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103D CONGRESS

1ST SESSION H. R. 3681

To promote the establishment of qualified voluntary environmental response

programs in States and to encourage the expeditious remediation of

contaminated sites.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 22, 1993

Mr. OXLEY introduced the following bill; which was referred jointly to the

Committees on Energy and Commerce and Public Works and Transportation

A BILL

To promote the establishment of qualified voluntary environmental response programs in States and to encourage

the expeditious remediation of contaminated sites.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Voluntary Environ5 mental Response Act of 1993’’.

6 SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF

7 PURPOSE.

8 (a) FINDINGS.—The Congress makes the following

9 findings with respect to responses to releases of hazardous
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1 substances and hazardous constituents into the environ2 ment:

3 (1) Only a small percentage of the tens of thou4 sands of contaminated sites in the United States

5 have been subject to response actions.

6 (2) The Environmental Protection Agency does

7 not have sufficient resources to address all of the

8 contaminated sites that have been identified.

9 (3) The current statutory and regulatory sys10 tem for responding to contaminated sites hinders

11 timely, protective, and cost-effective response ac12 tions, which may lead to prolonged and unnecessary

13 public exposures.

14 (4) The current statutory and regulatory sys15 tem for responding to contaminated sites discour16 ages voluntary action by private parties.

17 (5) The process by which response standards

18 and actions are derived is often not related to the

19 actual risks posed by contaminated sites and not

20 sufficiently premised on site-specific factors or risk

21 analysis and often precludes the implementation of

22 the most cost-effective remedy.

23 (6) Remediation requirements, such as the pref24 erence for treatment-based remedies and the require25 ment to meet applicable or relevant and appropriate
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1 requirements, have discouraged voluntary response

2 actions by private parties due to the uncertainty cre3 ated by such requirements.

4 (7) The private market’s interest in purchasing

5 and revitalizing contaminated sites frequently is re6 duced or eliminated, due to uncertainties regarding

7 liability or potential response costs arising under the

8 current statutory and regulatory system for respond9 ing to contaminated sites.

10 (8) The disincentives to voluntary response ac11 tions at contaminated sites discourage revitalization

12 of the industrial and urban areas in which such sites

13 are concentrated, prolonging the economic and social

14 distress of surrounding communities.

15 (9) Delayed response action also impairs the

16 ability of the Federal Government, and of State and

17 local governments, to provide economic and employ18 ment opportunities for the people of the United

19 States, particularly the poor, unemployed, and dis20 advantaged.

21 (10) The current statutory and regulatory sys22 tem for responding to contaminated sites has led to

23 excessive legal costs, which have diverted resources

24 from remediation efforts.
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1 (11) State-administered programs that provide

2 incentives for private parties to conduct voluntary

3 response actions are necessary if contaminated sites

4 are to be addressed in a timely manner.

5 (b) OBJECTIVES.—The objective of this Act is to es6 tablish an alternative mechanism to the current statutory

7 and regulatory system for responding to contaminated

8 sites that will—

9 (1) ensure expeditious and cost-effective abate10 ment of significant, actual risks to human health

11 and the environment;

12 (2) provide incentives for private parties to con13 duct voluntary response actions;

14 (3) more accurately characterize and quantify

15 the risks to human health and the environment

16 posed by a particular site based on the current or

17 currently planned use of the site or the resource to

18 ensure that significant, actual risks are abated;

19 (4) accelerate response actions by simplifying

20 procedures and building State capacities for the re21 view thereof;

22 (5) assist States in developing and administer23 ing State programs capable of implementing the re24 quirements of this Act;
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1 (6) reduce unreasonable and unnecessary costs

2 and paperwork and maximize available resources so

3 as to prevent needless duplication and delay at all

4 levels of government; and

5 (7) improve the public welfare by returning con6 taminated sites to economically productive uses in

7 an expeditious manner.

8 SEC. 3. DEFINITIONS.

9 For purposes of this Act, the terms used in this Act

10 shall have the same meaning as set forth in the Com11 prehensive Environmental Response, Compensation and

12 Liability Act of 1980 (42 U.S.C. 9601 et seq.), except that

13 for purposes of this Act, the following definitions shall also

14 apply:

15 (1) The term ‘‘CAA’’ means the Clean Air Act

16 (42 U.S.C. 7401 et seq.).

17 (2) The term ‘‘CERCLA’’ means the Com18 prehensive Environmental Response, Compensation

19 and Liability Act of 1980 (42 U.S.C. 9601 et seq.).

20 (3) The term ‘‘CWA’’ means the Clean Water

21 Act (33 U.S.C. 1251 et seq.).

22 (4) The term ‘‘engineering controls’’ means any

23 mechanism to contain or stabilize contamination or

24 ensure the effectiveness of a response action. Engi-
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1 neering controls include caps, covers, dikes, trenches,

2 and leachate collection systems.

3 (5) The term ‘‘hazardous constituent’’ means

4 any hazardous waste constituent identified by the

5 Administrator under subtitle C of the Solid Waste

6 Disposal Act (‘‘RCRA’’) (42 U.S.C. 6901 et seq.).

7 (6) The term ‘‘institutional controls’’ means

8 any mechanism used to limit human activity or ex9 posure at or near a contaminated site, including re10 strictions on the use of the site or access to the site.

11 Institutional controls include fences or gates, deed

12 restrictions, transfers of development rights prohibi13 tions on well use, and warning signs.

14 (7) The term ‘‘OPA’’ means the Oil Pollution

15 Act of 1990 (33 U.S.C. 2701 et seq.).

16 (8) The term ‘‘qualified program’’ means a

17 State program, which may consist of existing State

18 programs, laws, or regulations for voluntary re19 sponse actions, meeting the requirements of section

20 4 of this Act.

21 (9) The term ‘‘RCRA’’ means the Solid Waste

22 Disposal Act (42 U.S.C. 6901 et seq.).

23 (10) The term ‘‘SDWA’’ means the Safe Drink24 ing Water Act (42 U.S.C. 300(f) et seq.).
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1 (11) The term ‘‘site’’ means any of the follow2 ing: any facility or portion thereof (including an op3 erable unit) under CERCLA, any facility or portion

4 thereof, solid waste management unit, hazardous

5 waste management unit, or land disposal unit under

6 RCRA, or any other regulated property or resource

7 or portion thereof that may be addressed through a

8 response activity under Federal, State, or local laws

9 or regulations.

10 (12) The term ‘‘TSCA’’ means the Toxic Sub11 stances Control Act (15 U.S.C. 2601 et seq.).

12 SEC. 4. QUALIFIED STATE VOLUNTARY RESPONSE PRO13 GRAMS.

14 (a) ELEMENTS OF A QUALIFIED PROGRAM.—(1) Any

15 State may certify to the Administrator that its program

16 constitutes a ‘‘qualified program’’ under this Act if such

17 program—

18 (A) provides for eligibility for the program in

19 accordance with section 5;

20 (B) requires response actions to be selected and

21 response action plans to be developed in accordance

22 with section 6;

23 (C) requires, upon completion of the response

24 action (excluding ongoing operation and mainte25 nance), submittal of appropriate documentation by
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1 the person conducting such response action, includ2 ing a certification of completeness; and

3 (D) provides for the periodic review of response

4 actions after completion for those response actions

5 that use institutional or engineering controls for the

6 purpose of ensuring the continued integrity of the

7 controls employed and, in the event that the integ8 rity of such controls has not been maintained, re9 quires that such integrity be restored in a timely

10 manner after discovery.

11 (2) For all sites or portions thereof identified as pri12 mary State interest sites under section 5(c), a State cer13 tification to the Administrator shall demonstrate that the

14 program meets all requirements of paragraph (1), except

15 that the requirements under section 6(c) of paragraph

16 (1)(B) (with respect to the elements and procedures for

17 approval of response action plans) and of paragraph

18 (1)(C) shall not be mandatory elements of the qualified

19 program for such sites or portions thereof.

20 (b) EPA REVIEW AND APPROVAL OF STATE VOL21 UNTARY RESPONSE PROGRAMS.—

22 (1) Within 60 days after a State submits a cer23 tification to the Administrator, the Administrator

24 shall publish in the Federal Register a notice of re-
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1 ceipt requesting comment on whether such submittal

2 meets the requirements of subsection (a).

3 (2) Unless the Administrator determines, after

4 reviewing any comments received, that the State’s

5 submittal does not meet the requirements of sub6 section (a), the State’s program shall be a qualified

7 program under this Act beginning on the date 60

8 days after the close of the public comment period.

9 Any determination disapproving a State submittal

10 shall be published in the Federal Register. Dis11 approval of a State program shall be subject to judi12 cial review in the United States district court.

13 (c) EFFECT OF APPROVAL.—A State with a qualified

14 program shall have sole jurisdiction of and responsibility

15 for response actions conducted pursuant to response ac16 tion plans and for approving and administering such plans

17 under the program.

18 (d) WITHDRAWAL OF APPROVAL.—Whenever the Ad19 ministrator determines after public hearing that a State

20 is not administering and enforcing a qualified program in

21 accordance with the terms of such program, the Adminis22 trator shall notify the State in writing of such determina23 tion. If appropriate corrective action is not taken by the

24 State within 90 days after receipt of the notice, the Ad25 ministrator shall withdraw approval of the program and
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1 publish a notice of such withdrawal in the Federal Reg2 ister, after which the State program shall cease to be a

3 qualified program under this Act. If the State subse4 quently undertakes corrective measures, the Administrator

5 shall reinstate the program as a qualified program under

6 this Act. The Administrator shall not withdraw approval

7 of any such program unless the Administrator provides to

8 the State in writing and publishes in the Federal Register

9 the reasons for such withdrawal. Withdrawal of approval

10 shall be subject to judicial review in the United States dis11 trict court.

12 SEC. 5. APPLICABILITY OF THIS ACT AND ELIGIBILITY RE13 QUIREMENTS FOR A QUALIFIED PROGRAM.

14 (a) GENERAL.—Except as provided in subsection (b),

15 this Act applies to, and qualified programs shall provide

16 for eligibility of, any site or portion thereof where there

17 has been a release or threat of release of a hazardous sub18 stance or hazardous constituent into the environment.

19 (b) EXCLUSIONS.—This Act does not apply to, and

20 qualified programs shall not provide for eligibility of, any

21 of the following:

22 (1) Any portion of a site included on the Na23 tional Priorities List maintained by the Adminis24 trator under CERCLA section 105 for which a
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1 Record of Decision has been issued by the President

2 under CERCLA section 104.

3 (2) Any portion of a site with respect to which

4 a closure notification under subtitle C of RCRA has

5 been submitted and closure requirements have been

6 specified in a closure plan or permit.

7 (3) Any portion of a site with respect to which

8 a corrective action permit condition or order has

9 been issued, modified, or amended to require imple10 mentation of specific corrective measures pursuant

11 to RCRA sections 3004 or 3008.

12 (4) Any portion of a site controlled by, or to be

13 remediated by, a department, agency, or instrumen14 tality of the executive branch of the Federal Govern15 ment.

16 (5) Any portion of a site at which assistance for

17 response activities may be obtained pursuant to sub18 title I of RCRA from the Leaking Underground

19 Storage Tank Trust Fund established under section

20 9508 of the Internal Revenue Code of 1986.

21 (c) PRIMARY STATE INTEREST SITES.—All sites or

22 portions thereof not excluded under subsection (b) are pri23 mary State interest sites except the following:

24 (1) Any portion of a site included or proposed

25 for inclusion on the National Priorities List main-
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1 tained by the Administrator under CERCLA section

2 105;

3 (2) Any portion of a site that is the subject of

4 a planned or an ongoing response action under

5 CERCLA;

6 (3) Any portion of a site that contains poly7 chlorinated biphenyls subject to response under sec8 tion 6(e) of TSCA;

9 (4) Any portion of a site with respect to which

10 an administrative order on consent or judicial con11 sent decree requiring cleanup has been entered into

12 by the President under CERCLA, the CWA, RCRA,

13 the SDWA, or TSCA.

14 SEC. 6. RESPONSE STANDARDS AND RESPONSE ACTION SE15 LECTION METHODS FOR A QUALIFIED PRO16 GRAM.

17 (a) RESPONSE STANDARDS.—A qualified program

18 shall require response actions to achieve protection of

19 human health and the environment in accordance with

20 subsection (b).

21 (b) RESPONSE ACTION SELECTION METHODS.—A

22 qualified program shall provide that a person conducting

23 a response action pursuant to the program prepare and

24 submit a response action plan which meets the require25 ments of this section. A qualified program shall provide
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1 that a person conducting a response action pursuant to

2 the program may propose and obtain approval of a re3 sponse action based on either the method prescribed in

4 paragraph (1) or, if provided in the qualified program,

5 paragraph (2).

6 (1) SITE-SPECIFIC RISK ASSESSMENT METH7 OD.—Response actions may be selected based on

8 performance of a site-specific risk assessment. Re9 sponse actions selected pursuant to this paragraph

10 shall, based on the current or currently planned use

11 of the site, achieve a risk level in the range of

1×10¥4 to 1×10¥6 12 risk of excess cancer for carcino13 genic hazardous substances or hazardous constitu14 ents and a level that is likely to be without an appre15 ciable risk of deleterious effects for the exposed pop16 ulation for noncarcinogenic hazardous substances or

17 hazardous constituents. Site-specific risk assess18 ments shall—

19 (A) use exposure scenarios based on the

20 current or currently planned use of the site or

21 the resource, reasonable assumptions regarding

22 human exposure, and to the maximum extent

23 possible, actual site data, including recognition

24 of and credit for actions completed or ongoing

25 at the site;
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1 (B) use site-specific exposure and pathway

2 information, where available;

3 (C) use realistic error correction factors

4 and dose/response assessments that consider

5 weight of the evidence;

6 (D) correct for potential deficiencies re7 garding applicability of animal test results (in8 cluding use of sensitive animal populations) to

9 humans and for limitations of models for low10 dose/high-dose extrapolation; and

11 (E) use currently accepted scientific prin12 ciples (taking into account the validity, com13 pleteness, and reliability of the available data).

14 (2) DEMONSTRATED CONTROL MEASURE METH15 OD.—A qualified program may also provide for re16 sponse actions to be selected based on demonstrated

17 control measures (which may consist solely or par18 tially of institutional and/or standard engineering

19 controls) that have been demonstrated to be cost-ef20 fective and practicable remedial actions at generic

21 site types and approved by the State with a qualified

22 program.

23 A qualified program shall provide for response action se24 lection methods only in accordance with those prescribed

25 in paragraph (1) or (2) and shall that to the extent a pro-
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1 posed response action plan contains a response action that

2 meets the requirements of paragraph (1) or (2), such ac3 tion shall be considered as having satisfied the require4 ments of subsection (a). Response actions may rely solely

5 or partially on institutional and/or engineering controls

6 and such reliance shall not serve as a basis for disapproval

7 of the plan. Nothing in this Act or in a qualified program

8 shall be construed to require or create a preference for

9 restoration of environmental attributes to background lev10 els or treatment remedies.

11 (c) RESPONSE ACTION PLANS.—A qualified program

12 shall required any person seeking to conduct a response

13 action pursuant to such program to prepare and submit

14 a response action plan. The qualified program shall re15 quire the response action plan to contain the elements list16 ed in paragraph (1) and to be approved in accordance with

17 the procedures in paragraph (2):

18 (1) ELEMENTS OF A RESPONSE ACTION

19 PLAN.—A response action plan shall include the fol20 lowing elements:

21 (A) A site investigation assessing the fac22 tors necessary to determine the appropriateness

23 of the response action in accordance with para24 graphs (1) and (2) of subsection (b);
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1 (B) A description of the proposed response

2 action;

3 (C) Supporting information for selection of

4 the response action in accordance with the

5 methods established under paragraphs (1) and

6 (2) of subsection (b)—

7 (i) to the extent the response action is

8 selected pursuant to subsection (b)(1), a

9 site-specific risk assessment and dem10 onstration that the response action will

11 meet the requirements of subsection (b)(1);

12 (ii) to the extent the response action

13 is selected pursuant to subsection (b)(2),

14 an engineering evaluation demonstrating

15 the applicability of the demonstrated con16 trol measure to the site.

17 To the extent that a response action plan pro18 poses to achieve concentration levels equivalent

19 to background levels at the site, supporting in20 formation need not be submitted, except as nec21 essary to demonstrate that background levels

22 will be achieved;

23 (D) A schedule for completion of the re24 sponse action; and
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1 (E) Reporting and recordkeeping require2 ments:

3 (i) REPORTING.—The response action

4 plan shall include provisions requiring sub5 mission of progress reports.

6 (ii) RECORDKEEPING.—The response

7 action plan shall include provisions requir8 ing appropriate documentation of the key

9 elements of the response action plan.

10 (2) PROCEDURES FOR REVIEW, APPROVAL AND

11 MODIFICATION OF RESPONSE ACTION PLANS.—

12 (A) NOTICE OF INTENT AND SUBMITTAL

13 OF RESPONSE ACTION PLAN.—A qualified pro14 gram shall provide that any person seeking to

15 conduct a response action pursuant to such a

16 program shall submit the following—

17 (i) Written notice to the State admin18 istering the qualified program, setting

19 forth information sufficient for the State

20 to determine that the site is eligible for the

21 qualified program and, if the person giving

22 notice is not the owner or operator of the

23 site, including a representation that the

24 owner or operator has consented to the

25 conduct of the response action by the per-
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1 son giving notice or that access has been

2 obtained through alternative means.

3 (ii) A response action plan in accord4 ance with paragraph (1).

5 (B) REVIEW AND APPROVAL OF RESPONSE

6 ACTION PLAN.—

7 (i) PUBLIC PARTICIPATION.—A quali8 fied program shall provide for public notice

9 and comment on proposed response action

10 plans.

11 (ii) APPROVAL OF RESPONSE ACTION

12 PLANS.—A qualified program shall provide

13 a fixed period of time after which the re14 sponse action plan shall be deemed ap15 proved unless affirmatively disapproved by

16 the State. Any disapproval of a response

17 action plan shall be subject to appeal in

18 State court within 90 days of such dis19 approval.

20 (C) MODIFICATION OF RESPONSE ACTION

21 PLANS.—A qualified program shall allow per22 sons conducting response actions pursuant to

23 response action plans to obtain expeditious

24 modifications of such plans.
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1 SEC. 7. RELATIONSHIP WITH OTHER LAWS.

2 (a) EFFECT OF COMPLIANCE WITH RESPONSE AC3 TION PLAN.—Any site or portion thereof for which a re4 sponse action plan has been approved pursuant to a quali5 fied program shall not be subject to further response ac6 tion under the authority of the CAA, CWA, CERCLA,

7 OPA, RCRA, SDWA, TSCA, or State and local laws con8 cerning response actions, including State laws regarding

9 enforcement. Any parties that participate in the conduct

10 of a response action pursuant to a response action plan

11 approved pursuant to a qualified program shall not be lia12 ble for damages for response action or restoration require13 ments of the CAA, CWA, CERCLA, OPA, RCRA, SDWA,

14 TSCA, or State and local laws concerning response ac15 tions, including State laws regarding enforcement.

16 (b) COMPLIANCE OF RESPONSE ACTIONS WITH

17 OTHER LAWS.—No Federal, State, or local permit shall

18 be required for the portion of any response action con19 ducted entirely onsite, where such response action is se20 lected and carried out in compliance with a qualified pro21 gram.

22 (c) COMPLIANCE WITH NCP.—Response actions con23 ducted pursuant to a response action plan shall be consid24 ered consistent with the National Contingency Plan for

25 purposes of private cost recovery claims under CERCLA

26 or OPA.
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1 (d) EFFECT OF PERFORMANCE.—Performance of a

2 response action pursuant to a response action plan shall

3 not constitute an admission of liability under any Federal,

4 State, or local laws or regulations or in any private action

5 nor shall such performance be admissible as evidence in

6 any citizen’s suit or private action brought under any of

7 the statutes specified in subsection (a).

8 SEC. 8. ENVIRONMENTAL TRUSTEE.

9 A qualified program shall provide for the appoint10 ment by the Governor of an environmental trustee who

11 is authorized to acquire on behalf of the State (by con12 demnation or otherwise) sites or portions thereof which

13 are the subject of response action under the State’s quali14 fied program. Such trustee shall also have the authority

15 to bring suit to quiet title on any property which is the

16 subject of such a response action and shall have a fidu17 ciary duty to undertake such response action at the site

18 as may be necessary to meet the requirements of section

19 6 and thereby return the site to productive use. No such

20 trustee shall be liable under section 106 or 107 of

21 CERCLA. Such trustee shall qualify as a party participat22 ing in the conduct of a response action under section 7(a).

23 SEC. 9. STATE GRANTS.

24 Section 111(a) of the Comprehensive Environmental

25 Response, Compensation and Liability Act of 1980 (42
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1 U.S.C. 9611) is amended by adding the following new

2 paragraphs after paragraph (6):

3 ‘‘(7) DEVELOPMENT OF STATE VOLUNTARY RE4 SPONSE PROGRAMS.—For assistance to States to es5 tablish State programs under the Voluntary Envi6 ronmental Response Act of 1993. Such assistance

7 shall be not less than 2 percent and not more than

8 5 percent of the total amount available in the fund.

9 Such assistance shall be distributed among the

10 States notifying the Administrator of their intent to

11 establish such programs based upon the following

12 ratio—

13 ‘‘(A) That the number of sites listed on

14 CERCLIS in the State which the Administrator

15 has determined require further response action

16 (not including any sites listed on the National

17 Priorities List), divided by

18 ‘‘(B) the total number of such sites in all

19 States. Assistance under this paragraph shall

20 be available only for the first 2 complete fiscal

21 years commencing after the enactment of the

22 Voluntary Environmental Response Act of

23 1993.

24 ‘‘(8) ADMINISTRATION OF STATE VOLUNTARY

25 RESPONSE PROGRAMS.—For assistance to States to
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1 administer State programs under the Voluntary En2 vironmental Response Act of 1993. Such assistance

3 may also be used by the environmental trustee ap4 pointed under section 8 of such Act to acquire sites

5 which are the subject of voluntary remedial action

6 under such Act. Such assistance shall be not less

7 than 2 percent and not more than 5 percent of the

8 total amount available in the fund. Such assistance

9 shall be distributed among the States with programs

10 approved under such Act based upon the following

11 ratio:

12 ‘‘(A) That the number of sites listed on

13 CERCLIS in the State which the Administrator

14 has determined required further response action

15 (not including any sites listed on the National

16 Priorities List), divided by

17 ‘‘(B) the total number of such sites in all

18 States. Assistance under this paragraph shall

19 be available only for the third, fourth, and fifth

20 complete fiscal years commencing after the en21 actment of the Voluntary Environmental Re22 sponse Act of 1993.’’

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