the environment is enhanced by this authority.

At the same time, there are a number of significant existing safeguards which ensure that the Federal land managers’ enforcement authority under CERCLA Section

106 is exercised in a prudent and reasonable manner. In 1998, the Federal land

managers entered into a Memorandum of Understanding (MOU) with the Environmental Protection Agency (EPA), the Coast Guard and the Department of Justice.

The MOU ensures that the Federal land managers’ authority under CERCLA Section 106 may only be used with EPA or Coast Guard concurrence. Federal land

managers may not issue unilateral orders to avoid responsibility for their own share

of response costs. Where there may be the potential for any claim of this nature,

Justice Department concurrence also is required. Section 301 of H.R. 1300 and the

Substitute are thus both counterproductive and unnecessary.

Finally, we have significant concerns about several other provisions of this bill

and the Substitute, including but not limited to those relating to certain key cleanup

requirements and the States’ role at Federal facilities. For example, we believe that

the provisions significantly expanding the role of States at Federal facilities lack essential safeguards to ensure there would be no disruption of ongoing cleanup activities. This could undermine the ability of agencies to continue to use risk-based

prioritization systems for allocating increasingly scarce cleanup funds. In addition,

the liability exemptions, as drafted, would undermine the ‘‘polluter pays’’ principle.

For all of the above reasons, we strongly oppose not only H.R. 1300 as currently

written but also the Boehlert-Borski Amendment in the Nature of a Substitute.

The Office of Management and Budget has advised that there is no objection to

the submission of this letter from the standpoint of the Administration’s program.

Sincerely,

DAN GLICKMAN, Secretary

U.S. Department of Agriculture

BRUCE BABBITT, Secretary,

U.S. Department of the Interior

cc: The Honorable Sherwood L. Boehlert, Chairman

Subcommittee on Water Resources and Environment,

Committee on Transportation and Infrastructure

U.S. House of Representatives

Washington, D.C. 20515

The Honorable Robert A. Borski

Ranking Democratic Member

Subcommittee on Transportation and Infrastructure

U.S. House of Representatives

Washington, D.C. 20515

DEPARTMENT OF AGRICULTURE

OFFICE OF THE SECRETARY

August 4, 1999

The Honorable BUD SHUSTER

Chairman

Committee on Transportation and Infrastructure

U.S. House of Representatives

2165 Rayburn House Office Building

Washington, D.C. 20515-6256

DEAR MR. CHAIRMAN: In light of the Committee on Transportation and Infrastructure markup scheduled for tomorrow on H.R. 1300, the Recycle America’s Land Act

of 1999, we would like to provide you with an overview of the concerns of the U.S.

Department of Agriculture (USDA) and the U.S. Department of the Interior (DOI)

with this bill, as well as with the proposed Amendment in the Nature of a Substitute to be offered by Subcommittee Chairman Sherwood L. Boehlert and Subcommittee Ranking Member Robert A. Borski. We appreciate your efforts to move

the Superfund reauthorization process forward. However, the USDA and DOI

strongly oppose the bill for the reasons discussed below.

USDA and DOI are seriously concerened by the loss of enforcement authority on

Federal lands that would result from H.R. 1300 and the Substitute. In particular,

Section 104 limits Federal authority when there is State action; this provision would

effectively undermine the Federal Government’s ability to manage and set priorities

152

for Federally-managed lands, and restrict the ability of the Federal land-management agencies to respond effectively and efficiently to environmental hazards.

As you may know, decisions about appropriate environmental response activities

must be coordinated with the full range of land-management decisions that the Federal land-management agencies are charged with making. It is critical that we have

the ability to integrate environmental response with the Agencies’ overall mission.

Although it certainly makes sense to coordinate our response activities with those

of State authorities, the Federal land-management agencies must retain their leadagency enforcement authority under CERCLA with respect to hazardous releases affecting Federal lands to ensure that appropriate response activities are carried out

effectively along with other land-management responsibilities. Given the limited

amount of appropriated agency funds that are available to perform environmental

response activities on Federal lands, it is essential that the Federal land-management agencies retain enforcement authority under CERCLA in order to induce the

responsible parties to either undertake or pay for the site cleanups for which they

are responsible. Without adequate enforcement authority we will be unable to maintain the current pace of cleanup on Federal lands, and the ‘‘polluter pays’’ principle

will be undermined.

In addition, we strongly oppose Section 301 of the bill and the Substitute, which

would prevent an agency from using its delegated authority under Section 106 of

CERCLA to address a release or threatened release of hazardous substances at a

site where the agency may be a potentially responsible party (PRP) under CERCLA.

The Federal land-management agencies’ ability to address serious threats to human

health and the environment is enhanced by this authority.

At the same time, there are a number of significant existing safeguards which ensure that the Federal land managers’ enforcement authority under CERCLA Section

106 is exercised in a prudent and reasonable manner. In 1998, the Federal land

managers entered into a Memorandum of Understanding (MOU) with the Environmental Protection Agency (EPA), the Coast Guard and the Department of Justice.

The MOU ensures that the Federal land managers’ authority under CERCLA Section 106 may only be used with EPA or Coast Guard concurrence. Federal land

managers may not issue unilateral orders to avoid responsibility for their own share

of response costs. Where there may be the potential for any claim of this nature,

Justice Department concurrence also is required. Section 301 of H.R. 1300 and the

Substitute are thus both counterproductive and unnecessary.

Finally, we have significant concerns about several other provisions of this bill

and the Substitute, including but not limited to those relating to certain key cleanup

requirements and the States’ role at Federal facilities. For example, we believe that

the provisions significantly expanding the role of States at Federal facilities lack essential safeguards to ensure there would be no disruption of ongoing cleanup activities. This could undermine the ability of agencies to continue to use risk-based

prioritization systems for allocating increasingly scarce cleanup funds. In addition,

the liability exemptions, as drafted, would undermine the ‘‘polluter pays’’ principle.

For all of the above reasons, we strongly oppose not only H.R. 1300 as currently

written but also the Boehlert-Borski Amendment in the Nature of a Substitute.

The Office of Management and Budget has advised that there is no objection to

the submission of this letter from the standpoint of the Administration’s program.

Sincerely,

DAN GLICKMAN, Secretary

U.S. Department of Agriculture

BRUCE BABBITT, Secretary,

U.S. Department of the Interior

cc: The Honorable Sherwood L. Boehlert, Chairman

Subcommittee on Water Resources and Environment,

Committee on Transportation and Infrastructure

U.S. House of Representatives

Washington, D.C. 20515

The Honorable Robert A. Borski

Ranking Democratic Member

Subcommittee on Transportation and Infrastructure

U.S. House of Representatives

Washington, D.C. 20515

153

U.S. DEPARTMENT OF JUSTICE

OFFICE OF THE ASSISTANT ATTORNEY GENERAL

September 23, 1999

Honorable EDOLPHOUS TOWNS

Ranking Minority Member

Subcommittee on Finance and Hazardous Materials

Committee on Commerce

U.S. House of Representatives

Washington, D.C. 20515

DEAR CONGRESSMAN TOWNS: This letter is to provide the views of the Department

of Justice on H.R. 1300, the ‘‘Recycle America’s Land Act of 1999,’’ as ordered reported by the Committee on Transportation and Infrastructure on August 5, 1999.

The Department of Justice previously expressed strong opposition to H.R. 1300, as

introduced, in a letter of May 11, 1999 to the Honorable Sherwood L. Boehlert. Although minor changes were made to the bill subsequent to its introduction, these

changes did not address the Department’s fundamental concerns with the bill and

thus, the Department of Justice remains strongly opposed to H.R. 1300.

We believe the approach in this bill would not improve the federal Superfund program and will only serve to undercut the significant improvements achieved by EPA

through its administrative reforms over the past few years. Furthermore, we believe

comprehensive reauthorization legislation is not needed and would be counterproductive. Instead, we support a narrow approach that would address brownfields

issues and provide targeted liability relief for certain innocent parties. However,

even on these more limited issues, H.R. 1300 goes too far.

Below is a brief summary of the major reasons the Department of Justice strongly

opposes H.R. 1300. Our comments here address five primary areas: the allocation

process, bars on federal enforcement authorities, new liability exemptions and expanded defenses, the impact on litigation, and the shift of major new costs to the

Fund. While this letter provides only the main concerns we have identified, we

would be happy to share a more detailed analysis with you and your staff.

The New Allocation Process Will Discourage Settlements and Slow Cleanups

Section 310 of H.R. 1300 would add a new section to the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’ or ‘‘Superfund’’) establishing a prescriptive, mandatory allocation process. We believe this new section

is not needed, in light of the significant improvements we have made in adopting

a more equitable enforcement approach over the past four years. Just one example

of this is the expanded use of ‘‘orphan share’’ settlements. Since issuance of EPA’s

‘‘orphan share’’ policy in 1996, more than 85 settlement offers have been made that

would include a government contribution to the ‘‘orphan share,’’ amounting to more

than $160 million.

If enacted, H.R. 1300’s allocation system will generate litigation, not settlements,

pulling lawyers back into the process and miring cleanup in litigation and transaction costs. It will also drag exempt and already-settled parties (including the

smallest parties) through the allocation process and greatly increase their transaction costs. Finally, it would slow down or stop ongoing response actions, and could

force the federal government to rely primarily on Fund-lead cleanups to avoid disruptions in the remediation process.

Under current law, the United States resolves most of its CERCLA claims

through settlement, not litigation. Approximately 70% of all cleanups are performed

by potentially responsible parties (PRPs) through such settlements. Under these settlements, PRPs generally agree to perform the cleanup and determine an allocation

of cleanup costs among themselves. H.R. 1300’s allocation provisions, however,

would change the landscape by requiring that an allocator first quantify the PRPs’

liability. This will slow the pace of cleanup.

H.R. 1300 also will slow cleanups because it will remove incentives for PRPs to

promptly enter into settlements to perform work. We believe a PRP will rarely, if

ever, agree to perform the entire cleanup under a settlement when it could wait for

an allocation and only be required to perform or pay for its assigned share of cleanup. Even then, a settlement to clean up a site will be difficult, if not impossible,

to obtain if even one party refuses to settle, since there is no incentive for any party

to pick up another’s allocated share. Instead parties will, seek ‘‘cash out’’ settlements for their assigned share of cleanup costs rather than agree to perform the

entire cleanup. H. R. 1300 would further discourage settlements by rewarding parties that refuse to settle. The bill would entitle parties that have declined to settle

and are performing under a Unilateral Administrative Order (UAO) to full reimVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00156 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
154

1Further, parties who maintain their right to challenge a remedy get only a little less reimbursement than parties who have settled all outstanding claims. § 131(o)(4), p. 129, 9. Again,

this places nonsettlers in the drivers’ seat and encourages them to continue to litigate. 2 As both Republican and Democratic Administrations have repeatedly testified, as well as individual states and the National Association of Attorneys General, joint and several liability is

critical to getting settlements, to getting cleanups done and to ensuring that the public is made

whole. Given a choice for settling for an approximation of a share now and for paying a share

after years of allocation and litigation, parties will elect to wait. If joint and several liability

is undermined, we will obtain many fewer settlements and many fewer cleanup settlements in

the first instance—let alone after allocation. Instead, we will be forced to litigate in many more

cases. 3 Under the bill, however, an allocator would not attribute any response costs to include homeowners, certain small businesses, and small non-profits who disposed only MSW/MSS; see

§ 131(j).

bursement for costs in excess of their allocated share.1 Our previous experience in

the Superfund program indicates that response actions proceeding under an adversarial UAO approach will not produce quick, high-quality cleanups. Moreover, under

H.R. 1300 parties that choose to perform under a UAO preserve the right to challenge EPA’s remedy, undercutting the current bar on preenforcement review. As a

result, to get complete cleanups done’’ in a timely manner, the Fund may well have

to pay for the entire cleanup in the first instance.

Another way H.R. 1300 would discourage cleanup settlements is by undermining

joint and several liability. Despite language apparently intended to avoid this result,

PRPs would certainly attempt to convince courts that in light of the new statutory

allocation provision, the allocator’s report provides a basis for finding that environmental contamination at a site is ‘‘divisible’’ and thus that defendants cannot be

held jointly and severally liable. Without the threat of facing joint and several liability if they end up in court, parties would have little incentive to settle prior to an

allocation (or perhaps even after the allocator’s report is issued).2

In addition to undermining settlements, H.R. 1300 penalizes small parties and

settlers by dragging them through the allocation process. The bill vests the allocator

with authority to determine who qualifies for an exemption as a small business, a

recycler, a service station dealer, or a generator or transporter of municipal solid

waste (MSW) or municipal sewage sludge (MSS), and leaves these parties ‘‘in’’ the

process until the allocator acts. Because these parties’ shares must be assumed by

the Fund,3 remaining PRPs have a strong incentive to identify as many additional

parties as possible. Even if the small parties are ultimately exempt from liability,

these parties will nevertheless be forced to spend substantial time and money hiring

lawyers to respond to information requests and subpoenas.

H.R. 1300 Would Restrict the U.S.’s Ability to Respond to Imminent and Substantial

Endangerments

We clearly want to encourage well-qualified states to take the lead in getting sites

cleaned up and to establish good cleanup programs. At the same time, however, we

believe that there is a need to preserve federal authority at sites where states are

administering the cleanup program so that we can ensure adequate protection of

human health and the environment for everyone in this country. In that respect,

Superfund should remain consistent with every other major federal environmental

law and preserve federal authority to keep the safety net intact for everyone. This

is especially important because every state is different and their cleanup program

abilities vary considerably.

We believe the federal enforcement bar in section 104 of this bill fails to protect

human health and the environment for a number of reasons. First, the reopeners

in section 104 are simply inadequate to protect human health and the environment.

Under the bill, the U.S. could only respond where it determines that action is ‘‘immediately required to prevent, limit, or mitigate an emergency.’’ Rather than preventing harm to the public or the environment in the first place, as current law

would provide, the U.S. would be forced to wait for harm to occur before it could

take action. Even then, the U.S. must first determine whether the state intends to

respond. Thus, as a practical matter, the U.S. would not be able to take an enforcement action unless there is a state request—even if the State is a PRP or if it ignores a community expressing serious concern. Second, this new ‘‘emergency’’ standard differs from imminent and substantial endangerment, ignoring nearly twenty

years of established case law. The bill will bring on a new round of litigation to interpret the new standard and in the process will delay federal intervention, putting

public health at risk. Third, section 104 would delay cleanups and waste resources

by cutting off federal enforcement authority as soon as ‘‘response action’’ commences. Finally, the enforcement bar is exacerbated by the total absence of criteria

155

for EPA to evaluate and approve state response programs, including any requirement for meaningful public involvement in the process. Overall, the bill radically

departs from the usual mechanisms for establishing federal/state partnerships

under all other federal environmental laws.

New Liability Exemptions and Expanded Defenses Are Over Broad

H.R. 1300 contains a number of new exemptions and defenses from CERCLA liability. While we support some narrow, targeted liability relief, the bill would provide exemptions that are far too broad. Several of the more troubling provisions are

discussed below.

For example, section 303 of the bill would create a new defense to liability for certain current owners or operators, even those that bought with knowledge of the contamination at a substantially reduced purchase price to account for this. Such relief

would undermine longstanding principles of common law which recognize that owners often are in the best position to address hazards on their property, even if not

created by them. Minor changes made in H.R. 1300’s owner/operator provision that

address development, redevelopment, or expansion at property that an owner

bought after 1980 with knowledge that it was contaminated do little to relieve this

problem.

In addition, the bill would grant an exemption to a larger group of small businesses, which could include businesses that contributed large amounts of highly

toxic wastes. The only ability to restrict this exemption is for the U.S. to prove that

the small business contributes or contributed significantly to the cost of the cleanup.

Given the complexities found at many sites, it will be difficult for the U.S. to satisfy

this standard with certainly. Even where possible, this provision will, at a minimum, lead to extensive litigation and transactions costs.

Furthermore, the municipal solid waste (MSW) exemption is not consistent with

EPA’s recently issued MSW settlement policy and would provide inappropriate relief

to large waste generators and commercial haulers. Among other things, it would exempt from liability all past contributors of MSW or MSS to a landfill. The only exception would be for large commercial waste haulers transporting material containing hazardous substances that contributes significantly to overall response costs,

whose costs would be arbitrarily capped at 10% of response costs. Post enactment,

the liability of all persons who arranged for the disposal or transportation of MSW

or MSS, even large commercial haulers, is capped at an aggregate 10% of response

costs.

Finally, we have concerns with the reach of the bill’s recycling provision. Among

other things, it extends coverage to generators and transporters of used oil and byproducts of copper productions, and would shift the share of cleanup up costs attributable to exempt recycling parties to the Fund.

H.R. 1300 Would Result in a Significant Increase in Litigation

We have worked hard over the past few years to reduce the amount of litigation

associated with the Superfund program. We have implemented a more equitable enforcement program and emphasized settlements instead of lawsuits. It is disappointing, therefore, to see a Superfund reauthorization bill that would put the

lawyers back into the forefront by creating numerous new standards and terms that

will guarantee extensive new litigation.

The bill introduces many new terms and concepts—from affirmative defenses to

exemptions, from changes to remedy selection provisions to risk assessments provisions—and will invite a new round of expensive litigation over what is meant by

all of them. In addition, the bill’s changes to existing remedy selection provisions

in CERCLA will require revisions to the National Contingency Plan (NCP). The last

round of NCP revisions resulted in extensive litigation. During the revision process

and litigation, uncertainty over the ultimate outcome of cleanup requirements will

further chill settlements with private parties, as it did during the last round of revisions after the 1986 Superfund amendments. Furthermore, nothing in the bill would

make the changes prospective only in application. Private parties (especially those

covered by the new allocation process) will be free to seek to re-open already-signed

RODs or modify not-yet-signed RODs, and will be free to challenge the remedies selected in those RODs. The bill would create new terms and criteria for making remedy selection decisions, all of which would require judicial interpretation.

Each of these changes (and many more I have not described in this letter) would

invite litigation over how the new law should be interpreted. This process would

substantially increase transaction costs as courts would be asked to revise eighteen

years of established case law in response to significant changes to the current law.

I fail to see the value in this approach, especially where we have strived to reduce

156

litigation and where we have seen such dramatic improvements in the cleanup program over the past few years.

The Bill Would Shift Major New Costs to the Fund

Congress has failed to reinstate the Superfund tax authority which expired on December 31, 1995. Since that date, industry has benefitted from a windfall of approximately $4 million a day in unpaid taxes.

At the same time, H.R. 1300 shifts major new costs to the Fund. Under the new

allocation scheme, the Fund must assume the costs of all of the following: insolvent

and defunct parties, newly exempt parties (including small businesses, most MSW/

MSS generators and transporters, service station dealers, and recyclers), the differential between what ability-to-pay parties are assigned and actually pay, as well

as the differential between what MSW/MSS parties pay and their actual share of

liability. In addition, the Trust Fund would assume a pro rata share of responsibility, with site PRPs, for materials for which no responsibility can be attributed.

In summary, we believe H.R. 1300 would not result in improvements to the federal Superfund program. To the contrary, the bill would increase litigation, slow

down cleanups, and disrupt the progress we have made through administrative reforms. I hope our analysis of this bill is helpful, and would be pleased to discuss

our concerns with you further.

The Office of Management and Budget has advised that there is no objection to

the submission of this letter from the standpoint of the Administration’s program.

Sincerely,

JON P. JENNINGS

Acting Assistant Attorney General

U.S. DEPARTMENT OF JUSTICE

OFFICE OF THE ASSISTANT ATTORNEY GENERAL

September 23, 1999

Honorable MICHAEL G. OXLEY

Chairman

Subcommittee on Finance and Hazardous Materials

Committee on Commerce

U.S. House of Representatives

Washington, D.C. 20515

DEAR MR. CHAIRMAN: This letter is to provide the views of the Department of Justice on H.R. 1300, the ‘‘Recycle America’s Land Act of 1999,’’ as ordered reported

by the Committee on Transportation and Infrastructure on August 5, 1999. The Department of Justice previously expressed strong opposition to H.R. 1300, as introduced, in a letter of May 11, 1999 to the Honorable Sherwood L. Boehlert. Although

minor changes were made to the bill subsequent to its introduction, these changes

did not address the Department’s fundamental concerns with the bill and thus, the

Department of Justice remains strongly opposed to H.R. 1300.

We believe the approach in this bill would not improve the federal Superfund program and will only serve to undercut the significant improvements achieved by EPA

through its administrative reforms over the past few years. Furthermore, we believe

comprehensive reauthorization legislation is not needed and would be counterproductive. Instead, we support a narrow approach that would address brownfields

issues and provide targeted liability relief for certain innocent parties. However,

even on these more limited issues, H.R. 1300 goes too far.

Below is a brief summary of the major reasons the Department of Justice strongly

opposes H.R. 1300. Our comments here address five primary areas: the allocation

process, bars on federal enforcement authorities, new liability exemptions and expanded defenses, the impact on litigation, and the shift of major new costs to the

Fund. While this letter provides only the main concerns we have identified, we

would be happy to share a more detailed analysis with you and your staff.

The New Allocation Process Will Discourage Settlements and Slow Cleanups

Section 310 of H.R. 1300 would add a new section to the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’ or ‘‘Superfund’’) establishing a prescriptive, mandatory allocation process. We believe this new section

is not needed, in light of the significant improvements we have made in adopting

a more equitable enforcement approach over the past four years. Just one example

of this is the expanded use of ‘‘orphan share’’ settlements. Since issuance of EPA’s

‘‘orphan share’’ policy in 1996, more than 85 settlement offers have been made that

157

1Further, parties who maintain their right to challenge a remedy get only a little less reimbursement than parties who have settled all outstanding claims. § 131(o)(4), p. 129, 9. Again,

this places nonsettlers in the drivers’ seat and encourages them to continue to litigate. 2 As both Republican and Democratic Administrations have repeatedly testified, as well as individual states and the National Association of Attorneys General, joint and several liability is

critical to getting settlements, to getting cleanups done and to ensuring that the public is made

whole. Given a choice for settling for an approximation of a share now and for paying a share

after years of allocation and litigation, parties will elect to wait. If joint and several liability

is undermined, we will obtain many fewer settlements and many fewer cleanup settlements in

the first instance—let alone after allocation. Instead, we will be forced to litigate in many more

cases. 3 Under the bill, however, an allocator would not attribute any response costs to include homeowners, certain small businesses, and small non-profits who disposed only MSW/MSS; see

§ 131(j).

would include a government contribution to the ‘‘orphan share,’’ amounting to more

than $160 million.

If enacted, H.R. 1300’s allocation system will generate litigation, not settlements,

pulling lawyers back into the process and miring cleanup in litigation and transaction costs. It will also drag exempt and already-settled parties (including the

smallest parties) through the allocation process and greatly increase their transaction costs. Finally, it would slow down or stop ongoing response actions, and could

force the federal government to rely primarily on Fund-lead cleanups to avoid disruptions in the remediation process.

Under current law, the United States resolves most of its CERCLA claims

through settlement, not litigation. Approximately 70% of all cleanups are performed

by potentially responsible parties (PRPs) through such settlements. Under these settlements, PRPs generally agree to perform the cleanup and determine an allocation

of cleanup costs among themselves. H.R. 1300’s allocation provisions, however,

would change the landscape by requiring that an allocator first quantify the PRPs’

liability. This will slow the pace of cleanup.

H.R. 1300 also will slow cleanups because it will remove incentives for PRPs to

promptly enter into settlements to perform work. We believe a PRP will rarely, if

ever, agree to perform the entire cleanup under a settlement when it could wait for

an allocation and only be required to perform or pay for its assigned share of cleanup. Even then, a settlement to clean up a site will be difficult, if not impossible,

to obtain if even one party refuses to settle, since there is no incentive for any party

to pick up another’s allocated share. Instead parties will, seek ‘‘cash out’’ settlements for their assigned share of cleanup costs rather than agree to perform the

entire cleanup. H. R. 1300 would further discourage settlements by rewarding parties that refuse to settle. The bill would entitle parties that have declined to settle

and are performing under a Unilateral Administrative Order (UAO) to full reimbursement for costs in excess of their allocated share.1 Our previous experience in

the Superfund program indicates that response actions proceeding under an adversarial UAO approach will not produce quick, high-quality cleanups. Moreover, under

H.R. 1300 parties that choose to perform under a UAO preserve the right to challenge EPA’s remedy, undercutting the current bar on preenforcement review. As a

result, to get complete cleanups done’’ in a timely manner, the Fund may well have

to pay for the entire cleanup in the first instance.

Another way H.R. 1300 would discourage cleanup settlements is by undermining

joint and several liability. Despite language apparently intended to avoid this result,

PRPs would certainly attempt to convince courts that in light of the new statutory

allocation provision, the allocator’s report provides a basis for finding that environmental contamination at a site is ‘‘divisible’’ and thus that defendants cannot be

held jointly and severally liable. Without the threat of facing joint and several liability if they end up in court, parties would have little incentive to settle prior to an

allocation (or perhaps even after the allocator’s report is issued).2

In addition to undermining settlements, H.R. 1300 penalizes small parties and

settlers by dragging them through the allocation process. The bill vests the allocator

with authority to determine who qualifies for an exemption as a small business, a

recycler, a service station dealer, or a generator or transporter of municipal solid

waste (MSW) or municipal sewage sludge (MSS), and leaves these parties ‘‘in’’ the

process until the allocator acts. Because these parties’ shares must be assumed by

the Fund,3 remaining PRPs have a strong incentive to identify as many additional

parties as possible. Even if the small parties are ultimately exempt from liability,

these parties will nevertheless be forced to spend substantial time and money hiring

lawyers to respond to information requests and subpoenas.

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H.R. 1300 Would Restrict the U.S.’s Ability to Respond to Imminent and Substantial

Endangerments

We clearly want to encourage well-qualified states to take the lead in getting sites

cleaned up and to establish good cleanup programs. At the same time, however, we

believe that there is a need to preserve federal authority at sites where states are

administering the cleanup program so that we can ensure adequate protection of

human health and the environment for everyone in this country. In that respect,

Superfund should remain consistent with every other major federal environmental

law and preserve federal authority to keep the safety net intact for everyone. This

is especially important because every state is different and their cleanup program

abilities vary considerably.

We believe the federal enforcement bar in section 104 of this bill fails to protect

human health and the environment for a number of reasons. First, the reopeners

in section 104 are simply inadequate to protect human health and the environment.

Under the bill, the U.S. could only respond where it determines that action is ‘‘immediately required to prevent, limit, or mitigate an emergency.’’ Rather than preventing harm to the public or the environment in the first place, as current law

would provide, the U.S. would be forced to wait for harm to occur before it could

take action. Even then, the U.S. must first determine whether the state intends to

respond. Thus, as a practical matter, the U.S. would not be able to take an enforcement action unless there is a state request—even if the State is a PRP or if it ignores a community expressing serious concern. Second, this new ‘‘emergency’’ standard differs from imminent and substantial endangerment, ignoring nearly twenty

years of established case law. The bill will bring on a new round of litigation to interpret the new standard and in the process will delay federal intervention, putting

public health at risk. Third, section 104 would delay cleanups and waste resources

by cutting off federal enforcement authority as soon as ‘‘response action’’ commences. Finally, the enforcement bar is exacerbated by the total absence of criteria

for EPA to evaluate and approve state response programs, including any requirement for meaningful public involvement in the process. Overall, the bill radically

departs from the usual mechanisms for establishing federal/state partnerships

under all other federal environmental laws.

New Liability Exemptions and Expanded Defenses Are Over Broad

H.R. 1300 contains a number of new exemptions and defenses from CERCLA liability. While we support some narrow, targeted liability relief, the bill would provide exemptions that are far too broad. Several of the more troubling provisions are

discussed below.

For example, section 303 of the bill would create a new defense to liability for certain current owners or operators, even those that bought with knowledge of the contamination at a substantially reduced purchase price to account for this. Such relief

would undermine longstanding principles of common law which recognize that owners often are in the best position to address hazards on their property, even if not

created by them. Minor changes made in H.R. 1300’s owner/operator provision that

address development, redevelopment, or expansion at property that an owner

bought after 1980 with knowledge that it was contaminated do little to relieve this

problem.

In addition, the bill would grant an exemption to a larger group of small businesses, which could include businesses that contributed large amounts of highly

toxic wastes. The only ability to restrict this exemption is for the U.S. to prove that

the small business contributes or contributed significantly to the cost of the cleanup.

Given the complexities found at many sites, it will be difficult for the U.S. to satisfy

this standard with certainly. Even where possible, this provision will, at a minimum, lead to extensive litigation and transactions costs.

Furthermore, the municipal solid waste (MSW) exemption is not consistent with

EPA’s recently issued MSW settlement policy and would provide inappropriate relief

to large waste generators and commercial haulers. Among other things, it would exempt from liability all past contributors of MSW or MSS to a landfill. The only exception would be for large commercial waste haulers transporting material containing hazardous substances that contributes significantly to overall response costs,

whose costs would be arbitrarily capped at 10% of response costs. Post enactment,

the liability of all persons who arranged for the disposal or transportation of MSW

or MSS, even large commercial haulers, is capped at an aggregate 10% of response

costs.

Finally, we have concerns with the reach of the bill’s recycling provision. Among

other things, it extends coverage to generators and transporters of used oil and byproducts of copper productions, and would shift the share of cleanup up costs attributable to exempt recycling parties to the Fund.

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H.R. 1300 Would Result in a Significant Increase in Litigation

We have worked hard over the past few years to reduce the amount of litigation

associated with the Superfund program. We have implemented a more equitable enforcement program and emphasized settlements instead of lawsuits. It is disappointing, therefore, to see a Superfund reauthorization bill that would put the

lawyers back into the forefront by creating numerous new standards and terms that

will guarantee extensive new litigation.

The bill introduces many new terms and concepts—from affirmative defenses to

exemptions, from changes to remedy selection provisions to risk assessments provisions—and will invite a new round of expensive litigation over what is meant by

all of them. In addition, the bill’s changes to existing remedy selection provisions

in CERCLA will require revisions to the National Contingency Plan (NCP). The last

round of NCP revisions resulted in extensive litigation. During the revision process

and litigation, uncertainty over the ultimate outcome of cleanup requirements will

further chill settlements with private parties, as it did during the last round of revisions after the 1986 Superfund amendments. Furthermore, nothing in the bill would

make the changes prospective only in application. Private parties (especially those

covered by the new allocation process) will be free to seek to re-open already-signed

RODs or modify not-yet-signed RODs, and will be free to challenge the remedies selected in those RODs. The bill would create new terms and criteria for making remedy selection decisions, all of which would require judicial interpretation.

Each of these changes (and many more I have not described in this letter) would

invite litigation over how the new law should be interpreted. This process would

substantially increase transaction costs as courts would be asked to revise eighteen

years of established case law in response to significant changes to the current law.

I fail to see the value in this approach, especially where we have strived to reduce

litigation and where we have seen such dramatic improvements in the cleanup program over the past few years.

The Bill Would Shift Major New Costs to the Fund

Congress has failed to reinstate the Superfund tax authority which expired on December 31, 1995. Since that date, industry has benefitted from a windfall of approximately $4 million a day in unpaid taxes.

At the same time, H.R. 1300 shifts major new costs to the Fund. Under the new

allocation scheme, the Fund must assume the costs of all of the following: insolvent

and defunct parties, newly exempt parties (including small businesses, most MSW/

MSS generators and transporters, service station dealers, and recyclers), the differential between what ability-to-pay parties are assigned and actually pay, as well

as the differential between what MSW/MSS parties pay and their actual share of

liability. In addition, the Trust Fund would assume a pro rata share of responsibility, with site PRPs, for materials for which no responsibility can be attributed.

In summary, we believe H.R. 1300 would not result in improvements to the federal Superfund program. To the contrary, the bill would increase litigation, slow

down cleanups, and disrupt the progress we have made through administrative reforms. I hope our analysis of this bill is helpful, and would be pleased to discuss

our concerns with you further.

The Office of Management and Budget has advised that there is no objection to

the submission of this letter from the standpoint of the Administration’s program.

Sincerely,

JON P. JENNINGS

Acting Assistant Attorney General

Mr. FIELDS. Thank you very much.

Mr. Chairman and members of the subcommittee, we thank you

so much for being here. It is a pleasure again to be here at another

Superfund hearing. We are pleased to have the opportunity to be

here with you to discuss the current progress of the Superfund program and to give the administration’s views on H.R. 1300, H.R.

2580 as well as Congressman Shimkus’s bill. We would be happy

to discuss these small business elements at well of his bill, a plan

to discuss remedy and several other provisions, and Assistant Administrator Herman will discuss liability and allocation issues.

We believe, Mr. Chairman and members of the subcommittee,

that Superfund is a fundamentally different program after three

rounds of administrative reforms to that program. Since 1996 we

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have increased the pace of cleanup to 85 construction completions

per year, as compared to 65 sites a year more than 3 years ago.

Today Superfund has 629 sites where construction is complete, another 459 sites where construction is underway, 214 sites where removal construction has occurred, so therefore more than 90 percent

of the current Superfund sites have cleanup construction completed

or underway. Both the time and cost has been reduced by 20 percent.

So given the significant progress that is going on in cleaning up

toxic waste sites, the last thing we need is legislation that would

undermine our current cleanup progress. I am convinced that comprehensive Superfund legislative reform like the bills before us

today, even if well-intentioned, would halt or delay the cleanup

progress we see in the program today.

That result is simply unacceptable to the Clinton administration

and would be a disservice to the American people who live around

these toxic waste sites.

The remedy provisions in H.R. 1300 and H.R. 2580 would undermine the current level of human health and environmental protection in the Superfund program. I am sure that is not the intent of

the subcommittee members, however I am afraid that that would

be the result. Both bills would replace the current cleanup goal to

restore contaminated groundwater to beneficial uses with a lower

standard. Both bills would eliminate the current statutory need for

Superfund cleanups to meet Federal and State relevant and appropriate regulatory requirements. These requirements often result in

a cleanup remedy that is tailored to the particular conditions at a

site, thereby adding an additional level of protection.

The Clinton administration also opposes provisions that limit the

authority of EPA to list toxic waste sites on the Superfund National Priorities List. H.R. 2580 prevents the EPA from listing toxic

waste sites on the NPL without a Governor’s concurrence even

when the State is a liable party, even when toxic waste has crossed

State lines or even when toxic waste has contaminated tribal lands.

EPA currently works well with States when proposing sites for

the listing on the NPL. Statutory NPL limitations are unnecessary

and could weaken protection of human health and the environment.

I would refer the members to EPA’s written statement for a more

detailed discussion of the impacts of the remedy selection, the listing, and other elements of our program.

I would now refer the remainder of our testimony to Assistant

Administrator Herman.

Mr. HERMAN. Thank you. Good morning, Mr. Chairman and

members of the committee. I am pleased to appear here today to

identify some of the concerns that the administration has with the

liability and allocation provisions of H.R. 1300 and the liability provisions of H.R. 2247.

The Superfund liability system is the engine that drives 70 percent of Superfund long-term cleanups. EPA has continued its use

of an enforcement first strategy in securing commitments from responsible parties for the cleanup of Superfund toxic waste sites.

Through fiscal year 1998 responsible parties have committed more

than $15.5 billion to clean up response and cost recovery. That is

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$15.5 billion that did not have to be collected from the taxpayers

or appropriated by Congress.

While EPA and the Justice Department continue to secure cleanup funding from responsible parties, we do not ignore the effect

Superfund liability may have on small parties. The agency has aggressively sought to promote fairness in the liability system by

reaching settlements with more than 18,000 small volume waste

contributors, more than 65 percent of these settlements occurring

in the last 4 years.

To date we have also offered more than $170 million in Orphan

Share Compensation by forgiving past costs and oversight costs at

more than 90 Superfund sites. The President’s fiscal year 2000

budget request asks for $200 million for Orphan Share funding at

Superfund sites and the administration supports the enactment of

legislation that would authorize EPA to use those dedicated funds

without reducing the pace of cleanups.

Turning to liability and allocation issues, the administration continues to have very serious concerns with provisions in H.R. 1300

and the small business exemption in H.R. 2247. Some of the liability exemptions would do more harm than good. The so-called Innocent Landowner Exemption in H.R. 1300 is both misnamed and

bad policy in that it effectively repeals Superfund liability by exempting owners of contaminated property who purchased the property knowing it was contaminated. EPA’s written statement goes

into much greater detail about our specific concerns with liability

exemptions in the bills.

The administration also has serious concerns with the allocation

provisions in H.R. 1300. These provisions would undermine the

Superfund settlement process, a process that as I said has generated billions of dollars in cleanup funding. EPA’s experience with

allocation pilots has given us on-the-ground experience and has

taught us that a prescriptive, mandatory allocation process does

not promote timely settlements and may encourage recalcitrant

parties to delay performing cleanup work while waiting for an allocation.

Parties will inevitably dispute their fair share of cleanup costs,

requiring EPA to issue many more cleanup orders to maintain the

current pace of cleanup. Issuing cleanup orders is a far more adversarial process than reaching settlements and will undoubtedly lead

to an increase in litigation and transaction costs, the very result

the administration and the Congress has sought to avoid. It will

particularly be harmful to the small parties whom we are trying

to exclude from this process.

Finally, I want to stress that the administration does support responsible legislative provisions on Superfund liability. We support

vigorous Brownfields development through provisions directed toward prospective purchasers, legitimately innocent landowners and

contiguous property owners. We also support a liability exemptions

for small businesses that generated and transported trash and

small amounts of hazardous waste. The targeted provisions that

the administration supports have generated consistent bipartisan

support and have appeared in one form or another in Superfund

legislation for the past three Congresses.

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The provisions the administration supports build upon the success of EPA’s administrative reforms without delaying cleanups

and without unfairly shifting cleanup costs to Federal, State or

local governments or the taxpayers. The targeted, focused provisions we support could garner bipartisan support quickly.

In closing, Mr. Chairman, the administration stands ready to

work with Congress to enact responsible Brownfield and Superfund

legislation that builds upon the administrative reforms, recognizes

the current status of the program and does not undermine the current cleanup progress. Unfortunately, as currently written, the administration must strongly oppose H.R. 1300, 2580, and 2247.

Thank you, Mr. Chairman. Assistant Administrator Fields and I

will be happy to answer any of your questions.

[The prepared statement of Timothy Fields, Jr. and Steven A.

Herman follows:]

PREPARED STATEMENT OF HON. TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR,

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, AND STEVEN A. HERMAN, ASSISTANT ADMINISTRATOR FOR ENFORCEMENT AND COMPLIANCE ASSURANCE, U.S.

ENVIRONMENTAL PROTECTION AGENCY

INTRODUCTION

Good morning, Mr. Chairman, and Members of the Committee. We are pleased

to have this opportunity to appear before you today to discuss H.R. 1300, the ‘‘Recycle America’s Land Act of 1999,’’ as well as the Agency’s record of accomplishments

over the past several years in fundamentally improving the Superfund program. The

Superfund program plays a key role in the Administration’s goal of building strong

and healthy communities for the 21st Century.

SUPERFUND PROGRESS

The Superfund program continues to make significant progress in cleaning up

hazardous waste sites and protecting public health and the environment. EPA has

significantly changed how the Superfund program operates through three rounds of

administrative reforms which have made Superfund a fairer, more effective, and

more efficient program. As of September, 1999, 90% of the sites on the final NPL

are either undergoing cleanup construction (remedial or removal) or are completed:

• 623 Superfund sites have reached construction completion.

• 459 Superfund sites have cleanup construction underway;

• An additional 214 sites have had or are undergoing a removal cleanup action.

Nearly 31,000 sites have been removed from the Superfund inventory of potentially hazardous waste sites to help promote the economic redevelopment of these

properties.

EPA’s ‘‘Enforcement First’’ strategy has resulted in responsible parties performing

or paying for approximately 70% of long-term cleanups, thereby conserving the

Superfund Trust Fund for sites for which there are no viable or liable responsible

parties. This approach has saved taxpayers more than $15.5 billion to date—more

than $13 billion in response settlements, and nearly $2.5 billion in cost recovery settlements.

Through the commitment of EPA, State, and Tribal site managers, other Federal

agencies, private sector representatives, and involved communities, EPA has made

Superfund faster, fairer, and more efficient through three rounds of administrative

reforms. Several years of stakeholder response indicates that EPA’s Superfund Reforms have already addressed the primary areas of the program that they believe

needed improvement. EPA remains committed to fully implementing the administrative reforms and refining or improving them where necessary.

REAUTHORIZATION

As stated on March 23, 1999 in testimony before this committee, the success of

EPA’s administrative reforms and the resulting improvements in the Superfund program have fundamentally altered the need for Superfund reauthorization legislation. Many of the provisions in the bills under discussion today are designed to fix

problems that have been addressed through the Superfund Administrative Reforms.

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As the result of the progress made in cleaning up Superfund sites in recent years,

and the program improvements resulting from administrative reforms, there is no

longer a need for comprehensive legislation. Comprehensive legislation could actually delay clean ups, create uncertainty and litigation, and undermine the current

progress of the program. As a result, the Clinton Administration believes only provisions that provide narrow, targeted liability relief for qualified parties that builds

upon the current success of the Superfund program are appropriate. Let me reiterate the provisions the Clinton Administration would support. In addition to legislation to reinstate the Superfund taxes, and provide EPA with access to mandatory

spending for orphan shares, Superfund reauthorizing legislation should be limited

to provisions dealing with:

• prospective purchasers of contaminated property

• innocent landowners

• contiguous property owners, and

• the liability of small parties

HR 1300, HR 2580, AND HR 2247 WEAKEN THE CURRENT PROGRAM

The Administration has reviewed H.R. 1300—the ‘‘Recycle America’s Land Act’’ as

reported out of the House Transportation and Infrastructure Committee, H.R.2580—

the ‘‘Land Recycling Act of 1999,’’ and H.R. 2247—the ‘‘Small Business Superfund

Fairness Act.’’ Each of these bills would undermine the current progress being

achieved in the Superfund program. As a result, the Clinton Administration is opposed to these bills. After several years of administrative reforms, Superfund has

been fundamentally improved. Overhauling Superfund at this stage of the program

with a significantly changed statute will erode many of the improvements we have

achieved. Superfund legislation should be narrowly targeted and build upon the success of Superfund Administrative Reforms. Legislation should focus on provisions

that have generated broad Congressional and Superfund stakeholder consensus. Unfortunately, significant provisions in each of these bills lack this consensus. By contrast, the Administration strongly supports H.R. 1750, the Community Revitalization and Brownfields Cleanup Act of 1999.

CLEANUPS LESS PROTECTIVE

Superfund cleanups must be protective of human health and the environment

over the long term. Unfortunately, a number of provisions in H.R. 1300 and H.R.

2580 weaken current law and could result in a Superfund program that would not

adequately protect human health and the environment.

H.R. 2580’s remedy title weakens current law and could result in a Superfund

program that would not adequately protect human health and the environment.

Under the current statute remedies are required to ‘‘utilize permanent solutions and

alternative treatment technologies or resource recovery technologies to the maximum extent practicable.’’ Under H.R. 2580, the word ‘‘maximum’’ is stricken. This

change effectively eliminates the importance of selecting permanent remedies and

permanent protection for communities. Also, under H.R. 2580, the preference for

treatment does not apply to treatment remedial alternatives ‘‘that would increase

risk to community or to worker’s health’’. Under the current law, protection of community and workers is already addressed under : (1) the National Contingency Plan

(NCP) remedy selection criteria of protection of human health and the environment,

and short-term effectiveness, (2) the ARAR waiver of greater risk to human health

and the environment, and (3) worker protection standards. This imposition of a separate test for treatment remedies may weaken long term protection of remedies by

reducing treatment, inviting additional litigation, and delaying cleanups.

RELEVANT AND APPROPRIATE REQUIREMENTS

The provisions in H.R. 1300 and H.R. 2580 that eliminate the current statutory

requirement to attain or waive Relevant and Appropriate requirements (RARs) represents an attempt to address a problem that does not exist. Dated Superfund reform legislation eliminated RARs in conjunction with States having the option of repromulgating State RARs as Applicable standards. Superfund Administrative reforms and further Agency and State experience selecting cleanup remedies have

eliminated the need for legislative changes to remedy provisions in current law. Further, the use of RARs often result in remedies tailored to site specific conditions,

providing an additional tool to ensure protection of human health and the environment.

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GROUNDWATER NOT PROTECTED

Contaminated ground water is a problem at more than 85 percent of Superfund

sites. With roughly fifty percent of the U.S. population relying on ground water for

their drinking water, the Administration strongly believes that this critical resource

must be protected. The citizens of this nation want and deserve a safe and reliable

supply of water for drinking and household use, industry and agriculture, recreation, and many other beneficial uses, and to know that they will continue to have

such a supply available for future generations.

For example, H.R. 1300 and H.R. 2580 replace the current Superfund program

goal to restore contaminated ground water to beneficial uses, wherever practicable,

with a much lower standard. Both HR. 1300 and HR 2580 protect groundwater only

for its ‘‘reasonably anticipated use’’, rather than its ‘‘current or potential beneficial

use.’’ Reliance on this land use concept may create a perception of a bias against

protecting uncontaminated ground water. Furthermore, under H.R. 2580 there is no

requirement to clean up ground water to beneficial use. Remedies selected under

H.R. 2580 would not keep contaminated ground water from spreading to

uncontaminated ground water. By including the term ‘‘reasonable point of compliance,’’ the bill invites disputes over whether drinking water standards should be

met in the groundwater or at the tap—potentially delaying cleanup and leaving valuable groundwater resources unprotected. Superfund legislation should not weaken

the goal of restoring ground water to beneficial uses, wherever practicable.

Under the current program, EPA is using ‘‘smart’’ ground water remediation to

provide appropriate levels of protection at lower cost. In the early days of the program, we relied almost solely on extraction and treatment of ground water to

achieve cleanup objectives. In 1995, 60% of our ground water 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% of

Superfund ground water remedies included monitored natural attenuation of contamination.

CLEANUPS MAY BE DELAYED

Under both H.R. 1300 and H.R. 2580 new and confusing provisions and terminology regarding ground water, and risk assessment will delay cleanups and generate costly new litigation. For example, new risk assessment terms and requirements may require EPA, States, and contractors to change the way a Superfund

cleanup remedy is chosen. New risk provisions requiring consideration of information, regardless of reliability, quality, or whether the information is representative

of site conditions, is unnecessary and will delay remedy selection decisions.

New terminology could also cause time consuming and costly litigation as the

meaning and relevance of new terms are fought over in the courts. For example,

defining when data is ‘‘reasonably obtainable’’ or if the scientific and technical information is the ‘‘best available’’ would be debated and litigated, leading to delayed

cleanups.

THE LIABILITY PROVISIONS OF H.R. 1300 AND H.R. 2247 WILL INCREASE LITIGATION AND

EXEMPT MANY PARTIES WHO SHOULD PAY FOR CLEANUP

Though changes were made to H.R. 1300 subsequent to its introduction, the bill

passed by the Committee on Transportation and Infrastructure remains unacceptable and is strongly opposed by the Administration. The bill would roll back current

cleanup progress and undermine the critical ‘‘polluter pays principle. EPA, along

with the Department of Justice, has already expressed strong concerns regarding

the prohibitions on EPA’s ability to provide protections to all communities, regardless of the State in which they are located, at the August 4, 1999 hearing before

this Committee. Our concerns remain the same on those issues. In addition, the Administration remains concerned about the other liability provisions in the bill.

Specifically, H.R. 1300 still requires mandatory allocations at many sites where

they are unwarranted, thus significantly increasing transaction costs. In addition,

while H.R. 1300 attempts to address the need for limitations on liability for prospective purchasers, innocent landowners and contiguous property owners, H.R. 1300

goes beyond these reforms needed to foster redevelopment, and includes a number

of overly broad liability exemptions which may result in the transfer of responsibility for large cleanups to the Trust Fund. H.R. 2247 also suffers from this problem

by promoting an overly broad exemption for moderately sized businesses, even if

they sent hazardous waste to a site. As a result, the liability provisions of H.R. 1300

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will increase transaction costs and litigation, and H.R. 1300 and H.R. 2247 will exempt many parties who should help pay for the costs of cleanup.

H.R. 1300 WOULD REQUIRE COSTLY TIME CONSUMING ALLOCATIONS, AND REMOVE

INCENTIVES FOR SETTLEMENT

Over the past 18 years, we have learned that settlements with responsible parties

are the most effective way to achieve timely cleanups. A large measure of the program’s progress derives from the fact that over two-thirds of the work is done by

responsible parties, most of it through settlements. We want to continue that

achievement. The current law provides significant incentives for parties to reach

agreement at the negotiating table, and to move quickly to cleanup without resorting to adversarial, unilateral orders. As described below, we believe H.R. 1300 severely reduces or eliminates these incentives to step forward and agree to perform

cleanups voluntarily.

Lessons learned from EPA allocation pilots have shown that prescriptive, mandatory allocations can prevent reaching timely settlements. The Administration believes that the allocation process in H.R. 1300 remains overly burdensome and could

discourage settlements, rather than promoting them. In addition, because of the

broad nature of eligible response actions, EPA will be forced to expend considerable

resources providing allocated ‘‘fair share’’ settlements and reimbursing parties that

expended costs above their ‘‘fair share,’’ even for actions concluded in prior administrative settlements.

Of greatest concern is the structure of the allocation and settlement processes.

Within these processes, the concept of joint and several liability—which has been

instrumental in bringing parties together at the negotiating table to conduct cleanups—could be severely weakened. As a result, if just one party decides not to settle,

it is unlikely that any settlement will occur, as there is no incentive for any other

party to pick up this share. Because parties will be unwilling to settle until they

are allocated a ‘‘share’’ pursuant to a time-intensive allocation, EPA’s only means

of securing a timely cleanup, short of funding the cleanup itself, is to issue parties

a cleanup order. This immediately places the Agency in an adversarial relationship

with these parties, and has the added detriment of allowing parties to challenge the

cleanups—effectively circumventing the current bar on pre-enforcement review. In

addition, because parties are allowed under the bill to seek reimbursement for costs

expended above their ‘‘fair share,’’ even when performing under a CERCLA section

106 cleanup order, parties would be discouraged from cleaning up sites through a

settlement. Instead of resolving its outstanding costs up-front, as well as how future

problems will be dealt with, EPA will be forced to resolve such disputes as they

occur before a judge, and will also be required to file separate legal actions to collect

its costs, resulting in both a loss of efficiency, as well as a significant increase in

transaction costs and multiple delays in the cleanup process.

H.R. 1300 attempts to address the Administration’s concerns over reopening existing Superfund settlements and orders. However, we don’t believe the language as

written meets this intended purpose. In cases where an allocation may be required

and a party has entered into a prior settlement for other response actions at the

site, such as prior operable units, those parties may have an opportunity to argue

before the allocator that their previous settlements were in excess of their share and

request an adjustment in the settlement subject to the allocation based on the prior

settlement amount. This revisiting of issues at sites with previous settlements will

result in disputes among the same parties arguing over the same previously resolved issues. For example, after years of negotiations over Operable Unit 1 between

EPA and 18 PRPs at the York Oil Superfund Site in Franklin County, NY that settled over $20 million in cleanup and past costs, a mandatory allocation for the second Operable Unit, valued at about $4 million, could undermine all of EPA and the

parties’ efforts to settle this site.

PULLING PARTIES BACK INTO ALLOCATION DISPUTES

In addition to revisiting issues from prior settlements, the requirement to allocate

shares for the response action will result in dragging exempt or settled parties back

through the allocation process, even if they had previously settled. The intent of the

Administration has always been to prevent these parties, such as the over 18,000

de minimis parties that have settled their liability, from being faced with Superfund

again. H.R. 1300 reverses that objective. Because the Fund is responsible for the

share of exempt parties, as well as insolvent, and defunct parties, H.R. 1300 places

a premium on these parties, encouraging other responsible parties subject to the allocation to perform a ‘‘witch hunt’’ to identify such parties in order to reduce their

share. Even though such parties may not be liable for the site costs, they will be

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forced to expend substantial time and money to hire lawyers to respond to information requests and subpoenas.

OVER BROAD ALLOCATION PROVISIONS UNDERMINE ‘‘POLLUTER PAYS’’ PRINCIPLE

Though H.R. 1300 was revised to limit in some cases the types of sites to which

the allocation provisions would apply, it will still require allocations at numerous

other sites where an allocation is unwarranted or simply not necessary. For example, while the bill attempts to limit the number of ‘‘chain of title’’ sites where an

allocation would be required, it creates a large loophole by bringing back into the

process, sites where the current owner is insolvent or defunct, or where the current

owner has a defense and the previous owner is insolvent and defunct. At a site such

as the Copperhill mining site in Tennessee, an allocation could result in the transfer

of a $100+ million cleanup to the Trust Fund if the current owner, Occidental

Chemical, successfully claims an innocent owner defense, because the previous

owner, Tennessee Chemical Company, is insolvent. Because many current owners

would likely be exempt under H.R. 1300, and because many prior owners would

likely be insolvent, these provisions would potentially bar very few owner/operatoronly sites.

Aside from the fact that issues at most chain-of-title sites are burdened not by

questions of hazardous waste contributions, but instead by legal questions of corporate successorship, and thus not particularly suited for a traditional allocation,

the requirement for an allocation at owner/operator sites could amount to a windfall

for these parties at an enormous cost to the Superfund Trust Fund. At many of

these sites, the owner acquired the property at a reduced purchase price to reflect

the presence of contamination at the site and with the intent to continue the same

or similar operations that gave rise to the contamination. It is consistent with longstanding principles of law and not unfair to hold landowners responsible for the hazardous conditions on their property.

LIABILITY EXEMPTIONS ARE OVER BROAD AND WILL INCREASE COSTS AND LITIGATION

The Administration supports liability reform for small volume contributors and

generators and transporters of household municipal solid waste. Such reform should

take the form of clearly defined exemptions or limitations on liability to ensure that

the transaction costs imposed on these parties is minimized. As amended, however,

H.R. 1300 will still be extremely difficult to implement, will generate substantial

new litigation and will result in significant transaction costs. Further, many of the

liability provisions are over broad, exempting parties that should remain responsible

for the cost of cleanup.

OVER BROAD INNOCENT LANDOWNER EXEMPTION

H.R. 1300 continues to provide a liability defense to current owners of contaminated sites if the current owner did not ‘‘cause or contribute’’ to the release, exercised ‘‘appropriate care,’’ and depending on when the property was purchased, performed some limited redevelopment. This provision effectively repeals strict, joint

and several liability for these parties, and replaces it with a new causation and appropriate care standard. This new standard would be difficult, if not impossible, to

determine because of the ‘‘toxic soup’’ of waste that exists at most Superfund sites,

thus leading to expensive litigation. In many cases, this provision would exempt experienced and knowledgeable large parties, that acquired hazardous wastes sites

with full knowledge of site conditions, as well as full knowledge of their responsibility to clean the sites up. In some cases, these may be the only parties available

to conduct cleanups, which will place an enormous drain on the Trust Fund. At sites

such as the San Fernando Valley Superfund sites in California, which are contaminated by VOC’s from over fifty years of aerospace and defense manufacturing, a significant portion of liability at the site is borne by current owners who purchased

contaminated property at depressed prices. If these parties are suddenly relieved

from liability, the $220+ million cost of remediation could be passed to the Fund.

In addition, relieving these parties of their liability places other similarly situated

property owners that fulfilled their obligations under CERCLA by performing a

cleanup at a competitive disadvantage. Instead of promoting redevelopment, such as

through prospective purchaser provisions, these provisions affect only those parties

who should be required to conduct a cleanup.

OVER BROAD SMALL BUSINESS EXEMPTIONS IN H.R. 1300 AND H.R. 2247

While the Administration continues to support legislative provisions that address

the liability of small parties, the Administration is concerned with the small busiVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00169 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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ness exemption in H.R. 1300. The exemption in H.R. 1300 is available to a small

business that contributed large amounts of highly toxic wastes. In order to hold

such a business liable, EPA must show that the waste contributes or contributed significantly to the cost of cleanup. This language represents a change from several

previous bills, which required only that the President determine that the waste may

contribute significantly to the cost of cleanup. The absence of the word ‘‘may’’ represents an important shift in the burden of proof. Because of the ‘‘toxic soup’’ of

wastes at most sites, it will be difficult, if not impossible, to show that a party’s

waste actually contributes or contributed significantly to the cost of cleanup. As a

result, it is unlikely that any business meeting the requirements of H.R. 1300’s definition of a small business will be held accountable, even for highly toxic waste. Further, such a standard will result in increased litigation and transaction costs.

While H.R. 2247 retains the same problematic ‘‘contribute significantly’’ language

of H.R. 1300, it is particularly troublesome because it omits any restriction on the

financial assets of the business claiming the exemption. H.R. 2247 exempts businesses based solely on their number of employees—in this case, 100 or less. Historically, the rationale touted in support of a small business exemption is that it would

act as a surrogate for an ‘‘ability-to-pay’’ analysis. H.R. 2247 rejects this rationale

by failing to include a revenue ceiling. For example, at the Laurel Park Site in Connecticut, EPA has identified a business with 75 employees, but with over $4 billion

in annual revenues.

EPA has made significant efforts to administratively address the concerns of

small businesses by offering ability to pay, de minimis and de micromis settlements,

as well as developing a municipal solid waste settlement policy. To date, EPA has

entered into de minimis settlements with more than 18,000 parties and continues

to take into consideration a party’s ability-to-pay in our settlement processes. In addition, the Administration’s legislative proposals for innocent landowners, prospective purchasers, contiguous property owners and small quantity generators of household MSW would provide further liability protection for parties.

OVER BROAD MUNICIPAL SOLID WASTE (MSW) EXEMPTION

As a threshold issue, the MSW settlement policy is working. The Agency continues to support the policy because it is a fair and reasonable method to address

the fact that MSW alone generally does not create Superfund sites, and will continue to defend it against any challenges. While the Administration sees no need

to codify the policy, any attempt to codify the policy in legislation should properly

do so. We will strongly oppose improper attempts to codify the policy, such as the

provision in H.R. 1300.

While H.R. 1300 has been amended to address the problematic definition of municipal solid waste in the introduced version, we believe that the provision is still

flawed. The provision exempts past contributors of MSW, unless the President determines that the person is engaged in the business of transporting such waste,

AND the contribution of MSW contributes or contributed significantly to the cost of

cleanup. The first condition is overly limiting, in that it applies only to commercial

municipal waste haulers, exempting large waste generators of the same type and

volume of waste, but in a different business. The second condition is troublesome

for the same reasons as described above. As a result of this high burden, it is unlikely that even commercial waste haulers could be held accountable for their contribution, beyond the 10% cap.

OVER BROAD RECYCLING EXEMPTION

Finally, while the Administration has supported exempting parties for legitimate

recycling transactions, H.R. 1300 goes too far. In previous legislative proposals, the

allocated shares of liability attributable to recyclers were not shifted to the Superfund Trust Fund but rather were borne by other responsible parties at the site.

H.R.1300 would shift the share of cleanup responsibility attributable to these parties to the Trust Fund and/or the taxpayer, and in many cases, the remaining owners/operators are insolvent and defunct, which means the Trust Fund must cover

the entire cost of cleanup. Additionally, the Administration continues to oppose exempting parties who disposed of used oil. There are fundamental differences between used oil and other materials addressed under the bill’s recycling provisions.

Used oil is toxic, and generally very mobile, and thus presents unique obstacles to

cleanup. In addition, ‘‘recycling’’ of used oil commonly involves the burning the oil,

which leaves large volumes of heavy metals and contaminants behind.

Further, the bill’s provisions extend the used oil exemption to essentially all petroleum products and could provide liability exemptions to large shipyards, ports

and motor pools. Some used oil sites have been virtual pools of contamination that

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have been extremely harmful to the environment and difficult to clean up. Many

of the parties at these Superfund sites should remain liable for the cleanup for

which they are responsible. Targeted legislative provisions protecting small businesses, small volume parties, and parties with limited ability to pay should address

the liability issues at these sites. Finally, the Administration has concerns regarding

the scope and applicability of the newly-added provision addressing copper production byproducts, and believes that this language ventures far beyond the original

intent of the recycling provision (e.g., to remove unnecessary obstacles to post-consumer use of recycling efforts).

EPA’S ABILITY TO RECOVER IT’S COSTS IS RESTRICTED

H.R. 1300 inserts a new cap on oversight costs EPA can collect, which will make

it difficult for EPA to ensure cleanups are protective. If parties provide EPA with

an accounting of the direct and indirect costs incurred at a site, EPA may only recover oversight costs up to 10% of total cleanup costs. The amount of oversight necessary at a given site is in no way related to the cost of the cleanup, or the costs

incurred by PRPs. In many cases, it is PRP expertise or community concern that

dictates the amount of EPA oversight required. As a result, EPA’s oversight costs

should not be arbitrarily capped based upon what PRPs are spending at a site.

PRE-EMPTION OF STATE LAWS

Current law already affords favorable treatment for response action contractors

(RACs). Under Superfund, RACs are subject only to a negligence standard. EPA is

also authorized to indemnify contractors for liability arising out their negligent performance, unless the conduct was grossly negligent or constituted intentional misconduct. H.R. 1300 would change current law and pre-empt state negligence laws

and statutes of repose. This provision is unnecessary and is not supported by the

Administration.

OTHER LIABILITY CONCERNS

As stated in previous testimony, the Administration remains concerned with the

‘‘Brownfields’’ provisions of some of these bills (H.R. 1300 and H.R. 2580) which

limit EPA’s authority to protect public health and the environment at certain sites.

In addition, the Administration is concerned with additional provisions of the liability title in H.R. 1300, including, but not limited to, the inclusion of special interest

exemptions for ‘‘dipping vats,’’ the limitations on enforcement of 106 orders, the requirement to provide final covenants, and the unreasonable time limits in the expedited settlement process.

NPL LISTING

The Clinton Administration continues to oppose provisions that restrict EPA’s

ability to list sites on the NPL without a Governor’s approval. EPA has worked

closely with States and seeks Governor concurrence before listing, but needs the

ability to list otherwise eligible sites opposed by States—in the case of Natural Resource Trustee issues, tribal or interstate migration of contamination, or where the

State is a PRP.

While a Governor’s concurrence is not mandatory under H.R. 1300, the bill does

require a one year wait for final NPL listing upon request from a State that is attempting to obtain an agreement to perform remedial action. In addition, H.R. 1300

generally defers listing a facility on the National Priorities List if remedial action

that will provide long term protection is underway at the facility under a State response program.

H.R. 2580 requires State concurrence before EPA can list a site on the NPL. This

approval requirements applies even in situations where Tribal, local community, or

interstate impacts exist, or where the State is a PRP. In addition, HR 2580 prohibits listing of sites to the NPL if a Governor assures the site is being addressed

or will be addressed in the future. The bill has no provision for when in the future

a promised action to address contamination might occur.

EXPIRATION OF TAX

The Superfund tax authority expired December 31, 1995. The President’s fiscal

year (FY) 2000 Budget requests reinstatement of all Superfund taxes (including excise taxes on petroleum and chemicals, and a corporate environmental tax). The

Trust Fund balance (unappropriated balance) was roughly $2.1 billion at the end

of fiscal year 1998. The Trust Fund balance will be approximately $1.3 billion at

the end fiscal year 1999.

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In the absence of the taxes, we estimate a windfall of approximately $4 million

per day for those parties that would normally pay the tax. To date, the Trust Fund

has lost approximately $5 billion as a result of the failure of Congress to reinstate the taxes. This $5 billion windfall has been passed on to those that would normally

be funding cleanups. It is important that Congress reinstate the Superfund tax authority.

CONCLUSION

The Superfund program has been fundamentally improved through administrative

reforms and is faster, fairer, and more efficient. The significant progress the Clinton

Administration has achieved in protecting public health and the environment

through the clean up of toxic waste sites must not be undermined by the passage

of ill conceived Superfund legislation based upon outdated information and misconceptions about the current program. EPA’s administrative reforms, and the resulting Superfund cleanup progress, have eliminated the need for comprehensive

Superfund legislation. We look forward to working with Congress to reinstate the

Superfund taxes and enact the narrowly targeted Superfund legislation that we described in our testimony that builds upon the success of administrative reforms.

Mr. OXLEY. Thank you, gentlemen, for your excellent testimony

as usual.

Let me begin the questioning Mr. Fields.

I have heard your testimony and there is simply no evidence in

my mind that any of the administration’s actions in the 106th Congress indicates that the administration is getting the message.

Sixty Democrats from the House are sending you a message. They

no longer want to pursue this strategy where the administration

can only say nice things about purely Democrat bills and otherwise

oppose meaningful bipartisan efforts. We should probably also add

about 10 or so of the 19 Democrats that cosponsored H.R. 3000

with the last Congress to this list. That gets us to about 70 Democrats who are supporting bipartisan legislation. A strong bipartisan

majority in the House wants meaningful Superfund reform and

based on your testimony and that of your colleague, Mr. Herman,

today, if I heard it correctly, you oppose all of the bipartisan bills

and only support the Democrat alternative.

Based on your testimony in August and today, the administration is out of touch with the Governors, out of touch with the Conference of Mayors, out of touch with the Conference of Black Mayors, out of touch with the cleanup agencies, out of touch with small

businesses, out of touch with recyclers, out of touch with service

station dealers, out of touch with the cleanup contractors, out of

touch with realtors and homebuilders and out of touch with labor

unions.

If I read the Allied Signal case properly, the administration is

out of touch with the courts in claiming to have solved problems

that could only be solved by real statutory reform.

Where the agency does seem to be in perfect synch is the national activist groups. What I read in your testimony is the

unending movement of the goalposts. Provisions that were part of

your Superfund reform principles last Congress are now the object

of your criticism.

Now Mr. Fields, can you name an area in the last 2 years that

the administration has moved in our direction? Is there any area

that you would cite that you have moved toward our efforts?

Mr. FIELDS. I think there are several.

I would cite the agreements around Brownfields cleanup and redevelopment where——

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Mr. OXLEY. But you have opposed Mr. Greenwood’s bill, is that

correct?

Mr. FIELDS. We said we could work with Congressman Greenwood and Congressman Towns and try to get some reconciliation

among their bills. That is what we said at the last hearing, and

there have been meetings that we have participated in with your

staff and our staff, working together to see if there can be some

agreement.

We agreed that prospective purchasers, innocent landowners,

and contiguous property owners ought to be given liability relief.

We have indicated that we agree that small generators and transporters of municipal solid waste ought to be given liability relief.

I think those are several examples where we, the administration,

have agreed that we could benefit from targeted legislation in that

regard and we have indicated at the last hearing that Congressman Towns’ bill is a great start for the kind of legislation that we,

the administration, would be for.

Mr. OXLEY. Can you name the areas in H.R. 1300 or H.R. 2580

that you support without significant modification? What areas of

commonality do we have in those two pieces of legislation?

Mr. FIELDS. Well, we have some significant issues that we have

discussed in our testimony with H.R. 1300——

Mr. OXLEY. I am looking at areas that you could agree to without

modification.

Mr. FIELDS. We could look at some of the elements of liability relief and look at accepting some of that.

Mr. OXLEY. Some of the liability relief?

Mr. FIELDS. Yes. But we can’t——

Mr. OXLEY. And what about the allocation?

Mr. FIELDS. Allocation? No. We have serious problems with the

mandatory allocation——

Mr. OXLEY. Isn’t it a fact though that in the past you supported

allocation?

Mr. FIELDS. But Mr. Chairman, as we have indicated, we have

learned a lot from the 103d Congress and allocation policy we’ve

done. We found the prescriptive, one-size-fits-all allocation process

does not work and now in the 106th Congress we believe that that

type of allocation process described in H.R. 1300 is not the way to

go. We have learned a lot in the last 6 years of implementing our

administrative reforms.

Mr. OXLEY. What specific liability relief issues would you support?

Mr. FIELDS. The ones that we have gone on record indicating

that we support.

Mr. OXLEY. In 1300, in the legislation that has already passed

the Transportation Committee, what can you support?

Mr. FIELDS. Well, the types of liability relief that is provided for

prospective purchasers, innocent landowners, contiguous property

owners—we would look at working with you to try to carve out appropriate liability relief for those types of parties.

Mr. OXLEY. My time has expired. The gentleman from New York,

Mr. Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman.

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Many of the provisions you have posed in 1300 look as if they

are trying to fix problems the agency has already fixed. It seems

that if the problems are fixed administratively we don’t need

sweeping Superfund reform.

I have a two-part question. First, the statute need a lot of

amending, No. 1, and the second one, what does the program need

to further improve it?

Mr. FIELDS. The first part of your question, Congressman Towns,

we do not believe the statute needs a lot of amending. We no longer

support comprehensive reform of the Superfund statute. We believe

that narrowly targeted legislative reform is all we need at this

time. We believe that the types of liability relief that are in your

bill, H.R. 1750, is the type of liability relief we could support as

well as the Brownfields grants and loans program that is provided

there as well.

Further, we would support liability relief for generators and

transporters of municipal solid waste.

Those are the types of legislative reform we think would further

the program. We don’t need changes to remedy, for example, as

proposed in 2580 or H.R. 1300.

Mr. TOWNS. All right, thank you. I wanted to first applaud you

really for the improvements in the Superfund program, the

progress made in the cleanups. You are to be commended.

Given the progress currently going on in the Superfund program,

what specific provisions would or could undermine the progress of

the program?

Mr. FIELDS. I just want to add one other thing to your previous

question, and I would like Mr. Herman to add to this one as well.

I would just add that an additional element that is probably most

important for legislative change and that the administration really

needs is a reinstatement of the Superfund taxes that expired on

December 31, 1995. I would like Mr. Herman to address some of

the areas of concern that would undermine the current program.

Mr. HERMAN. If I may, Mr. Chairman, one of the primary objections that we have, Mr. Towns, is to the mandatory allocations

process laid out in H.R. 1300. As mentioned before, we piloted an

allocations process several years ago at sites, and what we found

was prescribing one-size-fits-all to all sites results basically in a

gridlock at the site.

As written, the mandatory allocation scheme in 1300 does several other things. First of all, rather than getting small parties and

small businesses out of the process, it inevitably will bring them

into the process. Even if they are exempt, the parties who may be

on the hook for a share will bring in the small parties to determine

what share they should be allocated so that the other parties will

not be charged for that share. This will involve them with lawyers,

it will involve them with litigation. The allocations will eliminate

the incentive to settle and get on with the cleanup. There will be

no incentive to resolve things first. The allocations will be very,

very time-consuming and resource-consuming.

Allocations are provided for at all sites. There are some sites,

owner-operator sites, some others, where an allocation system is totally inappropriate. What you have are some serious legal questions as to potential liability, but certainly not factual situations.

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Finally it will actually encourage litigation because everything

will have to be done to get the allocation process—it will have to

be done under the auspices of a court, and to the extent that we

have been able to drive the great majority of sites and speed cleanup through settlement and get PRP’s to do the work, this will

hinder and in some cases cripple that effort.

Mr. TOWNS. Litigation. Could you sort of be specific in terms of

ways that H.R. 1300, you know, would do that, increase litigation?

Mr. HERMAN. Increase litigation?

Mr. TOWNS. Yes.

Mr. HERMAN. Yes, sir. Well, first of all, there is—there are several things. One is the allocation process, which basically does not

reward people who settle; people who settle and people who litigate

can wind up pretty much even. So you have an advantage in holding out and litigating. Second, there are new terms used in the legislation which have not been used before in the 20 years of Superfund. These will have to be defined further by the courts in litigation. It will open up a whole area that is basically settled now.

Mr. OXLEY. The gentleman’s time has expired.

Mr. TOWNS. Thank you, Mr. Chairman.

Mr. OXLEY. The gentleman from Illinois, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman.

Mr. Fields, in the testimony you mention 18,000 settlements with

small business. What are the parameters of each of these settlements?

Mr. FIELDS. These are de minimus settlements that we have entered into at a variety of sites across the country. We have entered

into these settlements in more than 400 Superfund sites across the

country.

Mr. SHIMKUS. Let me——

Mr. FIELDS. 18,000. And we have offered——

Mr. SHIMKUS. Let me ask, if you have had 18,000 settlements,

why will not the administration come forward with legislation to

codify the parameters of these exemptions and allow us to remove

some small business liability? I mean, if you have the parameters

because you have exempted 18,000, then just give us the parameters so that we have a basis to start on a legislative remedy for

small business, because obviously you have the facts.

Mr. FIELDS. Yes, I will start, and Mr. Herman should definitely

add to this.

We obviously have done a lot through our administrative reforms

to address small businesses. We have come out very strongly in

support of further legislative change that would also——

Mr. SHIMKUS. Do you have the language for those further legislative changes?

Mr. FIELDS. Small generators and——

Mr. SHIMKUS. Mr. Fields, the language. I am involved in another

legislative issue.

Mr. FIELDS. Right.

Mr. SHIMKUS. And you can—the administration can talk

policy——

Mr. FIELDS. Right.

Mr. SHIMKUS. And how you have been in favor of small business

liability protection from day 1.

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Mr. FIELDS. Right.

Mr. SHIMKUS. But if you don’t come to the table with language,

we don’t know where the starting point is to get some negotiation.

So when you talk about you have been to the table and you have

come to staff——

Mr. FIELDS. Yes.

Mr. SHIMKUS. And you haven’t brought language, you have

brought zero.

Mr. FIELDS. No, no. I beg to differ, Mr. Congressman. We actually have discussed——

Mr. SHIMKUS. Well, then give me——

Mr. FIELDS. Since the 103d Congress.

Mr. SHIMKUS. Okay, let me reclaim my time. Then what is the

exact language for small business liability protections that this administration has brought to this committee?

Give me one piece.

Mr. FIELDS. During the 103d Congress we, the administration,

supported 50 or fewer employees and $2 million in annual revenue

as being a definition of what small business——

Mr. SHIMKUS. So would the administration support that now?

Mr. FIELDS. No, we are now—because there is a lot of disagreement. Your bill, for example, includes, as you know, less than 100

employees and no revenue cutoff.

Mr. SHIMKUS. But you had 50 and $2 million.

Mr. FIELDS. Some people have proposed $3 million, and——

Mr. SHIMKUS. So will the administration support 25 and

750,000?

Mr. FIELDS. Well, that is something that is going to have to have

a lot more discussion. We within the administration are not prepared to offer up a precise——

Mr. SHIMKUS. Okay. Then let me ask this question.

Mr. FIELDS. Number of——

Mr. SHIMKUS. I know I am hot, but I have got businesses in

Quincy that are going under. You all have 18,000 cases of documentation where you have absolved them of responsibility.

Mr. FIELDS. Right.

Mr. SHIMKUS. And you have settled with them.

Mr. FIELDS. Right. We settled, yes.

Mr. SHIMKUS. Now, that would tell me that you have some criteria by which you are exempting these small businesses. Draft legislation based upon that 18,000 caseload and get it up to our committee so that we can evaluate it. Because I am not—if you don’t

codify this, the exemptions you have given to a small business in

Gettysburg, how do I know that that’s the same exemption that

you have given to my small businesses in Quincy, Illinois? There

is no assurance. It is in some little black box stowed away in the

EPA that you only know.

Mr. FIELDS. Many of these businesses would be exempted under

what we proposed——

Mr. SHIMKUS. We don’t know that.

Mr. FIELDS. No, no, many small businesses are included in those

who send generators and transporters of municipal solid waste, we

have proposed in our legislative reform agenda that those——

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Mr. SHIMKUS. Do you have language for your proposed legislative

agenda?

Mr. FIELDS. We have provided language on that to members of

this committee.

Mr. SHIMKUS. Have you presented it to me?

Mr. FIELDS. We would be happy to share it with you personally.

That language is something we support, and we believe many

small businesses would be exempted by that type of legislative reform. That is one example of the benefits to small businesses.

Yes, we have supported de minimus and de micromus liability relief. Those are elements of the small business liability relief question. There is some disagreement among Members of Congress and

the administration as to how you precisely define a small business,

but what we have proposed as an administration would provide liability relief for a lot of small businesses that are impacted by

Superfund liability.

Mr. Herman.

Mr. SHIMKUS. I will spare—I will pause and I will yield back my

time.

Thank you, Mr. Chairman.

Mr. OXLEY. The gentleman’s time has expired.

The gentlelady from Colorado, Ms. DeGette.

Ms. DEGETTE. Thank you, Mr. Chairman.

Mr. Fields, you know that a lot of the elected officials and citizens of Denver and I have been worried for a long time that this

Shattuck remedy is inadequate. Now we get these reports that the

mound is sinking, that cap has cracked; contamination might have

already seeped into both the groundwater and the Platte River.

Last Thursday your emergency response team issued a summary

of a report that said that the Shattuck site is susceptible to longterm degradation. It went on to say that this cap that is supposed

to last 200 years ‘‘will not survive more than 15 unless a costly

monitoring and maintenance system is installed.’’ That was in the

Denver Post this Saturday.

And then the director of your ERT said to assume that it would

last any longer is foolhardy. The newspaper said that the monitoring system will cost as much as the EPA estimated that it would

cost to remove the waste in the report I asked for last spring.

Now in response to this report, the Denver Post said that you

said that this new information ‘‘raises significant questions about

the cleanup remedy at Shattuck,’’ and then you went on to say, at

least as quoted in the Denver Post, there will have to be ‘‘at a minimum some significant changes to the current remedy or a complete alternative remedy as opposed to the option of letting the

waste stay onsite.’’

So I guess my question to you today is do you have a concept of

what those significant changes are, and does that mean that the

EPA will now move this waste offsite as many of us believe should

have been done.

And by the way, I always point out this remedy was not a Clinton administration remedy. It was done in 1991, but the Region 8

EPA seems to have adopted this remedy as its own child, which I

don’t understand. But my question is, what do you mean when you

say significant changes?

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Mr. FIELDS. Well, there has been a review, several reviews have

been done of the current remedy. The U.S.——

Ms. DEGETTE. I know what the reviews are——

Mr. FIELDS. Geological survey——

Ms. DEGETTE. Yes.

Mr. FIELDS. The 5-year review——

Mr. GREENWOOD. What do you mean——

Mr. FIELDS. Those reviews are all going on, and those reviews indicate at a minimum you are going to need 17 more groundwater

monitoring wells around the current remedy, because the groundwater monitoring system is not adequate——

Ms. DEGETTE. Mr. Fields, I only have 5 minutes.

Mr. FIELDS. All right, I am just trying to respond to your question.

Ms. DEGETTE. I know what they have all done, yes, but if you

can tell me what do you mean when you think you are going to

have to look at an alternative remedy or a modification? Do you

think you are going to move it?

Mr. FIELDS. This is what I am referring to.

Ms. DEGETTE. Okay.

Mr. FIELDS. I am referring to the fact that in order to modify—

in order to address the current remedy, you have to put at a minimum new groundwater monitoring systems in place, you are going

to have to put in place a cap that has greater long-term protection,

because right now the 5-year-review contractor has raised concerns

that the current cap would not comply with the UMTRCA regulations that require 200-to-1,000-year protections in the long term.

The contractor has also raised issues about whether or not longterm groundwater protection would be provided with the current

remedy. So there are two alternatives. Either you fix the current

remedy in a way that allows you to comply with the UMTRCA 200-

to-1000-year requirements, or you decide that the remedy is going

to be so costly to fix that you move it to an alternative location.

The contractor is going to be coming in on October 1 and 2 to

give us a detailed briefing on this, and then we will make a judgment after that as to which of those two alternatives we will be implementing. One of those two is where we are going to go. The

issue is which one. That has not been decided. The further technical data coming in early and mid-October will let us decide

whether or not we should—we can fix the current remedy, is that

feasible, or do we have to move it in order to protect the citizens

of Denver.

Ms. DEGETTE. So when is it you are looking to make some kind

of announcement as to which remedy you are going to be recommending?

Mr. FIELDS. We will be making an announcement I would say the

third or fourth week of October. All the information will be in by

mid-October, and then we would be making a decision by the third

or fourth week as to which of those alternatives is the one we select

for that remedy.

Ms. DEGETTE. Okay. Thank you.

Now following up quickly on my opening statement, the issue of

the relevant and appropriate standard. H.R. 1300 and 2580 elimiVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00178 Fmt 6601 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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nate the use of State and Federal environmental standards that

are both of these things.

Mr. Chairman, may I have unanimous consent for another 11⁄2

minutes to ask this question?

Mr. OXLEY. Without objection.

Ms. DEGETTE. Thank you.

There is a change in current law in both of these bills that State

officials and community representatives strongly oppose, and we

are going to hear that from the second panel today.

If you can quickly tell us, Mr. Fields, what effect this change to

current law would have on EPA’s ability to ensure that cleanups

are protective of human health and the environment and things

like Shattuck don’t happen in the future.

Mr. FIELDS. Dropping relevant and appropriate requirements

would have a major impact we believe on the protectiveness of

Superfund cleanups. There are many Superfund sites like the

Shattuck remedy that you referred to, Glen Ridge, Montclair,

which is another Superfund site in New Jersey, the J&L landfill

site in Michigan. These are all sites where we have used relevant

and appropriate requirements.

There are sometimes State standards, there are sometimes Uranium Mill Tailing Control Act requirements. There are sometimes

RCRA requirements that were relevant and appropriate. We would

have to develop a whole new paradigm and new cleanup requirements for those many sites where we adopt relevant and appropriate requirements.

So we think that dropping relevant and appropriate requirements would be a major mistake from current law. We worked very

carefully and quite cooperatively with States over the last 6 years.

We are implementing RAR’s. We think State standards, we think

other Federal agency requirements, RCRA requirements are very

appropriate for cleanup at Superfund sites, and dropping RAR’s

would have a major impact we believe on defining appropriate

cleanup requirements for many Superfund sites.

Mr. OXLEY. The gentlelady’s time has expired.

The gentleman from California, Mr. Bilbray.

Mr. BILBRAY. Thank you, Mr. Chairman.

Mr. Fields, when we talk about the issue of appropriate mitigation or treatment, does your department consider at all the adverse

impacts of the implementation of the existing law, adverse environmental impacts? I am not talking about economic.

Mr. FIELDS. When we are evaluating alternatives for cleanup we

do look at the impact of various remedies, of various alternatives

when deciding on what remedy to select at a Superfund site. We

work carefully with the health officials in Atlanta, the Agency for

Toxic Substances and Disease Registry in looking at what impacts

a remedy might have. Would an incineration option, for example,

cause air emission impacts to that community? That is part of our

consideration.

Mr. BILBRAY. I know from when I was serving on the State Air

Resources Board in California, the remediation of a lot of sites

ended up becoming such an identified problem in nonattainment

areas that we specifically had to develop criteria and try to mitigate the adverse air pollution impacts of a lot of remediation. Not

177

specifically to Superfund, but Superfund was part of that problem.

And I think that one of the concerns that we had was how much

of the Federal Government allowed a no-project option based on the

fact that the best environmental health approach was not to do

anything at that site except cap.

One of the problems with that proposal of capping, and I think

you have run into those, is then you end up creating a Brownfield.

I mean, how much discussion is there about the huge environmental damage of creating a Brownfield? The fact is you destroy

five-to-one ratio of Greenfields in lieu of utilizing a Brownfield. And

how much is your department involved in this issue of saying we

have got to stop mandating a lot of this sprawl because we have

basically outlawed reuse of the inner city core?

Mr. FIELDS. Well, that is a concern. We have certain types of

sites that we have no alternative for but to leave it in place, the

waste in place, and capping. There are 20 percent of the Superfund

sites as you know are landfills, industrial, municipal waste landfills that we typically cap, put in place a groundwater monitoring

system, containment, and you leave waste in place. There are mining sites where it is not feasible to remove the material. So in some

cases we do not have an alternative.

But we have implemented a major initiative using the

Brownfields model over this past summer where we have discovered that more than 150 Superfund sites have had major reuse and

redevelopment. And so now while we are cleaning up Superfund

sites, we are applying the Brownfields model and we are looking

at how we can find ways to reuse, recycle, redevelop for economic,

ecological, or recreational uses many of these Superfund sites after

the cleanup job is done, even in those cases where we have waste

left in place, like the Anaconda Superfund site near Butte, Montana, where—I was there on Monday, and we created a world-class

Jack Nicklaus golf course on top of contamination that existed at

the ARCO Superfund site there.

So just because sometimes wastes are left in place, it does not

have to be a Brownfield that is not available for reuse. We have

created metroplexes, you know, shopping centers on these former

Superfund sites even in those cases where waste has been left in

place.

Mr. BILBRAY. I can only imagine the challenge of trying to explain taking a Superfund site and then doing all the irrigation and

putting all the water on top of it that it takes. One of the big reasons why landfills are no longer allowed to be converted to parks,

at least in the West, is over that issue.

Mr. Fields, you were talking about changing the liability aspect

of it. My concern is that we had a situation in Clearwater, Florida,

where you had a company, a small company, that was basically

being held liable as a major contributor mostly because its 55-gallon drums of polyester which had been left out in the sun for over

2 years, and thus had solidified and did not constitute, should not

have been considered as hazardous material, was held as a major,

major contributor mostly because it was one of the few that they

could find to that site, basically almost a joint and several liability

issue. You are the only one that we can identify your material in

here, we are going to nail you.

178

What are you doing to stop that kind of abuse of the system

where you have somebody that not only is not a major contributor,

but from the data that we got from this individual really wasn’t a

contributor, was a contributor of metal and basically solidified polyester, which I think you and I would not constitute as hazardous,

but because it was in the middle of hazardous materials, somebody

in the Department decided the was a waste stream, and thus they

were going to nail whoever they could?

Mr. FIELDS. I will let Mr. Herman respond.

Mr. HERMAN. Mr. Bilbray, several things. First of all, I am not

familiar with that specific fact pattern, but will get, you know,

more information on that site for you.

However, let me say this. First, with regard to a contributor like

yours, we do have the de minimus settlement policy which gets

small contributors out. We have de micromus policy where we settle out for——

Mr. BILBRAY. Let me stop you right there.

Mr. HERMAN. Yes.

Mr. BILBRAY. But the settlement policy that he was offered was

to pay for cleanup, a portion of cleanup, and he was not—his waste

stream was not a problem. Any scientist would tell you that. But

the problem was he was hit with a large hit, and one of the arguments was he was one of the few that we had to be able to go after.

Go ahead.

Mr. HERMAN. In terms of one of the few we had to go after, I

don’t know what, you know, what his—what the size was or what

his ability to pay was. We have instituted ability to pay policies to

take care of a situation like that. In terms of his being caught in

the legislative web, somebody thought that he played a part in polluting that site, and that is what the process is supposed to do, is

to get——

Mr. BILBRAY. I agree.

Mr. HERMAN. And we are trying to kick those people out.

Mr. BILBRAY. I think the ability to pay was the problem. He had

the ability to pay. And all I can say is I read the report and the

recommendations from the Department of what he should have

done with his waste stream, and what he should have done, according to them, is use, you know, acetone or MEK as a solvent and

cleaned out those cans before he disposed of it.

The fact is anyone who knows the qualities of polyester knows

that 6 months to a year in the Florida sun kicked it off and solidified it to where it wasn’t a waste stream. So what was recommended by the Department was more environmentally damaging than what the company did. But that didn’t follow suit for

them. They had a policy that if you don’t handle this the way we

think it should have been handled, we don’t want to sit down and

talk with you. And frankly, I thought it was outrageous that somebody who did the environmentally proper thing was being held up.

But what I sense was it was the ability to pay. You go for the dollars.

Mr. OXLEY. The gentleman’s time has expired.

The gentleman from Wisconsin, Mr. Barrett.

Mr. BARRETT. Thank you, Mr. Chairman.

179

I think today it was indicated that we may be acting on this

piece of legislation or another piece of legislation in the next week

or two, and I certainly understand Mr. Shimkus’ frustration in not

having the language that he would like to see from the administration. So to the extent that that exists, I would like a copy of that

as well.

But because H.R. 1300 at least seems to be a train with a lot of

steam right now, I just want to take a look at a specific section in

this bill that raises some concerns with me to get your read on it.

And that is section 307, which I understand creates a new 6-year

statute of repose, and it is established for the negligent conduct of

cleanup contractors, and that this would preempt State law. My

understanding is it does not apply to grossly negligent or wantontype behavior. But it still raises some questions for me.

According to the assistant attorney general of New York, who

will appear on the second panel, the bill, ‘‘carves out a radical and

unfair new exemption for these parties and deprives potential victims of rightful compensation where due to a latency period that

is often associated with exposure to hazardous substances or for

other reasons, the injury is not discovered within the 6-year timeframe.’’ I know Mr. Dingell also had concerns, and he contacted the

Acting Administrator for the Agency of Toxic Substances and Disease Registry to ask which chemicals off the top 50 of that agency’s

list may fit within this category, and among those that were reported to him were vinyl chloride, benzene, PCB’s, and lead. All

these chemicals and others have latency periods for humans potentially developing cancer at least 6 years after exposure has ended.

And that’s what concerns me. If we are going to be letting negligent parties off the hook for causing damage that does not appear

until 6 years later, yet their legal responsibility ends at 6 years,

are we creating a huge new loophole?

Mr. FIELDS. We are concerned about some of the elements of section 307, as you indicate, and for the reasons you indicate. I want

to say that, you know, the contractor community is an integral part

of our cleanup process, and they have done a very effective job in

helping us clean up sites. We though are not clear as to why we

need to expand response action contractor coverage to what these

areas—that are in 307.

We do not believe that it is appropriate to implement this statute

of repose after 6 years. We think that that along with several other

provisions in section 307 would preempt State law, the changes in

RAC liability proposed in 307 would extend beyond Federal law to

cover State laws. And we are concerned about broadening the negligence standard and preempting State action for this type of liability.

We believe that the issue of negligence should be left to the

States and remain a State responsibility. We believe that the current section 119 indemnification requirements of CERCLA have

been implemented quite well. We have not had any new claims in

the last 5 years. So we don’t think we need major changes to response action contractor liability, and we would be opposed to several of the elements, including the element you just mentioned,

about statute of repose, because of the impact on State laws and

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the preemption of State laws in many cases for several of these elements that are proposed in section 307 of this draft legislation.

Mr. BARRETT. Well, the section that I refer to does have a modifying clause that says that the section shall not apply in any State

or political subdivision thereof if the State has enacted a statute

of repose determining the liability of a response action contractor.

So it would seem at least at my initial reading here that if the

State has any type of statute of repose, whatever it is, that it is

not going to be covered. But my concern is wrongful-death actions,

personal injury actions——

Mr. FIELDS. Yes.

Mr. BARRETT. And property damage actions, obviously more of

the wrongful death and the personal injury actions. And I just—

I want the record to be clear as to what this bill does with regard

to this issue.

Mr. OXLEY. The gentleman’s time has expired.

The gentleman from Maryland, Mr. Ehrlich.

Mr. EHRLICH. Obviously if there is a message here today, it is

that there is bipartisan frustration with—to put it mildly—with the

present statute and the way the present statute is being implemented.

I understand fully, as most of the people in this room do, that

part of this discussion is simply a philosophical disagreement that

will never lend itself to a compromise because we simply view

these issues in such a different way, and either we are going to

lead or you are going to lead and that will be a big difference, so—

however, sir, given that as someone who practiced in this area for

a number of years, let me ask you a couple of things.

You talked about contractor liability. You are familiar with case

law, I am sure, where contractors, cleanup contractors have now

been brought into Superfund litigation, sued for contribution by potentially responsible parties, not on the basis of negligent action by

the contractor. These contractors, as you know, face a joint and

several liability scheme, so you potentially have situations where

non-negligent parties are facing significant actions to defend from

other defendants in cross-claims where they have not been negligent. My question to you is how fair is that, particularly in the

context of your previous statement that you see nothing particularly wrong with the present statute with regard to contractor liability.

Mr. FIELDS. Well, we have agreed in the past that amending the

statute in that area is an area that we could support——

Mr. EHRLICH. Where is your language?

Mr. FIELDS. We provided language during the 103d Congress and

we would be happy to share it with you again.

Mr. EHRLICH. We were not here in the 103d Congress, sir.

Mr. FIELDS. We will be happy to give you that language, but the

problem is that that is only one of seven elements of Section 307.

I cannot say I support a section when there are several elements

in the section that we have serious problems with.

Mr. EHRLICH. I fully understand that, and we are all trying to

break these issues down to separate, independent issue areas, as

you know, and maybe that is one where we can come——

Mr. FIELDS. That’s one we——

181

Mr. EHRLICH. [continuing] so I respectfully request language

from the administration with respect to innocent party contractor

cleanup and liability standards that in your view should pertain

thereto.

Mr. FIELDS. We would be happy to provide that language to you,

sir.

Mr. EHRLICH. With regard to statute of repose and State preemption, is it your position that, putting aside the issue of preemption, that there should not be a statute of repose given—what

my friend from Wisconsin was alluding to with regard to potential

long latency periods in some of these disease processes.

I understand your point with regard to pre-emption and what

State statutes and what State legislatures in their wisdom have

done. Is it your position, however, that any statute of repose is inappropriate in that context?

Mr. FIELDS. We would be opposed to a statute of repose.

Mr. EHRLICH. At any—20 years?—25 years? You would just be

opposed?

Mr. FIELDS. We believe that element of 307 is unnecessary and

we would be opposed to it.

Mr. EHRLICH. Okay, thank you.

With regard to an issue that—I have a lot of questions obviously.

I have 5 minutes, but let me get into something I really have just

recently been made aware of, and I do not have a great deal of

knowledge about, with regard to the issue of recycling used oil.

You are familiar I think with case law, the National Association

of Auto Dealers and trucking associations and other parties have

I know proffered testimony and have positions with regard to this

issue, the issue obviously being liability relief for a party that arranges for used oil to be recycled rather than disposed of and then

finds itself as the joint tort leasor and brought in as a cross-claim

in Superfund litigation. Can you give me your present view of this

situation?

Mr. FIELDS. Well, your question, do we believe that used oil

should be——

Mr. EHRLICH. Yes, sir.

Mr. FIELDS. [continuing] exempted?

Mr. EHRLICH. Yes, sir.

Mr. FIELDS. No. We do not believe that used oil should be included in any kind of recycling exemption. Used oil is a major problem in more than 130 Superfund sites, almost 10 percent of the

sites on the list. It contains a lot of hazardous substances that we

are concerned about and we found a lot of mismanagement of that

material, so we would be opposed to that type of exemption being

included in a recycling exemption.

Mr. EHRLICH. Well, if I could just have, you know, another

minute, Administrator Browner testified before the Water Resources Subcommittee in 1999, the 106th Congress, that the administration was not opposed to such a narrow exemption for recycled oil, and my thought was that your testimony today would comport with that testimony.

Mr. FIELDS. I am fully comportable with our Administrator, but

I want to clarify something of what the Administrator said.

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There are various categories of recyclers of used oil. Some of

those are large recyclers including motor pools, large shipyards and

ports, which would be exempted under the legislation before us

today, and we would be very concerned about that type of operation

being included in a recycling exemption, so we would have to go

back and look at precisely—we have obviously supported a recycling exemption in the past, but we are concerned about making

sure that the proper parties are included in a recycling exemption

and we would want to look very carefully at used oil because of the

problem that has occurred at, as I said, more than 10 percent of

our Superfund sites associated with used oil operations.

Mr. GREENWOOD. The time of the gentleman has expired. The

gentleman from Michigan, Mr. Stupak, is recognized.

Mr. STUPAK. Thank you, Mr. Chairman. I apologize for being

back and forth. I have been up at the radioactive plutonium one

we have been doing up with the other committee—Investigation

Oversight—so I have been back and forth.

I did come in on some discussion. First, I would ask unanimous

consent my opening statement be made part of the record.

Mr. GREENWOOD. Without objection.

Mr. STUPAK. I did come in on some of the discussions going on

here about small businesses being exempt and innocent landowner

protection and prospective purchaser protection.

I would just like to remind my colleagues at the last Congress

we had H.R. 2485, which has been endorsed by the EPA publicly

and everything else, and Mr. Goodling joined with me on this bill,

the Common Sense Superfund Liability Reform Act, and it takes

care of the small business exception that we need. As we define

small business it refers to any business entity that employs no

more than 100 employees and—and—is a small business concern

as defined under the Small Business Act, 15 U.S.C. 631.

Mr. Shimkus’ questions to you I felt was a little unfair because

after I had that legislation last year, he came to us. We tried to

negotiate and work together on a bill, but he wanted $3 million in

revenue or 75 employees and our concern is you could have a company with 60 employees or 75 employees and have $3 billion in revenue, therefore they are not really a small business.

So I think we have some common ground we could work from.

H.R. 2485—it’s really a fantastic bill when it takes care of your

small business concerns, it takes care of the innocent landowner

protection that Mr. Ehrlich brought up. It also takes care of prospective purchaser protection. Those are found in Section 3 and 4

of this great bill.

I would suggest we take a look at it, and if we are going to move

legislation on Superfund reform, if that is truly your concern,

maybe we could then offer it as a bipartisan amendment and

strengthen some legislation that we on this side at least have some

very big concerns, so I am willing to work with Mr. Ehrlich or Mr.

Shimkus to that, but I think publicly EPA has endorsed the small

business exemption, the de minimis polluter and try to give him

some relief underneath Superfund.

My question though for Mr. Fields would be if we look at the big

picture, GAO has recently found that half of all Superfund sites

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183

maining sites, two-thirds of the cleanup work is completed or underway.

If we go to my own State of Michigan at the end of this Congress

approximately 3 out of every 4, or three-fourths of them, will be

completed. The Chamber of Commerce says the existing sites will

be restored to environmental health within 3 to 5 years up there,

so my question, Mr. Fields, the administration and the States have

criticized H.R. 1300 because it will have an effect of delaying cleanups.

Can you provide me some specific ways which H.R. 1300 would

delay the cleanups?

Mr. FIELDS. Yes, Congressman. We believe that H.R. 1300 would

have some significant impacts on the cleanup of those remaining

Superfund sites that still need to be construction completed.

This particular bill has new terms on risk assessment and requirements that are putt into the remedy selection title. They, we

believe, would open this remedies up for litigation because of having to define new terms associated with how you conduct and risk

assessment would require revisions to the current national contingency plan that would take several years and we believe enter into

further litigation.

We think that H.R. 1300 codification of the administrative reforms that they have attempted to do is counter-productive. One of

the key benefits of the current administrative reforms is the flexibility. We would rather not put them into law but rather have the

ability to see how they work and improve them over time.

Putting them into law would not allow us to implement further

improvements to those reforms over time. We have learned from

experiences that some administrative reforms have problems like

allocation pilots we did several years ago which taught us that prescriptive, one-size-fits-all allocation processes are not appropriate,

so those are the kinds of—H.R. 1300 underprotects groundwater. It

backs off of the current standard we use for restoring groundwater

to beneficial uses—so those are just a few examples of how H.R.

1300 would delay cleanup and weaken, we believe, environmental

protection in cleanup of Superfund sites.

Mr. STUPAK. Are there some ways that we could—I know this administration has a good track record of cleaning up Superfund

sites. At least in my own State of Michigan it has been going quite

well.

Is there some suggestion though that you need legislation that

would further enhance or expedite cleanups? Are there some things

that you would like to see—‘‘you’’ being the EPA—I mean besides

my bill, anything else?

Mr. FIELDS. We said earlier that obviously want—we need to

have the tax reinstated. We want the Superfund tax reinstated to

move this program forward.

We talked about some liability relief that we would support, but

in terms of the remedy provisions, the cleanup provisions of Superfund, we do not see a need for any changes, for Congress to enact

any legislative changes to the current remedy provisions of the current law. We think those provisions that are there now are all we

need to move forward on effective cleanup of Superfund sites.

184

Mr. OXLEY. The gentleman’s time has expired. The gentleman

from Pennsylvania.

Mr. GREENWOOD. Thank you, Mr. Chairman, and my questions

follow pretty precisely on your last comment.

In June 1995 Carol Browner stated to Congress that, ‘‘The administration supports the elimination of relevant and appropriate

requirements because they have proven to be a source of delay and

unnecessary expense in selecting remedies’’ and I don’t recall anybody calling that gutting Superfund or rolling back protection.

In April, 1997, sir, you stated, ‘‘We believe things like the future

anticipated land use that everybody agrees to, it would really help

to have that in law as opposed to just guidance.’’

You also stated at the time that we should drop the, ‘‘relevant

and appropriate’’ requirement. The administration’s Superfund reform principles stated that we should use the MCLs, which are

drinking water standards, instead of requiring cleanup below

drinking water standards—and nobody accused you of gutting

Superfund or rolling it back.

In 1995 Patricia Williams of the National Wildlife Federation

testified, ‘‘NWF also recommends that future land use be considered in remedy selection. There should not be an unfair paradox

between environmental protection and economic development. We

believe that consideration of future land use will be a further catalyst in putting abandoned industrial waste sites back into economic

reuse.’’

No one accused her of rolling back protections.

In May, 1999 the National Association of Industrial and Office

Properties testified, ‘‘Cleanup standards that are site-specific, riskbased, and which take into account future land use are important

factors to unlocking the potential for Brownfields revitalization.’’

In August, 1999, the National Association of Local Government

Environmental Professionals listed the, ‘‘use of risk-based cleanup

standards that can be tied to reasonably anticipated land use’’ as

important criteria for cleanup programs to help Brownfields redevelopment.

The State Governors, cleanup agencies and cleanup contractors

have supported these issues and more. They all have stated that

the remedy selection provisions H.R. 3000 from last Congress

would improve and speed up cleanups.

Some of these changes are elements of Section 9 of my bill, H.R.

2580. Shouldn’t we make these changes, such as reasonably anticipated land use and elimination of reasonable and appropriate remedies, which will improve remedy selection for those sites both on

and off the National Priorities List? Why has the administration

changed its position on issues like reasonably anticipated land use,

RARs and drinking water standards? Aren’t you just moving the

goal posts on us year after year?

Mr. FIELDS. Congressman Greenwood, I want to make clear that

in the 103d Congress when we proposed to drop RARs it was in

conjunction with the States having the option of repromulgating

State relevant and appropriate requirements that are no longer required to be attained by Superfund. We did not propose to drop relevant and appropriate requirements without the States having the

185

ability to repromulgate those as applicable standards, but bottom

line is we are—we have changed, we have changed our position——

Mr. GREENWOOD. Let me just insert something there.

Mr. FIELDS. Yes.

Mr. GREENWOOD. Under the legislation that we are considering

under Mr. Boehlert’s legislation and my legislation the States

would still nonetheless have the legal authority to do that, would

they not?

Mr. GREENWOOD. We do not see that in your legislation. We see

the dropping of relevant requirements but it does not provide for

the States repromulgating RARs that would be dropped.

Mr. GREENWOOD. We don’t require the States in our legislation

but we certainly don’t prevent them from doing that.

Mr. FIELDS. I do not know if your legislation would prevent them

but you do not explicitly come out and say that, but bottom line

I just want to clarify what our provision was in the 103d Congress—the bottom line is the reason we do not think we need

changes to remedy now is where we are in this program.

Half the sites have construction completion, 90 percent of the

remedies have already been chosen for Superfund sites. That is

where we are. That is the reality of where we are now. We don’t

see a need to change the remedy provisions of Superfund when 90

percent of the cleanup decisions have already been made, half of

the sites have construction complete and many others have construction underway. Given where we are and given the success of

the administrative reforms over the last 6 years, we, the administration, are saying we no longer need comprehensive reform. We

only need a narrow set of changes, and we believe it is not necessary to make changes to remedy now given where we are in this

program.

Therefore, we think we do not need to drop RARs. We don’t need

to put in place specific requirements regarding land use in remedy

because of where we are with most—a lot of the job done and the

cleanup progress having been significantly improved by the administrative reforms over the last 6 years to cut costs by 20 percent,

cut time by 20 percent. We think remedy is not an area that Congress needs to focus on in terms of legislative change to Superfund.

Mr. GREENWOOD. Mr. Chairman, I would ask unanimous consent

for an additional minute.

Mr. OXLEY. Without objection.

Mr. GREENWOOD. Mr. Fields, Section 121 of CERCLA begins by

stating, ‘‘The President shall select appropriate remedial actions

determined to be necessary to be carried out under Section 104 or

secured under Section 106 which are in accordance with this section.’’

Isn’t it true, then, Mr. Fields, that any remedial action under

CERCLA must comply with Section 121 regardless of whether the

site is on the National Priorities List or not?

In addition, under Section 107 any non-Federal party cleaning up

a site and seeking to use CERCLA to obtain contribution from a

potentially responsible party must show that the remedial action

costs are, ‘‘consistent with the National Contingency Plan’’—thus

even in the universe of voluntary cleanups CERCLA’s remedy selection requirements can have legal relevance in court.

186

Isn’t it your reading that the remedy selection provisions of the

National Contingency Plan are relevant legal standards for contribution actions under Section 107? As I understand it, last year

EPA added approximately 43 sites to the National Priorities List.

Is this number correct, and is EPA planning to add fewer and

fewer sites or continue at the current pace?

Mr. FIELDS. Mr. Congressman, we will get back to you with a

more complete response for the record. We agree that contribution

protection elements might apply, but we don’t believe that the remedy selection requirements would apply to non-NPL sites. We will

do further research with our counsel and get back to you on the

record on that point, but we are not, I am not fully convinced right

now that all the remedy elements would apply to sites that are not

on the NPL and I think that is what you were indicating, that they

would apply to non-NPL sites. I am not sure that is quite correct,

but we will——

Mr. GREENWOOD. In your written reply, I wish your staff or your

attorneys would particularly pay attention to 107.4 which says,

‘‘Any person who accepts or accepted any hazardous substances for

transport to disposal or treatment facilities, incineration vessels, or

sites selected by such person from which there is a release or a

threatened release which causes the incurrence of response costs of

a hazardous substance shall be liable for (a) all costs of removal or

remedial action incurred by the U.S. Government or a State or an

Indian tribe not inconsistent with the National Contingency Plan

and (b) any other necessary cost of response incurred by any other

person consistent with the National Contingency Plan.’’

Mr. FIELDS. We will review that, sir, and get back to you through

the record.

Mr. OXLEY. The gentleman’s time has expired. The gentleman

from Massachusetts, Mr. Markey.

Mr. MARKEY. Thank you, Mr. Chairman, very much.

Mr. Fields, I would like to inquire about the costs of all of the

many liability exemptions and initiatives, but I would like to ask

one question first, which is am I correct that H.R. 1300 creates

mandatory spending for liability exemptions in the amount of $300

million for 5 years and $200 million for the next 3 years or $2.1

billion over the 8-year authorization period of the bill?

Mr. FIELDS. That is correct, sir. That’s right.

Mr. MARKEY. Does this violate the Balanced Budget Act of 1997?

Mr. FIELDS. We believe it would in the sense that the Act provides for $200 million per year, expiring in the year 2002 and we

believe that some of these exemptions would cost up to $500 million, so we are concerned about that.

Mr. MARKEY. Now would that violate the Balanced Budget Act

of 1997?

Mr. FIELDS. Yes.

Mr. MARKEY. It would? Are there any offsets in H.R. 1300 for the

mandatory spending?

Mr. FIELDS. We do not see offsets.

Mr. MARKEY. Are they required to come up with offsets?

Mr. FIELDS. I believe——

Mr. MARKEY. Let’s turn to costs. What is the cost of the small

business generator-transporter exemption that they have?

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Mr. FIELDS. We have estimated preliminarily $75 to $85 million

per year.

Mr. MARKEY. What is the cost of the municipal solid waste, municipal sewage sludge exemption for generator-transportors?

Mr. FIELDS. We estimate $51 to $57 million per year for those

costs.

Mr. MARKEY. What is the cost of the municipal owner-operator

cap on liability?

Mr. FIELDS. $25 to $28 million per year.

Mr. MARKEY. What is the cost of the recyclers’ exemption?

Mr. FIELDS. Our cost estimate is $61 to $69 million annually.

Mr. MARKEY. What is the cost of the ability to pay delta?

Mr. FIELDS. We have estimated $19 to $22 million per year.

Mr. MARKEY. What is the cost of the liability exemptions for current owners?

Mr. FIELDS. $69 to $78 million per year.

Mr. MARKEY. What is the cost of the nonvariable defunct party

orphan share payment?

Mr. FIELDS. $116 million to $131 million per year is our estimate.

Mr. MARKEY. Then H.R. 1300 also requires the Fund to pay for

the cost of private contribution claims against exempt parties.

What does that cost?

Mr. FIELDS. $69 to $96 million per year is the cost estimate we

have.

Mr. MARKEY. And these are just some of the exemptions in the

cost shifts in H.R. 1300, but am I correct that for just the ones I

mentioned the total cost of exemptions and contributions and claim

payments is $397 million to $528 million per year?

Mr. FIELDS. That is consistent with our estimates.

Mr. MARKEY. So at the same time this Congress is cutting funding for the Superfund program, H.R. 1300 is breaking the cleanup

bank to pay for the liability of polluters, is that right?

Mr. FIELDS. That is our reading, sir.

Mr. MARKEY. Okay, so this Congress is saying no to a prescription drug benefit for seniors, no to increased funding for education,

no to increased funding for veterans, no to increased funding for

the environment—no, no, no—but in H.R. 1300 it is saying they

can scrape together $397 million to $528 million a year, every year,

in order to take the costs off of the backs of polluters who are responsible for leaving messes in hundreds of communities all over

the country.

That is the priorities as far as I—is that a correct analysis, Mr.

Fields?

Mr. FIELDS. Our cost analysis is consistent with your analysis.

Mr. SHIMKUS. Will the gentleman yield?

Mr. MARKEY. I will be glad to yield.

Mr. SHIMKUS. What if they are not polluters?

Mr. MARKEY. What if they are not polluters? Well, we are talking

here—I am going——

Mr. SHIMKUS. No, I am just, you know, what about the small

business in the Gettysburg, Pennsylvania issue where it was a restaurant?

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Mr. MARKEY. See, the exemptions and waivers are for people who

otherwise would have been identified as polluters responsible for

cleaning up the sites.

Mr. SHIMKUS. But there is no statutory language that defines

who a polluter is, so the problem with this is that they go based

upon trash haul to a site, not any standard or proof that there was

materials, and we are talking about small businesses, and the

other follow-up is how many businesses have—based upon all the

businesses have been under Superfund, how many businesses have

closed because they have gone bankrupt trying to make the settlement payment? And then how much income has no longer been

generated by the Federal Government because of the loss of these

businesses?

If we are going to talk dollars and cents, we need to have those

answers.

Mr. MARKEY. Okay. I will reclaim my time just to say that we

are all willing a la Mr. Stupak’s good questions to exempt the

household trash people, we are willing to go through and exempt

all the people who should be exempt, but what you are talking

about in your bill is you are exempting the people who are clearly

liable under the law. We will look at all the innocent people, get

them out of it, but that is not what you are doing.

Do you understand, you are lumping the guilty and the innocent,

okay?—so if you want to put together a list of people who you think

should get out, I will work with you to get those people out, but

you are endorsing a bill that lets out the guilty people too, so I am

willing to work with you on getting out the innocent people if you

are willing to work with us and nail the guilty people, and you are

not willing to do that.

Mr. SHIMKUS. Will the gentleman yield?

Mr. OXLEY. The gentleman’s time has expired. We can save this

debate for the markup.

The gentleman’s time has expired.

Mr. MARKEY. Preview of coming attractions, thank you.

Mr. OXLEY. The gentleman from Iowa is recognized.

Mr. GANSKE. Thank you, Mr. Chairman, and I will be brief because, like Mr. Stupak, I am juggling a couple hearings and some

other things too, and also I am battling a cold and a sore throat

so earlier in the year I had thought in looking over the Superfund

issue that maybe we just ought to move a more limited Brownfields

type piece of legislation and try to get a large bipartisan consensus

on that, because so many people have worked so hard for so long

on doing it, and I think there is bipartisan concern about unintended consequences of CERCLA.

You can see that from comments of both sides, members from

both sides have made today, but I must admit that I am very impressed with the movement that Mr. Boehlert has been getting. I

mean he was able to pass a pretty good bill through his committee

with only two dissenting votes. I mean that is progress and I suppose I could spend my time debating Mr. Fields but after I went

head-to-head with an official from HCFA last week in which he admitted that they clearly had made mistakes on a funding formula,

clearly had made big mistakes, but, you know, they weren’t going

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to go back and fix it, you only have so much psychic energy to use

in a week, and so I am not going to try and score debating points.

Mr. Chairman, let us move quickly to a markup. I think that we

can develop a large bipartisan majority on a good bill. I think it

has been clearly demonstrated that there has been a movement of

the goalposts, so to speak, by the administration on this, but if you

put together a big enough vote then it doesn’t matter, and I thank

you for your work on this issue and Mr. Greenwood and Mr. Towns

and a whole bunch of people who have worked on this and I will

yield back.

Mr. OXLEY. I thank the gentleman and I thank him for his comments and we are going to try to go along on this one and that is

exactly what that is all about.

The gentleman from New Jersey.

Mr. PALLONE. Thank you, Mr. Chairman. Mr. Fields, I was not

here for your testimony but I understand that you basically suggest

that both H.R. 2850 and H.R. 1300 lower the standard for restoration or cleanup of contaminated groundwater, something that concerns me.

Both of these bills protect groundwater only for its reasonably

anticipated use, a change from the current law, rather than current

or potential beneficial use—which is the standard today.

I wanted to ask how do these changes affect your ability, first,

to clean up contaminated groundwater and, second, to prevent contaminated groundwater from spreading to uncontaminated groundwater.

Mr. FIELDS. Well, these provisions would underprotect that. We

have—85 percent of the Superfund sites have contaminated

groundwater as a major problem and this bill would create a bias

against protecting uncontaminated groundwater by only requiring

groundwater to be protected, as you said, to reasonably anticipated

future use. We believe that it ought to be current or potential beneficial uses that ought to be protected.

We believe that that is a proper standard and this law would

change that and cause some groundwater not to be protected and

we believe that groundwater ought to be protected, beneficial reuse

ought to be the goal, and we don’t think we should back off of

that—what is in the current statute—and these provisions in the

current remedy provisions of H.R. 1300 would do that and we are

very concerned about that.

Mr. PALLONE. Well, just so I understand, so you would then support a provision that affirmatively protects the groundwater that

has not yet been contaminated? Is that part of what you propose?

In other words, for that groundwater that has not yet been contaminated?

Mr. FIELDS. No, we are proposing that the current statutory language be retained.

Mr. PALLONE. Okay.

Mr. FIELDS. That provides all the flexibility we need to implement our approaches to groundwater. We have a dual approach to

groundwater remediation which provides for containment of the

groundwater plume and then treatment to prevent that contaminated groundwater from contaminating uncontaminated groundwater.

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All the flexibility we need for implementing that approach in

Superfund is in the current statute.

Mr. PALLONE. Okay.

Mr. FIELDS. We do not believe that the remedy provisions including the language that is in the current bill regarding protecting

reasonably anticipated future uses of groundwater is necessary. We

would be opposed to it because we think it is unnecessary and it

would be a backing off of what we are doing in practice in Superfund cleanups.

Mr. PALLONE. Okay. Well, let me ask you another question.

I have expressed concern that both H.R. 1300 and H.R. 2580 are

designed to undermine the requirement for permanent remedial solutions and the preference for treatment in current law, and, you

know, this is something that I am not just opposed personally. My

communities oppose it, and I think, you know, it is the polar opposite of the intent of the Superfund bill that I introduced today and

that I talked about in my opening statement.

But I wanted to know if you would comment on how H.R. 1300

and H.R. 2580 change these provisions of current law and the effect these changes may have on your ability to select remedies

which permanently eliminate the hazards in a community.

Mr. FIELDS. We think those two bills would significantly change

our preference for treatment and permanence. The current law requires the treatment of waste be permanently and designed to significantly reduce the volume, toxicity and mobility of hazardous

substances.

The preference for treatment in the current program reflects

public concern that cleanups be protected over the long term and

facilitate the return of previously contaminated material to beneficial uses.

Treatment provides the only permanent protection for highly

toxic or highly mobile hazardous waste. EPA is willing to recognize

that treatment is not appropriate in all cases, but EPA focuses on

treatment of principal threats—those that are most highly toxic or

most highly mobile and we do not believe that those goals and

those requirements ought to be backed off of, and both H.R. 2580,

which changes the current preference for treatment, as well as

H.R. 1300 could cause the backing off of both our permanence and

preference for treatment goals and we would be opposed to that because we do believe that treatment is a critical element of assuring

long-term protection at cleanup of Superfund sites.

Mr. OXLEY. The gentleman’s time has expired.

Mr. PALLONE. Is the chairman—could I just ask for 30 seconds

to just——

Mr. OXLEY. Without objection.

Mr. PALLONE. You know, I just wanted to say I don’t bring these

things up just in an abstract sense. I mean to give you an example

of the chemical insecticide site which is in Edison in my district.

They produced Agent Orange and the residue of that is all over the

place. A few years ago the community really was very much opposed to the idea of just capping and fencing the site, and they

fought the battle and won. You know, there would be a permanent

solution and that capping and fencing would only be temporary,

but we would move to the permanent solution, and this is what the

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community people say, and that is why I have a problem with the

legislation. Thank you.

Mr. OXLEY. The gentleman’s time has expired. The gentleman

from New York, Mr. Fossella.

Mr. FOSSELLA. Thank you, Mr. Chairman.

Mr. Fields, H.R. 1300 would appropriate significant funding for

the Superfund program and proposes to do so on a declining basis,

starting out with $1.5 billion per year, decreasing to less than $1

billion per year in 2007.

Mr. FIELDS. Right.

Mr. FOSSELLA. We have heard testimony at prior hearings this

year from GAO and others that the Superfund program should

begin to, ‘‘ramp down’’—are you familiar with that?

Mr. FIELDS. Yes, sir.

Mr. FOSSELLA. Last year GAO estimated that no more than 232

sites would likely require listing on the NPL in the future. Are you

familiar with that?

Mr. FIELDS. Yes.

Mr. FOSSELLA. Even more significantly, GAO also labelled the

Superfund program as one that is at high risk for waste, fraud and

abuse, specifically noting that EPA was paying overhead costs as

high as 78 percent at some sites and continuing to pay contract

overhead costs despite the fact that there is not enough work to

keep them busy.

Are you familiar with that?

Mr. FIELDS. Yes, sir.

Mr. FOSSELLA. Given these findings, I am curious as to your response as to why shouldn’t appropriations to the Superfund program be scaled back, and just as important, what is EPA doing to

respond to these documented concerns by GAO that EPA’s management of the Superfund program is exposing it to significant risk of

waste, fraud and abuse?

Mr. FIELDS. Thank you, Congressman Fossella.

On the three points you raise, we obviously are very concerned

about the funding level in the current H.R. 1300 We have gone on

record saying that we believe that we need a $1.5 billion budget

a year for the next 5 years to allow us to achieve our goal of getting

to 1180 construction completions by 2005.

We think it is premature now to estimate what the cost beyond

that timeframe is. Both Congress, this House of Representatives

and the Senate have both recommended in their appropriation bills

that there be a 10-year study of the future funding needs for the

Superfund program. We agree with that and we will be willing to

work with Congress in projecting cost beyond that, but we are concerned that the current legislation would be a premature rampdown of the Superfund levels—$1.4 billion in 2004 and $1.3 billion

in 2005, et cetera.

We would be very concerned about that, and we really need the

$1.5 billion to allow us to achieve the cleanup pace that we are operating in.

Second, we are not in agreement with the General Accounting

Office regarding their cleanup portions that go—in terms of their

studies of cleanup of Superfund. They obviously have done several

studies and we worked cooperatively with them, but we don’t share

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the same agreements regarding how you define cleanup and what

costs go to cleanup and we believe that there is still quite a bit yet

to be done.

We do agree with them on the 232—the estimate they did in

terms of the universe of sites in the pipeline—we do agree. Our

own internal estimates indicate that roughly 200 sites are in that

queue of sites that might potentially be listed over the next several

years. That is in the relative ball park of where we are as well in

terms of how many sites might be listed on the NPL over the next

several years.

But the Superfund program needs a firm base of funding and we

are concerned that the current legislation would not provide sufficient funding, particularly in the out years, to allow us to achieve

our cleanup goals reflective of our administrative reforms.

Mr. FOSSELLA. I asked specifically about—that at some sites, the

overhead cost was as high as 78 percent and that there was some

contract over at COS that was being paid despite the fact that

there was not enough work to keep them busy. Do dispute that portion of it? Do you disagree with it?

Mr. FIELDS. I disagree with those numbers. We’ve had discussion

with the General Accounting Office about that. We do agree we’ve

had a goal for the last more than 5 years now of trying to achieve—

make sure that oversight costs for Superfund contractors is in the

10 to 15 percent range. We recognize that in awarding new contracts, like we just—we just recently awarded new response action

contracts, that the overhead rate is high when you initially award

a contract. But once you start hiring some hiring staff and that

contractor begins to conduct cleanup work in the field, those overhead costs go down.

And we believe we’ve put in place proper controls to assure that

overhead rates are maintained at a lower rate. We think in the 10

to 15 percent range, it is an appropriate goal. And we believe the

rates right now are roughly, for those new contracts, in the 20 percent ballpark. And we think as more cleanup work is done, they

will come back into the 10 to 15 percent range and that’s what we

think is appropriate.

Mr. OXLEY. The gentleman’s time has expired.

Mr. FOSSELLA. Mr. Chairman, 30 additional——

Mr. OXLEY. Without objection.

Mr. FOSSELLA. Mr. Fields, a couple—the last point, however, I

don’t think you answered. What is the EPA doing to address what

the GAO determines as a significant risk of waste, fraud, and

abuse with the Superfund program?

Mr. FIELDS. We’ve implemented a set of administrative reforms.

We’ve implemented controls on our contract processes, putting in

place a process for independent government cost estimates, putting

in place a program with—that program is being done, by the way,

with the U.S. Army Corps of Engineers, who went to each of our

10 regions to look at how we can better improve cost controls and

program management costs and develop better independent government cost estimates for what the cost of jobs would be, so we would

not be relying on contractor estimates prior to initiating cleanup

work. So, we’ve done a lot over the last several years to better control costs and make sure that we’re properly managing our reVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00195 Fmt 6601 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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sources, including contract resources that we’re so dependent on in

Superfund.

Mr. FOSSELLA. But—okay, Mr. Chairman, thank you for your

time, but these statements are this year. I know——

Mr. FIELDS. Right, but those were the issues that the General

Accounting Office addressed: program management costs and independent government estimates. And we have implemented programs to try to reduce program management costs and make sure

that our staff are trained on preparing independent government

cost estimates, which are the two areas that the General Accounting Office addressed in their report to us.

Mr. FOSSELLA. Thank you. My time has expired. Thank you, Mr.

Chairman.

Mr. OXLEY. The gentleman’s time has expired. The panel wants

to thank you. The Chair wants to thank both of you for being here

for the better part of 2 hours. And once again, Mr. Fields, it’s always a pleasure to have you here. And this panel is dismissed.

Mr. FIELDS. Thank you, very much, Mr. Chairman.

Mr. OXLEY. The Chair would like to recognize our second panel

and will introduce each one of you. Our first witness, Mr. Chris Jeffers, is City Manager for Monterey Park—let me see, Monterey—

is that Monterey Park, California?

Mr. JEFFERS. That’s correct.

Mr. OXLEY. Okay, I guess we’re supposed to know that, sorry

about that—representing the National Association of Counties; Mr.

Mike Nobis, JK Creative Printers, on behalf of the NFIB; Mr. Gordon Johnson, Deputy Bureau Chief of the Office of the Attorney

General from New York State, and I understand one of Mr.

Towns’s constituents, although you may not admit that on the

record; Ms. Jane Williams, Chair for the Waste Committee from

the Sierra Club; and I guess we’re waiting for Dr. Jackson.

Mr. DANIEL. He’ll be back in the room shortly.

Mr. OXLEY. Okay. We’ll begin with Mr. Jeffers. Mr. Jeffers?

STATEMENT OF CHRISTOPHER JEFFERS, CITY MANAGER,

MONTEREY PARK, ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES

Mr. JEFFERS. Thank you. Mr. Chairman, representatives, the distinguished members of this committee, thank you for allowing me

to appear before you today. As stated, my name is Chris Jeffers.

I’m the City Manager for Monterey Park, California. I’m pleased to

be here today to testify regarding the need for local government—

for municipal Superfund liability relief. I am here representing

nine national municipal organizations that have worked together

for many years to seek municipal Superfund relief, so that we can

resolve our involvement in these toxic waste sites, reduce litigation,

transaction costs, and to get on with the business of cleaning up

and recycling these blighted sites into productive redevelopment

parcels within our community.

Local governments have a serious problem. We have been saddled with years of delay, millions of dollars of liability and legal

costs under Superfund law, simply because we owned or operated

municipal landfills or sent municipal solid waste or sewage sludge

to landfills that also received industrial and hazardous waste.

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Local governments have faced costly and unwarranted contribution

lawsuits from industrial Superfund polluters seeking to impose an

unfair share of cost on parties that contributed no toxic waste to

those so-called co-disposable landfill sites.

We’ve estimated that as many as 750 local governments and over

250 sites nationwide are affected by this co-disposable Superfund

issue. In my case, the city of Monterey Park has felt the pain of

Superfund issue. At the OII, Operating Industries, Inc., Superfund

site in our city, 29 cities were sued by industrial PRPs, who contributed over 200 million gallons of hazardous industrial waste to

that landfill. The industrial PRPs claimed that municipalities

should pay 90 percent of the estimated $500 million cleanup, despite the fact that municipalities contributed only garbage and sewage sludge and no hazardous waste.

More than 15 years later, the cities have spent more than $9 million in legal costs and more than $34 million in liability costs. The

site still sits polluted and undeveloped. Local governments that

contributed no toxic waste to Superfund sites believe the Superfund

process can and should be better and less costly.

Early in 1998, with our support, EPA finalized an administrative

settlement policy to deal with those municipal Superfund issues.

Policy sets a settlement amount of $5.30 per ton for municipal solid

waste and sewage sludge for generators and transmitters and 20

percent overall site costs for municipal owners and operators at codisposable landfills. However, as fair and appropriate as the administrative policy has been, we strongly believe that legislative action is needed to resolve municipal Superfund liability issue. The

EPA policy is subject to continuing threats of litigation. Local governments have just not made much use of the policy, because the

status is so uncertain.

Indeed, just a month ago, a Federal district judge in New York

ruled that EPA settlement figures should not be applied for—in relation to four very small localities involved in the Sidney landfill

site, but the liability should be determined through trial. The estimated total liability of those localities is likely to be less than

100,000. The delay in transaction costs of rejecting municipal settlement just is not fair.

For these reasons, we support legislative resolution of municipal

Superfund problem. It is clear that there’s broad and bipartisan

consensus that the numbers set forth in the EPA municipal policy

are fair, equitable, and workable. We believe that the time to enact

these into law is now. Specifically, we support the liability caps for

generators and transporters, the $5.30 per ton. We support the set

liability caps for local government owners and operators of co-disposable landfills, based on a percentage apportionment of liability

of 20 percent or less. We, also, support the provisions that provide

for expedited settlement procedures and recognition of ability to

pay factors and protection from contribution suits.

I wish to conclude with some well-known words that convey the

need for municipal Superfund legislation and our hope that the

ability of Congress to move this ahead—these issues ahead now.

And if I may, too, I sort of brought one of my child’s books, called

the Lorax. And what Dr. Suess sort of said in here is, ‘‘Now that

you’re here, the word of the Lorax seems perfectly clear; unless

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someone like you cares a whole awful lot, nothing is going to get

better, it’s not.‘‘

We’re at that point, now. Local governments across the Nation

thank you for the opportunity to talk before the subcommittee on

these important issues. We urge you to resolve the municipal

Superfund problem this year. I’d be happy to answer any questions

and, again, thank you, very much, for listening to us.

[The prepared statement of Christopher Jeffers follows:]

PREPARED STATEMENT OF CHRISTOPHER JEFFERS, CITY MANAGER, CITY OF MON- TEREY PARK, CALIFORNIA ON BEHALF OF NATIONAL ASSOCIATION OF COUNTIES; NA- TIONAL LEAGUE OF CITIES; AMERICAN COMMUNITIES FOR CLEANUP EQUITY; AMERICAN PUBLIC WORKS ASSOCIATION; ASSOCIATION OF METROPOLITAN SEWERAGE

AGENCIES; INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION; INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; NATIONAL ASSOCIATION OF TOWNS

AND TOWNSHIPS; AND SOLID WASTE ASSOCIATION OF NORTH AMERICA

Chairman Oxley, Congressman Townes, and distinguished members of the committee, thank you and good morning. My name is Chris Jeffers. I am the City Manager of Monterey Park, California, a city of 65,000 on the coast of southern California that has experienced the problems of Superfund. I am also the chairman of

American Communities for Cleanup Equity, or ‘‘ACCE,’’ which represents local governments across the nation who are dealing with Superfund. I am pleased to be

here today to testify regarding the needs of local governments for municipal Superfund liability relief.

I am here representing nine national local government organizations that have

worked together for many years to seek municipal Superfund liability relief so that

we can resolve our involvement at these toxic waste sites, reduce litigation and

transaction costs, and get on with the business of cleaning up and recycling these

blighted sites into productive redevelopments in our communities. These organizations include the National Association of Counties, the National League of Cities,

American Communities for Cleanup Equity, the American Public Works Association,

the Association of Metropolitan Sewerage Agencies, the International City/County

Management Association, the International Municipal Lawyers Association, the National Association of Towns and Townships, and the Solid Waste Association of

North America. Collectively, our organizations represent thousands of cities, towns,

counties, and local agencies across the United States. We are responsible for the

health, safety and vitality of our communities and, at the same time, for fulfilling

the governmental duty to provide for municipal garbage and municipal sewage collection and disposal.

The nation’s local governments are calling upon the Congress to provide municipal Superfund liability relief now. There has been broad, bipartisan, multi-stakeholder consensus on this municipal Superfund relief issue for many years. EPA has

developed a fair and equitable municipal Superfund policy that provides a basis for

legislation. The Republicans and the Democrats in the Senate Environment and

Public Works Committee have proposed municipal Superfund legislation. We believe

that there is widespread, bipartisan agreement here in the House on fixing the municipal Superfund problem. We hope that the parties will continue to work to get

this municipal Superfund issue resolved, this year.

Local governments have a very serious problem. We have been saddled with years

of delay, and millions of dollars of liability and legal costs under the Superfund law

because we owned or operated municipal landfills or sent municipal solid waste or

sewage sludge to landfills that also received industrial and hazardous wastes. Local

governments have faced costly and unwarranted contribution suits from industrial

Superfund polluters seeking to impose an unfair share of costs on parties that contributed only municipal solid waste to these so-called ‘‘co-disposal landfill’’ sites. We

estimate that as many as 750 local governments at 250 sites nationwide are affected

by the co-disposal landfill issue. The costs that our citizens bear as a result are unfair and unnecessary.

Local governments are in a unique situation at these co-disposal sites. First, municipal solid waste and sewage sludge collection and disposal is a governmental

duty. It is a public responsibility to our communities that we cannot ignore, and we

make no profit from it.

Secondly, the toxicity of municipal solid waste and sewage sludge bears virtually

no relationship to the toxicity of conventional hazardous wastes and, as such, represents only a small portion of the cleanup costs at co-disposal landfills. EPA has

196

recognized the difference between MSW/MSS and the types of wastes that usually

give rise to the environmental problems at NPL sites. MSW is defined by EPA as

‘‘household waste and solid waste collected from non-residential sources that is essentially the same as household waste.’’ MSW is generally composed of non-hazardous substances, such as yard waste, food waste, glass or aluminum, along with

small amounts of other types of wastes. MSS, which is strictly regulated by Section

503 of the Clean Water Act, is any solid, semi-solid or liquid residue removed during

the treatment of municipal waste water or domestic sewage sludge, but does not include sewage sludge containing residue removed during the treatment of wastewater

from manufacturing or processing operations. Although MSW/MSS may contain

small concentrations of hazardous substances, EPA has found that landfills at which

MSW/MSS alone was disposed of do not typically pose environmental problems of

sufficient magnitude to merit designation as NPL sites. With rare exceptions, only

when other hazardous wastes—such as industrial wastes—are mixed with MSW/

MSS, will landfills become Superfund sites.

The City of Monterey Park has experienced many years of costly delay at a Superfund co-disposal site in our community. The Operating Industries Incorporated, or

‘‘OII’’ Superfund site was first listed on the National Priorities List in 1984. At this

site, 29 cities were sued for up to 90 percent of an estimated $500 million in clean

up costs at the site. In December, 1989 these 29 cities, the County of Los Angeles,

five county municipal solid waste disposal districts, and the State of California Department of Transportation were sued for contribution by 64 corporate PRPs on the

claim that the municipalities were liable for the cleanup of the 190 acre site. The

evidence in this case indicated that the industrial generators dumped more than 200

million gallons of liquid industrial hazardous waste on essentially non-hazardous

garbage from nearby municipalities, and that the garbage absorbed this waste, creating a sodden mass of dangerous pollution. In many cases, the municipal PRPs had

no more direct connection to the garbage disposal at the site than to issue business

licenses and, in some instances, franchises to private haulers, who in turn picked

up the trash. Claiming that municipal sites are expensive to clean up because of

the large volumes of municipal garbage, the industries argued that the local governments should be made to bear a volumetric share of liability for clean up costs,

which translated into 90 percent of $500 million.

Five cities were eventually dismissed from the suit. Ten cities arrived at de minimis settlements with EPA and the industrial waste generators, in part to avoid substantial future litigation costs. Fourteen other cities fought for several years, because each faced enormous liability and could not afford the initial settlement offers.

For example, the City of Alahambra faced an initial settlement demand of $11.6

million. Yet its General Fund budget was only $26 million. After several years of

hard-fought negotiations, those 14 cities settled in 1995. In total, the 24 involved

cities assumed a total liability of $34 million, and the cities’ waste haulers assumed

an additional liability of $11 million. In the aggregate, the cities paid more than $5

million in legal costs for in-house and outside counsel. In a number of cities, quality

and quantity of municipal services suffered because of the large costs associated

with the Superfund site.

Today, the OII site is still not cleaned up. It is still a drain on our community.

We have not yet been able to redevelop the property as a productive part of our tax

base and economy.

I am here today because the organizations I represent believe that the process of

resolving liability and cleaning up Superfund co-disposal sites can and should be

better for municipalities. We believe that legislative enactment of municipal co-disposal Superfund liability relief will spare millions of dollars in transaction costs and

many years of delay for our local communities. That is why we support legislative

enactment of a Superfund law that will provide a simple, expedited, and fair method

for resolving local government liability associated with these co-disposal Superfund

sites.

Indeed, there is broad consensus that municipalities need and merit liability relief. For nearly a decade, our coalition has worked with you and other members of

Congress, and with the U.S. Environmental Protection Agency, to formulate a reasonable solution to the problem. In February 1998, with our support, the EPA finalized an administrative settlement policy to limit liability under Superfund for generators and transporters of municipal solid waste and sewage sludge, and for municipal owners and operators of co-disposal landfills. We continue to support this reasonable and fair EPA policy.

However, as fair and appropriate as the administrative policy is, we strongly believe that legislative action to resolve the municipal Superfund liability issue is necessary and justified. First, the EPA policy is only a policy, non-binding on the Agency and subject to change or challenge.

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Second, this policy has already been the subject of litigation, and the real threat

of further litigation involving local governments in individual cases remains. Just

a month ago, a federal district judge in New York rejected the use of the EPA municipal policy to settle the liability of four very small towns and villages involved

in the Sidney Landfill site. The judge ruled that the unit cost for municipal solid

waste set in the EPA policy should not be applied, but instead should be determined

at trial. Litigation and the associated transaction costs are unnecessary when a fair,

conservatively estimated settlement policy figure could be applied in a way to quickly resolve municipal involvement at these sites. While we will continue to defend

the EPA policy in court, as we did in federal court in 1998, and to advocate its use

by our members, we believe a change in the Superfund law to address this issue

is necessary to reduce the costly litigation and delay that municipalities may continue to face at co-disposal sites.

Third, we believe that legislative enactment of municipal Superfund liability provisions will give localities the certainty and confidence to make use of this settlement mechanism—much as the codification of lender liability Superfund provisions

has provided certainty for the banking industry.

For these reasons, we support a legislative resolution of the municipal co-disposal

liability problem. We believe the numbers used in the EPA municipal Superfund

settlement policy would accomplish that objective. We urge the members of this

committee to enact legislation that codifies the figures used in the EPA policy, making those figures solid and certain for municipalities across the nation that need a

settlement mechanism that provides more confidence than EPA’s policy can provide.

Specifically, we have following comments about the need for municipal Superfund

liability clarification:

• We support set liability caps for generators and transporters of municipal solid

waste and sewage sludge, based on a per ton assessment. We believe that local

governments who delivered municipal solid waste or sewage sludge to a landfill

in good faith should have the option to settle out their liability at a reasonable

and fair rate that is set by legislation. The $5.30 per ton assessment in the EPA

settlement policy was determined based on an analysis of post-closure costs at

RCRA Subtitle D landfills—in other words, the best estimate for what it would

have cost the local government to close the facility if the facility were not a

Superfund site contaminated with other parties’ toxic waste.

• We support set liability caps for local government owners and operators of co-disposal landfills, based on a specified percentage apportionment of liability. We

believe that local governments should have the option to settle out their liability

for 20 percent or less of the total cost of site cleanup. In addition, the liability

share borne by local governments should be aggregated when two or more local

governments, who owned or operated the facility either concurrently or sequentially, are identified as potentially responsible parties.

• The Environmental Protection Agency should be required to notify municipalities

if they are eligible for the municipal solid waste and sewage sludge settlement

mechanisms outlined above. Likewise, we support the approach of providing expedited settlement mechanisms to eligible municipalities. Finally, we support

the approach of precluding third-party contribution suits or administrative

Superfund orders against eligible municipal parties prior to their opportunity

to settle their liability, or after they have settled their liability.

• We believe the ability-to-pay provisions of the law should apply to local government parties utilizing the municipal liability caps.

• We support legislative language that protects from liability those owners and operators of publicly owned treatment works or ‘‘POTWs’’ that, at the time of a

release or threatened release, were in compliance with their Clean Water Act

pretreatment standards under Section 307 and were not otherwise negligent in

operating or maintaining their sewer system. Without specific protection from

liability, otherwise compliant POTWs can be exposed to Superfund liability from

industrial discharges into the public sewer system.

In summary, the local government organizations on whose behalf I am testifying

today believe a legislative resolution of municipal co-disposal Superfund liability is

of critical importance. Thank you, Mr. Chairman, for the opportunity to testify. I

would be happy to answer any questions you or other members of the committee

might have.

Mr. OXLEY. Thank you, Mr. Jeffers. Mr. Nobis?

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STATEMENT OF MIKE NOBIS, JK CREATIVE PRINTERS, ON BEHALF OF NATIONAL FEDERATION OF INDEPENDENT BUSINESS

Mr. NOBIS. Mr. Chairman and distinguished members of this

committee, my name is Mike Nobis and I am from Quincy, Illinois

and I’d like to thank you for allowing me to speak today and share

my home town’s experiences with a landfill that became a Superfund site.

I’m the general manager and part owner of JK Creative Printers.

My company, which our family has owned for almost 30 years, employs 43 full-time people. We’re proud to be members of the National Federation of Independent Business, the NFIB, and I am

honored today to present this testimony on behalf of the NFIB’s

600,000 small owner members.

A few months ago, our town was hurt by a Superfund landfill

settlement forced onto us by United States EPA. It was a terrible

situation that was totally unfair and it held 149 small businesses

responsible for the cost of cleaning up a portion of a hazardous

waste site at our landfill that we were not responsible for. The

waste that was found to be polluting the surrounding area was

linked to six large local manufacturers; yet, 149 small businesses

were forced to pay for the cleanup of the site, even though what

we put there over 20 years ago was totally legal and not hazardous.

For my company, it started in February 1999, when we received

a letter in the mail from the EPA that stated that the six large

local corporations and the city of Quincy were looking to recover

some of their costs for the cleanup of that local landfill. And even

though the majority of what we had hauled there was only trash

and legally disposed of at the time, the EPA said that because our

trash was sent to that site, we were potentially responsible for paying our proportional share of the cleanup.

It’s important to understand that most of the 149 companies

forced to pay, they were widows, elderly people, retired small oneperson waste haulers, and small businesses with less than five employees. The financial settlements forced onto us were harsh and

made it very difficult for some of our businesses to continue. I’m

confident that Congress did not intend for the Superfund law to

hurt so many small businesses, but that’s exactly what’s happening

at many of our Superfund sites today. The small businesses in

Quincy are looking to leaders like you for help right the wrong on

the Superfund law.

Small business should not have to—small business should not

have to face the threat of being dragged into Superfund for legally

throwing away our garbage that was over 20 years ago, especially

when the trash that is there is not what’s driving the millions of

dollars it cost to cleanup the site. The EPA is wasting the money

that should be used to cleanup the Superfund sites by having its

government lawyers track down small business owners, forcing us

to hire attorneys and wasting more money, and then the large companies are paying lawyers to hunt down the small business and

then forcing them into settlement. All of this money should be used

to cleanup hazardous waste sites, but it isn’t. Most of our money

paid out in our settlements went to the lawyers. Getting small

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business out of Superfund is the right thing to do for fairness and

for the environment.

So, in conclusion, I say this: commend this committee for looking

seriously at this problem and hope that this is going to be the year

the small business owners will gain freedom from this unfair system. Small business needs your help now. Please change this law

for the benefit of small business owners. Please help restore some

common sense to the Superfund law. Thank you.

[The prepared statement of Mike Nobis follows:]

PREPARED STATEMENT OF MIKE NOBIS, JK CREATIVE PRINTERS ON BEHALF OF THE

NATIONAL FEDERATION OF INDEPENDENT BUSINESS

Mr. Chairman and distinguished members of this committee, my name is Mike

Nobis and I am from Quincy, Illinois. I would like to thank you for allowing me to

speak to you today and to share my hometown’s experiences with a landfill that became a Superfund site. I am the General Manager and part owner of JK Creative

Printers. My company, which our family has owned for almost 30 years, employs

43 full time people. We are proud to be members of the National Federation of Independent Business (NFIB) and are honored to present this testimony on behalf of

NFIB’s 600,000 small business owner members.

Quincy is a small community of 42,000 people, located on the banks of the Mississippi River just 150 miles north of St. Louis, MO. Our town is a great place to

live and to raise a family. We have enjoyed years of good economic growth, good

schools, strong community involvement and good city leadership. Of all the expectations we have for our town, having our local landfill declared a Superfund site was

not one of them. In 1993, the Mississippi River reached its highest flood stages in

history prompting our community to rally together and beat back the flood and its

effects. Now, my community has been forced to band together again—to fight the

unfairness of a Superfund law that is punishing us for legally disposing of our trash.

Companies that once worked together to save our town from the flood, are now

suing each other because of this Superfund landfill. Companies who have worked

together for so many years are now suing one another.

For my company, it started on February 10, 1999 when we received a letter in

the mail from the EPA that stated 6 large local corporations and the city were looking to recover some of their cost for the cleanup of our local landfill. Even though

the majority of what we had hauled there was only trash and legally disposed of

at that time, the EPA said that because our trash was sent to that site, we were

potentially responsible for paying our proportional share of the cleanup.

When I read the letter, I felt sick. For me and the 148 other companies that received the letter, it was unexpected and without warning. At first, we had no idea

of what the letter was telling us. It was asking us, as small companies, to ‘‘contribute’’ 3.1 million dollars. I laughed at the language they used, contribute. They

weren’t asking us to contribute; they were threatening us to pay. My company’s designated amount to pay was $42,000, and I consider myself lucky. There were several

other companies and individuals being asked to pay $70,000, $85,000 and some to

pay over $100,000. As I read through the list, I saw Catholic grade schools, our local

university, bowling allies, restaurants, small Mom and Pop trash haulers, furniture

stores and our local McDonald’s listed to pay. Most of the companies named only

generated waste like plain office trash or food scraps. In the mid 70’s, when our

company’s trash began to be put in the landfill, I was in college. One of the owners

of another company was only 7 when this landfill was in use. Yet we are being held

responsible. The document made it sound as though we were major hazardous waste

dumpers. Yet, nowhere in the document did it list what waste we were accused of

dumping. It only said that our trash was hauled to the landfill during the time in

question and we now have to help pay for the cleanup, regardless of the fact that

there was no other place to dump our trash.

On February 24, 1999, the EPA sent one of their attorneys to Quincy to help explain the letter and to answer questions. The meeting lasted for over two hours. The

EPA attorney tried to answer questions and to comment on how the law was being

applied. Many people stood up and pleaded their situations and how unfair and unAmerican this whole situation was. He admitted to everyone there that the law was

probably unfair and very harsh. He said it was intended to be harsh, but he couldn’t

do anything about its unfairness. Even though the law seemed unfair, he said that

it was all he had to work with.

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The EPA and the 6 major PRP’s weren’t concerned about the waste that was sent

to the landfill as being hazardous. The make-up of what we sent there was irrelevant. It was the volume that we sent to the landfill that they cared about, even if

the trash was not dangerous. They knew many of us didn’t send hazardous waste

and they knew we couldn’t afford to fight them. We became an easy money source

for them because of the real threat of litigation by the major PRP’s. And when you

think about it, what small company can take on 6 large corporations and the EPA

alone and win? If we didn’t accept the settlement offer, the major PRP’s would sue

us for the entire cleanup cost. We were stuck. Pay up or be wiped out. The attorney

for the EPA admitted that it would cost us more to fight them in court to prove

we didn’t haul hazardous waste to the landfill than to just go ahead and settle. It

all came down to money... and they had more than we did.

Who were the small companies forced to pay this settlement? Most of the companies were individual people. Some were independent trash haulers; mom and dad

hauling to help supplement their income to help raise their families. If you talk to

them, you will notice they didn’t make much money hauling trash. Others were

small building contractors. Some are people in their retirement years. Some are widows whose husbands have passed away and they now have this settlement to deal

with. Some are sons whose fathers once owned the business and now, years later,

they have inherited the problem. We have business owners who bought businesses

a few years ago who had nothing to do with this landfill, yet are being forced to

pay up because they now own the assets and are the present money source. If they

could have known this liability was going to be theirs in the future, they never

would have bought the business. Mothers and fathers would have been reluctant to

pass a family business—and its liability—to the next generation. We have some men

in their late 70’s and early 80’s that could lose their life’s savings when they should

be enjoying their retirement years. They are spending their time and money paying

the EPA for something they did 25 years ago that was legal. Are these the people

Superfund was designed to collect from or has something gone wrong? It is needless

business pressures like this that destroy small businesses and cause undue pain and

hardship. Victimizing small businesses is not going to help speed the cleanup of

Superfund sites.

Most of the cost contributed by our companies to this site didn’t clean one ounce

of the landfill. The money went to attorneys. Of all the money spent, the attorneys

received the most. Consider how much the EPA and the major PRP’s paid attorneys

in order to obtain a settlement with the 149 small companies. The EPA itself admits

that a major portion of the money in the Superfund is spent on litigation, not cleaning up the hazardous sites. In a 60 Minute documentary on the Superfund problems

in Gettysburg, PA, Mike Wallace from CBS reported that 2⁄3 of the money from the

Superfund is spent on litigation, not on clean-up costs. The estimate for the legal

help that some of us received in Quincy (not including the settlement amounts) is

close to $200,000. This is hard stuff. And for what? Who wins? The attorneys are

the winners. It has been reported in our local newspaper that the EPA and the

major PRP’s are now suing many of those companies who didn’t settle, resulting in

more business for the attorneys. As I understand it, these companies will be allowed

in later months to bring third party lawsuits. Where will it end? I do not think this

law’s intent is to place hardships on small business when the ultimate winners are

the attorneys, not the environment.

Today our country’s leaders need to look again at the intent of this law called

Superfund. I don’t believe you intended for it to burden or destroy individuals and

small businesses in order to clean up hazardous sites. We have a chance to help

small businesses get out from under this problem by supporting the small business

liability relief language in HR 1300, ‘‘The Recycle America’s Land Act,’’ and HR

2247, ‘‘The Small Business Superfund Fairness Act of 1999,’’ introduced by my

friend, Representative John Shimkus who has helped all of us in Quincy get

through this painful situation. A copy of the letter that I sent to Chairman Boehlert

is attached to my testimony.

I commend this Committee for looking seriously at this problem, and hope that

this is the year small business owners will gain freedom from this unfair system.

Small businesses need your help now. Please change this law for the benefit of small

business owners and help restore some common sense to the Superfund law.

Mr. OXLEY. Thank you, Mr. Nobis. Mr. Johnson?

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STATEMENT OF GORDON J. JOHNSON, DEPUTY BUREAU

CHIEF, OFFICE OF THE ATTORNEY GENERAL, STATE OF NEW

YORK, ON BEHALF OF THE NATIONAL ASSOCIATION OF ATTORNEY’S GENERAL

Mr. JOHNSON. My name is Gordon Johnson. I’m the Deputy Bureau Chief of the Environmental Protection Bureau in the Office of

New York Attorney General Eliot Spitzer. I’m appearing today on

behalf of Attorney General Spitzer and on behalf of the National

Association of Attorney’s General. We very much appreciate the opportunity to appear before the committee and thank the committee

and its members and staff for their consideration and assistance.

The Association has been deeply involved in Superfund reauthorization for many years. At its summer meeting in 1997, the sole

resolution adopted by NAAG addressed Superfund reauthorization.

A copy is submitted with our written statement.

While the State agencies that administer the cleanup programs

are very knowledgeable about the engineering issues involved in

the remedial process, it’s the State Attorney’s General, who can

best evaluate the legal consequences of changes in the current statutory scheme, as how amendments are likely to be interpreted by

the courts and their effect on enforcement, settlement, and cleanup.

We’re pleased to be able to bring this knowledge to the committee.

Although there were significant problems in the Federal implementation of CERCLA during the 1980’s, the current statute is

now getting the job done. In New York, because of the powers provided in CERCLA, the State has obtained cleanups at over 600

hazardous waste sites in New York. Responsible parties have contributed more than $2 billion to site cleanups and two-thirds of the

sites are being cleaned up by private parties. Most States have had

similar results.

On a Federal level, some $15 billion of public money have been

saved, because 70 percent of remedial actions at Federal Superfund

sites are being performed by responsible parties. A major reason

for this success is the cleanup liability under CERCLA is now

clearly understood. Most PRPs understand the statute and are now

ready to settle their liability with government and perform cleanups. EPAs practices have also evolved, resulting in earlier settlements and quicker implementation of remedial decisions. State

Superfund programs have matured, many of which are modeled on

the Federal program and use the Federal statute to get appropriate

cleanups at minimal taxpayer expense.

The message to us is clear. We must avoid changes in CERCLA

that will reignite courtroom battles over the meaning, scope, and

implementations of the law. At the same time, we must not lose

sight of our primary goal, clean up of sites and protection of the

public and future generations. We are pleased the H.R. 1300, as reported for the Committee on Transportation, modified the bill as

introduced and is beginning to reflect our conclusions on the direction for reauthorization. The bill contains one revision we’ve sought

for use, the cap at 10 percent for the State share of remedy operation and maintenance costs. H.R. 1300, as reported, is also more

selective than its amendments. It doesn’t amend the natural resource damage provision to CERCLA and some of the more extensive and we believe unnecessary and counterproductive amendVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00204 Fmt 6601 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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ments to remedy selection provisions and the portions of the liability provisions have now been removed. As a result, the defense bar

will have fewer opportunities for legal challenges than under earlier bills.

Unfortunately, other needed revisions we have been seeking for

many years are still absent. One, we need clarification of the sovereign immunity waiver regarding Federal facilities and delegation

to the States of EPA’s authority over Federal facilities in appropriate situations. Two, the statute should make clear that remedies

selected by States are reviewed on the administrative record. And

three, States should be protected from counterclaims asserting liability on the basis of their ownership as sovereigns of stream beds,

rivers, and other natural resources. One provision that was in H.R.

13, as introduced, was removed when it was reported out and we

ask that it be restored. That was the portion authorizing the Fund

to pay State natural resource trustees assessment costs.

There are still serious problems with H.R. 1300’s revisions to liability and allocation provisions of CERCLA. While NAAG supports

limited exemptions from liability for truly micromus parties and a

reasonable limitation on the liability of municipal solid waste disposal, many of the provisions of H.R. 1300 now go too far. Cleanups

need to comply with the relevant and appropriate State standards.

The proposed mandatory allocation process is unwise and rather

than making settlements easier and quicker, will complicate and

delay settlements and cleanups. Cleanups should come first, not arguments. We go into greater detail in our written testimony.

Thank you, for your attention.

[The prepared statement of Gordon J. Johnson follow:]

PREPARED STATEMENT OF GORDON J. JOHNSON, ASSISTANT ATTORNEY GENERAL,

STATE OF NEW YORK

My name is Gordon J. Johnson, and I am a Deputy Bureau Chief of the Environmental Protection Bureau in the office of New York Attorney General Eliot Spitzer.

I am appearing today on behalf of Attorney General Spitzer and on behalf of the

National Association of Attorneys General (NAAG). We very much appreciate the

opportunity to appear before the Committee to comment on H.R. 1300, as reported

out on August 3, 1999, by the Committee on Transportation and Infrastructure

(hereafter referred to as ‘‘H.R. 1300, as reported’’ or ‘‘August amendment’’), and section 9, regarding remedy selection, of H.R. 2580.

The State Attorneys General have a major interest in Superfund reauthorization

legislation. As chief legal officers of our respective states, we enforce state and federal laws in our states. We help protect the health and welfare of our citizens, our

environment and natural resources. Because many steps in the Superfund cleanup

process necessarily involve legal issues, we often are called upon to advise our client

agencies—both response agencies and natural resource trustee agencies—on how

the law should be interpreted and implemented to achieve the desired cleanup or

restoration goals. We often are also responsible for negotiating cleanup and natural

resource damages settlements, and when a settlement cannot be reached, it is our

responsibility to commence and litigate an enforcement action. We also defend state

agencies and authorities when Superfund claims are made by the United States Environmental Protection Agency (EPA) and other federal agencies against them.

NAAG also has been deeply involved in the Superfund reauthorization process for

many years. At its Summer meeting on June 22-26, 1997, the sole resolution adopted by the state Attorneys General addressed Superfund Reauthorization; a copy of

this bipartisan Resolution is attached. The Resolution directly addresses many of

the issues that are the subject of this hearing. The NAAG Resolution arose from

the State Attorneys General’s recognition of the critical importance of the Superfund

program in assuring protection of public health and the environment from releases

of hazardous substances at thousands of sites across the country. We want to make

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the tasks of cleanup and protecting the public less complicated and more efficient,

and to reduce the amount of litigation and the attendant costs that result.

While the state agencies that administer cleanup programs are very knowledgeable about the engineering issues involved in selecting remedies and the cleanup

process, it is the state Attorneys General who can best evaluate the legal consequences of changes to the current statutory scheme, such as how amendments

likely will be interpreted by the courts and the effect of the amendments on enforcement, settlement, and cleanup. We are pleased that we will be able to bring to this

Committee our insights and experience in administering the Superfund statute.

INTRODUCTION

In New York, our office has been litigating Superfund cases since 1981. A major

impetus for the passage of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) was the chemical dumps exemplified by

the infamous Love Canal and related Hooker Chemical Company sites in Niagara

Falls, New York. CERCLA provided both the federal and state governments essential legal tools to address the dangers posed by those and thousands of other sites

in New York and throughout the country.

Although there were significant problems in the federal implementation of

CERCLA during the 1980’s, the current statute is now getting the job done as intended. As a result of CERCLA, our office and the State’s Department of Environmental Conservation have been able to obtain cleanups at over 600 hazardous waste

sites in New York. While state voters in New York approved bonding for and New

York committed $1.1 billion for site cleanups, because of the powers provided in

CERCLA, responsible parties have contributed more than $2.35 billion toward site

remediation and two-thirds of sites are being cleaned by the private parties responsible for their creation. Most states have had similar results. On the federal level,

some $10 billion of public money has been saved because 70% of all remedial actions

at federal Superfund sites are being performed by responsible parties.

A major reason for this success is that cleanup liability under CERCLA is now

clearly understood by responsible parties and government. It was not always this

way. In the 1980’s, the meaning of numerous terms, the reach of the liability provisions, and the application of the remedy selection provisions were the subjects of

contentious litigation. These lawsuits caused delays in cleanups, imposed substantial burdens placed on federal and state programs, and increased everyone’s transaction and cleanup costs. Those days are now over: potentially responsible parties

(PRPs) now know what the statute means and where they stand, and thus most are

ready to settle their liability with the government. EPA’s practices also have

evolved, and it knows what it can require of PRPs. Moreover, EPA has developed

practices that lead to earlier settlements and the quicker implementation of remedial decisions. Finally, the states’ own Superfund programs have matured. Many of

them are modeled on or mainly utilize the federal statute. State officials too understand what CERCLA means and how to use it, and can obtain appropriate cleanups

at minimal taxpayer expense.

The message is clear: we must avoid changes to CERCLA that will reignite the

courtroom battles over the meaning, scope, and implications of the law. At the same

time, we must not lose sight of our primary goal—cleanup of sites and protection

of the public and future generations. We have no desire to replay the 1980’s, even

though we were generally successful in the courtrooms.

TITLE I. BROWNFIELDS REVITALIZATION

As stated in the NAAG Resolution, the Attorneys General support the strengthening of state voluntary cleanup and brownfields redevelopment programs by providing technical and financial assistance to those programs, and by giving appropriate legal finality to cleanup decisions of qualified state voluntary cleanup programs and brownfield redevelopment programs. Therefore, we strongly support the

provision in H.R. 1300, as reported, for assessment grants, remediation grants and

technical and financial assistance to state voluntary cleanup programs. Federal statutory provisions should be flexible enough to accommodate different state voluntary

cleanup laws. States should be able to self-certify, subject to EPA’s approval. After

such approval, the state should be authorized to issue a release from federal liability

when a volunteer complies with a federally-approved state brownfields program. In

this fashion state brownfields and voluntary cleanup programs can work to their

fullest potential.

However, there are a number of provisions in H.R. 1300 which do not strengthen

these state programs. For example, under the provisions of § 104 of H.R. 1300, as

reported, a PRP can largely shield any site against federal enforcement or cost reVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00206 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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covery action just by commencing a response action in compliance with ‘‘a State law

that specifically governs response actions for the protection of public health and the

environment.’’ That clause is ill-defined, and could be construed easily beyond a typical brownfields redevelopment statute. Nor is there any requirement that the response action necessarily result in cleanups protective of the public health or environment. In contrast, we note that one criterion for grants under Title I is the ‘‘ability of the eligible entity to ensure that a remedial action funded by the grant will

be conducted under the authority of a State cleanup program that ensures that the

remedial action is protective of human heath and the environment.’’ (Emphasis supplied) We are concerned that the vague language in § 104 of H.R. 1300, as reported,

which varies from the language governing grants, may leave the public unprotected.

In addition, there is no requirement for public participation in the state cleanup

programs that can shield a PRP from liability. New York believes that public participation in the investigation, remedy selection, and cleanup of hazardous substance sites is a bedrock of CERCLA. H.R. 1300, as reported, undermines that bedrock.

TITLE II. COMMUNITY PARTICIPATION AND HUMAN HEALTH

We support the public participation provisions of Title II which provide affected

communities, local governments and the states further information, public meetings

and the right to comment on various steps in CERCLA response actions. We also

support the ‘‘Technical Assistance Grants’’ amendments, especially those making it

easier for citizens to participate in the often complicated processes involving

CERCLA cleanups.

We are also pleased that the August amendment to H.R. 1300, as introduced, removed provisions in § 202 directing the President to provide the public with what

often can be confusing and misleading risk comparisons. However, it is important

that a new provision requiring disclosure of information concerning releases before

and during a removal action not cause delays in the initiation and completion of removal actions, particularly in emergency situations. As currently drafted, the language of proposed § 117(b)(2)(i) regarding removal actions is confusing with respect

to when information must be disclosed. We suggest that the provision be rewritten

to excuse the disclosure of information before and during the removal action when

its disclosure would delay the removal action or imperil public health or the environment, and in such circumstances the information be made available as soon as

practicable after the initiation of the removal action.

TITLE III. LIABILITY REFORM

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. They provide strong incentives for early cleanup settlements, and

promote pollution prevention, improved management of hazardous wastes, and voluntary cleanups incident to property transfer and redevelopment. Unfortunately,

H.R. 1300, as reported, still would make substantial and problematic changes to

those core provisions. These changes will trigger another decade of litigation, with

the attendant drain of government resources, escalation of private transaction costs,

and delays in cleanup.

A. GENERAL PROVISIONS

1. Amendments to Section 106—Sufficient Cause

Section 301(a) of H.R. 1300, as reported, provides that a liable party must comply

with an administrative order even if another party is complying with the same or

a similar order. This provision allows EPA to issue ‘‘participation and cooperation’’

orders. EPA currently uses such orders to require additional liable parties to contribute to a cleanup that is already underway. However, at least one court has ruled

that such orders are unlawful after EPA has already obtained ‘‘complete relief’’ from

other parties. United States v. Occidental Chem. Corp., 29 Envtl. L. Rep. (ELI)

20,276 (M.D. Pa. 1998), appeal argued July 27, 1999, No. 99-3084 (3d Cir. 1999).

The proposed amendment in § 301(a) would allow EPA to issue ‘‘participation and

cooperation’’ orders, effectively overruling the contrary case law. Such orders increase the fairness of the CERCLA liability scheme by helping ensure that all liable

parties contribute to the cleanup. The Attorneys General therefore support this provision.

The August amendment removed a provision formerly set out at § 301(a) of H.R.

1300, as introduced, that would have placed inappropriate limitations on the

issuance of administrative orders under section 106. However, a related provision

that would have the same practical effect—§ 301(a)(4) of H.R. 1300, as reported,

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adding a new § 106(b)(1)(B)—remains. This provision effectively prohibits enforcement of a § 106 order pursuant to both §§ 106(b)(1) and 107(c)(3) of CERCLA against

any parties not liable for response costs under § 107.

Administrative orders under § 106 are a very important tool that EPA has to compel cleanup actions and to protect public health and the environment. Sometimes,

albeit infrequently, it becomes necessary to order a party not liable under § 107 to

take actions necessary to a cleanup. For instance, the South Valley Superfund site

in Albuquerque, New Mexico, encompasses several square miles of industrial facilities in the Rio Grande valley which produced a number of distinct plumes of contamination in the aquifer that supplies the City of Albuquerque with its drinking

water. Several municipal wells have been taken out of service because of the contamination. In 1990, EPA entered into a consent decree with Univar Corporation

to clean up a plume of chlorinated solvents from Univar’s Edmunds Street facility

using extraction wells. After Univar Corporation constructed and began operating

a system, the extraction wells began drawing a nearby plume of petroleum contamination towards the Univar system. Had the petroleum compounds entered the system, they would have ruined the Univar treatment system. Under the petroleum exclusion in § 101(14) of CERCLA, the parties responsible for the petroleum plume

were not liable under § 107(a). Nevertheless, on February 8, 1991, EPA issued a unilateral administrative order (Docket No. CERCLA-VI-14-91) under § 106 of CERCLA

against the parties responsible for the petroleum plume, ordering them to take all

necessary action to prevent the petroleum compounds from interfering with the

Univar remedial action. The parties responsible for the petroleum plume, although

not liable under CERCLA, complied with the § 106 order. Under the bill’s limitations on § 106 orders, such an order could not be enforced because the good faith

belief in the absence of liability would become a defense to the enforcement of such

an order.

We note that § 106(b)(2) of CERCLA already provides that a person who complies

with a § 106 order but is not liable under § 107 is entitled to reimbursement of its

reasonable costs in complying with the order. It is important that, at a minimum,

EPA be able to enforce a §106 order pursuant to §106(b)(1) of CERCLA under these

and similar circumstances. Implementation of an order predicated on the existence

of an imminent and substantial endangerment to public health, welfare, or the environment should not be stymied so parties can litigate their good faith belief or their

ultimate CERCLA liability. To the extent that the federal government’s current enforcement powers at hazardous substance sites are significantly curtailed, the states

often are left with the costs of remediating and taking enforcement action at such

sites, and the states do not have the resources to do so. We have seen no indication

that EPA has abused the authority to issue such orders, and see no reason to limit

that authority.

B. EXEMPTIONS AND LIMITATIONS TO LIABILITY

NAAG is pleased that the August amendment removed proposed changes to

§107(a) liability provisions of CERCLA. This deletion will save all interested parties

substantial transaction costs and resources. Other problems remain, however.

1. Owners/Operators

Section §302 of H.R. 1300, as reported, would make substantial modifications to

the scope of defenses available to current owners under §107 of CERCLA. The existing ‘‘innocent purchaser’’ protections, created through the definition of ‘‘contractual

relationship’’ in §101(35) of CERCLA, apply only to owners, while H.R. 1300, as reported, extends these protections to owners and operators.

Under current law, the definition of ‘‘contractual relationship’’ implicates current

owners if they are related to a PRP through the chain of title. In H.R. 1300, as reported, there is no definition for ‘‘contractual relationship,’’ and, under new

§107(b)(5), a current owner who is linked only by a chain of title is not liable.

Under existing law, current owners can escape liability by proving they are ‘‘innocent’’ purchasers, i.e., they did not know or have reason to know that the property

was contaminated before they bought it and complied with the ‘‘due diligence’’ requirements. Under H.R. 1300, as reported, a current owner which knew before purchase that the property was contaminated will escape all liability, even if the owner

paid a reduced price for the land because of the contamination. Moreover, H.R.

1300, as reported, adds further protection for owners which acquired a facility after

March 25, 1999, exempting such owners from any liability so long as they developed

the commercial or industrial facility under certain federal, state or local redevelopment programs, even if such owners acquired the property fully knowing it was contaminated. What constitutes an applicable redevelopment program remains

unaddressed, leaving a substantial hole for any current owner to bury its liability

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for cleaning up a hazardous substance site. Unless narrowed, this shifts to the taxpayers the costs and burdens of cleanup, thereby improving properties owned by

knowing purchasers at governmental expense.

Under H.R. 1300, as reported, current owners and operators are further insulated

from any liability because of the new, substantially relaxed standard of ‘‘appropriate

care.’’ For instance, as long as the government is conducting any ‘‘response action,’’

such as a Preliminary Site Assessment, the owner/operator can avoid any liability

by simply letting the government onto the property and getting out of the way,

which conduct would constitute ‘‘appropriate care’’ under H.R. 1300, as reported.

The effect of all these protections for current owners/operators is to obliterate the

current owner/operator category from CERCLA liability. This is contrary to one of

the important tenets of the CERCLA liability scheme. In addressing an owner’s liability, CERCLA was intended not only to hold responsible those whose activities

created the contamination, but ‘‘to provide incentives for private parties to investigate potential sources of contamination and to initiate remediation efforts.’’ Foster

v. United States, 922 F. Supp. 642, 656 (D.D.C. 1996). Moreover, CERCLA’s provision for current owners is modeled after common law tort liability rules that seek

to address the social cost of hazardous waste contamination by controlling the behavior of landowners and other relevant actors. Indeed, landowners have long had

a duty under common law to maintain their properties free of nuisances, such as

chemical contamination, and upon learning of a nuisance are required to abate it

even when they did not create the nuisance themselves. See, e.g., RESTATEMENT

(SECOND) OF TORTS §§ 351 et seq. and §§ 822 et seq.; State of New York v. Shore

Realty, 759 F.2d 1032, 1050-52 (2d Cir. 1985).

For the reasons stated, we oppose these amendments.

2. Governmental Entities, Contiguous Property Owners and Others

We support the intent of the changes to the long-standing ‘‘Innocent Governmental Entities’’ exception to liability under new § 107(b)(2)(D), §302(b)(1) of H.R.

1300, as reported, although it is drafted too narrowly to address current abuses

where, for example, states are subject to counterclaims based on sovereign interests

in groundwater, stream and river beds and banks. Also, the provision addressing

Governmental Entities in H.R. 1300, as reported—proposed §107(b)(2)(D)—was

slightly changed from the similar provision in H.R. 1300, as introduced, resulting

in a distortion of the meaning of the provision. We urge the Committee to return

to the previous language. We also support the relief for ‘‘Contiguous Property Owners’’ amending §101(20) of CERCLA, §302(c) of H.R. 1300, as reported.

3. Livestock Treatment

Section 304 of H.R. 1300, as reported, would amend §107(i) of CERCLA to expand

the exemption for pesticide application to cover any release of a hazardous substance ‘‘resulting from’’ the application of a pesticide for the treatment of livestock.

We believe this provision is overly broad. Pesticides are typically applied to livestock in large ‘‘dipping’’ vats; the vats are filled with water, pesticides, and solvents,

and livestock are herded into the vats, one at a time, for treatment. Eventually the

dipping solution becomes dirty or ‘‘spent,’’ and is replaced with fresh solution. The

spent solution, which often contains highly toxic pesticides, must be disposed of,

usually off-site. Under the bill’s exemption, past disposal of such pesticide solution,

unless shown to be contrary to law, would be exempted from CERCLA liability.

Our concern is not a theoretical one. For example, the Oklahoma National Stock

Yards Company arranged for the disposal of some 211,900 gallons of cattle dipping

waste at the Royal Hardage site in Criner, Oklahoma. Included in that waste was

approximately 2,000 gallons of toxaphene, a highly toxic pesticide which is listed as

an acutely hazardous waste under RCRA, 40 C.F.R. § 261.33(e). Pursuant to a court

order, the Stock Yards Company is currently helping pay for the clean up of the

Hardage site. If this ‘‘livestock treatment’’ exemption were to be enacted in its current form, the Stock Yards Company’s liability would be eliminated.

4. Small Businesses Exemption

Section 107 of CERCLA would be amended by §305 of H.R. 1300 to include a new

subsection (o), limiting liability at NPL sites for small businesses which are generators or transporters. ‘‘Small’’ is a business that had no more than 75 full-time employees, or equivalent, on the average, and had $3 million or less in ‘‘gross revenues’’ over the previous three years preceding the date of notification by the President that the entity is a PRP. If the company qualifies, it escapes liability for costs

or damages, unless its hazardous substances contribute significantly to the costs of

the response action.

We oppose the proposed exemption in H.R. 1300 since the exemption is based on

the status of the PRP and applies no matter what volume of waste was disposed.

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The exemption would eliminate many PRPs, especially at municipal-owned, co-disposal facilities, and the Fund and the states would have to make up for this share

of liability. The states do not have the resources to absorb these shares. Also, experience shows us that it is often smaller companies that pay less attention to their environmental responsibilities than larger companies.

As noted, H.R. 1300, as reported, provides that the exemption applies to such

small businesses unless its hazardous substances contribute significantly to the

costs of the response action. Introducing this new standard into CERCLA litigation

would undermine the critically important strict liability provisions of existing law,

increase litigation and all its attendant transaction costs, and undermine recovery

of the public funds at CERCLA sites.

5. MSW Exemption

Section 107 of CERCLA would be amended by §305 to include a new subsection

(p), providing a liability exemption for generators and transporters of municipal

solid waste (‘‘MSW’’) and municipal sewage sludge (‘‘sludge’’) at NPL sites, unless,

in the case only of transporters, the transporter’s wastes contribute significantly to

the costs of the response action and the transporter is in the business of transporting waste. Even such transporters, which disposed of waste that significantly

contributed to the cost, are provided further protection, as the liability at an NPL

site for all MSW generators and transporters who are not exempt would be capped

at ten percent.

Under H.R. 1300, as reported, MSW includes all waste generated by households,

hotels and motels, and by commercial, institutional and industrial sources to the extent (i) such materials are essentially the same as household waste, or (ii) the material is waste that is collected with MSW and contains hazardous substances that

would qualify for de micromis exemption under §107(r). [110 gals. or 200 lbs.]. The

term includes food, yard waste, paper, clothing, appliances, consumer product packaging, disposal diapers, office supplies, cosmetics, glass and metal food containers,

wooden pallets, cardboard, grade and high school lab waste, and household hazardous waste (‘‘HHW’’). Exemption from liability is also provided for certain residential property owners and lessees, small businesses, and charitable organizations.

NAAG supports reasonable limitations on liability for disposal of municipal solid

waste. Unfortunately, the limitations provided under § 107(p) of H.R. 1300, as reported, are much too broad. A substantial portion of PRPs would be relieved of liability if these changes were adopted because the exemption applies to not just

households, but a wide, almost all-inclusive group of business, commercial, institutional and industrial sources. For instance, at a number of hazardous waste sites,

cosmetic manufacturers have disposed of sometimes substantial quantities of their

waste containing a variety of hazardous substances, e.g., acetone. Under H.R. 1300,

as reported, such PRPs would escape liability because their wastes, at least arguably, are ‘‘essentially the same’’ as waste materials normally generated by households, i.e., cosmetics thrown away by households. Or, as another example, at municipal-owned co-disposal facilities, it is common to have a large volume of MSW and

then a small volume of waste from commercial and industrial sources which is highly toxic. Many commercial, institutional and industrial facilities have used solvents

in large quantities, and those wastes were often disposed in landfills over the years.

PRPs could argue that their solvents are ‘‘essentially the same as’’ solvents used in

households and, therefore, exempt.

The exemption applies regardless of the volume of the MSW waste as long as the

waste is essentially the same as household waste. While NAAG historically has supported liability reforms for small MSW generators, such broad-based exemptions,

which would apply to major waste handling companies, go too far.

6. Municipal Owners/Operators

Section 107 of CERCLA would be amended by §5 to include a new subsection (q),

limiting liability for municipal owners/operators at NPL sites. With respect to facilities that are not subject to RCRA subtitle D criteria and proposed for listing before

March 25, 1999, small municipalities (less than 100,000 in 1990 census) have an

aggregate liability for response costs incurred after March 25, 1999, of the lesser

of (i) 10% of total response costs at the facility, or (ii) the costs of compliance with

subtitle D, if the facility continued to accept MSW through January 1, 1997. Large

municipalities (100,000 or more), under the same conditions, are limited to 20% or

costs of subtitle D, whichever is less.

NAAG supports provisions that recognize the burden on local governments. However, it must be noted that to the extent that the other exemptions are applicable,

and the exempt and limited liability parties avoid sharing in the costs of cleaning

up these toxic waste sites, that burden will fall on municipalities and the states,

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even with the proposed limitations, should the Fund no longer be adequate to pay

for cleanups because of its assumption of the costs of the new exemptions for generators of wastes. And the burden also will fall on the states which will be responsible for a portion of the operation and maintenance costs otherwise assumed by the

Fund.

7. ‘‘De micromis’’ parties.

NAAG supports reasonable liability exemptions for truly ‘‘de micromis’’ parties.

However, it is important that these provisions be narrowly and carefully written to

avoid inappropriate releases from liability. We note that CERCLA always allowed

EPA to settle matters quickly and in recent years EPA has been aggressively entering into such settlements without any changes in the law.

Section 305(c) of H.R. 1300, as reported, adds a proposed §107(r) which would exempt from liability ‘‘de micromis’’ parties that sent less than 110 gallons or 200

pounds of material containing hazardous substances to a NPL site. We support an

exemption for truly de micromis parties, such as Elk Clubs, pizza parlors, and Girl

Scout troops, that sent minimal amounts of low-concentration and low-toxicity mixtures to a site. However, depending on site-specific circumstances and the type of

hazardous substances involved, 200 pounds of solid material or 110 gallons of liquid

(which is more mobile than a solid material and will usually have a weight of approximately 880 pounds—four times the weight exemption for solid materials) can

constitute a substantial contribution to a release. For instance, 110 gallons of a

spent solvent, such as trichloroethylene, could contaminate 10 billion gallons of

drinking water to levels twice the drinking water standard for the solvent. We believe exempting such a party statutorily and presumptively would be unfair and inappropriate, particularly without full consideration of concentration or toxicity, and

would lead to extensive litigation by parties near the specified weight or gallonage.

While H.R. 1300, as reported, voids this liability exception when the President determines that the material ‘‘has contributed, or contributes, significantly to the costs

of response,’’ the unfairness of an exception to liability that ignores concentration

of a chemical and contains an exceedingly more favorable treatment of liquid wastes

remains.

8. Response Action Contractors

In §307 of H.R. 1300, as reported, the bill would limit the liability of response

action contractors. We oppose these limitations. First, there is no evidence that contractors are reluctant to perform cleanup activities under current law, and therefore

there is no compelling reason to radically rewrite the current law. Second, the bill

supersedes existing limitations of actions that run from the time that an injury is

discovered, and replaces it with a six year period that is triggered by completion

of the work. Thus, the bill carves out a radical and unfair new exemption for these

parties, and deprives potential victims of rightful compensation where, due to a latency period that is often associated with exposure to hazardous substances, or for

other reasons, the injury is not discovered within the six year time frame. Because

the amendment is not necessary, unfair, and preempts state law unless a state has

specifically legislated the liability of response action contractors’ liability, we oppose

it.

9. Recyclers

Under the new §130 added by § 309 of H.R. 1300, as reported, there is no liability

at any site for a person who arranges for the recycling of recyclable material. ‘‘Recyclable material’’ is defined to include (1) paper, plastic, glass, textiles, rubber (now

including whole tires) and metal (now including certain copper and copper alloy operations byproducts), as well as minor amounts of material incident to or adhering

to such scrap; (2) spent batteries; and, (3) used oil. Special rules are then provided

for transactions involving these different kinds of recyclable materials. Section 130

of the bill is encaptioned a ‘‘clarification of liability.’’ It is not a clarification, but is

rather a substantive change in the law.

Preliminarily, it is unclear whether H.R. 1300, as reported, intends that this

change in law be retroactive. While §305(e), which adds proposed §107(u), provides

that the new limitations and exemptions for small businesses, municipal sold waste

and sewage sludge, municipal owners and operators, and de micromis generators

and transporters shall have not affect settlements and judgements approved by a

court or any administrative action that has become effective not later than thirty

days after enactment, the bill is silent on the recycling exemption. It would not be

appropriate to reopen past settlements and judgments that parties entered into in

good faith, particularly because that would require a wholesale shift and reallocation of costs among parties. We urge the Committee to avoid this possibility by

amending proposed §107(u) to include recyclers.

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While we agree that recycling activities should be encouraged, we are nevertheless troubled by this exemption because it is too broad. For instance, the exemption

is particularly inappropriate as it applies to spent lead-acid batteries. Such batteries

contain large quantities of lead, an especially toxic substance. Much of the lead in

these batteries is in the form of lead oxide and lead sulfate, compounds that are

relatively mobile and bioavailable in the environment. Moreover, the sulfuric acid

in these batteries (which has a pH approaching 0) greatly enhances the solubility

and mobility of these metals.

The secondary lead smelter industry has repeatedly argued that the RCRA regulations—under either federal or state authority—do not apply to spent batteries.

These batteries, the industry argues, are raw material; they are not discarded, and

thus not solid wastes and not subject to regulation under RCRA. See United States

v. ILCO, Inc., 996 F.2d 1126 (11th Cir. 1993). The lead components of spent leadacid batteries would also fall within the definition of ‘‘scrap metal.’’ The limitations

on the exemption for scrap metal are significantly less stringent than the limitations

on the exemption for spent batteries. As the exemptions are currently drafted, a person recycling the lead from spent lead-acid batteries could take advantage of the

less stringent limitation for scrap metal. At a minimum, these problems need to be

addressed.

In addition, used oil is included as a recyclable material, yet used oil often contains hazardous substances. The disposal of such material has created many hazardous waste sites subject to CERCLA enforcement action in the past, and was an

activity often conducted by parties not particularly attentive to environmental concerns. The inclusion of waste oil, particularly waste oil intended to be burned, in

the exemption from liability is unwise.

10. Oversight Costs

Section 305(e) of H.R. 1300, as reported, would add an additional limitation of liability directly affecting every state: a cap on recoverable oversight costs incurred

by any government at 10% of the costs of the response action. This cap is unfair,

for the cost of appropriate oversight often does not bear a direct relationship to the

cost of the response action. Some PRP’s implementation of response actions requires

very close monitoring, particularly when the PRP’s prior activities have not been

conducted well or when the PRP is less experienced. Oversight is needed to protect

the public, and without oversight public confidence in cleanups conducted by private

parties will be severely undermined. There should not be an artificial limitation on

oversight costs based on cost percentages.

Quite simply, state governments in particular do not have the personnel and other

resources needed to inflate or perform unnecessary oversight. This provision will

only encourage further litigation on oversight and efforts to reclassify government

activities as oversight in order to fall within the cap, and might well result in some

states foregoing needed oversight. The result could well be fraudulent or shoddy

cleanups. This provision should be stricken.

C. ALLOCATION

NAAG supports reasonable statutory changes that encourage early settlements

with de minimis and de micromis parties that sent minimal quantities of waste to

a site. However, H.R. 1300, as reported, still would create a mandatory process for

allocating liability among responsible parties at any NPL site, except some ‘‘chain

of title sites,’’ where the costs are estimated to exceed $2 million (likely most sites)

and there is no consent decree or administrative order by March 25, 1999. While

liability allocation can be worthwhile in some cases, the decision to conduct such an

allocation, and the timing and procedure for allocation, should be left to agency discretion and should not be prescribed by statute. Historically, most allocations have

been done by responsible party groups themselves, not by government agencies.

Moreover, recent experience with administrative allocations conducted by EPA and

by state agencies has demonstrated the need for flexibility. The governments should

be allowed to structure allocation procedures to fit the particular facts of each case.

While the August amendment to H.R. 1300, as introduced, eliminated some of the

most serious obstacles to settlement created by the allocation process imposed by

that version of the bill, there still are significant problems.

1. Delay of Cleanups

By creating a mandatory process for allocating liability among responsible parties,

H.R. 1300, as reported, will likely delay cleanups and substantially increase costs.

Under current law, the governments are empowered to clean up first and protect

the public, then allocate responsibility and costs. The August amendment sensibly

removed the requirement that the President file a district court action to begin the

allocation process at all NPL sites. However, H.R. 1300, as reported, still requires

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the President to ‘‘ensure that a fair and equitable allocation of liability is undertaken at an appropriate time,’’ language which is likely to lead to litigation when

EPA fails to proceed on a timetable desired by a PRP. Thus, the bill may well require that liability disputes be resolved first, while cleanups wait until later. This

‘‘argue first, clean up later’’ approach turns the purpose of CERCLA on its head.

In addition, the provisions are unfair to those who have settled and to the governments with which they settled, since the mandatory provisions could result in settling parties being forced to participate in the allocation demanded by those who refused to settle.

Besides this fundamental flaw in the allocation provisions, there are a number of

specific problems created by the bill. Our experience has been that conducting timeconsuming and expensive allocations before cleanup delays the cleanup and discourages PRPs from participating in the cleanup, particularly when, as allowed by H.R.

1300, as reported, parties which have accepted the allocation of liability may still

challenge the remedy. We expect that PRPs will decline to perform cleanups and

opt to wait for an allocation because the government’s ability to impose joint and

several liability on major PRPs is effectively eliminated by a mandatory allocation

process.

We are opposed to any provision that delays cleanups, or that impedes the mechanisms for enforcing cleanups, such as § 106 orders, consent decrees, or notice letters.

The states cannot allow any further delays in cleaning NPL sites given the risks

they can pose for our citizenry.

2. Inappropriate Liability Determinations

The provisions allow the allocator to make determinations of liability. It is inappropriate for someone who is not a judicial or adjudicatory officer to make legal determinations as to which parties are liable under the statute. This provision is particularly troublesome because, under the bill, the responsible parties participate in

the selection of the allocator. Moreover, the many changes in the liability provisions

will require a whole new set of rulings on who qualifies for which exemption, limitation, and clarification, and it would be a private party allocator making these determinations in the first instance. Further, the bill expressly provides that an allocation will apply to subsequent removal or remedial actions ‘‘unless the allocator determines’’ that the allocation should only address a limited number of response actions, even if additional information on parties’ activities, conditions at the site, the

identity of toxic substances, or additional costs caused by a particular PRP’s waste

becomes available after the initial allocation. In effect, the allocator becomes a judge

in a setting lacking the procedural and appellate protections afforded parties in a

courtroom.

Allocation of the share of liability for each PRP at sites with multiple PRPs is

possible because, and only because, the issue of who is liable has been settled

through the past twenty years of litigation. Because H.R. 1300, as reported, significantly alters the liability sections, it will be difficult if not impossible to sort out

shares of liability when the many questions about liability itself remain open. An

allocator cannot assign shares to ‘‘liable’’ parties before it is determined who is ‘‘liable.’’

Furthermore, NAAG opposes the provisions to the extent they impose a stay of

any state enforcement action. The provisions on allocation also bind the hands of

the states to long and involved allocation procedures without giving the state any

influence or control over the effect of offers or settlements. For instance, only the

United States can reject the allocator’s report. Also, de micromis and exempt PRPs,

and PRPs which have a limited ability to pay their fair share likely would be

trapped in a complicated and time-consuming allocation.

3. Inappropriate Evidentiary Provisions

H.R. 1300, as reported, wisely removed the provision allowing a court to use the

allocation report as a basis for its allocation of liability in the legal action, even if

the report had been rejected by the government. However, the bill should provide

that the report may not be used by any party in a legal proceeding. This will eliminate likely efforts by PRPs (or the governments) to introduce the report into evidence and obtain court approval for the specific allocation. If an allocation report

becomes a document that might be used in a legal proceeding when the allocation

does not result in a settlement, the parties will turn the allocation into the very

trial that allocation is supposed to avoid, together with a trial’s attendant costs and

delays.

In sum, while we support the use of allocation in appropriate cases, we oppose

the prescriptive approach of H.R. 1300, as reported. Especially when read with the

liability changes, H.R. 1300’s allocation process will substantially increase all parVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00213 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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ties’ costs, bind smaller PRPs to a mandatory, unmanageable process, and delay

both cleanups and costs recovery efforts.

D. MISCELLANEOUS PROVISIONS

1. Windfall Liens

Only the United States gets the ‘‘windfall’’ lien to recover costs under proposed

§107(b)(6), added by §302(a). As a result, an owner or operator could receive the protection against state enforcement and enhancement of its property’s value at no

cost, but the state would not get the lien’s benefit allowing recovery of unrecovered

response costs when the property is sold. The states, which play a role virtually

identical to EPA’s, also should be entitled to such liens.

2. Statutory Construction

Section 303 of H.R. 1300, as reported, modifies the provisions for natural resources liability under § 107(f) of CERCLA by adding a new § 107(f)(3) on ‘‘Unitary

Executive.’’ Under this subsection, any brief or motion filed by the United States

defending against any action seeking recovery for natural resources shall be admissible and deemed the position of the United States with respect to the interpretation

and construction of this subsection in any other action at other sites seeking recovery for natural resources damages.

The unitary executive provision of the bill violates fundamental tenets of the doctrine of separation of powers as articulated by the Supreme Court in Morrison v.

Olson, 487 U.S. 654, 101 L.Ed.2d 569 (1988). It is inappropriate for Congress to dictate litigation positions to be taken by the executive branch. Furthermore, by requiring that environmental defense positions be deemed to be the position of the United

States, Congress would put an unreasonable burden on states to either intervene

in any federal natural resource damages litigation to create or preserve precedents

favorable to trustees, or risk having an adverse body of case law. Assuming that

the approach was constitutional, there is no justification for choosing the defense

positions over the enforcement positions. Deeming enforcement provisions to be the

position of the United States would similarly provide for a unitary federal position

without harming the trustee interests of the states.

TITLE IV. REMEDY SELECTION

As set forth in NAAG’s Superfund Reauthorization Resolution, remedy selection

in a Superfund statute should contain certain minimum requirements. Remedial actions should attain, at a minimum, applicable state and federal standards. Cost-effectiveness should continue to be a factor considered among other factors. While consideration of future land uses is proper when selecting remedial actions, land use

should not be the controlling factor, and when remedial decisions are less stringent

because they are based on future land use, there must be appropriate, enforceable

institutional controls.

H.R. 1300, as introduced, corrected some of the deficiencies of prior bills regarding

remedy selection, for instance, foregoing provisions creating cumbersome remedy review boards and continuing to require that cleanups attain applicable state standards. We are pleased that the August amendment to H.R. 1300 went further by retaining most of the current provisions of §121 of CERCLA and approving certain

EPA guidance. In this fashion, seemingly endless litigation over the meaning of new

terms and the implications of the changes in remedy selection is less a likelihood

should the bill be enacted, and the reforms undertaken administratively by EPA can

continue. However, we are still concerned about the changes H.R. 1300, as reported,

would bring in remedy selection.

A. ANTICIPATED USE OF LAND, WATER, AND OTHER RESOURCES

NAAG supports the consideration of future land uses in selecting remedial actions, provided that future land use is not the controlling factor. We are concerned

about the downgrading of cleanups from those accommodating all reasonably likely

land uses, which is required under the current NCP, to an apparent emphasis on

cleanups which accommodate existing uses. At sites where the existing use has been

commercial and industrial but the municipality and nearby residents might want

to convert the site to residential and recreational uses, it is important that the PRP

not be able to implement an incomplete cleanup that thwarts future community objectives because the change in use had not been planned or received any approvals.

Many other sites may be in their last years of industrial or commercial use, as indicated by clear trends in the region or the neighborhood, and to limit cleanups to

a vestigial use is dangerous to public health, regressive for community development,

or both.

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Thus, language in §401(c) H.R. 1300, as reported, which compels identification of

‘‘the current and reasonably anticipated uses of land, water and other resources... and the timing of such uses’’ must not be interpreted narrowly. By not

cleaning property for any uses other than those currently existing, there will be no

other uses in the future. Indeed, brownfields redevelopment often depends upon a

departure from current and anticipated uses; under the proposed language, it is important that such redevelopment not be thwarted. We understand that under the

EPA guidance approved in the bill, the reasonably potential uses of land also are

identified when determining site remedies so a truly informed decision on cleanup

can be reached. The provision should be read with that understanding.

Proposed language in §9 of H.R. 2580, which adds the clause ‘‘to the extent practicable, considering the nature and timing of reasonably anticipated uses of land,

water, and other resources’’ to the first sentence of §121(b)(1) of CERCLA, is flawed

and more limited than that of H.R. 1300. The quoted language from H.R. 2580, together with the elimination of the word ‘‘maximum’’ in the penultimate sentence of

§121(b)(1), also inappropriately modify the current remedy selection process. H.R.

2580’s proposed changes to CERCLA contained in §9 should be rejected.

Under H.R. 1300, as reported, groundwater is protected only for its ‘‘current and

reasonably anticipated future use,’’ and there is no provision for protecting groundwater that has not yet been contaminated but is not used, or has not yet been

planned to be used, for drinking water or otherwise. Such provisions fail to sufficiently protect future groundwater supplies. We prefer the EPA’s current requirement that contaminated groundwater be restored to beneficial uses whenever practicable, and that uncontaminated groundwater be protected. This issue is particularly critical for the arid western states where groundwater resources are scarce.

Moreover, we are concerned that the ‘‘Special Rules for Ground Water’’ set out in

§401(c)(2) of H.R. 1300 will result in inappropriate federal oversight of state groundwater protection programs. Before EPA can adopt determinations of a state comprehensive groundwater protection program, the program must first receive ‘‘a written endorsement by the President,’’ and up to $3,000,000 of authorized funds may

be spent per fiscal year on assistance to states by EPA. See §601(a)(2), adding a revised §111(d)(11). EPA is given no standards or criteria for making an ‘‘endorsement,’’ and effectively a new, ill-defined federal mandate is being imposed on the

states. It would be more appropriate for the President to defer to state determinations unless EPA demonstrates that the state has failed to identify current and potential beneficial uses of its groundwater. However, we do note that the presumption that groundwater is drinking water is sound, and will help protect the quality

of precious groundwater aquifers. See proposed §121(d)(3)(D)(ii), added by §401(c) of

H.R. 1300, as reported.

B. PROTECTION OF PLANTS AND ANIMALS

Section 401(c)(2) adds a new subparagraph governing the determination of the

significance of impacts of a release on plants and animals. The mandate that the

President base biological protectiveness determinations on the ‘‘significance of impacts from a release or releases of hazardous substance from a facility to local populations’’ of biota or ecosystems could seriously undermine ecological protections. For

instance, if local populations of birds are high, PRPs might well argue the impacts

of releases that kill only a small percentage of the birds must be ignored because

the overall impact on the local population is not ‘‘significant.’’ There is no reason

to create issues for litigation by enacting these limiting requirements.

C. REMEDY SELECTION CRITERIA

Section 401(c)(3), which amends a redesignated §121(d)(4)(A) [currently

§121(d)(2)(A) of CERCLA], is problematic in several ways. Like §9 of H.R. 2580,

while retaining compliance with ‘‘legally applicable’’ state standards as a minimum

requirement for remedies, remedies no longer would have to meet ‘‘relevant and appropriate requirements.’’ Relevant and appropriate requirements remain an important threshold criterion in remedy selection, particularly with regard to state drinking water standards, solid and hazardous waste laws, landfill remediation, radioactive waste remediation, and mining reclamation standards, and should therefore

be retained. For instance, most landfill closure requirements are not ‘‘legally applicable’’ to land disposal sites unless the site received waste after a date in the 1980’s.

Nevertheless, these requirements establish important remedial requirements and

represent the best engineering judgment on protecting the public and the environment from releases of toxic substances after inappropriate land disposal. Eliminating ‘‘relevant and appropriate’’ standards from those which a cleanup presumptively must meet will severely complicate the remedy selection process, delay cleanups, and increase litigation costs as regulators are compelled to justify remedy deciVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00215 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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sions over and over again in each case that otherwise would be based on such standards.

Section 401(c)(3)(F) of H.R. 1300, as reported, appears to have been drafted in

order to eliminate the applicability of state requirements at federal or other facilities that engage in activities unlike those of other facilities in the state. It requires

the President to ‘‘closely examine’’ state requirements at those facilities when deciding whether a standard is of ‘‘general applicability.’’ However, state requirements

applicable to certain types of chemicals, such as plutonium, sometimes will only

apply to federal facilities because they are the only facilities authorized to handle

such materials. The fact that the requirement only applies at that facility is not an

indicator that the state promulgated the standard in order to penalize or impose unfair or overly stringent standards on a federal facility. Rather than trying to devise

a subjective test, Congress should retain the objective standard under current law,

i.e., the terms of the standard alone should be examined to determine whether it

is of general applicability, and, as in current law, compliance can be waived by the

President if he demonstrates that the requirement has not been applied consistently.

Section 401(c)(5) would add a new § 121(d)(7), which excludes compliance with

standards that require reduction of contaminants to concentrations below ‘‘background levels.’’ This provision creates significant uncertainties that could adversely

affect the cleanup of sites near other sources of contamination. Throughout the

country, numerous smaller industrial concerns have contributed to the contamination of the soils and groundwater in industrial parks and areas of mixed commercial

and residential use, particularly in low income and minority neighborhoods such as

the New Cassell site in eastern Nassau County on Long Island, New York, or the

Rocky Mountain Arsenal site adjacent to Commerce City, Colorado. If background

is measured immediately off-site, EPA could not require any cleanups at a particular facility because its neighbors have contaminated the immediate background.

Whole communities could remain contaminated because cleanups could not be compelled at any facility. Current law, § 104(a)(3)(A) of CERCLA, forbids cleanup of naturally occurring substances, and is sufficient to prevent the mandatory removal of

contaminants to levels below the true natural background.

D. INSTITUTIONAL CONTROLS

H.R. 1300, as reported, addresses institutional controls in several significant respects. We strongly support the inclusion of a mandatory review of the effectiveness

of and compliance with any institutional controls related to the remedial action

when EPA undertakes a five-year review under §121(c) of CERCLA. Similarly, the

requirement that institutional controls be ‘‘effective, implemented, and subject to appropriate monitoring and enforcement’’ when a remedy leaves contaminants on-site,

and that reviews be conducted to ensure that they remain so, is an important codification of common sense requirements. Finally, we support the provision that only

allows the President to use institutional controls ‘‘as a supplement to, but not as

a substitute for, other response measures at a facility, except in extraordinary circumstances.’’ See §401(b) of H.R. 1300, as reported.

As recognized by H.R. 1300, as reported, notice of and enforcement of institutional

controls and similar environmental easements integral to a remedy cannot be left

to chance. While the bill includes measures to ensure the continued implementation

of such controls and easements, the provision providing for the recording of hazardous substance easements acquired as part of a remedy is incomplete. Assignments by the President must be recorded and approved by ‘‘State or other governmental entity.’’ However, further assignments are not subject to any review or approval process, nor even a recording requirement. Also, the President could evade

state approval of an assignment by seeking instead the approval of the ‘‘other governmental entity,’’ an undefined term. Such entities presumably could include local

development agencies and others whose interests in the use of sites are very different from state agencies charged with protecting public health and the environment. State approval should be a nonwaivable condition for the transfer of any easement by any person or entity.

E. RISK ASSESSMENT PRINCIPLES, GUIDELINES AND REVIEWS

Section 403 of H.R. 1300, as reported, and §9 of H.R. 2580 would add provisions

to CERCLA addressing principles to be followed when conducting risk assessments.

While the August amendment removed some very troublesome clauses from the

original section in H.R. 1300, as introduced, the need for this type of provision in

the first place is not clear. Inclusion will probably not alter risk assessments conducted by EPA or states, and instead could only provide fodder for litigation. In any

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event, we do note that the language used by §9 of H.R. 2580 is overly restrictive,

and the provision set out in §403 of H.R. 1300, as reported, is less troublesome.

TITLE V. GENERAL PROVISIONS

NAAG strongly supports §504, which amends CERCLA §104(c)(3). This provision

alters the cost-share formula to limit a state’s share to 10% of the remedial and operation and maintenance costs at NPL sites. This change should result in swifter

cleanups by eliminating any tendency to shift cleanup costs to the states which,

under current law, are responsible for 100% of operation and maintenance costs. We

also support the modification of current law by §505 of H.R. 1300, as reported, to

provide that states, as well as localities, are eligible for reimbursement for up to

$25,000 for a single response.

Section 506 of H.R. 1300, as reported, addresses the state role at federal facilities.

NAAG’s Resolution regarding CERCLA reauthorization called for clarification of the

waiver of sovereign immunity and for transfer of EPA’s regulatory authority at federal facilities to states. On July 26, 1999, forty-one Attorneys General reiterated the

need for clarification in a letter to the Senate Armed Services Committee, a copy

of which is attached. We strongly urge the adoption of language that is contained

in the DeGette/Norwood bill, H.R. 617, as it represents the compromise reached between states and federal agencies in 1994, and would clarify the waiver without disrupting the status quo with regard to the issue of dual regulation at NPL sites.

We also urge that §506 include additional language to clarify that states do not

impair their independent enforcement authority by entering into site-wide interagency agreements that combine state law requirements with CERCLA requirements. Proposed language for such a provision is contained in §5 of H.R. 617, and

is necessary to preclude any arguments that might be made by federal agencies

based on the decision Heart of America Northwest v. Westinghouse Hanford Co., 820

F. Supp. 1265 (E.D. Wash. 1993). In Heart of America, an environmental organization brought a citizen suit under the Clean Water Act, among other claims, to force

the Hanford facility to comply with state water quality regulations as they pertained

to a surface water discharge at the facility. The discharge was specifically identified

in the Hanford Interagency Agreement (‘‘IAG’’), not as a CERCLA response action,

but rather as a discharge to be regulated under the state’s water quality program.

Nevertheless, the court dismissed the citizen suit on the ground that it constituted

a challenge to a response action under CERCLA, and was therefore subject to the

bar on pre-enforcement review in §113(h) of CERCLA.

This ruling could be utilized by federal agencies to argue that any federal or state

environmental requirement that is referenced in a CERCLA IAG effectively becomes

a CERCLA requirement and is therefore subject to the bar on pre-enforcement review. Such an interpretation could preempt the independent application of state

law, even where such authority is expressly preserved in the IAG. Although the

Heart of America ruling addressed only citizen suits, we are concerned that the

holding could be used by the federal government to oppose state enforcement actions. On July 10, 1997, thirty-nine Attorneys General signed a letter in support of

H.R. 1195, which would have clarified that state and federal governments can coordinate their cleanup activities at federal facilities without risking loss of their enforcement authorities. A copy of the letter is attached.

An additional provision is also necessary to provide for the transfer of EPA’s oversight authorities. Although H.R. 1300, as reported, includes a provision at §506 for

dispute resolution and enforcement of state selected remedies, the provision is limited to situations where ‘‘the President’s authorities under subsection [104](c)(4)

have been transferred pursuant to a cooperative agreement’’ to a state. Neither

CERCLA nor H.R. 1300, as reported, allows for this transfer, and thus the provision

is meaningless. Section 704 of H.R. 3595, introduced during the last Congressional

session, included delegation language that was acceptable to the states and would

allow for state decision-making. In addition, §120(g) of CERCLA should clarify that

the administrator’s oversight authorities cannot be delegated or transferred other

than to states or other EPA employees. Such a provision is necessary to prevent the

executive’s delegation of these authorities back to the polluting federal agencies

themselves, and is predicated on the same concerns underlying the restriction on

the exercise of §106 powers by a liable federal agency contained at §301(b) of H.R.

1300, as reported.

NAAG also strongly recommends that Congress establish independent oversight

of removals at federal facilities and strengthen protections for states and communities when federal facilities undertake transfer of contaminated federal properties

prior to completion of cleanup activities.

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Section 507 of the bill calls for a Federal study to determine Federal liability for

natural resource damages based on a review of pleadings filed by the Department

of Justice on behalf of a federal trustee seeking such damages from private parties.

The study is unlikely to produce accurate estimates of the liability of the federal

government for natural resource damages claims. In the fifteen-year history of the

natural resource damages program, few if any natural resource damages claims

have proceeded through trial and resulted in damage payments required by trustee

assessments. They are inevitably settled for considerably less. To more accurately

gauge the federal liability, therefore, the study should examine settlements, not

pleadings.

Section 508 adds language reaffirming that §107 of CERCLA does not preempt

state law claims regarding recovery of response costs. That concept is well established, and §302(d) of CERCLA already provides that ‘‘[n]othing in [CERCLA] shall

affect or modify in any way the obligations or liabilities of any person under other

Federal or State law, including common law, with respect to releases of hazardous

substances or other pollutants or contaminants.’’ See also §114(a) of CERCLA. However, by not including natural resource damages in the section, the language of §508

might be read erroneously as suggesting that claims for such damages under

§§ 107(a)(4)(C) or 107(f) preempt state law, unnecessarily creating an issue for litigation by overly zealous PRP attorneys. We urge this Committee to correct any

misimpressions and eliminate an issue for litigation by either including all claims

under §107 within §508 or eliminating the provision as unnecessary.

Mr. SHIMKUS [presiding]. Thank you, Mr. Johnson. And now the

committee will hear testimony from Ms. Jane Williams, Chair of

the Waste Committee of the Sierra Club. Welcome and, again,

your—the formal presentations are in the record and if you can

summarize, you have 5 minutes.

STATEMENT OF JANE WILLIAMS, CHAIR, WASTE COMMITTEE,

SIERRA CLUB

Ms. WILLIAMS. Thank you. Good morning, Honorable Chairman

and members of the committee. Thank you for the kind invitation

to testify before you today in the liability and remedy selection provision of the Superfund.

As you know, the Sierra Club is an international and environmental organization with more than half a million members organized by chapters and groups in every State. The Sierra Club believe that the cleanup of our Nation’s toxic waste sites is a critical

issue for all Americans, especially minority neighborhoods and our

children. EPA data show that 10 million American children live

within a bike’s ride of a Superfund site.

Repealing or weakening basic liability provisions of Superfund

undermines the public interest in two major ways. Any costs shifted away from polluters will ultimately be paid by taxpayers and

strict liability provisions create disincentive to polluters. As well, I

want to talk about the comments of my neighbor here. The collateral damage that would be done to State cleanup programs that

are non-Federal Superfund programs is great. In the State of California, for example, the State relies upon both NCP consistency

and the strict—joint strict and several liability provisions for State

Superfund program. So—and I know, as well, there are other

many—there’s many other States in the union that do that, as

well.

I, also, want to point out, I do have my prepared testimony that

I submitted to you. But, I come at this from a very different perspective. I live next to a Superfund site. In fact, I live next to two

Superfund sites. And the one Superfund site I live next to is the

largest Superfund site in the country. It’s Edwards Air Force Base.

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It has 456 sites that require cleanup. It’s the size of a small State.

It has PCBs, exotic rocket fuels, nuclear materials, all kinds of

stuff. And we routinely fight with the Federal Government on the

way in which the site would be cleaned up and the time line that

the site would be cleaned up. The second site I live next to is a site,

which is contaminated with dioxin. And children were riding their

bikes next to the site and so we had to have an emergency response

come in. Right now, the site is fenced and capped.

The small town that I live in, which is Rosemont, California, is

one of the most polluted towns west of the Mississippi River. In one

square mile area of the town, nine children contracted cancer and

died, five of them from medulla blastoma, a brain cancer so rare

you’d expect to find one case in my town in a decade and we found

5 in 3 years. All of those children died. Subsequently, 24 toxic sites

were found in our town, none of which, I might add, are Federal

Superfund sites, but are being cleaned up under our State Superfund program.

And so, I want to echo the comments of Mr. Pallone, and that

is that I sat for many years in California and also on national committees looking at Superfund programs and RCRA programs and

cleanup programs and I think too often we lose the face of the victim. We misunderstand that what we are talking about when we

talk about changing liability provisions is slowing down a program

that really has just hit strides. This is not the time to put the

brakes on cleanups and the current provisions in H.R. 1300 would

do just that.

The important provisions for the RARs, which are very important

in the State of California, that is how we manage to protect

groundwater. Groundwater is a very important resource, not only

in the State I come from, but across the United States. And many

of the provisions in H.R. 1300 can only be termed the ‘‘aqua for

abandonment provisions,’’ because they require the President to

find consistency with basin plans. They roll back many provisions

that States have taken to protect groundwater.

And so it’s for these reasons that we are not supporting H.R.

1300, although we are very interested in working with the members of the committee. You, yourself, Mr. Shimkus, brought up very

important and valid points about diminimus and micromus parties.

I think that the Sierra Club, as well as many other environmental

organizations, want to see the program be fair. I don’t think that

anyone thinks that the program should be unfair and to the extent

that we can work together to make it fair, but, also, not slow down

the pace of cleanups, because when we slow down those cleanups,

there’s a real cost to that and that’s measured in people’s lives and

in further economic damage that already impact the communities.

Thank you for the opportunity to testify.

[The prepared statement of Jane Williams follows:]

PREPARED STATEMENT OF JANE WILLIAMS, CHAIR, WASTE COMMITTEE, SIERRA CLUB

INTRODUCTION:

Mister Chairman and members of the Committee, thank you for asking me to testify on this important topic. As you know, the Sierra Club is a national environmental organization. We are a grassroots organization with more than a half-million

members, organized by chapters and groups in every state.

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The Sierra Club believes that clean-up of our nation’s toxic waste sites is a critical

issue for all Americans, especially minority neighborhoods and our children. EPA

data show that more than 10 million American children live within a bike’s ride of

a Superfund site.

Repealing or weakening basic liability provisions undermines the public interest

in two ways.

First, it flies in the face of longstanding common law that pollution is not now,

nor ever has been, legal. Changing the liability system, whether by 50 or 100 percent or by any other political tinkering undercuts the funding needed for the program. And if the polluters don’t pay for this, ultimately, the taxpayer will.

Second, strict liability insures that the program remains as a disincentive to pollution. In other words, corporate actors will seek to minimize their risk—and maximize their pollution prevention efforts—if they know that hazardous waste cleanup costs will be borne by them, and not the public at large.

Changes to remedy selection provisions will only serve to weaken the environmental protections important for our land, air, and water. As evidence mounts that

chemical exposures are having adverse effects on human health and the environment, we need to be ever vigilant to keep the releases at Superfund sites minimized.

The protection of groundwater and air quality suffers already at Superfund site. It

is only through expeditious use of relevant and appropriate provisions of state and

federal statues that these important societal resources can be restored and that releases to the environment minimized during this restoration. And it is important to

retain relevant state and federal standards if we are to protect public health.

In short, the important features of existing Superfund law that keep strict joint

and several liability and the current remedy selection requirements should be retained.

H.R. 1300’S LIABILITY PROVISIONS

The liability provisions of H.R. 1300 make substantive changes to the current liability provisions of Superfund. These provisions, which maintain strict liability for

polluters, have served the public well by creating a disincentive to contaminate new

lands—few new Superfund sites have been created since the enactment of provisions

which created this strong tie between polluters and the wastes they produce.

Some states, for instance California, use the joint and several provisions of the

federal Superfund law in their state Superfund programs exclusively because they

have found that federal provisions result in more expeditious cleanups.

1. Slowing the pace of cleanups by undercutting incentives to settle without increasing federal cleanup resources, and mandating time-consuming allocations.

One particularly disturbing feature of H.R. 1300 is the way it undercuts existing

incentives for settling, incentives that now prompt polluters to use their own funds

to clean up at about 70% of Superfund sites according to EPA reports (EPA uses

federal funds for the remaining 30%).

Specifically, H.R. 1300 takes away one of EPA’s most powerful incentives for getting polluters to settle: the ability to offer partial funding to settling parties, and

only to settling parties. But H.R. 1300 directs EPA to enter into agreements to provide ‘‘mixed funding’’—i.e., dollars from the public trough—to parties who do not settle, but who instead perform cleanup activities under an administrative order (p.

127).

Under H.R. 1300, many parties will await issuance of a cleanup order rather than

settling. This will take much more time, and more EPA resources, than is currently

the case. Because Superfund’s bar on pre-enforcement review under section 113 is

terminated by EPA enforcement of an administrative order in court, it can also open

the door for litigation over the substance of the cleanup decision in advance of conducting the cleanup, further delaying cleanups by years.

Alternatively, EPA could itself conduct additional cleanups itself. But H.R. 1300

does not authorize any additional funding to enable EPA to do so. (Even if the bill

provided for increased authorizations, which it does not, it seems unrealistic to anticipate that appropriations to the Superfund program will grow significantly—indeed both the House and the Senate FY 2000 appropriations bill would decrease

funding for Superfund.) The pace of cleanups will slow as a result. Until the last

several years, the pace of the Superfund program has been roundly criticized, and

rightfully so. Now that the program’s pace has picked up significantly, hitting the

brakes by undercutting settlement incentives is highly counterproductive.

In addition, H.R 1300 creates a new mandatory ‘‘allocation’’ process (section 310,

p. 118) for a wide array of sites. Under the bill, the allocation process determines

the share of each party, as well as the Superfund trust fund. The latter includes

costs for insolvent and defunct parties; for parties who settled for less than their

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allocated share because of limited ability to pay; for parties exempted as small businesses, service-station dealers, or recyclers; and for municipalities and commercial

waste-management firms who paid less than their allocated share because of the

bill’s other provisions (which generally limit these parties’ liability to 10% of the

cleanup costs). Apart from the fact that some of these parties should not be exempted (see below), the allocation process thus creates incentives to identify every possible exempt or insolvent party and to pull them into the allocation process in order

to increase the share allocated to the Trust Fund. This will result in a time-consuming process with high transaction costs for all concerned.

Finally, while the bill nominally excludes from the allocation process the chainof-title sites (e.g., sites where all potentially liable parties are current and former

owner/operators, such as mining sites)and thus excludes these site from access to

the Fund—it inexplicably provides that the exclusion doesn’t apply to sites where

the prior owner is insolvent or defunct (section 310, p. 120). This limitation on the

exclusion potentially will impose massive costs on the Fund, and is unjustifiable.

2. Weakening the polluter-pays principle through extensive liability carve-outs and

limitations.

Overview of H.R. 1300’s financial implications.—Before looking at H.R. 1300’s liability exemptions, it must be noted that the bill as written shifts about $11 billion in costs from polluters to the general taxpayer, because it fails to re-impose the polluter-pays taxes that provide the primary funding source for the Trust

Fund. While the bill contains a statement that ‘‘it is the sense of the Committee

on Transportation and Infrastructure’’ that the taxes should be re-imposed for the

period 2000-2007 (Section 701, p. 177), this provision has absolutely no legal effect.

In the meantime, industry continues its $4-million-per-day tax holiday that began

when the polluter-pays taxes expired at the end of 1995—itself a major incursion

on the polluter-pays principle already totaling more than $5 billion.

In addition to the tax issues, the bill also contains numerous liability exemptions

and limitations. Theoretically, some of these will not compete directly with cleanup

resources because they are to be paid from a segregated ‘‘pot’’ of funds within the

Trust Fund (authorized at $300 million annually for 2000-2004, then $200 million

annually for 2005-2007) (section 601, p. 165). However, there is no assurance that

appropriators will not choose to fund the liability-relief pot in preference to the general Trust Fund, particularly if budget pressures are significant. And in any event,

the liability-relief funds still comes within the same appropriations subcommittee

cap as all other EPA programs, thus at least indirectly competing for resources.

At the same time, other provisions of H.R. 1300 impose additional costs on the

Trust Fund’s cleanups monies. For example, the increased need for EPA-lead cleanups caused by undercutting settlement incentives, as well as additional transaction

costs imposed on EPA by the allocation process, will have to be met through Trust

Fund monies. In addition, H.R. 1300 shifts significant costs that are now borne by

the states onto the federal program as well. Under section 504 (p. 158), the States

would pay only 10% of the cost of operation and maintenance, rather than the 90%

provided by current law, thus decreasing the State’s incentive to seek permanent

remedies. And adding insult to injury, the bill also limits EPA’s ability to collect

oversight costs to 10% of the amount that the polluter spent on cleanup (p. 85). This

provision undercuts incentives for polluters to avoid recalcitrant behavior that triggers greater EPA scrutiny, and indeed provides the greatest benefit to the worstacting parties.

Exemptions for owners that knowingly bought contaminated property.—Under the

guise of clarifying existing statutory protection for innocent parties, H.R. 1300 creates a major new liability loophole for owners who know that their property was

contaminated when they bought it. Specifically, the bill eliminates the current requirement that the owner ‘‘did not know and had no reason to know’’ of the contamination when the property was acquired (for pre-1980 acquisitions) (p. 55). Thus,

some owners will evade any liability for the cleanup of their own property, even if

they bought the land cheaply because of the contamination.

These provisions will likely shift substantial costs onto the Superfund Trust Fund.

To make matters worse, unlike many of the bill’s other exclusions or limitations on

liability, it appears that these costs are not among those to be paid from segregated

‘‘pot’’ of money for exempted parties (section 601, p. 166 and section 131, p. 119).

Thus, these shifted costs will compete directly with cleanup dollars.

The bill also provides that owners can rely absolutely on a ‘‘no further action’’ determination by a relevant governmental agency (p. 65) to satisfy the ‘‘all appropriate

inquiry’’ element of the current innocent-party defense. But such determinations are

not necessarily based on in-depth evaluation of the property, nor are they always

correct. This provision essentially turns the no-further-action determination into a

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guarantee that the property is clean, thus eliminating one of the few incentives that

now exists for careful evaluation of sites.

Other liability carve-outs are overly expansive.—In addition, H.R. 1300 contains a

raft of inappropriate and overly broad liability carve-outs, each of which undercuts

the polluter-pays principle and shifts more cleanup costs to the general public.

These include exemptions for:

• ‘‘small’’ businesses with up to 75 full-time employees and $3 million in gross revenues (section 305, p. 74), even though almost 90% of the nation’s businesses

have fewer than 20 employees; • generators and transporters of used oil (p. 113) (given the exemptions for small

businesses and small-quantity generators, this provision just exempts big businesses that generated significant quantities of used oil); • generators and transporters of copper by-products (p. 110), which are industrial

process wastes; • huge commercial trash companies (such as Waste Management and BFI), who are

exempted from all liability in most instances for wastes dumped prior to the

bill’s enactment. Even if EPA determines that such companies dumped wastes

containing hazardous substances, their liability is capped at 10% of the total

cleanup costs (p. 74). • negligent cleanup contractors, since the bill preempts general state tort law except for suits brought within six years of completion of work (p. 87, p. 89)—so

that that sloppy cleanup contractors will evade any responsibility for chronic

diseases with a latency period, such as cancer and developmental disabilities; • many mining-site operators, given the limitations on the exclusion for the chainof-title sites (p. 110), as noted above. • other carve-outs for special interests, such as to releases from pesticide application (p. 72).

In addition, the bill caps the liability of all persons who generated or transported

municipal waste after enactment of the bill at 10% of the cleanup costs (p. 75).

Shifting risks of long-term problems to taxpayers.—In addition, the bill also revamps current provisions governing settlements under Superfund, in ways that

allow polluters to walk away from sites that have not been fully cleaned up. Specifically, section 308 allows for a complete waiver of future liability even at sites with

waste remaining in place if the settlement contains a ‘‘premium to address possible

remedy failure or any releases that may result from unknown conditions’’ (p. 95).

But as a practical matter, how is it possible to calculate a premium for unknown

conditions? And as a matter of public policy, why should taxpayers bear the risk

of remedy failure?

These concerns are exacerbated by the fact that the bill allows—indeed, virtually

requires—the use of less-than-complete cleanups. In selecting remedies, it demands

consideration of ‘‘current and reasonably anticipated land use’’ (Section 401, p.136).

In many cases, this is likely to involve industrial uses, which means allowing lessstringent cleanups than would be required if homes were to be placed on the site.

But industrial-use cleanups must be accompanied by ‘‘institutional controls,’’ measures that are designed to assure that an industrial site stays industrial unless more

cleanup is done first. Such measures must be applied virtually in perpetuity. Moreover, most cleanups today use containment-based remedies, rather than taking the

waste off-site or treating it on-site to permanently render it harmless.

While industrial-use and containment-based cleanups are sometimes appropriate,

it is essential that polluters remain on the hook in case those non-permanent remedies don’t work. This legal structure both protects the public fiscally, and creates

powerful incentives for polluters to take steps to keep these remedies from failing.

Put another way, complete releases should only be available following complete

cleanups.

In sum, many of H.R. 1300’s liability provisions undercut good prevention, create

bad ones, and will lead to slower cleanups.

H.R. 1300’s Remedy Selection ProvisionsAbolishing the Relevant and Appropriate Provisions of CERCLA.—H.R. 1300 deletes the current requirement (Section 121d (2)(A)) that cleanups meet ‘‘relevant and

appropriate’’ state and federal standards. (page 140) Current law requires that

cleanups meet legally applicable state and federal standards or any environmental

standard that is relevant and appropriate under the circumstances of the release.

The relevant and appropriate standards are an important provision of law since

in many instances the ‘‘legally applicable’’ provisions do not address state and federal standards for air pollution created during cleanup activities, groundwater contamination, the integrity of landfill liners, long-term monitoring of remedies, impacts to animals and wetlands, and other important environmental and public

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health safeguards. As well, the addition of ‘‘relevant and appropriate’’ standards

avoids lengthy litigation over what is legally necessary and what is not.

For example, it is becoming common practice to use dual phase vapor extraction

systems to extract contaminated groundwater and soil vapors from Superfund sites,

these contaminates are then burned in on site incinerators (thermal oxidizers).

These incinerators emit a host of dangerous chemicals into the air of communities

already overexposed to chemicals from living on or near a Superfund site. At the

Operating Industries site in California, an incinerator installed to burn soil vapors

was required to meet the regulations for a hazardous waste incinerator under the

Resource Conservation and Recovery Act (RCRA). A long battle over whether or not

this statue was legally applicable was avoided by identifying the requirement as relevant and appropriate.

Liners and caps are used at many Superfund sites to isolate waste from the environment. The Resource Conservation and Recovery Act (Subtitle C) requirements

serve to set standards for liner integrity, cap design, and vadose zone monitoring

that help delay contamination of groundwater until more permanent remedies can

be found. These provisions are crucial for groundwater protection, and in their absence, air emissions from poorly constructed and maintained caps and groundwater

contamination from improperly installed and monitored liners, could increase. They

are another example of important requirements that are relevant and appropriate.

State standards to protect drinking water and the beneficial use of aquifers are

commonly applied relevant and appropriate regulations. At a mining site in Colorado, the beneficial use of a stream was protected even though the final designation

of the stream’ beneficial use was only in draft form. The designation was deemed

relevant and appropriate though not legally applicable because of the interim nature

of the state action.

The California State Water Board Resolution 9249 that applies provisions of the

Porter Cologne Water Quality Control Act to the level of groundwater cleanup at

Superfund sites are deemed relevant and appropriate and are routinely included in

Superfund remedies under the auspices of the relevant and appropriate provisions

of CERCLA, thus avoiding a lengthy dispute on whether or not they are legally applicable. Groundwater protection is extremely important in many parts of the

United States because of its use for drinking water and agricultural production and

states have a wide variety of laws enacted that serve to preserve these waters’ beneficial uses. These laws would be ignored if the provisions for relevant and applicable

were abandoned.

A recent cleanup of DDT in Los Angeles complied with a state designated particulate standard that mitigated blowing DDT-laden dust in a highly impacted minority

community. This standard was identified by the local air board as relevant and applicable. In the absence of this standard this blowing DDT-laden dust would not

have had any enforceable emission limit and the contractor would have had no requirement to mitigate the impacts on the community from this obvious public health

threat.

H.R. 1300 fails to emphasize the return to beneficial use of groundwater and creates incentives to litigate, instead of mitigate, groundwater uses.—EPA issued guidance directing that ‘‘reasonably anticipated future use of the land’’ be considered in

determining the appropriate extent of remediation. This directive does not apply to

groundwater beneath contaminated sites.

H.R. 1300 interjects new terminology tied to ‘‘reasonably anticipated’’ future use

of groundwater, which includes a requirement that state water protection plans receive a written endorsement from the President before being able to be considered

as meeting the designation of drinking water. This creates a new mechanism for the

designation of the beneficial use of water that requires federal concurrence with the

designation. (page 138)

The presumption that water is drinking water can be rebutted through ‘‘site-specific information identified through the analysis of relevant factors under Subparagraph C (pg. 138)’’. But there are no ‘‘relevant factors’’ identified in Subparagraph

C only relevant information such as the views of the interested parties. This creates

a loophole so large you could drive a Sparkletts truck through it. Given the enormous costs of remediating groundwater, every responsible party will analyze ‘‘relevant factors’’ conclude that nobody will every use the water as drinking water, and

it will be up to the President to refute the claim.

Prohibitions on ‘‘reductions below background’’ can become an excuse to do no

cleanup.—Section 410(c) adds a new provision which states ‘‘the standards, requirements, criteria, and limitations referred to in paragraph (4) shall not include any

requirement for a reduction in concentrations of contaminants below background

levels.’’ (page 141)

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This provision will result in a lengthy debate determining what background is and

where. For instance, historic goldmining in the foothills of the Sierras have resulted

in arsenic and mercury contamination. If some of these levels (which pose public

health risks) are considered background, arsenic and mercury would never require

cleanup at a Superfund site. In many communities, if background is measured immediately offsite, EPA would not require cleanup because nearby properties are also

contaminated. This is often the case in heavily industrialized areas of the inner city.

Entire areas could remain contaminated because the contamination was defined

away as ‘‘background’’.

Provisions exist in the current statue to prohibit the cleanup of naturally occurring substances; these provisions are sufficient to prevent removal of contaminants

to levels below true background.

In summary, we urge members of the Committee not to roll back key provisions

of the federal Superfund program that hold polluters responsible for the pollution

they have created, create incentives not to pollute, and protect our precious groundwater, air quality, and lands from degradation. The federal safety net that is embodied in the current provisions of Superfund needs to be maintained for the protection of our families and our future.

Mr. SHIMKUS. Thank you. And now we’ll hear from Mr. Jeremiah

Jackson or Doctor, President-Elect of the Environmental Business

Action Coalition. Welcome, again. Your formal testimony is inserted into the record; if you can summarize and you have 5 minutes. Thank you.

STATEMENT OF JEREMIAH D. JACKSON, PRESIDENT-ELECT,

ENVIRONMENTAL BUSINESS ACTION COALITION

Mr. JACKSON. Thank you. Mr. Chairman, members of the subcommittee, my name is Dr. Jeremiah Jackson. I’m Director and

Principle Engineer of Q&S Engineering in Escondido, California.

I’m here today as President-Elect of the Environmental Business

Action Coalition, or EBAC. EBAC is a coalition of 60,000 professionals. Thank you for holding this important hearing. My focus

today is on three critical issues related to any Superfund or

Brownsfield legislation: first, remedy selection; second, the socalled ASTM standard; and third, response action contractor liability.

On remedy selection issues, from our perspective, more flexibility

in the law is needed. It is overly prescriptive and affords too little

opportunity to accelerate cleanups or innovate with an existing

Superfund processes. The goal should be timely, appropriate, and

efficient cleanups, based upon intended use, instead of having to

concentrate on producing evidence for litigation.

H.R. 2580 contains improved remedy selection provisions. While

we fully support this well-crafted reform, the subcommittee is

strongly urged to expand their number. Our added suggestions include the following eight: (1) implement a risk-based approach; (2)

address serious environmental threats first; (3) promote cost effective remedies; (4) encourage flexible cleanup approached; (5) make

the assessment, cleanup, and risk reduction process more streamlined, flexible, and realistic; (6) allow for earlier participation by

stakeholders; (7) include future land use considerations in remedy

selection; and last, encourage testing and implementation of new

and innovative technologies.

As to the ASTM standard, EBAC again expresses strong disagreement with the requirement contained in H.R. 2580 for innocent land owners to undertake environmental site assessments, in

accordance with ASTM phase one environmental site assessment

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process. We strongly disagree with the premise that the so-called

ASTM Phase I standard is actually a standard. A practice labeled

as a standard implies that it is tried and true practice, which, if

followed, yields reproducible, reliable, and trustworthy results,

which is not true in this case. This so-called standard was finalized

5 years go, yet the profession has evolved significantly in the past

5 years. The right approach is an assessment conducted by qualified professionals, who allow the current standard of care.

Finally, on contract liability issues, there’s been a lot of discussion in the Superfund reauthorization debate about the fairness of

the Superfund liability scheme. Our member companies are directly involved in fixing the problems caused by the hazardous

waste releases of others. The law’s liability provisions ensnare contractors in the same liability scheme as the PRPs. CERCLA does

not differentiate among participants or among degrees of error. To

hold someone liable under the current Federal Superfund law, all

you need is proof that someone was involved in the site, regardless

if they were at the site.

Is this fair? Does it result in a speedy and cost effective cleanups? No. Does it hurt by business? Yes. In fact, it hurts every professional engineering and scientific firm by discouraging innovation, driving up cost, and delaying cleanup action.

How can fairness be brought back into the law for the cleanup

firms? Well, begin by treating cleanup firms according to their normal standard of care, simple negligence. In the absence of fault or

negligence, it is wrong to saddle cleanup firms with the strict liability standard prescribed for the PRPs. Additionally, the right answer is found in the RAC liability provisions in last year’s H.R.

3000, which you, Mr. Chairman, sponsored in H.R. 1300. Significant among these provisions are a negligence standard, a statute

of repose, and last, extension of Section 119’s coverage to all response actions.

In conclusion, EBAC greatly appreciates the ability to testify before your subcommittee today. Thank you, very much.

[The prepared statement of Jeremiah D. Jackson follow:]

PREPARED STATEMENT OF JEREMIAH D. JACKSON, PRESIDENT-ELECT,

ENVIRONMENTAL BUSINESS ACTION COALITION

Mr. Chairman, members of the Subcommittee, my name is Jeremiah D. Jackson,

Ph.D., P.E. I am Director and Principal Engineer of Q&S Engineering, Inc., a Small

Disadvantaged Business based in Escondido, California. I am here today in my capacity as President-Elect of the Environmental Business Action Coalition (EBAC),

formerly known as the Hazardous Waste Action Coalition (HWAC). My background

is in environmental technology and implementation of remedies at hazardous waste

sites. During my career, I have overseen cleanups at Federal and state Superfund

sites; some of these cleanups have won awards for technical merit. I also lecture on

site assessment and remediation at the University of California.

EBAC, as you know, is a national, Washington, D.C. based not-for-profit business

trade organization whose mission is to serve and promote the interests of engineering, science and construction firms practicing in multimedia environmental management and remediation. EBAC operates as a coalition of the 5,000 member firm

American Consulting Engineers Council.

EBAC’s President, Jonathan Curtis, who is also President and CEO of CDM Federal Programs Corporation, testified before this Subcommittee on August 4, 1999 on

EBAC’s support for the Brownfields provisions contained in H.R. 2580, Congressman Greenwood’s Land Recycling Act of 1999. In addition, one of EBAC’s former

Presidents, Pat O’Hara, testified before this Subcommittee in March of 1998 on the

need for remedy reform in Superfund reauthorization. Both Mr. Curtis and Mr.

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O’Hara testified about contractor liability issues, and fielded questions about the

harsh inequities of the Superfund law’s legal impacts on cleanup firms. The record

is therefore clear—in order to facilitate cleanups, a combination of reforms

to both the law’s liability system as it applies to the firms that perform

cleanup actions, and to the way remedies are selected and cleanups are

performed, is needed to help ensure that Superfund operates efficiently

and cost-effectively, while providing improved protection to human health

and the environment. I will testify today about the critical issues of remedy selection, the ASTM language in H.R. 2580, and the increased crisis it precipitates in

the area of RAC liability.

Remedy Selection Issues

EBAC is proud to be here and able to provide our technical engineering expertise

to the complex debate regarding the selection of remedies at hazardous waste sites.

Our overriding concern is protection of human health and the environment. We believe that the Federal Superfund law and related cleanup activities, including

Brownfields activities, should focus primarily on effecting cleanups. All too often,

however, you hear fears of ‘‘bottled water’’ and ‘‘fences’’ discussed when remedy selection changes to the law are debated. As the CEO of one of our largest members

said most eloquently several years ago, ‘‘Superfund is not designed to fix problems,

it is a program designed to fix blame.’’

I am here to tell you that, as a representative of the professional community that

recommends and implements cleanup actions, more flexibility in the law is needed.

The present law is overly prescriptive and contains too little opportunity to accelerate cleanups or initiate rework within the Superfund ‘‘process.’’ In addition, work

is often performed for the sake of ‘‘producing evidence for litigation’’ instead of just

to get on with cleanup.

Mr. Chairman, your bill last year, H.R. 3000, contained widespread remedy reforms which EBAC strongly supported. In fact, in our testimony we stated that H.R.

3000 ‘‘will ensure that innovations are applied to cleanups, will provide incentives

for new technologies at hazardous waste sites, and will spur essential state and

local voluntary cleanup programs that sometimes languish due to the shadow of potential CERCLA liability that runs from the Beltway to every Brownfields site in

this country.’’ Mr. Boehlert’s legislation, H.R. 1300, which has widespread bipartisan support, also has significant remedy reform changes that will do a lot towards

improving Superfund cleanups.

We are pleased that H.R. 2580, Congressman Greenwood’s Land Recycling Act of

1999, also contains some remedy reform provisions. These provisions include:

• Consideration of future uses of land in remedy selection decisions. • Addressing the preference for treatment and permanent solutions. • Deleting the ‘‘RA’’ from ‘‘ARARs,’’ meaning that only applicable requirements will

apply. (Note: This is an important change because it is often difficult to determine what is also ‘‘relevant and appropriate’’ cleanup requirements). • Making risk assessments more realistic and based on scientific evidence and sitespecific information.

We fully support these well-crafted provisions. We understand that in the nature

of compromise the listing of remedy changes that have been included in H.R. 2580

are relatively few. However, we strongly urge this Subcommittee to expand this listing. Why do we feel this way? The last time that Superfund was comprehensively

reauthorized was in 1986 through the Superfund Amendments and Reauthorization

Act (SARA). This means that 13 years have passed without substantive statutory

change to ‘‘how’’ cleanups are performed. And, in that 13 years, there have been significant advancements in the professional practices of hazardous waste cleanup. I

am proud to say that these advancements have, in large measure, resulted from the

hard work, imagination, and innovative approaches employed by the member companies comprising EBAC!

Here are our suggestions for other issues to address in the remedy selection portions of any bill that is ultimately reported out of this Subcommittee and your full

Committee:

• The law should emphasize a risk-based approach to encourage reduction of hazards associated with hazardous waste cleanup sites in an economical manner. • Obvious and serious environmental threats should be addressed first.

• The goal should be to achieve the most risk reduction for the cleanup dollar.

• Cleanup plans should be flexible in anticipation of unknowns to allow for quick

responses to newly discovered conditions that invariable arise in the course of

a hazardous waste site cleanup.

All of the above recommendations are embodied in an engineering technique

called the ‘‘Observational Method.’’ This method was embodied in H.R. 3000 last

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year, and is embodied in this year’s H.R. 1300. More specifically, the Early Evaluation and Phased Remedial Action section of H.R. 3000 last year embodied this approach.

Other recommendations include the following:

• Make the assessment, cleanup and risk reduction process more streamlined, flexible, and realistic. • Allow for greater participation by stakeholders in the cleanup process. • Embody future land use considerations in remedy selection determinations. • Encourage testing and implementation of new, innovative technologies in cleanup.

Finally, as EBAC testified last year, H.R. 3000 contained ‘‘excellent’’ criteria for

selecting a remedy. The alternatives considered and factors balanced included the

following:

• Effectiveness of the remedy in reducing risk. • Effectiveness at promoting source control. • Long-term reliability. • Risks that are posed by implementation of the remedy. • Acceptability of the remedy to the community. • The reasonableness of the difference in costs between different remedial options.

We also have expressed support for requiring remedies to prevent or eliminate

any actual human ingestion of groundwater that has any contaminant present

above its Maximum Contaminant Level (MCL). We believe that this is appropriate

and protective of human health. We have also expressed a desire to remove the preference for permanence and treatment in the Superfund law because such a preference results in favoring one cleanup strategy over another. This type of preference

artificially reduces the range of technical solutions without providing additional protection. Finally, we support express legislative codification of EPA’s Administrative

Reforms, to include legislative embodiment of EPA’s Remedy Review Board. It is

only through legislation that EPA’s reforms will be uniformly and fairly applied on

a consistent basis.

H.R. 2580 would also allow for permit waivers for on-site response actions, which

would remove the barriers to actual on-site cleanup and significantly increase the

pace of Brownfields cleanups. Cleanup actions would still be protective of human

health and the environment and subject to regulatory review and approval, of

course, under such a scenario. We support this inclusion.

ASTM Standard

I must reiterate previous EBAC testimony where we expressed strong disagreement with the requirement of H.R. 2580 for ‘‘innocent landowners’’ to undertake environmental site assessments ‘‘in accordance with the standards set forth in the

American Society for Testing and Materials (ASTM) Standard E1527-94, titled

‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental

Site Assessment Process.’’ Please note that this standard is also proposed to be codified in Chairman Boehlert’s bill, H.R. 1300, and in H.R. 1750.

EBAC, ACEC, and other professional organizations strongly disagree with the

premise that the so-called ASTM Phase I ‘‘standard’’ is actually a ‘‘standard.’’ A

practice labeled as a ‘‘standard’’ implies that it is a ‘‘tried and true’’ practice which,

if followed, yields reproducible, reliable and trustworthy results and is endorsed by

the professionals who use it. That is not the case here. The scientists and engineers

who, for the last several decades, have investigated contaminated sites know that

it is foolish, even dangerous, to assume that using ‘‘cookbook’’ assessment procedures will uncover all significant contamination.

Except for a few simple sites, the technology required to peer underground and

locate all significant sources of contamination has not been invented. Moreover, as

the ‘‘94’’ suffix indicates, this so-called standard was finalized five years ago. As

with the case of remedy selection, practice in the hazardous waste field has evolved

significantly in the past five years; these lessons learned are not reflected in this

‘‘cookbook’’ approach.

Left with these uncertainties, the right thing to do is let the practitioners apply

professional judgment to what is truly needed for responsible site cleanup. We recommend that you drop the requirement for using ASTM Standard E1527-94. We

recommend instead that an appropriate inquiry conducted by a duly licensed or

equivalently qualified professional who shall follow the current standard of care appropriate for the location and nature of the inquiry involved. If some kind of assessment guidelines are deemed necessary, then we ask that they be developed by EPA,

using an open, transparent process, and incorporating substantial input from the licensed engineers who practice in this field.

The legislation allows EPA to set up an ‘‘alternative standard’’ through a formal

rulemaking process. However, as long as the legislation identifies the specific ASTM

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standard that qualifies for ‘‘innocent landowner’’ status, we believe that EPA will

never get to the rulemaking stage to create an alternative standard. We urge that

the legislation delete the ASTM standard, and require EPA to undertake a rulemaking to identify the professional judgment required for qualification as an ‘‘innocent owner’’ within a limited, specific date certain period of time after enactment

of this Superfund reform/Brownfields legislation.

Contractor Liability Issues

There has been a lot of discussion in the Superfund reauthorization debate about

the fairness of the Superfund liability scheme, particularly as it relates to small

businesses. My small business is directly involved in fixing the problems caused by

the hazardous waste releases of others. My small business nevertheless has Superfund liability issues, too. The law’s strict, joint and several liability provisions ensnare me in the same liability scheme as it does a Potentially Responsible Party

(PRP), rather than holding me appropriately liable for the engineering and remediation work that I perform. That’s because the law does not differentiate among

wrongdoers or among degrees of culpability. To hold someone liable under the current federal Superfund law, all you need is proof that someone was involved at a

site regardless of their role at the site.

EBAC has been compiling information about lawsuits filed against those who

have been performing cleanup activities for the past five years. There is a significant body of established caselaw whereby courts have allowed parties with direct

CERCLA liability to bring suit under CERCLA against Response Action Contractors

(RACs), drawing cleanup firms into the liability net without regard to fault or negligence in selecting or implementing cleanup technologies.

The case-law that we have compiled is comprised of approximately 40 cases that

have worked their way through the courts—not including the cases that have been

settled because the cost to litigate the claims (even when the firms are innocent of

wrongdoing) is extremely high. Courts have allowed suits alleging that cleanup contractor activities, because they involved moving site contaminants, classified the

contractor as site ‘‘operators’’ and ‘‘transporters’’ according to the definitions of these

words in the Superfund law. Courts have also allowed nearby site residents to sue

the government’s cleanup contractor for damages incurred by exposure to site contaminants. A detailed listing of cases will be provided to this Committee for the

record.

What you have is a practice whereby the huge costs of Superfund cleanups, and

the absence of fairness in allocating the cleanup costs among responsible parties,

creates an environment where responsible parties turn around and sue everyone

else who may have touched a site to obtain contribution for cleanup costs. Is this

fair? No. Does it hurt my business? Yes. In fact, it hurts every professional engineering and scientific firm in business to clean up America’s hazardous waste legacy.

How can fairness be brought back into the law for the cleanup firms—regardless

of firm size? First, treat cleanup firms according to their degree of negligence associated with a problem. If there is an absence of fault or negligence, then do not saddle

the cleanup firm with strict liability. That’s what the present Section 119 of Superfund was intended to do when it passed in 1986. In fact, this Committee’s version

of what was ultimately contained in the House-passed version of 1986 Superfund

contained a preemptive negligence standard developed by the then Majority of

the Committee. Unfortunately, this language was not contained in the final bill,

having been one of the last issues debated by the Conference Committee. However,

because of other omissions or loopholes in the law, PRPs have been able to circumvent Section 119 and seek to hold cleanup firms responsible as site operators,

transporters, and generators.

It should also be noted that the present Section 119 allows EPA to indemnify

cleanup firms for the claims brought against them. If indemnification is offered, a

legislative change is needed that would make Section 119 consistent with the other

parts of Superfund. Namely, the Superfund law applies to releases ‘‘and threatened

releases.’’ However, Section 119, due to a technical drafting error, only applies to

‘‘releases.’’ There should be as much incentive to address threatened releases (i.e.,

BEFORE a release occurs) as there is to remediate a release after-the-fact. I urge

you to undertake this technical correction.

What else is needed? You need look no further than the RAC liability provisions

in last year’s H.R. 3000, which you, Mr. Chairman, sponsored, and this year’s

Superfund legislation sponsored by Chairman Boehlert of the Water Resources and

Environment Subcommittee (H.R. 1300). Both pieces of legislation thankfully included provisions that would address contractor liability issues. These provisions include the following:

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• Negligence standard for cleanup firms that applies to claims brought under federal and state law.

• Statute of repose, which is common in the construction and engineering sectors,

cutting off claims after a period of years.

• Extension of Section 119’s coverage to ‘‘all response actions’’ (which is particularly

important given the significant interest in Brownfields cleanups, voluntary

cleanups, and state-led cleanup actions).

• Clarification that Section 119 is the sole authority to determine the liability of

RACs.

I must point out that all of the above provisions are contained in Chairman Boehlert’s bill, H.R. 1300. H.R. 1300 has the bipartisan support of over 120 members of

this Congress, including Ranking Subcommittee Member Robert Borski (D-PA) and

Ranking Full Committee Member James Oberstar (D-MN). RAC liability provisions

are supported on a bipartisan basis. We support these provisions, and we urge this

Committee to do the same.

Use of the ASTM standard referred to earlier in my testimony makes it all the

more imperative that the Response Action Contractor liability provisions that I have

just identified be included in any Brownfields/Superfund legislation. This is because

the ASTM standard leaves the Response Action Contractors as the sole community

left ‘‘holding the bag’’ as other groups receive liability relief appropriate to their status as innocent of creating hazardous waste pollution. This increases the already

unfair liability exposure of the engineering community and increases the imperative

need for RAC liability reform within this bill.

In conclusion, EBAC greatly appreciates the ability to testify before your Subcommittee today on remedy selection provisions in H.R. 2580, and on Superfund in

general. The time to act is now. Much hard work has gone into moving H.R. 1300

on a nearly unanimous bipartisan basis through the Transportation and Infrastructure Committee. We encourage that it be the basis of this Subcommittee’s markup

vehicle. Please don’t let partisan politics or environmental scare tactics hold up long

overdue action on responsible Brownfields/Superfund legislation any longer! Thank

you, Mr. Chairman and Members of the Subcommittee, for the opportunity to share

the views of EBAC’s membership on both key issues and the need for moving this

vital legislation forward.

Mr. SHIMKUS. Thank you, Dr. Jackson. Now, I will start with my

5 minutes. Set the clock and move in regular order.

To no one’s surprise, my first question will be to Mike. Again, I’m

sorry I missed your opening statement. We have the congressional

baseball game pizza party going on right now, where we deliver the

checks. And although I should be up there, the coach of the team

needs to be up there more than I do, and that’s the chairman. So,

I’m a pinch hitter and so I missed your opening statement. But, of

course, I’ve read it and you followed the discussion I had with the

EPA.

The EPA seems to be readily—characterizes its administrator reforms as being successful for small businesses, and they cite their

18,000 cases. In particular, the Agency cites to its use of the status

comfort letter, to notify and settle with small business over their

liability before contribution suits by larger PRPs are levied. From

your statement, I get the sense this form of settlement has done

anything but bring you comfort. Can you elaborate on how the

process works and why you believe, obviously as I do, that it is so

fundamentally unfair to the small businesses involved?

Mr. NOBIS. First of all, there’s two perspectives, I guess, on success. If you’re the EPA, and I’ve talked with—the people that have

been involved with us say, yes, it was a successful settlement, in

that they did get us to settle. From our perspective, though, it

wasn’t a success, because about 149 companies in Quincy were not

responsible for the hazardous waste that caused the—our site to be

declared a Superfund site. They—we had a process that basically—

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and I used in my testimony the word ‘‘forced,‘‘ and we were forced.

I didn’t use the word ‘‘blackmail,‘‘ but——

Mr. SHIMKUS. I’ve used extortion before. You’ve heard me——

Mr. NOBIS. Well, I don’t want to use that, but we were forced

into it. Was it successful? Did they get the settlement done? Yes,

they did. But what happened was 149 companies that had nothing

to do with the hazardous waste in that site were forced to pay a

settlement. My company paid $43,000. Forty-three-thousand dollars, that out of the gratis of my heart, I had to give the EPA. And

unfortunately, that money went to the lawyers, because the site

was already cleaned. The parties that were involved in polluting

that site had already agreed to clean it up. It was already done.

And then late in the process, then the diminimus went through.

And, basically, due to a time problem in their statute of limitations,

within a very short period of time, a matter of just a short couple

of months, forced us into the settlement.

We were basically told that if we did not settle with the amounts

they gave us, then they—we would all be hauled into Federal court

and that our cost would be way beyond anything we could ever

imagine. And what do you do? And since we did not have a time

to really deal with the decision properly, many of us were forced

to settle and begrudgingly. And the EPA told us that, well, you can

settle. We’re not saying you did anything wrong, but we want this

done.

So, was it successful? Yes. They point to Quincy as being a success story. For the small business and those of us in Quincy, we

had to be involved. It was a disaster and very difficult for our companies.

Mr. SHIMKUS. Thank you. Mr. Johnson, have you ever operated

a small business?

Mr. JOHNSON. No, but my father is a small businessman. I’ve

worked with him.

Mr. SHIMKUS. Okay, thank you. And, of course, you are in a legal

professional?

Mr. JOHNSON. Yes.

Mr. SHIMKUS. So, you understand burden of proof and you understand evidence, whether—I’m not a lawyer—primary evidence or

circumstantial evidence. Would you feel it’s right to penalize a

business, which there’s no evidence to suggest that they’re responsible for polluting a site?

Mr. JOHNSON. I know that in my State, we are very careful before we name any small parties as parties in a Superfund cleanup

case. We examine the facts. We look at the types of material that

may have been sent to the site.

Mr. SHIMKUS. Okay, but we’re now addressing the—obviously

the—I did that myself, sorry—the Federal Government and our

Federal legislation. Would you think it was right, fair, and just to

hold small businesses, like Mr. Nobis, who has recycled everything

and there’s no burden of proof through documentation that would

lend anyone to believe that his company was responsible for the

major industrial waste that was placed in that municipal landfill?

Mr. JOHNSON. We, too, in the Attorney General’s offices throughout the country, support an exemption from liability for small businesses.

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Mr. SHIMKUS. Could you help us—since the EPA is very reticent

to try to define that, do you think you all would help us define

small business?

Mr. JOHNSON. I think we would be happy to sit down with the

committee and give you our comments on what is appropriate. Our

concerns, as we stated in the testimony, is that the status of the

parties should not necessarily be the sole criteria. For instance, if

a small business sent very toxic materials to a site, where large

quantities——

Mr. SHIMKUS. We’re not addressing those—yeah, and, of course,

newer legislation, you put your markers down.

Mr. JOHNSON. Right.

Mr. SHIMKUS. And I don’t think anyone wants to not hold anybody responsible for polluting to pay for the cleanup of the site.

The question that we’re debating is: what about those parties, who

have not polluted, and why should those businesses be forced into

bankruptcy through this process? And so, if you could help with

legislation—let me go on with this line of questioning.

Although there were significant problems facing—actually, you

made a statement in your written documentation presented that,

although there were no significant problems facing the Federal—

there were significant problems facing the Federal implementation

of CERCLA during the 1980’s, the current statute is now getting

the job done as intended. This would suggest that the State prosecutors believe that the liability scheme is fair—you just testified

against that for small business—not harming innocent parties, not

causing unncessary litigation, and not delaying cleanup, and not

inhibiting redevelopment. Is this the position of the Attorney General—is this the position of the Attorney’s General, that they

have—I need to turn the page—no recommendations for reform?

Mr. JOHNSON. We do have recommendations for reform and we’ve

addressed some of the things that we support in our written testimony and we’ve, also, attached our resolutions on the types of reforms that we think are appropriate. We think that fundamentally,

the core liability provisions of CERCLA are sound and should be

supported. We, also, agree with you, Congressman, that there

should be some changes, with respect to certain aspects of that. We

believe that a small business exemption is appropriate under—with

the proper safeguards to make sure that it isn’t abused. The same

thing we feel with respect to municipal solid waste disposal.

We have to be, though, very careful when we change language

of the statute, because too many lawyers will address language

changes and use—and try to use them in a process that inevitably

delays the cleanups and raises transaction costs, rather than decreases them. And so, we think that we should continue to rely on

many of the administrative reforms that have been reached in

CERCLA. There are certain aspects, of course, that we’d be happy

to work with the committee and make codified changes in the statute, as well, where there are—is really a need for that. But, we

have to be very careful in that process.

Mr. SHIMKUS. You were passed and all the members of the panel

were passed a piece styled, ‘‘Superfund is an unjust litigation

nightmare.‘‘ I’d ask for you to look at that and I ask that this be

placed in the record. Without objection, so ordered.

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[The information follows:]

SUPERFUND IS AN UNJUST LITIGATION NIGHTMARE

‘‘Most mayors will tell you that the major impediment in securing private capital for the clean up and redevelopment of brownfields is Superfund’s liability regime. We believe that...[i]t is time to free innocent parties, both public and private entities, from Superfund’s unfair liability strictures. Parties that had no part

in causing the contamination at individual sites should no longer be held liable

under federal law . . . It is time to create more certainty for the current owners of

contaminated properties—the hundred of thousands of sites in every place in

America that are likely to be brownfields at some time in the future—by providing

them certainty in their cleanup costs and liability exposure.’’

—The Honorable Jim Marshall in testimony before the United States Senate

Environment and Public Works Committee, May 25, 1999

‘‘We have been living under a federal statute and its strict liability regime—

although well-intended and largely aimed at more contaminated properties posing

greater threats to the public—that has dramatically slowed progress by all parties

in coming to terms with lesser contaminated properties, sites we generally describe as brownfields . . . It has produced a legacy of inaction by property owners,

be they innocent or responsible parties, which we now measure in terms of thousands of properties and millions of acres... Rhetoric and political advantage will

not cleanup one brownfield, but bipartisan legislative action will... ‘‘[F]inality’’

must be provided to prompt current owners to move forward and cleanup contaminated properties...The price of keeping EPA over-empowered in this area is simply too high.’’

—The Honorable Jim Marshall in testimony before the United States Senate

Environment and Public Works Committee, May 25, 1999

‘‘There is no question 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. Many potential developers of brownfields sites have been deterred because even if a state is completely satisfied that the site has been properly addressed, and even if the site is not on the NPL, there is the potential for

EPA to take action against the cooperating party under the CERCLA liability

scheme . . . In considering how to restore brownfields sites to productive use, please

remember the importance of state voluntary cleanup programs in contributing to

the nation’s hazardous waste cleanup goals.’’

—Tom Curtis, Director of the Natural Resources Group, National Governor’s

Association, in testimony before the Senate Committee on Environment and Public

Works, May 25, 1999

‘‘I am here to tell you that, in actuality, the true Brownfields market has not

kept pace with expectations. Why? We have been asking our clients just that. Our

clients’ responses are fairly unanimous. They fear that EPA will ‘‘second guess’’

Brownfield cleanups, and require costly site rework at a later dat to reach a different site cleanup standard so they ‘‘hold onto’’ lightly contaminated parcels instead of turning them over to beneficial reuse. Moreover, there remains potential

down-stream liability associated with that reuse which further retards the process. These concerns result in owners of such properties not undertaking redevelopment efforts at viable Brownfields sites. While EPA has indicated a willingness

to enter into, on a case-by-case basis, prospective purchaser agreements at

Brownfields sites, the process to enter into those agreements is quite time consuming and there is no certainty in the end that EPA will agree to a prospective

purchaser agreement.

‘‘H.R. 2580’s provisions in Section 3 provide the finality in Brownfields decisions

are truly needed if this market, and the actual cleanups, are to accelerate...This

provision is very important to spurring increased voluntary cleanup actions at

Brownfields sites across the country and reducing possible risks to nearby populations that are currently not addressed, expressly because of the fear of federal

liability.’’

‘‘The permit waiver for on-site response actions that is contained in H.R. 2580

would remove the barriers to actual on-site cleanup and significantly increase the

pace of Brownfields cleanups.’’

—The Cleanup Contractors, The Environmental Business Action Coalition in

testimony before the Subcommittee on Finance and Hazardous Materials, August

4, 1999.

230

‘‘H.R. 2580 succinctly mandates that U.S. EPA must receive a Governor’ concurrence prior to listing a facility on the National Priorities List. We support this

provision as it is clear, unambiguous and satisfies our goal of clarifying the role

of the federal Superfund program in the future.’’

‘‘Both the National Governors’ Association and ASTSWMO oppose provisions

which allow the U.S. EPA to review and approve existing, established State voluntary cleanup programs. ’’

‘‘It is our belief that we can no longer afford to foster the illusion that State

authorized cleanups may somehow not be adequate to satisfy federal requirements. The potential for U.S. EPA overfile and for third party lawsuits under

CERCLA is beginning to cause many owners of potential Brownfields sites to simply ‘‘mothball’’ the properties’’

‘‘H.R. 2580 satisfies the goal of clarifying which governmental entity is an

should be responsible for deciding when a cleanup is complete and when a party

is released from liability.’’

—The National Governors Association and the Association of State and Territorial

Waste Management Officials in testimony before the Subcommittee on Finance and

Hazardous Materials, August 4, 1999.

‘‘It has been shown that Superfund’s liability regime unfairly threatens innocent

parties and too often drives private sector investors from brownfields to more pristine locations. And, we recognize that this Act helps fuel a development cycle that

imposes increasing burdens on all of us.’’

—The Honorable Marc Morial, Mayor of New Orleans, The Honorable Michael

Turner, Mayor of Dayton, The Honorable Jim Marshall, Mayor of Macon,

testimony before the Subcommittee on Water and the Environment, May 12, 1999

‘‘Another provision that is important to the nation’s Governors concerns the requirement for a Governor to request the listing of a site before a state’s site may

be added to the NPL... Because states are currently overseeing most cleanups,

listing a site on the NPL when the state is prepared to apply its own programs

and authorities is not only wasteful of federal resources, it is very often counterproductive, resulting in increased delays and greater costs. The Governors fear a

case where there will be ‘‘two masters’’ of the cleanup process . . . To avoid this we

advocate that Governors should be given the statutory right to concur with the

listing of any new NPL sites in their states.’’

—Tom Curtis, Director of the Natural Resources Group, National Governor’s

Association, in testimony before the Senate Committee on Environment and Public

Works, May 25, 1999

‘‘One common incentive provided by these programs is liability relief. Typically,

the state will provide some form of liability relief once it has approved a cleanup.

In Ohio, relief comes in the form of a ‘‘No Further Action’’ letter from the state

EPA. Unfortunately, there is no guarantee that the federal EPA will not assert

authority at a future date and require additional cleanup. Without the certainty

of knowing that they are protected from federal as well as state liability, property

owners and developers are very reluctant to undertake development of a site

which is or might be contaminated. Let me illustrate with an example. I recently

had a contract as listing agent to sell a large warehouse property. The property

was adjacent to a government-owned landfill. There were concerns about contamination on the property due to migration of heavy metals from the landfill. If we

only had to comply with Ohio law, the government entities that owned the landfill

would have removed the contamination, and the property would have been sold

in a reasonable time. However, because of uncertainty over federal liability, the

lender and the purchaser were reluctant to go forward. As a result, it took five

years to close the deal, and only after we found a new buyer and a new lender

willing to face the risk of future liability.’’

—National Association of Realtors, May 12, 1999

‘‘The Superfund liability scheme has clearly exacerbated the difficulty of bringing brownfields back to productive use. Moreover, that liability scheme itself is

responsible for the creation of many brownfields. This system makes the owners

of contaminated properties liable for millions of dollars in cleanup costs even if

they had nothing to do with contaminating the site and they purchased the property decades after the contamination occurred. It exposes landowners not only to

Superfund actions by EPA, but also to lawsuits decades in the future by as-yet

unanticipated parties who incur costs to clean up the property. Concerned about

this ‘‘trailing’’ liability, owners of the properties that may be contaminated hold

these properties back from the market. This practice has been referred to as

‘‘mothballing,’’ bringing to mind the useless hulks of rusting ships set aside by the

U.S. Navy after World War II. When properties which carry the stigma of conVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00233 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
231

tamination become available for sale, most developers avoid them out of concern

for exposure to endless uncertainty and undue financial liability.’’

—Barry J. Trilling, National Association of Industrial and Office Properties,

testimony before the Subcommittee on Water Resources and Environment, May 12,

1999

‘‘The example of states like Pennsylvania, Michigan, Indiana, and others with

voluntary cleanup programs support this view. In Pennsylvania, for example,

NAIOP actively participated in the legislative process that resulted in Act 2, the

Land Recycling and Environmental Remediation Standards Act. Under that statute, parties may choose to clean up contaminated properties to one or more of

three different levels, after which they receive a release from liability under state

environmental laws. The remediation standards of Act 2 apply both to voluntary

cleanups and mandatory remedial actions under the state’s version of Superfund.

The Pennsylvania statute has been adopted as model legislation by the American

Legislative Exchange Council, an organization represented by legislators from all

50 states. Under Pennsylvania’s program, in effect since July, 1995, 267 sites

have already been cleaned up and nearly 500 sites are in the process of remediation. State voluntary remediation and revitalization efforts, such as Pennsylvania’s, are significant steps forward, but these state programs do not protect our

members from liabilities arising under the federal Superfund statute.

—Barry J. Trilling, National Association of Industrial and Office Properties,

testimony before the Subcommittee on Water Resources and Environment, May 12,

1999

‘‘We know that Superfund’s liability regime too often drives private sector investors from brownfields to more pristine locations. We know these rules punish innocent parties, fueling a development cycle that is unsustainable. We know that

current law must be reformed to undo the bias toward new land resources over

recycling land that is already urbanized or developed. Mitigating the effects of

this nearly twenty-year Superfund policy will require actions on several fronts.

‘‘We have learned that liability under Superfund is their dominant concern. Despite progress in securing ‘‘comfort letters’’ at many sites, lender liability reforms

and growing confidence in state program efforts, there is real anxiety, and we

would wish otherwise, among bankers and other lenders on these issues. The

specter of Superfund liability severely limits their ability to increase the flow of

private capital into these projects.’’

‘‘We also strongly support liability reforms contained in H.R. 1300 and H.R.

2580 to address the many circumstances whereby cities and other local governments have acquired brownfield properties in the past. Under these provisions,

cities and other public agencies are rightly afforded innocent party relief in the

performance of local government functions.’’

‘‘We hope that the legislation that is adopted by this Committee, as provided

in H.R. 2580, will encourage states to use these funds to place more priority on

efforts to bolster state programs in support of brownfield cleanups.’’

‘‘Without this certainty on state authority, we can’t hope ever to provide the

necessary assurances sought by private investors in brownfield sites, let alone secure final decisions on the hundreds of thousands of brownfields sites we are seeking to clean up and redevelop. Mr. Chairman, we also want to indicate our interest in seeing provisions that would help accomplish more cooperation and integration of applicable federal laws and standards. One of the areas that H.R. 1300

does not address is the applicability of RCRA and LUST specifically at brownfield

sites. Mayors have been very consistent in urging more attention in federal policies to a ‘‘one-stop’’ brownfields regulatory program at the state level, where

states, which are vested with delegated authority, can provide more coordinated

and integrated programs. Such an approach would respond to the realities of the

contaminants and types of problems that localities encounter at these sites.’’

‘‘I would note that H.R. 2580 provides authority for RCRA waivers to allow

states to integrate this law’s permit requirements with cleanups of brownfields.

I understand that this provision does not diminish or alter RCRA requirements,

but is intended to give states some flexibility in delivering a more responsive and

coordinated regulatory program in addressing brownfields. This or some variant

of this provision would be very helpful to those of us at the local level who often

find ourselves confronting increased complexity at specific sites as we work to return them to productive use.’’

—The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of the U.S.

Conference of Mayors, testimony before the Subcommittee on Finance and

Hazardous Materials, August 4, 1999

232

‘‘Legal authority for qualified states to play the primary role in liability clarification is critical to the effective redevelopment of local brownfield sites. A state

lead will increase local flexibility and provide confidence to developers, lenders,

prospective purchasers and other parties that brownfield sites can be revitalized

without the specter of Superfund liability or the involvement of federal enforcement personnel. Parties developing brownfields want to know that the state can

provide the last word on liability, and that there will be only one ‘‘policeman,’’ barring exceptional circumstances.’’

‘‘Therefore, in delegating brownfields authority for non-NPL caliber sites to the

states, NALGEP proposes that: EPA should provide that it will not plan or anticipate further action at any site unless, at a particular site, there is: (1) an imminent

and substantial threat to public health or environment; and (2) either the state response is not adequate or the state requests U.S. EPA assistance.’’

—Donald J. Stypula, Manager, Environmental Affairs, testimony before the

Subcommittee on Finance and Hazardous Materials, August 4, 1999

‘‘ . . . We all know it doesn’t work—the Superfund has been a disaster. All the

money goes to lawyers and none of the money goes to clean up the problem it was

designed to cleanup.’’

—Clinton speech to business leaders at the White House, February 11, 1993

‘‘I’d like to use that Superfund to clean up pollution and not just pay the lawyers.’’

—President Clinton, State of the Union Address, Feb. 17, 1993

‘‘On a site by site basis, it is clear that liability negotiations consume a lot of

time and delay completion of the site.’’

—EPA Inspector General in testimony before House Subcommittee on Government

Reform and Oversight, May 1996

‘‘ For nonfederal sites, the time required to complete cleanups increased from

2.4 years in 1986 to 10.6 years in 1996... EPA officials also said that the effort

to find the parties... and to reach cleanup settlements with them can increase

cleanup times.’’

—Government Accounting Office Report, Superfund, Times to Complete the

Assessment and Cleanup of Hazardous Waste Sites, March 1997.

‘‘Superfund has been a bonanza for lawyers and consultants... After over a decade of delay, cleanup is only now beginning at the McColl site in Fullerton... cleanup was continually put off as various defendants wrangled in court

over how much they would pay’’.

—James M. Strock, California Secretary for Environmental Protection, 1994.

‘‘Hastings... has already spent roughly $1.1 million under Superfund, yet the

cleanup is far from completed. More that 90 percent of the money has been spent

on consultants and legal fees.’’

—Governor Ben Nelson, Nebraska Journal March 1, 1996.

‘‘[Superfund] has failed the efficiency test: of the $13 billion spend by the governments and companies, one-fourth has gone to what are euphemistically known

as ‘‘transaction costs’’—fees to lawyers and consultants, many of them former Federal officials who spun through Washington’s revolving door to trade their Superfund expertise for private gain.’’

—New York Times Editorial, February 7, 1994

‘‘[Superfund] is generating intolerable injustices and needs to be fixed... Many

of these cases are grotesquely unfair, and all invite furious litigation as small

companies, big ones, banks, mortgages holders, local governments and insurers all

go after each other...That is why a high proportion of the money spent so far

has gone not into clean-ups but into lawyer’s fees . . .’’

—Washington Post Editorial September 2, 1993

‘‘[Superfund] has created a legal swamp, enriching lawyers while accomplishing

precious little cleanup.’’

—Seattle Times Editorial Board, February 23, 1995

‘‘Just about anyone who ever has been involved with a site can be held liable.

That encourages the parties to sue each other endlessly to determine who pays.’’

—Chicago Tribune Editorial, February 14, 1994

‘‘ . . . Superfund is absurdly expensive, hideously complex, and sometimes patently unfair. As a result, it invites litigation the way dung attracts flies: not by

seeking but just by being’’.

—USA Today Editorial, February 2, 1994

‘‘Far too much money is being spent on lawyers and not nearly enough on cleanup. Our primary concern is that tens of thousands of abandoned properties in

233

urban areas lie contaminated and unproductive because developers and local businesses fear getting pulled into Superfund’s far reaching liability system. Congress

must act this year to fundamentally reform the failed liability system... Without

these changes these properties will lie dormant and critical economic revitalization opportunities will be lost for cities nationwide.’’

—Letter from Robert Ingram, President of the National Conference of Black

Mayors to Speaker Gingrich, October 1995

‘‘Eliminate retroactive and strict liability prior to January 1, 1987 to prohibit

liability for conduct that was not negligent, illegal or in violation of regulations

or permits at the time.’’

—Recommendation of 1995 White House Conference on Small Business

‘‘ . . .[A]ny meaningful reform of the liability scheme must include elimination of

retroactive liability for waste disposal prior to January 1, 1987.’’

—Acting Chief Counsel for Advocacy, U.S. Small Business Administration, Letter

to Leon Panetta, Director, Office of Management and Budget, January 25, 1994.

‘‘The current Superfund liability scheme of strict, joint and several and retroactive liability is grossly unfair. We are convinced that this must be rectified in

the reauthorization of Superfund. In reality, the current system is not a ‘‘polluter

pay’’ system but instead a ‘‘deep pocket pay’’ system. The scheme imposes significant impediments to redevelop contaminated sites and only serves to dry up

transaction costs at the expense of getting cleanups completed.’’

—Charles McIntosh, Office of the Governor, State of Michigan in testimony before

the House Commerce Committee, June 22, 1995.

‘‘The ABA position holds that CERCLA needs substantial revision as Congress

revisits this year. As presently written, interpreted, and enforced, it results in

massive. wasteful, and unproductive litigation. In many instances, it has also resulted in the imposition of liability grossly disproportionate to the conduct involved, perverting rather than implementing the polluters should pay principle.

In many situations, it has not been cost-effective, nor have the social benefits been

equal to the costs imposed. Finally, in the over fourteen years since its enactment,

relatively few sites have been cleaned up...

Government should generally avoid passing laws which provide for the imposition of retroactive liability: that legislation which creates a new obligation, imposes a new duty, or attaches a new disability for past activities. Retroactive

criminal legislation is barred by our Constitution. Retroactive civil legislation is

contrary to the common law, and unknown in the civil law. It is unfair and presents an additional major risk to business decisions, because present activities

which are legal may have uncertain future consequences due to after the fact enactments of unanticipated legal schemes. This added risk tends to discourage new

investments.’’

—Statement of the American Bar Association presented to the House Commerce

Committee June 22, 1995.

‘‘While massive, time-consuming litigation may perhaps provide short-term pecuniary benefits to some in the legal profession, the American Bar Association and

the attorneys it represents have no desire to stand by idly and profit from other

people’s misery.’’

—May 21, 1997 letter from Robert D. Evans, Director of Governmental Affairs,

American Bar Association to Rep. Sherwood Boehlert

‘‘A vote for the Markey Amendment is a vote against Superfund reform and in

favor of the current, flawed Superfund Program... Many innocent small-business

owners are unjustly trapped in the Superfund litigation nightmare even though

they followed the law and legally disposed of their wastes . . . No small business

can afford to stay in business when the average cleanup costs are $30 million . . .[T]he Markey amendment would prevent any possibility of Superfund reform for Fiscal Year 1997... Supporters of the amendment are forgetting about

the small businesses and municipalities who are stuck in Superfund litigation . . .This is a key vote for small businesses.’’

‘‘Adoption of the Markey amendment would condemn the Superfund program to

continue as a wasteful and failed environmental program—something this country

neither wants, nor can afford . . . A vote for this amendment is a vote for the status

quo, and against the interest of small business and other innocent parties who

have been caught in the Superfund litigation lottery. After 15 years, it’s time for

a real change that will get small business and other innocent parties completely

234

out of Superfund. Hazardous waste sites can—and will—be cleaned up faster

under the GOP reform plan.’’

—Statement of Jack Farris, President of the National Federation of Independent

Businesses, the nation’s largest small-business advocacy group in a statement

dated June 25, 1996.

‘‘While it is no doubt convenient for the Government to assign liability to all

parties that have contributed to a Superfund site irrespective of whether they

were in compliance with existing laws, doing so violates common standards of fairness while doing nothing to deter future undesirable behavior. In some cases, parties held liable were not only in compliance with laws existing at the time of their

action, but were in fact following the State government’s explicit directive to deposit the waste at the site.’’

—from the text of the Treasury Department proposal on Superfund, released on

August 23, 1993

‘‘As you will recall, this has been a matter which the Oversight Subcommittee

when I was the chairman of it, complained on many occasions. We had a number

of hearings about the inadequacies of the administration and about the basic failures and the structural failures which were built into Superfund law which defied

even the best of administrations. I believe that these are matters which have to

be corrected because it is intolerable that we would spend so much money on litigation, so little money on cleanup. So much time has been dissipated and wasted,

and so little accomplishment generally can be observed in what we have done.’’

—Oral Statement of the Honorable John Dingell, Ranking Member, Commerce

Committee, during a hearing of the Commerce, Transportation and Hazardous

Materials Subcommittee, June 22, 1995

‘‘It is easy to criticize the current liability scheme and the way that it has been

administered, and there has certainly been no shortage of people who have been

willing to do so. I agree with many of those criticisms. We spend far too much

money on litigation and not enough on cleanups...there is no question though,

that the liability scheme is unfair, litigious and a policy disaster’’.

—Opening Statement, Chairman Al Swift, Hearing before the Transportation and

Hazardous Materials Subcommittee, February 19, 1994.

‘‘[W]e believe legislative changes are necessary so Superfund can better protect

human health and the environment and operate in a more cost-efficient manner.

Each of us has heard concerns from our constituents that the pace of cleanup is

too slow; that more money is being spent on litigation than on cleanup activities;

that citizens are not properly involved in cleanup decisions; and that program

costs are unnecessarily high.’’

—Letter from Senators Robert Byrd and John Rockefeller to Senator John Chafee,

Chairman Senate Environment and Public Works Committee, dated June 25, 1997.

‘‘A system that results in 50% of the costs going to lawyers—although I am a

lawyer—consultants, and transactional costs is a system that begs for, we believe

reform, fundamental reform, so that more of the money goes to site remediation.’’

—Statement of Michael Finnegan, Counsel to the Governor, State of New York,

before the Subcommittee on Finance and Hazardous Materials, March 7, 1997.

‘‘One site in particular has escaped the effectiveness of CERCLA simply because

there are 18 or more PRPs and CERCLA clearly provides the right to litigate. The

litigation is not aimed at the regulatory agencies but instead at the PRPs themselves.

With over 20 million dollars spent on characterizing Fields Brook at least half

has been devoted to suing non-participating PRPs by participating PRPs; PRPs

against other PRPs to determine who put how much into the Brook; Who’s material was more toxic and should they pay more than less toxic polluters: litigation

against insurance companies to pay for the disposed materials of PRPs they insured and on and on.’’

—Statement of Leonard E. Eames, Owner Operator Fish City Marina, Ashtabula,

Ohio before a Hearing of the Subcommittee on Finance and Hazardous Materials,

February 14, 1997.

‘‘The Council is cognizant of the negative effect [Superfund] has had upon the

reuse and redevelopment of real estate in Ohio. CERCLA’s liability scheme, coupled with the staggering cost of conducting and environmental cleanup in accordance with Superfund program requirements and ill-defined cleanup standards has

resulted in a widespread reluctance to use or acquire ‘‘so-called’’ contaminated

property. Manufacturers are reluctant to expand operations into existing commercial and industrial properties, developers are reluctant to acquire existing comVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00237 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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mercial and industrial properties for redevelopment, lenders are reluctant to loan

on such properties and even public or non-profit entities shun such properties...

The Ohio legislation establishes a liability scheme which exempts those who

neither caused nor contributed in any material respect to the release of hazardous

substances from liability for the costs of investigation and cleanup.’’

—Statement of James D. Donohue, Ohio Steel Industry Advisory Council, before

a Hearing of the Subcommittee on Finance and Hazardous Materials, February 14,

1997.

‘‘ . . . Superfund is unduly harsh on small businesses. Under this liability scheme,

any contributor to a site is potentially responsible for the entire cost of a site,

even if the volume of waste they contributed to the site was minimal. Under retroactive liability, small businesses can be held liable for clean-ups that resulted

from alleged waste management activities occurring years or even decades ago.

It need not be demonstrated that a small business was negligent or at fault to

establish liability.

Like many of my fellow dealers in Ohio and across the nation, I sent my wastes

to recycling facilities. The solvents in question were stored in compliance with all

applicable regulations in effect at the time, not mixed with other chemicals, and

were transported by licensed haulers to licensed facilities which were designed to

recycle a resource for reuse...

My story is just one of many businesses that have been unjustifiably burdened

by an unfair system. I hope my statement will give you and your colleagues a

clearer picture of the devastation wreaked on my dealership and America’s small

businesses community by Superfund . . .’’

—Statement of Richard Smith, President, Bob Daniels Buick Co., Columbus, Ohio,

before a Hearing of the Subcommittee on Finance and Hazardous Materials,

February 14, 1997.

‘‘The uncertainties, disagreements, and litigation produced by these aspects of

joint and several liability have imposed delay, profound resentment, and high

transaction costs on the basic process of achieving cleanups...[t]he basic mechanism for funding Superfund cleanups is fundamentally unfair and extremely inefficient. This problem cannot be solved by EPA’s administrative reforms . . .’’

—Statement of Michael W. Stienberg, on behalf of the Superfund Settlements

Project in a Hearing before the Subcommittee on Water Resources and

Environment, April 10, 1997.

‘‘Superfund’s liability provisions make brownfields more difficult to redevelop, in

part, because of the unwillingness of lenders, developers, and property owners to

invest in a redevelopment project that could leave them liable for cleanup costs.’’

—United States General Accounting Office Report to Congressional Requesters,

RCED-96-125, Barriers to Brownfield Redevelopment, June 1996, Page 2.

‘‘Perhaps the greatest barrier to industrial site reuse, however, is the 1980 Comprehensive Environmental, Response, Compensation, and Liability Act--commonly

known as Superfund.’’

—‘‘Restoring Contaminated Industrial Sites’’ by Charles Bartsch and Richard

Munson, Issues in Science and Technology, Spring 1994 Issue.

‘‘Superfund laws actually reduce the reuse, supply of, and demand for

brownfield properties’’

—Unlocking the Brownfields: Overcoming Superfund Barriers to Redevelopment,

by Ross Macfarlane, Jennifer Belk and J. Alan Clark, a Report Done By the Law

Firm of Preston Gates & Ellis, Seattle, Washington.

‘‘The Superfund liability system needs to be reformed to reduce the burden on

small businesses and to ensure that more money goes to clean-up not lawyers . . .’’

—Statement of Carol Browner, Administrator, U.S. EPA, before of hearing of the

Subcommittee on Commerce, Trade, and Hazardous Materials on March 16, 1995.

‘‘We are all frustrated by the number of lawyers who are now involved in Superfund. We want the lawyers out.’’

—Statement of Carol Browner, Administrator, U.S. EPA, before of hearing of the

Subcommittee on Commerce, Trade, and Hazardous Materials on March 16, 1995.

‘‘ . . . We are paying a high price in terms of administrative and cleanup costs

incurred by EPA, and a high price in terms of the transaction and cleanup costs

incurred by companies and State and local governments potentially liable for contamination. We are paying a high price in terms of the basic fairness—or unfairness—of the program. Finally, we are paying a high price in terms of the anxiety

and frustration of local communities concerned about delays in cleaning up contaminated sites... Additional time is spent negotiating and litigating over the reVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00238 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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sponsibility for, and the cost and extent of cleanup. These delays, even if sometimes explainable, can add significantly to the total costs of cleanup.’’

—Statement of Carol Browner, Administrator, U.S. EPA, before of hearing of the

Subcommittee on Transportation and Hazardous Materials on May 13, 1993.

‘‘One of the most significant delays that occurs in the Superfund process is the

allocation of liability among responsible parties.’’

—Statement of Carol Browner, Administrator, U.S. EPA, before of hearing of the

Subcommittee on Transportation and Hazardous Materials on May 13, 1993.

‘‘I think we all agree that the transaction cost portion is one due very serious

evaluation and consideration. Again, I do not think we could have predicted 12

years ago that the result of the law would be that responsible parties suing responsible parties—insurance companies, I mean, the level of legal actions that

would take place. We need to do something to address it.’’

—Statement of Carol Browner, Administrator, U.S. EPA, before of hearing of the

Subcommittee on Transportation and Hazardous Materials on May 13, 1993.

‘‘ . . .[A] system which puts a premium on assessing liability invites legal warfare, a result which is fundamentally at odds with the goals of the statute...[I]t

appears as if many, if not most, of the 20,000 PRP’s named so far are not the

midnight dumpers Congress has in mind in 1980. Instead they are thousands of

small- and medium-sized businesses, municipalities, individuals, hospitals, and

others who never broke any laws, who sent their waste where they were told—

often to government-permitted facilities—and who did not and do not fit the popular definition of irresponsible polluters... arly, the Superfund status quo is unacceptable. We cannot tolerate a program which generates so few cleanups, a program which encourages the responsible Agency, EPA to concoct all manner of public relations schemes to inflate its accomplishment, and a program which is disappointing to thousands of citizens who live near Superfund sites.’’

—Extension of Remarks of Congressman Mike Synar, October 9, 1992.

‘‘When examining the few 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, its 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...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...There

isn’t one segment whether it be a retail store, a professional service business, or

a construction business that has not been touched.’’

—Statement for the Record by National Federation of Independent Business before

the Senate Subcommittee on Superfund, Waste Control, & Risk Assessment on

March 5, 1997.

‘‘ . . . EPA, under the current liability provisions, is now going after hundreds of

small service stations in my district who thought that they were doing the right

thing...This despite the fact they had no knowledge of nor control over the facility’s actions . . . In fact, the EPA has taken unusual steps to ‘verify’ which services

stations sent used oil to the Peak Oil site and how much they sent. The de minimis parties involved in the Peak Oil site were identified by a truck driver who

worked for Peak Oil from 1955 until 1965 hauling used oil from various locations

throughout Florida... With EPA officials in a car, they drove around Florida and

he pointed to all the businesses from which he claimed to remember picking up

oil . . . Nevertheless, Yarborough Tire Service has had to hire a lawyer to challenge

the EPA ‘evidence’.’’

—Congressman Mark Foley in testimony before the Subcommittee on Finance and

Hazardous Materials on September 4, 1997.

‘‘[S]ound science must have a seat at the table. In determining the appropriate

remediation option, science must play a role in distinguishing realistic scenarios

under which public health and safety would be at risk. Remediating a site under

outlandish assumptions not only creates fear within the community, but ties up

additional resources and prolongs the final clean-up.’’

—Congressman John E. Peterson in testimony before the Subcommittee on Finance

and Hazardous Materials on September 4, 1997.

‘‘Little did the community know then, that EPA’s decision to declare the plant

a Superfund site was not the beginning, but the end of efforts to clean up the

plant. It was as if EPA had signed the death warrant for the entire commuVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00239 Fmt 6601 Sfmt 6621 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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nity . . . And they wait to this very day. While in the middle of town there sits the

plant—almost 1 million square feed of prime industrial real estate... Empty of

jobs, empty of taxes for the local schools, and empty of hope. Adding insult to injury, local economic development officials tell me that they have had to refuse several offers to resume industrial production at the site... And all of this because

the Superfund program—while admittedly well intentioned—has became an almost impenetrable morass of red tape, liability litigation and expense . . . No community should have to suffer through what has happened to us.’’

—Congressman Phil English in testimony before the Subcommittee on Finance and

Hazardous Materials on September 4, 1997.

‘‘Each year since I have been elected to Congress, I have visited each site on

what I call my annual Superfund tour. I am accompanied by employees of the

EPA Superfund Region 2 division, and I am joined in many cases at each site by

local elected officials, town administrators, and concerned members of the community. At each site, the EPA site manager provides a status update on the site to

me and community representatives and, unfortunately, the updates do not seem

to vary much from year to year . . . In the 17 year history of the program, only one

of my 13 sites has been listed in the ‘‘Construction Completed’’ category and none

have been deleted . . .’’

—Congressman Rodney Frelinghuysen testimony before the Subcommittee on

Finance and Hazardous Materials on September 4, 1997.

‘‘In New Jersey alone, 57 school districts have been assessed for liability under

Superfund . . . In one case in New Jersey, involving the Gloucester Environmental

Management Services Landfill (GEMS), 53 school boards were assessed $15,000

each, not including additional money associated with legal costs. As a result of

the tangled Superfund liability web, these precious dollars in a school’s budget

were diverted away from educating children and into the Superfund coffers.’’

—Congressman Rodney Frelinghuysen in testimony before the Subcommittee on

Finance and Hazardous Materials on September 4, 1997.

‘‘In drafting this statement, I came upon the Environmental Protection Agency’s

Web Site. Curious, I decided to see if it mentioned Operating Industries Incorporated (OII), a Superfund site in my district that has been a red tape, bureaucratic nightmare for ten years. Imagine my surprise to not only see it mentioned,

but to find it listed under the heading ‘‘Superfund Success Stories’’.

As you can see [EPA] lauds the Agency’s settlement with the responsible parties, the agency’s quick action in formulating a plan for the construction of two

cleanup facilities, and the Agency’s close working relationship with the surrounding community.

I don’t know where they EPA got its information, but it did not talk to me, or

the city manager or council members of Monterey Park, where OII is located, or

to the residents of the city, who live with this toxic eyesore day in and day

out . . .[T]he EPA continues to drag its feet and throw up every obstacle possible

to prevent Monterey Park from moving forward with this project . . . I for one, fail

to see how preventing a community from cleaning up and developing its land can

be considered productive. I fail to see how denying the community’s request time

and time again, and preventing it from turning a blight into a benefit, can be considered community cooperation.

I can’t emphasize enough how frustrating it has been to deal with such bureaucratic arrogance. The city of Monterey Park has bent over backwards in its attempt to work with the EPA to achieve the release of this land, which is actually

a prime candidate for the much-touted brownfield program. As a matter of fact,

several local developers have expressed interest in the land once minor cleanup

is completed. But instead of working with the community, the EPA has fought it

at every turn.’’

—Congressman Matthew G. Martinez in testimony before the Subcommittee on

Finance and Hazardous Materials on September 4, 1997.

‘‘[T]he Superfund program has become a tool to punish companies and individuals, many of whose actions were not negligent, illegal or in violation of any regulations at the time, rather than focusing on cleaning up the nation’s worst toxic

waste sites—and the biggest losers have been the American public.’’

—Congressman Chris John in testimony before the Subcommittee on Finance and

Hazardous Materials on September 4, 1997.

‘‘Liability reform comes closer to a real concept of ‘‘polluter pays’’ by seeking to

hold liable those parties which owned and controlled sites and parties which violated disposal laws, rather than pursuing everyone connect to the site. The goal

is to secure who is truly responsible for the pollution and hold them accountable

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while reducing the number of parties at sites to a relatively small number, each

with clear liability.’’

—Superfund Reform 105th Congress Goals for Progress presented in testimony by

Congressman Robert Condit before the Subcommittee on Finance and Hazardous

Materials on September 4, 1997.

‘‘[B]usinesses paid a premium fee for a private company to manage their waste.

The management company violated the law, not the small business owners. Yet

the small businesses apparently are being forced to pay for sins they did not commit. They made a good faith contract and the Superfund law as applied violates

it. Congress must fix these glaring injustices.’’

—Statement of Congress Tim Roemer before a hearing of the Commerce,

Transportation and Hazardous Materials Subcommittee, October 18, 1995.

‘‘I have already spent over $30,000 in my defense. I don’t understand, why I

should be liable for activities that took place before I bought the business? Why

should the landlord be held liable for what he had no control over? Why should

businessmen like myself who have revitalized shops in poor neighborhoods be penalized for the good we are trying to do?...[T]he salinity of the underground

water in that area is so high that since the time of Genesis we have already

known that we cannot ever use it...Ladies and gentleman, this old man is in

jeopardy just because of the Superfund. It has strict retroactive liability, it sets

unrealistic and unwarranted cleanup standards, and it allows for costly private

lawsuits against innocent, hard-working people like myself. Please fix this broken

law.’’

—Statement of Martin Yee, White Spur Cleaners before the Commerce,

Transportation, and Hazardous Materials Subcommittee June 22, 1995.

‘‘No bank will finance my growth because retroactive liability has destroyed my

property value, which small businesses use as a source of growth capitol...There

is little doubt left that retroactive liability is unfair... Still, there are some left

in government who maintain that retroactive liability is needed . . . It is as though

any means are justified in pursuit of an end . . .’’

—Statement of Richard Leavitt, President and Owner, Chelsea Clock Company,

before the Commerce, Transportation, and Hazardous Materials Subcommittee,

June 22, 1995.

‘‘Arrowhead Refinery Superfund site is a classic example of the best intentions

becoming the worst nightmare...The company went out of business some time in

the late 1960’s...From what I understand there were not many records left over

from Arrowhead so the federal and state agencies looking into the site interviewed

a former driver, now up in years, as to where and when he went to pick up waste

oil . . .The federal agency in Chicago and Pollution Control Agency in Minnesota

were both involved...They both asked for the same documentation. We weren’t

sure who was controlling the process. Because I had been active in politics I would

get calls from various litigants complaining or, in some cases, almost crying wondering what was going to happen . . . I could go on and on about what transpired

during the eight years of litigation, hearings and depositions. The point is that

there is no reason for something like this to cause eight years of stress on people

that have been good citizens and good business people...This Act reversed our

whole tradition of innocent until proven guilty to you’re guilty prove otherwise’’

—Statement of Kelvin Hersted, President/Treasurer, United Truck Body, before the

Commerce, Transportation, and Hazardous Materials Subcommittee, March 16,

1995.

‘‘I am a fourth party defendant in the Keystone Superfund lawsuit. I have been

sued by my friends and neighbors. Why did they do this? Upon the advice of attorneys bringing others into the suit, this was the only way they could lessen the

amount of their settlements . . . I am being sued for $76, 253.71. That is a lot of

money to me, more than I am eager to pay myself a year. That does not include

my ever increasing legal fees. This legal action has angered, depressed and confused me. After paying thousands of dollars in insurance premiums, my company

will not defend me or assist me without cost . . . I obeyed State, local, and Federal

regulations. Being forced to defend myself is a travesty of justice. Being forced to

pay this settlement would be devastating to my business. Has anyone considered

the effect on my employees and their families. Has anyone considered the effect

on our community?... What is the Superfund law accomplishing? The attorneys

are making a fortune, small businesses are unfairly burdened, and the contamination still isn’t cleaned up.’’

—Statement of Barbara Williams, Owner, Sunnyray Restaurant before the

Committee on Environment and Public Works, April 23, 1996.

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‘‘One component of CERCLA that exacerbates this problem of inordinately high

litigation transaction costs is the statute’s imposition of retroactive liability coupled with absolutely no time limit on how far back in history a party’s conduct

will be subject to scrutiny. As a result, it is common for potentially responsible

parties who may have had some relationship to the property at issue, even those

whose relationship to the property ended during the last century... UGI and other

companies mired in costly claims over liability at ancient sites where their activities ceased many years ago are expending a substantial amount of time, dollars

and resources litigating over documents from the 19th Century gas light era. With

the clean up costs as enormous as they are, companies if permitted will go back

as far in time as they are allowed in order to drag in one more potentially responsible party... Indeed, UGI has retained an entirely new kind of Superfundspawned specialist, known as ‘‘insurance archaeologist’’ who attempts to identify

and evaluate the import of ancient insurance documents. Thus, one more company, this time an insurance company, is drawn into the retroactive liability morass of the swamp and any claim against the insurance company will likely involve additional litigation.’’

—Statement for the Hearing Record, Richard Bunn, UGI Utilities, Subcommittee

on Water Resources and Environment, June 15, 1995.

‘‘Now, almost 15 years later, the matter is about to be fully and finally settled. In the interim, EPA spent approximately $1,300,000 investigating the site. Additionally, our company spent almost $500,000 in attorney’s fees and consulting fees

over the period. And for what? The actual cleanup of the site, which EPA ordered

and oversaw, cost approximately $38,000 . . . It took over 15 years and cost our company nearly $2 million in professional fees, lost profits, and environmental

studies, all for the sake of a $38,000, 2-day cleanup, which resulted in three truckloads of nonhazardous dirt being trucked to Oklahoma.’’

—Statement of Michael Mallen, Southern Foundary Supply Company,

Subcommittee on Water Resources and Environment, June 15, 1995.

‘‘Construction contractors are being held liable for cleanup costs at landfills for

construction debris disposed of there as long as thirty years ago. The contractors

did nothing illegal or irresponsible in disposing the wastes and it is questionable

if the wastes could be found hazardous even by today’s strict standards.’’

—Statement for the Record of Stephen E. Sandherr, Associated General

Contractors, before the Subcommittee on Commerce, Trade and Hazardous

Materials, June 22, 1995.

‘‘We were told that unless we had documentation from the 1960’s to prove that

the drums were triple rinsed, the fact that they were empty did not matter . . . We

were told by Mr. Caplan that if we were not part of the PRP group that settled

with EPA, we were subject to paying triple damages if the EPA or the official PRP

group came after us for reimbursement...

In talking to some of the many lawyers that were at the meeting, we were told

that we better join, as the EPA basically had unlimited power to do whatever they

wanted even if we were innocent of any wrongdoing. At the time we were so intimidated that we paid the $25,000 to stay in the paper loop so that we could keep

abreast of what was to transpire . . . It looks as though Stamas would end out be- tween $175,000 to $450,000 if we are coerced into going along with what the EPA

expects.

Gentlemen, in all fairness, how can a small company like Stamas be held responsible for actions taken 30 years ago that were at the time legal, particularly

when this action is by another company...The requirement to triple wash an

empty drum and to be responsible for the life of that drum was not required by

any regulation at the time . . . To pay out the kind of money the EPA expects, we

might as well close our doors and lay off the 75 employees that we currently employ.’’

—Statement of J.L. ‘‘Jim’’ Williams, Controller, Stamas Yacht, Inc., before the

Subcommittee on Commerce, Trade and Hazardous Materials, June 22, 1995.

‘‘In 1979, Robert Cox, Sr. then president of the tiny Gilbert-Spruance Company

in Philadelphia, Pennsylvania, testified as Congress considered passing the initial

Superfund law. He told the Senate Environment and Public Works Committee

that he did not want his legacy to be bankruptcy for his son, Bob Cox, Jr. due

to the open-ended nature of the Superfund liability system...

Bob Cox, Jr., was forced to declare bankruptcy a decade later due to protracted

Kafka-like liability litigation under Superfund and similar state statutes. Many

NPCA members have been caught up in the web of Superfund litigation and have

experienced great frustration and expense in attempting to find workable and equitable solutions to the cases in which they have become involved.

240

In 1992, NPCA conducted a survey of its members and found that, of the $600

million extended by the industry on Superfund-related matters, only $200 million

went to cleanups while $400 million was consumed in transaction costs’’

—Statement of Richard Bliss, on Behalf of National Paint and Coatings

Association, before the Subcommittee on Commerce, Trade and Hazardous

Materials, June 22, 1995.

‘‘ . . . Similac, a substitute for breast milk, in fact, had copper content that was

required by FDA that far exceeded the copper content that was the basis for the

liability in our waste . . . we got two major circuits in this country to admit

that . . . in Superfund, everything in the universe is a hazardous substance including federally approved drinking water...[F]acts are irrelevant, because if everything in the universe is a hazardous substance, we don’t have to concern ourselves

with the facts as to what it is...[C]ausation was not a part of the statute. That

is the present state of the law that everyone thinks is too expensive and too slow,

and yet is a plaintiff’s lawyers dream; you have nothing to prove.’’

—Statement of Lawrence A. Salibra, Alcan Aluminum Co., before the

Subcommittee on Commerce, Trade and Hazardous Materials, June 22, 1995.

‘‘Too many of us have had the unpleasant experience of dealing with federal

regulators who impose arbitrary and unreasonable requirements upon property

owners. Too many of us have had the unpleasant experience of not being able to

resolve these issues after years of involvement. Too many of us have seen small

business owners be pushed out of business after having their life savings depleted

due to a system that produces little benefit for the public.

In my district, for example, I have been working with several auto dealers who

have been sued by the U.S. Environmental Protection Agency for having deposited

oil at a Purity Oil Sales disposal site in Fresno, California between 1930-1970’s.

Since the oil company’s records were burned in a fire sometime in the late 1960’s,

the only evidence that the EPA has on these auto dealers is the vague recollection

of a Purity Oil Sales driver that ‘‘thinks’’ he picked up oil from auto dealers. We

are now six years into the process. 190 defendants have been sued and spent over

$200,000 has been spent for attorneys fees, yet not one ounce of contaminated soil

has been cleaned up.’’

—Statement of Congressman Gary Condit before the Subcommittee on National

Economic Growth, Natural Resources and Regulatory Affairs, May 8, 1996.

‘‘We think that after spending $8 million our property is in far worse environmental condition than it was before the remedy was begun, and it’s still going to

take a lot of money to correct all the mistakes that have been made.

These problems can be addressed by proper management, supervision, and controls, utilizing competent contractors and requiring EPA to be responsive to property owners and the local community.

An appropriate remedy could have been selected for our property and could

have been completed in a far more cost-effective manner... Believe us when we

say that after 13 years, 13 years of aggravation, anger, tears, and frustration that

no one else deserves to suffer this fate.’’

—Statement of Hans and Helena Tielman, Meyersville, New Jersey, before the

Subcommittee on National Economic Growth, Natural Resources and Regulatory

Affairs, May 8, 1996.

‘‘ . . . We utilized other facilities to aid us in our recycling efforts. Most of these

locations have since been closed and are now Superfund sites. Because of this

Marisol is labeled a ‘polluter.’ To have helped pioneer the recycling industry and

be labeled a polluter is an insult...

I’ve personally watched the current Superfund system literally waste millions,

if not billions of dollars. The amount of money spent for non-cleanup expenses is

a national disgrace.

I believe Superfund is a major reason many businesses have left or have not

expanded in the United States, and especially in New Jersey.

This has amounted to lost jobs, and you don’t put a man or woman out of work.

You put his or her whole family out of work.

It has become difficult to plan and budget effectively. Administrative and allocation costs related to Superfund are extremely unpredictable. The unanticipated

and untimely imposition of these expenses defy and frustrate managerial control . . .

My small company has already paid over $310,000 in defense and administrative costs... not toward cleanup...

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Superfund liability provisions are woefully lacking in fairness, logic, and reason . . .’’

—Statement of James Nerger, Marisol, Inc, before the Subcommittee on National

Economic Growth, Natural Resources and Regulatory Affairs, May 8, 1996.

‘‘We believe EPA has let all the federal government agencies off the hook . . . In

other words, only the non-federal agencies were ordered to spend millions of dollars on the cleanup, while federal agencies did nothing.’’

—Letter from the Colorado School of Mines to Congressman Dan Schaeffer dated

June 6, 1997.

‘‘Because of Superfund, my small business has spent over $1 million due to contamination caused by others. What makes it even worse is the fact that the vast

majority of the contamination was caused by agencies of the Federal Government

during World War II when they owned and operated the property.

How would you describe a law that allows one branch of the Federal Government, EPA, to pursue me to clean contamination caused by another branch of the

Federal Government, the Department of War...

. . . EPA stated at a public meeting that site workers, children playing at the

park next door and neighbors living across the street were not at risk from the

soils or the air from the Liberty site.

However, EPA went on to say that there was a risk to the hypothetical trespasser. That trespasser was assumed to be a teenage boy who would enter on the

property twice a week, 2 hours per visit, 52 weeks a year for 9 consecutive years,

each time coming in contact and ingesting certain soils.

Based on this scenario, the trespasser would have a hypothetical 3 in 10,000

increased risk of getting one type of cancer.

Ironically, these soils were behind locked, fenced areas that covered less than

half of 1 percent of the site with signs saying, ‘‘High voltage. Keep out.’’

Yet, when EPA made their determination about risk, they assumed that the

teenage trespasser would be in contact with the soils from these isolated high

spots containing the highest concentrations every time they walked on the site...

Because of all the expenses I have been forced to incur, I have been unable to

maintain the mortgage payments... One million dollars is a lot of money. However, it is not a true measure of what owning the site and being caught in the

web of Superfund liability has cost me.

It is impossible to measure the toll that it has taken on me, my family and my

small business. It has sapped me and my small business of capital, energy, and

entrepreneurial spirit. It has taken me from my family and children . . .’’

—Jeffrey Rosmarin, RGE, Inc. before the Subcommittee on National Economic

Growth, Natural Resources and Regulatory Affairs, May 8, 1996.

‘‘In April 1992, EPA sent us a letter stating that we were a potentially responsible party, PRP and they wanted a lot of information that would have taken a

year to answer completely.

But they threatened a $25,000 a day fine if we didn’t give it to them . . . We

asked them, in July 1992, what they had against us, and the answer was that

they had a couple of statements from former garbage men that worked out at that

dump who said that we had used other contractors to bring trash out to that

dump . . .

We did an extensive investigation of all of our employees who were still around

to ask, who happened to still be alive, including my mother who has since deceased.

None of the people that we talked to that had any --or truck drivers had any

knowledge of that situation . . . I think they spent about a half a million dollars

with litigation before they even started cleaning the thing up...[the primary

PRPs] wanted $26,000 from us as a downpayment to get the ball rolling...That’s

what makes this Superfund law such a nightmare, and ‘‘nightmare’’ is a word that

we’ve all used.

We are charged with something that our grandfather allegedly did that was

legal. It’s even worse than being fined by a legitimate act allegedly done by your

grandfather or my great-grandfather, for that matter...

[T]hanks to Congress, we face a tremendous legal cost and fines based on allegations that we did something legal that is illegal.

This is unfair, un-American, and we request that you consider rescinding this

outrageous injustice.’’

—Statement of Steve Dixon, Beckett Bronze Co., before the Subcommittee on

National Economic Growth, Natural Resources and Regulatory Affairs, May 8,

1996.

242

‘‘I can tell you as a town manager that the site-specific, retroactive liability system has made it virtually impossible for local governments to fulfill their four

major responsibilities at Superfund sites which are (1) eliminating the risk in a

timely manner; (2) protecting the local economy and tax base; (3) returning polluted, non-productive land to productive, taxable status when that is practical;

and (4) controlling costs at those sites. The current Superfund law, in particular

its liability system, significantly impedes rather than facilitates the attainment of

these goals.’’

—John Weichsel, Town Manager, City of Southington Connecticut, before the

Subcommittee on Water Resources and Environment, October 30, 1997.

‘‘ . . . I am mired in litigation at the Berks Superfund Site in Douglassville, Pennsylvania...The Berks site operated as an oil and solvent recycling facility from

the 1930’s until 1985. Delaware Oldsmobile is just one of twenty dealerships that

was identified as a contributor by the testimony of a former truck driver for a

company that had transported used oil to the Berks site... Significantly, the driver was employed for only two and a half years, and there are no supporting receipts or other documentation to substantiate his claims. Yet, with no other factfinding on EPA’s part and no documentary records of evidence, EPA used the

driver’s recollections to determine, through extrapolation, the amount of oil that

each dealership sent to the Berks recycling facility for all years in question.

As a small businessman who complied with all federal, state and local regulations regarding used oil, I am utterly amazed at the legal entanglements I have

endured, and I am even more frustrated by the exorbitant liability that I am

being forced to assume’’.

—William Luke, Delaware Olds, Inc., Wilmington, Delaware before the

Subcommittee on Water Resources and Environment, October 29, 1997.

Mr. SHIMKUS. And these are quotes from everybody, talking

about—I think there’s—you know, and you can look at that at your

leisure. But, it suggests another opinion; that although I think

we’re accepting the fact that there are problems, I think there’s

maybe a little bit more problems than—than a lot of people are

willing to admit.

I know I am beating a dead horse on the limited liability provision for small business, but the reason why I’m doing that is I saw

it historically portrayed a couple of years ago on a 60 Minutes episode. People promised to have reform, from the—from the administration on down the line. Three years later, no reforms. That story

is being replayed out in my district. And if we don’t have any reforms, that seems to always going to be replayed out 3 years from

now and we’re going to be back at it. And it’s the small businesses

and mom and pop operations that have—there’s no connection to

the hazardous material that—by this failed, unfair law, especially

with provisions for small business.

With that, my time has expired and I yield to the ranking member, Mr. Towns, for 5 minutes.

Mr. TOWNS. Thank you, very much. If a State or Federal law is

both relevant and appropriate under the circumstances of a lease,

it would seem to be common sense to apply that requirement, particularly if it would avoid disputes with the States over whether

such a State standard is per se legally applicable. Mr. Johnson,

what is the position of the States and please give us a reason for

your views?

Mr. JOHNSON. We are very concerned about the rejection of relevant and appropriate standards by 1300 and 2580. Our feeling is

that it, in fact, is a common sense conclusion; that if a standard

is relevant and appropriate, it should be applied at a site. Why

should it matter whether the landfill, for instance, stopped accepting waste in 1984 and 1988, when it—when it comes to determining how that landfill should be fixed. However, many standards

243

will not be legally applicable, if the landfill stopped accepting waste

in, let’s say, 1984 or whereas they will be applicable after that

date. But the standard, nevertheless, is important for protecting

the public. It is relevant and appropriate under the circumstances

and we think it should be applied at the site.

Keeping relevant and appropriate standards in the statute will

avoid fights about whether regulations, in fact, are applicable;

avoid excessive rulemaking by States that would be compelled to

have to completely repromulgate all of its rules to apply to Superfund cleanups, and that places an extraordinary burden on all the

States throughout the country. Relevant and appropriate standards

usually represent the best engineering judgment about what should

be utilized in the remedy selection process. And because they are

not mandatory under the statute, the EPA and the States still have

the ability to choose among the various standards and pick that

which is best for the circumstance.

And it seems to us to be a very good way to proceed in picking

an appropriate remedy. It avoids excessive risk assessments. It

avoids having to demonstrate case after case after case that somehow, and it’s a best engineering judgment, to put an impermeable

cap on a landfill. Instead, the States can rely on the relevant and

appropriate standards to require those types of protective remedies.

Mr. TOWNS. All right, thank you. Ms. Williams, from the community standpoint, the same question.

Ms. WILLIAMS. Well, from a key community standpoint, RARs are

the first line of defense against the Federal agency that may not

understand local ordinances or State ordinances that were enacted.

Let me give you an example. We’re recently working at the Del

Amo/Montrose site, where they picked up what was essentially

pure DDT and had to go into the neighborhood and pick it up with

bulldozers. And the local Air Board put a standard for air emissions that they had to meet, and if they didn’t meet that, they had

to shut the cleanup down and re-water the site. Now, if that standard had not been adhered to and applied by the local Air Board,

the Federal agency—actually, the contractor doing the work would

have just been able to pretty much, you know, have billowing DDT

latent dust all over the neighborhood. So, that just gives you one

example.

Another example I can give you, in California, is with drinking

water standards. California has more stringent drinking water

standards. California has a Porter/Cologne Water Quality Act,

which was passed almost a century ago, to protect ground water

from contamination, and no other States have programs like that,

as well. And so the Water Board actually has a special resolution

that they passed 4 years ago, I think, to force Superfund sites and

Federal agencies, such as DOE and DOH, comply with groundwater standards, which are very important. Because, in many instances, at very complicated cleanups, where we may not have

technologies yet to actually destroy the contaminants, you end up

with a cap. And part of the requirements that the Water Board imposes on those caps is that they put in monitoring systems, to

make sure that the groundwater is not becoming contaminated

with the cap.

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So—I mean, I can go on at great length. But, these relevant and

appropriate regulations are very, very important for the protection

of public health, as well as the environment.

Mr. TOWNS. Right. Thank you, very much. Let me have 1 minute

additional here. I want to just sort of raise a question with Mr. Jeffers. Why do you support and seek legislative ratification on the

numbers in EPA’s municipal settlement policy?

Mr. JEFFERS. Well, I think we, as a muncipal government, feel

that they are fair, equitable, and conservatively estimable and

they’re workable and we supported those ideals for several years

now. And we think we can live with them and they work for us.

Mr. TOWNS. Okay, thank you. Let me thank all of you for your

testimony. Thank you. Yield back.

Mr. SHIMKUS. The gentleman yields back his time. Next, we have

the gentleman from Michigan, Mr. Stupak, you are recognized for

5 minutes.

Mr. STUPAK. Thanks, Mr. Chairman. Let me apologize, again, for

bouncing back and forth between O&I and here. I was just once

again looking at your testimony, Mr. Nobis, on Quincy, Illinois, and

hopefully we have some good news we can share with you.

Every member on this side, at least on the Democratic side here,

has supported legislation to exempt from liability small businesses

and residential home owners, who only send municipal solid waste

or trash to a local landfill, much like you had in your Quincy experience here. And we have supported exempting you from liability

for municipal solid waste over the past 5 years. In the earlier

panel, we had H.R. 2485, my bill, which would eliminate the liability; but, unfortunately, the leadership of the House didn’t take any

action on it. And we’re going to bring it up again and hopefully, as

this legislation moves, we can do something with it to give you that

exemption you’re looking for. And, quite frankly, you’re being held

hostage to those have a much broader and more controversial

Superfund legislative agendas. And that’s why we developed 2485,

because the little individuals that we’re trying to help out were always getting caught in the larger issues on Superfund.

So, would you and NFIB—I guess you’re representing NFIB—

would you support moving a bill separately to relieve you and your

friends in Quincy, who are sent their trash to the normal municipal

solid waste? Would you guys be willing to, at NFIB, support our

legislation 2485?

Mr. NOBIS. I think the thing for small business—and the Superfund is a very complicated thing, and we found that out and tried

to deal with it in our community. For small business, I think, small

business will definitely be supportive of any bill that would get

small business out. To me, it makes a lot of sense. We have been

dealing with this problem for at least 6 years. There have been

promises to get small business out. Yes, we do feel hostage. We

have needed to be out of this problem for a long time.

Had—I think it was 5 years ago, we saw a 60 Minutes piece,

where the problem was dealt with in Gettysburg and that then,

they said, well, you know, they’re working on the problem. And had

that been done, my problem in Quincy wouldn’t have happened. So,

we are being held hostage. We think—we really want to be out of

this. We see the necessity for small business to be out of it. We

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would be supportive of any bill that would get small business out

of this. It makes sense to us, though, that there’s a bill that can

just deal with small business, definitely, that would be the quickest

way. It’s been real frustrating, where both sides—and we’ve heard

it many times, yes, the Democrats are for getting small business

out, the Republicans are for it; but, yet, we’re still in.

Mr. STUPAK. Right.

Mr. NOBIS. To me, I’m very simple. I’m just a printer. I get right

to the point. If you all believe that we need to be out, let’s get a

bill that just gets us out. You can leave us alone. We’ll leave you

alone. As a matter of fact, I think we even save you money. It will

cost you less money to track after us and then you can put that

money back and clean up the landfills.

Mr. STUPAK. Use your organization, then, to encourage your leadership to allow my bill to go. Because, 2485, you mention Gettysburg. That’s Representative Goodling. He was co-sponsor with me

and we had it to get you out. We just need a little help from the

leadership of the House of Representatives to move the bill. So,

thank you for your input on that.

Mr. Jeffers, H.R. 1300 provides in Section 305 a full exemption

for any generator or transporter of municipal solid waste, including

large commercial companies like Waste Management or BFI, who

sent municipal solid waste to a landfill prior to enactment. But,

you support a different resolution of the municipal liability issue;

is that correct?

Mr. JEFFERS. That’s correct.

Mr. STUPAK. Could you just take a moment to explain that?

Mr. JEFFERS. Well, again, my groups feel that the EPA policy,

which we were very supportive and commented on in detail when

it was being developed and, ultimately, developed and processed,

again, deals with a fair, equitable, and workable manner, which

keeps Superfund going. I think all of us want to have the assurance that these environmental parcels that need attention are equitably and quickly addressed from a community standpoint. We

need to make sure that there’s a chance for them to be redeveloped

back into community use and that, therefore, the EPA policy, as

stated, we think, allows that to happen and it treats us, as municipal governments and local government, in a manner that we can

live with and proceed forward with.

Mr. STUPAK. Thank you. My time has expired.

Mr. SHIMKUS. Gentleman yield back?

Mr. STUPAK. Well, my time expired. I had one more question.

Mr. SHIMKUS. Go ahead.

Mr. STUPAK. Okay, thank you. Mr. Johnson, if I could ask you

this, what affect will the current owner liability provision in Section 302 have on current—let me try again—what affect will the

current owner liability provisions in Section 302 have on the current owner category on current law?

Mr. JOHNSON. We are very concerned, because we think that the

revisions that are proposed in H.R. 1300 will make it very difficult

to hold current owners liable. It makes——

It makes a number of changes in the law that will make the law

very difficult to apply for many years. First of all, it allows certain

owners who purchase even with knowledge of contamination even

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at a reduced price to avoid liability under many circumstances. And

in fact that is inconsistent with the common-law duty to maintain

property so that it isn’t a nuisance or a hazard to others. And we

find it a bit odd that that type of exemption would appear in

Superfund at this point, particularly given the consensus over a

long period of time, several hundred years, that property owners

have an obligation to protect the public from conditions that occur,

that exist on their properties.

Second, the statute changes the standard of care from due care

to appropriate care. This will invite a new round of litigation on

what is appropriate versus what is due. And we feel that the current statutory language provides an appropriate protection for

truly innocent owners, and it does not need to be changed at this

point. This is a problem that we don’t think is serious. We don’t

think it is a problem in need of a legislative fix. We think the current statute adequately provides protection to truly innocent owners and doesn’t need to be changed.

Mr. OXLEY. The gentleman’s time has expired.

Mr. STUPAK. Thank you, Mr. Chairman, for the courtesy.

Mr. OXLEY. The gentleman from New York, Mr. Engel.

Mr. ENGEL. Thank you, Mr. Chairman.

First I would like to ask, Mr. Chairman, unanimous consent to

insert a statement I have into the record.

Mr. OXLEY. Without objection.

Mr. ENGEL. Thank you, Mr. Chairman.

This legislation troubles me, for a number of reasons, and let me

give a little bit of an analogy. Years ago when I was on the Education and Labor Committee, we held hearings on OSHA, which is

safety in the workplace. And the majority at that time—the majority was trying to point out all the problems with OSHA, and so

their proposal was to simply eliminate OSHA. Instead of fixing it,

simply eliminate it. It was an excuse to eliminate a program that

I think has been very, very good. And I called it throwing out the

baby with the bath water.

And I’m afraid the same thing is happening here. Yes, there are

problems with Superfund. Yes, there are changes that need to be

made. Yes, we don’t want small business to be hurt. It is not in

anyone’s interest to hurt small business. And I think we ought to

take care of that. But what this legislation does in my estimation

is it overreaches, and it uses as an excuse to roll back the clock

in terms of many, many gains that we have made.

I think we need a Brownfields-only bill. Mr. Towns has such a

bill in H.R. 1750, and I support that bill, and I am a sponsor of

that bill, I believe.

But what H.R. 1300 does in my estimation is it nullifies the reforms already instituted, and cleaning up of contaminated sites in

my estimation if this were to pass would stall because of the new

liability defense defenses giving polluters exemption.

Now we want to not hurt people who are not guilty, but on the

other hand we don’t want to let off the hook the polluters who are

guilty. And that is why I believe that a number of State officials,

including the organization Mr. Johnson is representing, the National Association of Attorneys General, they have stated that the

core liability provisions of Superfund are an essential part of a sucVerDate 20-MAR-2000 10:43 Mar 27, 2000 Jkt 010199 PO 00000 Frm 00249 Fmt 6601 Sfmt 6602 E:\HEARINGS\58513.TXT pfrm02 PsN: 58513
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cessful cleanup program. Let me just say what they say. According

to the State officials, the Superfund liability provides strong incentives for early cleanup settlements, promotes improved management of hazardous waste and pollution prevention, and promotes

voluntary cleanup.

So I would like to ask Mr. Johnson, since he is from New York,

and so am I, and he represents this Association of Attorneys General, what effect will the mandatory allocation scheme and all the

significant liability exemptions contained in H.R. 1300 have on the

current Superfund program?

Mr. JOHNSON. We are particularly concerned about the allocation

scheme. As you have said, Congressman, the Association’s resolution has said that we would like to retain the core liability provisions with some minor changes to take care of some of the problems that have cropped up in the statute. But it is important to

keep the core elements of liability in the statute.

The requirement that there be an allocation at every site, every

NPL site, we think is not a good idea at all. What the result of this

we think is is that the allocation process will change the emphasis

that currently exists in the law from obtaining settlements, where

the issues are decided and the case is over and people’s liability is

determined, to a process where an allocation is just the first step

in that process of resolving the case.

Mandatory allocation we think under this statute will become a

trial. It will not result necessarily in settlements. When allocations

are made mandatory, parties are more likely to await its results

rather than make an effort to truly settle the case and end it. Why

not wait and see what happens as a result of the allocation before

coming forward with a settlement proposal?

Mandatory allocation we think will just inevitably lead to triallike allocations rather than a reduction in transaction costs in settlements. And this is particularly pertinent here because PRP’s ordered to clean up a site will get reimbursed by the fund, and thus

removing any incentive that they currently have to settle.

Under current law, EPA can provide mixed funding for PRP’s

who agree to settle their liability. However, if they know that they

don’t have to make a settlement in order to be reimbursed for any

excess costs, PRP’s are not going to be settling. That means that

the fund is going to have to pay for cleanups. There is going to be

a lot more orders. Cleanups will be delayed. And the whole process

of resolving cases by settlement and getting cleanups to move forward quickly will be delayed.

Mr. OXLEY. The gentleman’s time has expired.

Mr. ENGEL. May I ask just ask one more question, Mr. Chairman?

Mr. OXLEY. Without objection.

Mr. ENGEL. Thank you. I don’t want to put words in your mouth,

Mr. Johnson, so correct me if I am wrong, you are saying in essence that an allocation is in effect a trial, and you are saying that

H.R. 1300 on the Superfund program would trigger another decade

of litigation, escalate private transaction costs, create delays in

cleanup, and shift huge costs back to the Federal Government and

the States. Is that not a fact?

Mr. JOHNSON. I think——

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Mr. ENGEL. That is what I believe. I want to know if you believe

that.

Mr. JOHNSON. I think you have taken the words from our written

testimony and summarized them succinctly. We think that that is

a problem.

Mr. ENGEL. Well——

Mr. JOHNSON. Sometimes allocation can work. But to make it

mandatory in every situation is a bad idea. We need flexibility in

order to decide what will work on a case-by-case basis.

Mr. ENGEL. You just mentioned your testimony, and on page 21

you said that the section 305(e) in particular—and again I don’t

want to put words in your mouth; correct me if I am wrong—would

add an additional limitation on liability that would directly affect

every State by establishing a 10-percent cap on recoverable oversight costs. Can you please just tell us your concerns with this provision?

Mr. JOHNSON. Yes. States need to provide oversight to cleanups.

The public is always concerned about the quality of a cleanup that

goes on at a Superfund site, and if private parties that are cleaning

up a site do not have oversight, the public is especially concerned,

because they don’t know if the cleanup is being done properly.

Under H.R. 1300, section 305 puts a cap on the oversight costs

of a State 10 percent. Now sometimes that will be all right, but in

other circumstances it will not be, and this type of cap will prevent

States from providing the type of oversight and ensuring the type

of public confidence in cleanups that the public demands, appropriately so.

In particular, we are concerned about putting a cap on State

oversights, oversight costs. We could end up with fraudulent cleanups or shoddy cleanups, and that’s not appropriate. States do not

gold-plate their oversight. We don’t have enough personnel to do

that type of thing. We do what is necessary and what it costs, it

costs. But those are costs necessary to protect the public. And artificially putting a 10-percent cap on our costs we don’t think is correct.

Mr. OXLEY. The gentleman’s time has expired.

Mr. ENGEL. Thank you, Mr. Chairman, for indulging me.

Mr. OXLEY. Mr. Jackson, we have worked with the Governors,

the State cleanup agencies, the cleanup contractors, engineers, the

Commission on Risk Assessment and Risk Management. They have

all supported changes to ensure that remedy selection is protective

and modernized. I would like to outline the brief but important

remedy selection pieces of H.R. 2580 and ask how these pieces will

help cleanups.

First, H.R. 2580 modifies the provision requiring treatment for

treatment’s sake to consider practicality, future land use, and risks

to the community and workers’ health. Can you comment with the

field experience of the cleanup contractors on this matter?

Mr. JACKSON. Yes, I would tend to agree with that position. I

think it is important to look at not just doing treatment for treatment’s sake. I think it is important to look at the use of the land,

and I think it is very important to incorporate risk assessment in

identifying not only the cleanup goal but also the method.

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Mr. OXLEY. Isn’t it a fact that EPA in the past has supported

changes in future land use as espoused in this legislation?

Mr. JACKSON. I believe in some cases yes.

Mr. OXLEY. Well, that was in testimony earlier today from Mr.

Fields that appeared to be the case.

Second, H.R. 2580 requires compliance with drinking water

standards at reasonable points of compliance and removes the

needless bureaucratic relevant and appropriate standards. Can you

comment on the need for these changes?

Mr. JACKSON. The key word there is point of compliance. Many

times I have seen a drinking water standard used inappropriately

that is not relative to the point of compliance, namely, when the

water is being consumed by the public. So I think the general intention of what you just said is correct.

Mr. OXLEY. Finally, H.R. 2580 requires use of sound and objective risk assessment practices. Can you comment on that based on

your experience?

Mr. JACKSON. I would agree with that wholeheartedly. It is something that not only I have had experience with in the United

States, but have also been involved with on projects overseas. It is

a concept that is based on sound science.

Mr. OXLEY. And finally, Mr. Jackson, can you tell me how the

RAC liability provisions would spur Brownfields redevelopment?

And how do you respond to the arguments of Mr. Fields and Mr.

Johnson?

Mr. JACKSON. One example comes to mind that is very obvious

from my industry is that by modifying appropriately the RAC—the

response action contractors—liability—you will see a more speedy

process as far as proposing, adopting, and implementing a remedial

action on a given site. Many times those sites are Brownfields

sites. So I would see it as a positive thing.

Mr. OXLEY. Mr. Johnson and Mr. Jeffers, I want to ask you about

the Allied Signal case and enforcement policy. Isn’t it true that an

enforcement policy is an exercise of discretion, and courts will always have the discretion to review whether a settlement is equitable? In Allied Signal, on the facts before the courts, they found

the municipal settlement policy not fair under the circumstances.

How can codification of a settlement policy remove this uncertainty, and how can Congress codify a policy where the design of

the court is to provide fairness on specific facts?

Let me start with Mr. Johnson, and then go to Mr. Jeffers.

Mr. JOHNSON. I think we have to be careful before we draw any

general conclusions about that decision. I have read the decision,

although the State was not I don’t believe a party in that particular case. However, there were some unusual facts in that case

that are I think unlikely to be replicated at other Superfund sites.

In particular there was evidence in the case that the town had

required that large amounts of hazardous waste actually be deposited at that landfill. And so I don’t think it is really representative

of the problems that are faced at municipal sites, at least at the

vast number of the municipal sites where there hasn’t been a resolution of liability.

Mr. OXLEY. Mr. Jeffers.

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Mr. JEFFERS. Mr. Chair, again we rely on the EPA policy numbers, and we think that those numbers are fair. In fact, we had

originally started off with a lower number, but agreed to settle on

a higher number when the policy was being circulated for comment. In fact, in the Fultz Landfill case in Cambridge, Ohio, the

Federal court did affirm the EPA numbers as fair and equitable,

and again as a decision the benefited both municipalities and industrial generators in that case. Codification of the EPA policy

numbers will use again a fair and equitable number that will drastically reduce transaction costs over the long run, and we think

keep the program alive, which again I think all parties want these

sites quickly and cleanly resolved.

Mr. OXLEY. And would legislation like 1300 or similar deal with

the issue that you have raised and deal with the problem?

Mr. JEFFERS. Whatever bill is the mechanism or vehicle to get

there, we think as long as it contains the EPA municipal policy

numbers, it is a vehicle that we can work with, and again it is fair

and equitable.

Mr. OXLEY. Thank you. The Chair notes there is a series of votes

on the floor, and will take this opportunity to thank all of you on

the panel for an excellent presentation.

I ask unanimous consent to keep the hearing record open for 60

days for members to insert statements, questions, and additional

material for the record.

Without objection, it is so ordered, and this subcommittee is adjourned.

[Whereupon, at 1:13 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

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1 In her remarks, AAG Schiffer indicated her belief that any amended Superfund law should

retain EPA’s authority to protect public health and the environment from the threat of an imminent and substantial endangerment, even at sites cleaned up under State authorities. Of course,

if a site is satisfactorily cleaned up under State authorities, there should not be an imminent

and substantial endangerment.

U.S. DEPARTMENT OF JUSTICE

OFFICE OF LEGISLATIVE AFFAIRS

October 4, 1999

The Honorable MICHAEL G. OXLEY, Chairman

Subcommittee on Finance and Hazardous Materials

Committee on Commerce

U.S. House of Representatives

Washington, D.C. 20515

DEAR MR. CHAIRMAN: We would like to supplement for the record the testimony

given by Assistant Attorney General Lois Schiffer at the August 4, 1999 hearing before the Finance and Hazardous Materials Subcommittee of the House Commerce

Committee on the bills introduced on brownfields issues by Congressmen Towns and

Dingell (H.R. 1750), Congressman Greenwood (H.R. 2580), and Congressman Boehlert (H.R. 1300). In particular, we would like to respond to certain concerns raised

by Congresswoman Wilson about the State’s role and authority at Superfund sites.

At the hearing, Congresswoman Wilson asked whether a State is authorized to

intervene and override EPA remedy decisions that the State finds were inadequate.

She stated that she understood our testimony to be that EPA should be able to do

so for State decisions, and asked whether States should be given similar authority

to override Federal decisions that States believed failed to protect public health and

the environment.1

In fact, under the present Superfund law, states do have substantial authority to

influence and shape EPA’s remedy selections. Section 121(f) specifically provides

that ‘‘The President shall promulgate regulations providing for substantial and

meaningful involvement by each State in initiation, development, and selection of

remedial actions to be undertaken in that State.’’ Such involvement includes the following:

First, EPA must solicit State comments on its proposed plan for remedial action

and respond to a State’s comments. CERCLA § 121(f)(1)(G). Second, EPA must provide a State with notice of its negotiations with potentially responsible parties

(PRPs); the opportunity to participate in the negotiations; and the opportunity to

be a party to any settlement between EPA and the PRPs. CERCLA § 121(0(1)(F).

Consequently, the State has the opportunity to be actively involved in PRP negotiations and settlements.

Third, CERCLA Section 121(f) recognizes the importance of substantial state involvement in remedy selection. Where EPA orders a PRP to undertake a cleanup,

if EPA proposes a remedy that does not meet all legally applicable or relevant and

appropriate State requirements, it must provide the State with an opportunity to

concur or not concur in the remedy selection. If the State disagrees with the remedy

chosen, it has a right to intervene in the CERCLA Section 106 action. CERCLA

§ 121(f)(2)(B). If the State is able to persuade a court that its judgment is correct,

the remedy must be modified accordingly. Id. If a court does not agree with the

State, the State may still modify the remedy if it pays, or assures the payment of,

the cost difference to attain the State’s preferred remedy. Id.

In another example of the State’s role in remedy decisions, if a State believes

there is a problem with a remedy at a site where EPA must use Fund monies to

do the cleanup, the State can choose not to contribute the 10% of site costs (including all future maintenance) it is obligated to pay under the statute. Such action

would have the effect of blocking EPA from undertaking a Fund-financed cleanup

at the site. CERCLA § 104(c)(3).

States have used many of the authorities described above. Each time EPA proposes a remedy, it solicits and considers State comments. Also, we have handled

countless settlements in which individual States and EPA are co-plaintiffs supporting an agreed remedy.

We are also sending a copy of this reply directly to Congresswoman Wilson to respond to her questions raised at the hearing.

Sincerely,

JON P. JENNINGS, Acting Assistant Attorney General

cc: The Honorable Edolphus Towns, Ranking Minority Member

The Honorable Heather Wilson