I
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 environ-
mental response programs in States and to encourage
the expeditious remediation of contaminated sites.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Voluntary Environ-
mental Response Act of 1993’’.
SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF
PURPOSE.
(a) FINDINGS.—The Congress makes the following
findings with respect to responses to releases of hazardous
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substances and hazardous constituents into the environ-
ment:
(1) Only a small percentage of the tens of thou-
sands of contaminated sites in the United States
have been subject to response actions.
(2) The Environmental Protection Agency does
not have sufficient resources to address all of the
contaminated sites that have been identified.
(3) The current statutory and regulatory sys-
tem for responding to contaminated sites hinders
timely, protective, and cost-effective response ac-
tions, which may lead to prolonged and unnecessary
public exposures.
(4) The current statutory and regulatory sys-
tem for responding to contaminated sites discour-
ages voluntary action by private parties.
(5) The process by which response standards
and actions are derived is often not related to the
actual risks posed by contaminated sites and not
sufficiently premised on site-specific factors or risk
analysis and often precludes the implementation of
the most cost-effective remedy.
(6) Remediation requirements, such as the pref-
erence for treatment-based remedies and the require-
ment to meet applicable or relevant and appropriate
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requirements, have discouraged voluntary response
actions by private parties due to the uncertainty cre-
ated by such requirements.
(7) The private market’s interest in purchasing
and revitalizing contaminated sites frequently is re-
duced or eliminated, due to uncertainties regarding
liability or potential response costs arising under the
current statutory and regulatory system for respond-
ing to contaminated sites.
(8) The disincentives to voluntary response ac-
tions at contaminated sites discourage revitalization
of the industrial and urban areas in which such sites
are concentrated, prolonging the economic and social
distress of surrounding communities.
(9) Delayed response action also impairs the
ability of the Federal Government, and of State and
local governments, to provide economic and employ-
ment opportunities for the people of the United
States, particularly the poor, unemployed, and dis-
advantaged.
(10) The current statutory and regulatory sys-
tem for responding to contaminated sites has led to
excessive legal costs, which have diverted resources
from remediation efforts.
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(11) State-administered programs that provide
incentives for private parties to conduct voluntary
response actions are necessary if contaminated sites
are to be addressed in a timely manner.
(b) OBJECTIVES.—The objective of this Act is to es-
tablish an alternative mechanism to the current statutory
and regulatory system for responding to contaminated
sites that will—
(1) ensure expeditious and cost-effective abate-
ment of significant, actual risks to human health
and the environment;
(2) provide incentives for private parties to con-
duct voluntary response actions;
(3) more accurately characterize and quantify
the risks to human health and the environment
posed by a particular site based on the current or
currently planned use of the site or the resource to
ensure that significant, actual risks are abated;
(4) accelerate response actions by simplifying
procedures and building State capacities for the re-
view thereof;
(5) assist States in developing and administer-
ing State programs capable of implementing the re-
quirements of this Act;
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(6) reduce unreasonable and unnecessary costs
and paperwork and maximize available resources so
as to prevent needless duplication and delay at all
levels of government; and
(7) improve the public welfare by returning con-
taminated sites to economically productive uses in
an expeditious manner.
SEC. 3. DEFINITIONS.
For purposes of this Act, the terms used in this Act
shall have the same meaning as set forth in the Com-
prehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. 9601 et seq.), except that
for purposes of this Act, the following definitions shall also
apply:
(1) The term ‘‘CAA’’ means the Clean Air Act
(42 U.S.C. 7401 et seq.).
(2) The term ‘‘CERCLA’’ means the Com-
prehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. 9601 et seq.).
(3) The term ‘‘CWA’’ means the Clean Water
Act (33 U.S.C. 1251 et seq.).
(4) The term ‘‘engineering controls’’ means any
mechanism to contain or stabilize contamination or
ensure the effectiveness of a response action. Engi-
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neering controls include caps, covers, dikes, trenches,
and leachate collection systems.
(5) The term ‘‘hazardous constituent’’ means
any hazardous waste constituent identified by the
Administrator under subtitle C of the Solid Waste
Disposal Act (‘‘RCRA’’) (42 U.S.C. 6901 et seq.).
(6) The term ‘‘institutional controls’’ means
any mechanism used to limit human activity or ex-
posure at or near a contaminated site, including re-
strictions on the use of the site or access to the site.
Institutional controls include fences or gates, deed
restrictions, transfers of development rights prohibi-
tions on well use, and warning signs.
(7) The term ‘‘OPA’’ means the Oil Pollution
Act of 1990 (33 U.S.C. 2701 et seq.).
(8) The term ‘‘qualified program’’ means a
State program, which may consist of existing State
programs, laws, or regulations for voluntary re-
sponse actions, meeting the requirements of section
4 of this Act.
(9) The term ‘‘RCRA’’ means the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.).
(10) The term ‘‘SDWA’’ means the Safe Drink-
ing Water Act (42 U.S.C. 300(f) et seq.).
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(11) The term ‘‘site’’ means any of the follow-
ing: any facility or portion thereof (including an op-
erable unit) under CERCLA, any facility or portion
thereof, solid waste management unit, hazardous
waste management unit, or land disposal unit under
RCRA, or any other regulated property or resource
or portion thereof that may be addressed through a
response activity under Federal, State, or local laws
or regulations.
(12) The term ‘‘TSCA’’ means the Toxic Sub-
stances Control Act (15 U.S.C. 2601 et seq.).
SEC. 4. QUALIFIED STATE VOLUNTARY RESPONSE PRO-
GRAMS.
(a) ELEMENTS OF A QUALIFIED PROGRAM.—(1) Any
State may certify to the Administrator that its program
constitutes a ‘‘qualified program’’ under this Act if such
program—
(A) provides for eligibility for the program in
accordance with section 5;
(B) requires response actions to be selected and
response action plans to be developed in accordance
with section 6;
(C) requires, upon completion of the response
action (excluding ongoing operation and mainte-
nance), submittal of appropriate documentation by
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ceipt requesting comment on whether such submittal
meets the requirements of subsection (a).
(2) Unless the Administrator determines, after
reviewing any comments received, that the State’s
submittal does not meet the requirements of sub-
section (a), the State’s program shall be a qualified
program under this Act beginning on the date 60
days after the close of the public comment period.
Any determination disapproving a State submittal
shall be published in the Federal Register. Dis-
approval of a State program shall be subject to judi-
cial review in the United States district court.
(c) EFFECT OF APPROVAL.—A State with a qualified
program shall have sole jurisdiction of and responsibility
for response actions conducted pursuant to response ac-
tion plans and for approving and administering such plans
under the program.
(d) WITHDRAWAL OF APPROVAL.—Whenever the Ad-
ministrator determines after public hearing that a State
is not administering and enforcing a qualified program in
accordance with the terms of such program, the Adminis-
trator shall notify the State in writing of such determina-
tion. If appropriate corrective action is not taken by the
State within 90 days after receipt of the notice, the Ad-
ministrator shall withdraw approval of the program and
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publish a notice of such withdrawal in the Federal Reg-
ister, after which the State program shall cease to be a
qualified program under this Act. If the State subse-
quently undertakes corrective measures, the Administrator
shall reinstate the program as a qualified program under
this Act. The Administrator shall not withdraw approval
of any such program unless the Administrator provides to
the State in writing and publishes in the Federal Register
the reasons for such withdrawal. Withdrawal of approval
shall be subject to judicial review in the United States dis-
trict court.
SEC. 5. APPLICABILITY OF THIS ACT AND ELIGIBILITY RE-
QUIREMENTS FOR A QUALIFIED PROGRAM.
(a) GENERAL.—Except as provided in subsection (b),
this Act applies to, and qualified programs shall provide
for eligibility of, any site or portion thereof where there
has been a release or threat of release of a hazardous sub-
stance or hazardous constituent into the environment.
(b) EXCLUSIONS.—This Act does not apply to, and
qualified programs shall not provide for eligibility of, any
of the following:
(1) Any portion of a site included on the Na-
tional Priorities List maintained by the Adminis-
trator under CERCLA section 105 for which a
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Record of Decision has been issued by the President
under CERCLA section 104.
(2) Any portion of a site with respect to which
a closure notification under subtitle C of RCRA has
been submitted and closure requirements have been
specified in a closure plan or permit.
(3) Any portion of a site with respect to which
a corrective action permit condition or order has
been issued, modified, or amended to require imple-
mentation of specific corrective measures pursuant
to RCRA sections 3004 or 3008.
(4) Any portion of a site controlled by, or to be
remediated by, a department, agency, or instrumen-
tality of the executive branch of the Federal Govern-
ment.
(5) Any portion of a site at which assistance for
response activities may be obtained pursuant to sub-
title I of RCRA from the Leaking Underground
Storage Tank Trust Fund established under section
9508 of the Internal Revenue Code of 1986.
(c) PRIMARY STATE INTEREST SITES.—All sites or
portions thereof not excluded under subsection (b) are pri-
mary State interest sites except the following:
(1) Any portion of a site included or proposed
for inclusion on the National Priorities List main-
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tained by the Administrator under CERCLA section
105;
(2) Any portion of a site that is the subject of
a planned or an ongoing response action under
CERCLA;
(3) Any portion of a site that contains poly-
chlorinated biphenyls subject to response under sec-
tion 6(e) of TSCA;
(4) Any portion of a site with respect to which
an administrative order on consent or judicial con-
sent decree requiring cleanup has been entered into
by the President under CERCLA, the CWA, RCRA,
the SDWA, or TSCA.
SEC. 6. RESPONSE STANDARDS AND RESPONSE ACTION SE-
LECTION METHODS FOR A QUALIFIED PRO-
GRAM.
(a) RESPONSE STANDARDS.—A qualified program
shall require response actions to achieve protection of
human health and the environment in accordance with
subsection (b).
(b) RESPONSE ACTION SELECTION METHODS.—A
qualified program shall provide that a person conducting
a response action pursuant to the program prepare and
submit a response action plan which meets the require-
ments of this section. A qualified program shall provide
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that a person conducting a response action pursuant to
the program may propose and obtain approval of a re-
sponse action based on either the method prescribed in
paragraph (1) or, if provided in the qualified program,
paragraph (2).
(1) SITE-SPECIFIC
RISK
ASSESSMENT
METH-
OD.—Response actions may be selected based on
performance of a site-specific risk assessment. Re-
sponse actions selected pursuant to this paragraph
shall, based on the current or currently planned use
of the site, achieve a risk level in the range of
1×10¥4 to 1×10¥6 risk of excess cancer for carcino-
genic hazardous substances or hazardous constitu-
ents and a level that is likely to be without an appre-
ciable risk of deleterious effects for the exposed pop-
ulation for noncarcinogenic hazardous substances or
hazardous constituents. Site-specific risk assess-
ments shall—
(A) use exposure scenarios based on the
current or currently planned use of the site or
the resource, reasonable assumptions regarding
human exposure, and to the maximum extent
possible, actual site data, including recognition
of and credit for actions completed or ongoing
at the site;
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(B) use site-specific exposure and pathway
information, where available;
(C) use realistic error correction factors
and dose/response assessments that consider
weight of the evidence;
(D) correct for potential deficiencies re-
garding applicability of animal test results (in-
cluding use of sensitive animal populations) to
humans and for limitations of models for low-
dose/high-dose extrapolation; and
(E) use currently accepted scientific prin-
ciples (taking into account the validity, com-
pleteness, and reliability of the available data).
(2) DEMONSTRATED CONTROL MEASURE METH-
OD.—A qualified program may also provide for re-
sponse actions to be selected based on demonstrated
control measures (which may consist solely or par-
tially of institutional and/or standard engineering
controls) that have been demonstrated to be cost-ef-
fective and practicable remedial actions at generic
site types and approved by the State with a qualified
program.
A qualified program shall provide for response action se-
lection methods only in accordance with those prescribed
in paragraph (1) or (2) and shall that to the extent a pro-
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posed response action plan contains a response action that
meets the requirements of paragraph (1) or (2), such ac-
tion shall be considered as having satisfied the require-
ments of subsection (a). Response actions may rely solely
or partially on institutional and/or engineering controls
and such reliance shall not serve as a basis for disapproval
of the plan. Nothing in this Act or in a qualified program
shall be construed to require or create a preference for
restoration of environmental attributes to background lev-
els or treatment remedies.
(c) RESPONSE ACTION PLANS.—A qualified program
shall required any person seeking to conduct a response
action pursuant to such program to prepare and submit
a response action plan. The qualified program shall re-
quire the response action plan to contain the elements list-
ed in paragraph (1) and to be approved in accordance with
the procedures in paragraph (2):
(1) ELEMENTS
OF
A
RESPONSE
ACTION
PLAN.—A response action plan shall include the fol-
lowing elements:
(A) A site investigation assessing the fac-
tors necessary to determine the appropriateness
of the response action in accordance with para-
graphs (1) and (2) of subsection (b);
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(B) A description of the proposed response
action;
(C) Supporting information for selection of
the response action in accordance with the
methods established under paragraphs (1) and
(2) of subsection (b)—
(i) to the extent the response action is
selected pursuant to subsection (b)(1), a
site-specific risk assessment and dem-
onstration that the response action will
meet the requirements of subsection (b)(1);
(ii) to the extent the response action
is selected pursuant to subsection (b)(2),
an engineering evaluation demonstrating
the applicability of the demonstrated con-
trol measure to the site.
To the extent that a response action plan pro-
poses to achieve concentration levels equivalent
to background levels at the site, supporting in-
formation need not be submitted, except as nec-
essary to demonstrate that background levels
will be achieved;
(D) A schedule for completion of the re-
sponse action; and
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(E) Reporting and recordkeeping require-
ments:
(i) REPORTING.—The response action
plan shall include provisions requiring sub-
mission of progress reports.
(ii) RECORDKEEPING.—The response
action plan shall include provisions requir-
ing appropriate documentation of the key
elements of the response action plan.
(2) PROCEDURES FOR REVIEW, APPROVAL AND
MODIFICATION OF RESPONSE ACTION PLANS.—
(A) NOTICE OF INTENT AND SUBMITTAL
OF RESPONSE ACTION PLAN.—A qualified pro-
gram shall provide that any person seeking to
conduct a response action pursuant to such a
program shall submit the following—
(i) Written notice to the State admin-
istering the qualified program, setting
forth information sufficient for the State
to determine that the site is eligible for the
qualified program and, if the person giving
notice is not the owner or operator of the
site, including a representation that the
owner or operator has consented to the
conduct of the response action by the per-
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son giving notice or that access has been
obtained through alternative means.
(ii) A response action plan in accord-
ance with paragraph (1).
(B) REVIEW AND APPROVAL OF RESPONSE
ACTION PLAN.—
(i) PUBLIC PARTICIPATION.—A quali-
fied program shall provide for public notice
and comment on proposed response action
plans.
(ii) APPROVAL OF RESPONSE ACTION
PLANS.—A qualified program shall provide
a fixed period of time after which the re-
sponse action plan shall be deemed ap-
proved unless affirmatively disapproved by
the State. Any disapproval of a response
action plan shall be subject to appeal in
State court within 90 days of such dis-
approval.
(C) MODIFICATION OF RESPONSE ACTION
PLANS.—A qualified program shall allow per-
sons conducting response actions pursuant to
response action plans to obtain expeditious
modifications of such plans.
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SEC. 7. RELATIONSHIP WITH OTHER LAWS.
(a) EFFECT OF COMPLIANCE WITH RESPONSE AC-
TION PLAN.—Any site or portion thereof for which a re-
sponse action plan has been approved pursuant to a quali-
fied program shall not be subject to further response ac-
tion under the authority of the CAA, CWA, CERCLA,
OPA, RCRA, SDWA, TSCA, or State and local laws con-
cerning response actions, including State laws regarding
enforcement. Any parties that participate in the conduct
of a response action pursuant to a response action plan
approved pursuant to a qualified program shall not be lia-
ble for damages for response action or restoration require-
ments of the CAA, CWA, CERCLA, OPA, RCRA, SDWA,
TSCA, or State and local laws concerning response ac-
tions, including State laws regarding enforcement.
(b) COMPLIANCE
OF RESPONSE ACTIONS WITH
OTHER LAWS.—No Federal, State, or local permit shall
be required for the portion of any response action con-
ducted entirely onsite, where such response action is se-
lected and carried out in compliance with a qualified pro-
gram.
(c) COMPLIANCE WITH NCP.—Response actions con-
ducted pursuant to a response action plan shall be consid-
ered consistent with the National Contingency Plan for
purposes of private cost recovery claims under CERCLA
or OPA.
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(d) EFFECT OF PERFORMANCE.—Performance of a
response action pursuant to a response action plan shall
not constitute an admission of liability under any Federal,
State, or local laws or regulations or in any private action
nor shall such performance be admissible as evidence in
any citizen’s suit or private action brought under any of
the statutes specified in subsection (a).
SEC. 8. ENVIRONMENTAL TRUSTEE.
A qualified program shall provide for the appoint-
ment by the Governor of an environmental trustee who
is authorized to acquire on behalf of the State (by con-
demnation or otherwise) sites or portions thereof which
are the subject of response action under the State’s quali-
fied program. Such trustee shall also have the authority
to bring suit to quiet title on any property which is the
subject of such a response action and shall have a fidu-
ciary duty to undertake such response action at the site
as may be necessary to meet the requirements of section
6 and thereby return the site to productive use. No such
trustee shall be liable under section 106 or 107 of
CERCLA. Such trustee shall qualify as a party participat-
ing in the conduct of a response action under section 7(a).
SEC. 9. STATE GRANTS.
Section 111(a) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42
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U.S.C. 9611) is amended by adding the following new
paragraphs after paragraph (6):
‘‘(7) DEVELOPMENT OF STATE VOLUNTARY RE-
SPONSE PROGRAMS.—For assistance to States to es-
tablish State programs under the Voluntary Envi-
ronmental Response Act of 1993. Such assistance
shall be not less than 2 percent and not more than
5 percent of the total amount available in the fund.
Such assistance shall be distributed among the
States notifying the Administrator of their intent to
establish such programs based upon the following
ratio—
‘‘(A) That the number of sites listed on
CERCLIS in the State which the Administrator
has determined require further response action
(not including any sites listed on the National
Priorities List), divided by
‘‘(B) the total number of such sites in all
States. Assistance under this paragraph shall
be available only for the first 2 complete fiscal
years commencing after the enactment of the
Voluntary Environmental Response Act of
1993.
‘‘(8) ADMINISTRATION OF STATE VOLUNTARY
RESPONSE PROGRAMS.—For assistance to States to
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administer State programs under the Voluntary En-
vironmental Response Act of 1993. Such assistance
may also be used by the environmental trustee ap-
pointed under section 8 of such Act to acquire sites
which are the subject of voluntary remedial action
under such Act. Such assistance shall be not less
than 2 percent and not more than 5 percent of the
total amount available in the fund. Such assistance
shall be distributed among the States with programs
approved under such Act based upon the following
ratio:
‘‘(A) That the number of sites listed on
CERCLIS in the State which the Administrator
has determined required further response action
(not including any sites listed on the National
Priorities List), divided by
‘‘(B) the total number of such sites in all
States. Assistance under this paragraph shall
be available only for the third, fourth, and fifth
complete fiscal years commencing after the en-
actment of the Voluntary Environmental Re-
sponse Act of 1993.’’
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