[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3681 Introduced in House (IH)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Voluntary Environmental 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 substances and hazardous 
constituents into the environment:
            (1) Only a small percentage of the tens of thousands 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 system for 
        responding to contaminated sites hinders timely, protective, 
        and cost-effective response actions, which may lead to 
        prolonged and unnecessary public exposures.
            (4) The current statutory and regulatory system for 
        responding to contaminated sites discourages 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 preference for 
        treatment-based remedies and the requirement to meet applicable 
        or relevant and appropriate requirements, have discouraged 
        voluntary response actions by private parties due to the 
        uncertainty created by such requirements.
            (7) The private market's interest in purchasing and 
        revitalizing contaminated sites frequently is reduced or 
        eliminated, due to uncertainties regarding liability or 
        potential response costs arising under the current statutory 
        and regulatory system for responding to contaminated sites.
            (8) The disincentives to voluntary response actions 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 employment opportunities for the people of 
        the United States, particularly the poor, unemployed, and 
        disadvantaged.
            (10) The current statutory and regulatory system for 
        responding to contaminated sites has led to excessive legal 
        costs, which have diverted resources from remediation efforts.
            (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 establish an 
alternative mechanism to the current statutory and regulatory system 
for responding to contaminated sites that will--
            (1) ensure expeditious and cost-effective abatement of 
        significant, actual risks to human health and the environment;
            (2) provide incentives for private parties to conduct 
        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 review thereof;
            (5) assist States in developing and administering State 
        programs capable of implementing the requirements of this Act;
            (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 contaminated 
        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 Comprehensive 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 Comprehensive 
        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. Engineering 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 exposure at or near a 
        contaminated site, including restrictions on the use of the 
        site or access to the site. Institutional controls include 
        fences or gates, deed restrictions, transfers of development 
        rights prohibitions 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 response 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 Drinking Water Act 
        (42 U.S.C. 300(f) et seq.).
            (11) The term ``site'' means any of the following: any 
        facility or portion thereof (including an operable 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 Substances Control 
        Act (15 U.S.C. 2601 et seq.).

SEC. 4. QUALIFIED STATE VOLUNTARY RESPONSE PROGRAMS.

    (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 maintenance), submittal of 
        appropriate documentation by the person conducting such 
        response action, including a certification of completeness; and
            (D) provides for the periodic review of response actions 
        after completion for those response actions that use 
        institutional or engineering controls for the purpose of 
        ensuring the continued integrity of the controls employed and, 
        in the event that the integrity of such controls has not been 
        maintained, requires that such integrity be restored in a 
        timely manner after discovery.
    (2) For all sites or portions thereof identified as primary State 
interest sites under section 5(c), a State certification to the 
Administrator shall demonstrate that the program meets all requirements 
of paragraph (1), except that the requirements under section 6(c) of 
paragraph (1)(B) (with respect to the elements and procedures for 
approval of response action plans) and of paragraph (1)(C) shall not be 
mandatory elements of the qualified program for such sites or portions 
thereof.
    (b) EPA Review and Approval of State Voluntary Response Programs.--
            (1) Within 60 days after a State submits a certification to 
        the Administrator, the Administrator shall publish in the 
        Federal Register a notice of receipt 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 subsection (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. Disapproval of a State program shall 
        be subject to judicial 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 action plans and for approving and 
administering such plans under the program.
    (d) Withdrawal of Approval.--Whenever the Administrator determines 
after public hearing that a State is not administering and enforcing a 
qualified program in accordance with the terms of such program, the 
Administrator shall notify the State in writing of such determination. 
If appropriate corrective action is not taken by the State within 90 
days after receipt of the notice, the Administrator shall withdraw 
approval of the program and publish a notice of such withdrawal in the 
Federal Register, after which the State program shall cease to be a 
qualified program under this Act. If the State subsequently 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 district court.

SEC. 5. APPLICABILITY OF THIS ACT AND ELIGIBILITY REQUIREMENTS 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 substance 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 National 
        Priorities List maintained by the Administrator under CERCLA 
        section 105 for which a 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 implementation 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 instrumentality of the 
        executive branch of the Federal Government.
            (5) Any portion of a site at which assistance for response 
        activities may be obtained pursuant to subtitle 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 primary State interest sites 
except the following:
            (1) Any portion of a site included or proposed for 
        inclusion on the National Priorities List maintained 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 polychlorinated 
        biphenyls subject to response under section 6(e) of TSCA;
            (4) Any portion of a site with respect to which an 
        administrative order on consent or judicial consent 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 SELECTION METHODS FOR A 
              QUALIFIED PROGRAM.

    (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 
requirements of this section. A qualified program shall provide that a 
person conducting a response action pursuant to the program may propose 
and obtain approval of a response action based on either the method 
prescribed in paragraph (1) or, if provided in the qualified program, 
paragraph (2).
            (1) Site-specific risk assessment method.--Response actions 
        may be selected based on performance of a site-specific risk 
        assessment. Response 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 x 10<SUP>-4 
        to 1 x 10<SUP>-6 risk of excess cancer for carcinogenic 
        hazardous substances or hazardous constituents and a level that 
        is likely to be without an appreciable risk of deleterious 
        effects for the exposed population for noncarcinogenic 
        hazardous substances or hazardous constituents. Site-specific 
        risk assessments 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;
                    (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 regarding 
                applicability of animal test results (including use of 
                sensitive animal populations) to humans and for 
                limitations of models for low-dose/high-dose 
                extrapolation; and
                    (E) use currently accepted scientific principles 
                (taking into account the validity, completeness, and 
                reliability of the available data).
            (2) Demonstrated control measure method.--A qualified 
        program may also provide for response actions to be selected 
        based on demonstrated control measures (which may consist 
        solely or partially of institutional and/or standard 
        engineering controls) that have been demonstrated to be cost-
        effective 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 selection methods 
only in accordance with those prescribed in paragraph (1) or (2) and 
shall that to the extent a proposed response action plan contains a 
response action that meets the requirements of paragraph (1) or (2), 
such action shall be considered as having satisfied the requirements 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 
levels 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 
require the response action plan to contain the elements listed 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 following elements:
                    (A) A site investigation assessing the factors 
                necessary to determine the appropriateness of the 
                response action in accordance with paragraphs (1) and 
                (2) of subsection (b);
                    (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 demonstration 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 control 
                        measure to the site.
                To the extent that a response action plan proposes to 
                achieve concentration levels equivalent to background 
                levels at the site, supporting information need not be 
                submitted, except as necessary to demonstrate that 
                background levels will be achieved;
                    (D) A schedule for completion of the response 
                action; and
                    (E) Reporting and recordkeeping requirements:
                            (i) Reporting.--The response action plan 
                        shall include provisions requiring submission 
                        of progress reports.
                            (ii) Recordkeeping.--The response action 
                        plan shall include provisions requiring 
                        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 program 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 
                        administering 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 person giving notice or 
                        that access has been obtained through 
                        alternative means.
                            (ii) A response action plan in accordance 
                        with paragraph (1).
                    (B) Review and approval of response action plan.--
                            (i) Public participation.--A qualified 
                        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 response action plan 
                        shall be deemed approved 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 
                        disapproval.
                    (C) Modification of response action plans.--A 
                qualified program shall allow persons conducting 
                response actions pursuant to response action plans to 
                obtain expeditious modifications of such plans.

SEC. 7. RELATIONSHIP WITH OTHER LAWS.

    (a) Effect of Compliance With Response Action Plan.--Any site or 
portion thereof for which a response action plan has been approved 
pursuant to a qualified program shall not be subject to further 
response action under the authority of the CAA, CWA, CERCLA, OPA, RCRA, 
SDWA, TSCA, or State and local laws concerning 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 
liable for damages for response action or restoration requirements of 
the CAA, CWA, CERCLA, OPA, RCRA, SDWA, TSCA, or State and local laws 
concerning response actions, 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 conducted entirely onsite, where such response action 
is selected and carried out in compliance with a qualified program.
    (c) Compliance With NCP.--Response actions conducted pursuant to a 
response action plan shall be considered consistent with the National 
Contingency Plan for purposes of private cost recovery claims under 
CERCLA or OPA.
    (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 appointment by the 
Governor of an environmental trustee who is authorized to acquire on 
behalf of the State (by condemnation or otherwise) sites or portions 
thereof which are the subject of response action under the State's 
qualified 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 fiduciary 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 participating 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 U.S.C. 9611) is amended by 
adding the following new paragraphs after paragraph (6):
            ``(7) Development of state voluntary response programs.--
        For assistance to States to establish State programs under the 
        Voluntary Environmental 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 administer State 
        programs under the Voluntary Environmental Response Act of 
        1993. Such assistance may also be used by the environmental 
        trustee appointed 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 enactment of the Voluntary 
                Environmental Response Act of 1993.''

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HR 3681 IH----2