    [Senate Hearing 105-60]
    [From the U.S. Government Publishing Office]

                                                             S. Hrg. 105-60

                       SUPERFUND CLEANUP ACCELERATION ACT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                 SUPERFUND, WASTE CONTROL, AND RISK ASSESSMENT

                                     OF THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                           ONE HUNDRED FIFTH CONGRESS

                                 FIRST SESSION

                                       ON

                                      S. 8

        A BILL TO REAUTHORIZE AND AMEND THE COMPREHENSIVE ENVIRONMENTAL
       RESPONSE, LIABILITY, AND COMPENSATION ACT OF 1980, AND FOR OTHER
                                    PURPOSES

                                   __________

                                 MARCH 5, 1997

                                   __________

      Printed for the use of the Committee on Environment and Public Works

                       U.S. GOVERNMENT PRINING OFFICE
     40-816 cc                WASHINGTON : 1997
    _______________________________________________________________________
                For sale by the U.S. Government Printing Office
    Superintendent of Documents, Congressional Sales Office, Washington DC 20402

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                           ONE HUNDRED FIFTH CONGRESS
                     JOHN H. CHAFEE, Rhode Island, Chairman
    JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
    ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
    DIRK KEMPTHORNE, Idaho               FRANK R. LAUTENBERG, New Jersey
    JAMES M. INHOFE, Oklahoma            HARRY REID, Nevada
    CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
    CHRISTOPHER S. BOND, Missouri        JOSEPH I. LIEBERMAN, Connecticut
    TIM HUTCHINSON, Arkansas             BARBARA BOXER, California
    WAYNE ALLARD, Colorado               RON WYDEN, Oregon
    JEFF SESSIONS, Alabama
              Steven J. Shimberg, Staff Director and Chief Counsel
                   J. Thomas Sliter, Minority Staff Director
                                     ------

         Subcommittee on Superfund, Waste Control, and Risk Assessment

                     ROBERT SMITH, New Hampshire, Chairman
    JOHN W. WARNER, Virginia             FRANK R. LAUTENBERG, New Jersey
    JAMES M. INHOFE, Oklahoma            DANIEL PATRICK MOYNIHAN, New York
    WAYNE ALLARD, Colorado               BARBARA BOXER, California
    JEFF SESSIONS, Alabama               BOB GRAHAM, Florida

                                      (ii)

                                C O N T E N T S

                                  ----------

                                 MARCH 5, 1997

                                                                       Page

                               OPENING STATEMENTS

    Allard, Hon. Wayne, U.S. Senator from the State of Colorado......    27
    Baucus, Hon. Max, U.S. Senator from the State of Montana.........     6
    Boxer, Hon. Barbara, U.S. Senator from the State of California...     8
    Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     4
    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...    14
        Letter, relative to Oklahoma cleanup sites, from EPA.........   378
    Lautenberg, Hon. Frank R., U.S. Senator from the State of New
      Jersey.........................................................     2
    Smith, Hon. Robert, U.S. Senator from the State of New Hampshire.     1
    Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......    15

                                   WITNESSES

    Biagioni, Linda, vice president of environmental affairs, Black &
      Decker Corporation, on behalf of the Superfund Action Alliance.    41
        Prepared statement...........................................   395
        Responses to additional questions from:
            Senator Lautenberg.......................................   402
            Senator Smith............................................   401
    Browner, Hon. Carol M., Administrator, Environmental Protection
      Agency.........................................................    10
        Charts and tables............................................   361
        Letter to Senator Inhofe.....................................   378
        Prepared statement...........................................   345
        Responses to additional questions from:
            Senator Allard...........................................   368
            Senator Lautenberg.......................................   369
            Senator Smith............................................   366
            Senator Thomas...........................................   368
    de Saillan, Charles, Assistant Attorney General, Natural
      Resources, Environmental Enforcement Division, State of New
      Mexico.........................................................    60
        Prepared statement of Tom Udall, attorney general, State of
          New Mexico.................................................   428
        Responses to additional questions from:
            Senator Lautenberg.......................................   466
            Senator Smith............................................   465
    Florini, Karen, Esq., senior attorney, Environmental Defense Fund    39
        Prepared statement...........................................   384
    Garcia, Terry, Acting Assistant Secretary, National Oceanic and
      Atmospheric Administration.....................................    55
        Prepared statement...........................................   415
        Responses to additional questions from Senator Smith.........   421
    Gimello, Richard, Assistant Commissioner for Site Remediation,
      New Jersey Department of Environmental Protection, on behalf of
      National Governors' Association................................    37
        Prepared statement...........................................   382
    Heig, Rich A., senior vice president, Engineering and
      Environment, Kennecott Energy Company..........................    62
        Prepared statement...........................................   473
        Responses to additional questions from Senator Smith.........   475
    Lockner, Larry L., manager for regulatory issues, Shell Oil
      Company, on behalf of American Petroleum Institute.............    57
        Prepared statement...........................................   423
        Responses to additional questions from Senator Smith.........   426
    O'Regan, Karen, environmental programs manager, City of Phoenix,
      on behalf of American Communities for Cleanup Equity,
      International City County Management Association, National
      League of Cities, National Association of Counties, U.S.
      Conference of Mayors, and National School Board Association....    45
        Analysis of bill passed by Arizona Senate relative to
          Superfund program..........................................   414
        Prepared statement...........................................   410
        Responses to additional questions from Senator Smith.........   413
    Spiegel, Robert, director, Edison Wetlands Association...........    59
    Williams, Barbara, owner, SunnyRay Restaurant, Gettysburg, PA, on
      behalf of National Federation of Independent Business..........    43
        Prepared statement...........................................   402

                              ADDITIONAL MATERIAL

    S. 8, Superfund Cleanup Acceleration Act of 1997.................    73
    Article, State to Study Possible Effects of Contaminated Water,
      Soil, UPI......................................................   566
    Comments on Executive Order 13016:
        Chemical Manufacturers Association...........................   502
        Several energy companies.....................................   487
    Letters:
        Bair, Sierra.................................................    52
        Chemical Manufacturers Association...........................   500
        Kennecott Energy Company.....................................   485
        National Association of Industrial and Office Properties
          (NAIOP)....................................................   578
        New Mexico Governor Gary Johnson.............................   468
        New Mexico Secretary of the Environment Mark Weidler.........   470
        Sierra Club..................................................   547
    Reports:
        Summary of S. 8, Superfund Cleanup Acceleration Act of 1997,
          Congressional Research Service.............................   332
        VIACOM Merger, Sierra Club...................................   555
    Statements:
        Association of State and Territorial Solid Waste Management
          Officials (ASTSWMO)........................................   534
        Chemical Manufacturers Association...........................   539
        Government Finance Officers Association......................   568
        National Association of Industrial and Office Properties
          (NAIOP)....................................................   579
        National Federation of Independent Business..................   406
        Oregon Department of Environmental Quality...................   584
        Superfund Action Alliance....................................   399

                       SUPERFUND CLEANUP ACCELERATION ACT

                                  ----------

                            WEDNESDAY, MARCH 5, 1997

                                 U.S. Senate,
           Committee on Environment and Public Works,
                     Subcommittee on Superfund, Waste Control
                                           and Risk Assessment,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:34 a.m. in room
    406, Senate Dirksen Building, Hon. Robert Smith (chairman of
    the subcommittee) presiding.
        Present: Senators Smith, Inhofe, Allard, Thomas,
    Lautenberg, and Chafee [ex officio].
        Also present: Senator Baucus.

     OPENING STATEMENT OF HON. ROBERT SMITH, U.S. SENATOR FROM THE
                         STATE OF NEW HAMPSHIRE

        Senator Smith. The subcommittee will come to order.
        I'd like to welcome Administrator Browner here this morning
    and thank her for being here. We look forward to hearing your
    testimony and discussing Superfund reform.
        We do have 11 witnesses this morning, 10 following you,
    Administrator Browner, so I'm going to be very brief in my
    opening remarks.
        We've expended a lot of time and effort over the past 3 or
    4 years to try to get Superfund reauthorized. I think there are
    a number of areas that we agree upon; there clearly are many
    that we don't agree upon. I hope though that we can reach
    common ground.
        I think the American people realize that this legislation,
    in spite of good intentions, has not done the job that it was
    designed to do. While we continue to debate it, there are
    people out there who are frankly innocent victims of this. We
    will hear from some of them today who are caught up in this
    liability mess.
        We owe it to them and to the environment to get this
    situation straightened out so that more money can be put toward
    cleanup and less toward administrative and legal costs. So I
    think we can do a better job, we can do a faster job, we can
    streamline and I'm hopeful that we'll be able to come up with
    some type of compromise, if that's what it takes, to get
    Superfund reauthorized.
        I must say I was somewhat taken aback by the intensity of
    the negative comments in your statement, Administrator Browner,
    regarding S. 8, but I look forward to discussing that with you.
    We spent many hours, many days, many weeks of meetings both at
    the staff level and at the personal level working from the
    committee's bill from last year, S. 1285, to work toward a
    compromise.
        I felt that we were a lot closer than the remarks that you
    made in your statement seem to indicate, but maybe we'll be
    able to find some common ground along the way this morning.
        Thank you.
        [The prepared statement of Senator Smith follows:]
    Prepared Statement of Hon. Robert Smith, U.S. Senator from the State of
                                 New Hampshire
        Good morning. I would like to thank everyone for coming to this
    morning's hearing. We are here today to receive testimony on S. 8, the
    ``Superfund Cleanup Acceleration Act of 1997.''
        I am going to be brief in my remarks. Frankly, the American people
    have been waiting too long for comprehensive Superfund reform, and I
    for one, don't want to waste any more time. We have expended a lot of
    effort on this subject over the past 4 years, and as a result of
    extensive negotiations we conducted in the last Congress, I believe
    that I can say that the number of areas we agree upon, significantly
    outnumbers the areas that we don't. In those areas we don't agree, I
    believe that we are close to reaching common ground.
        Superfund came about in 1980 in an effort to quickly clean up the
    toxic waste sites that scarred our Nation. We all agree that these
    sites need to be cleaned up. It is not right that one out of four of
    our citizens lives near a toxic waste site. Yet, the results of the
    Superfund program could be better. After 17 years, only 125 sites have
    been cleaned up and deleted from the National Priorities List. There
    are still more than 1200 sites left on the list and more are still
    being proposed. While some will suggest that more sites are being
    cleaned up now than previously, recent EPA testimony estimates cleanups
    are still taking 8 to 10 years to complete. The fact is, we can and
    should do a better and faster job of cleaning up these sites, and I am
    encouraged that everyone seems to agree on this point.
        Administrator Browner, whom we will hear from today, has sincerely
    tried to improve the Superfund program during her tenure though the use
    of administrative reforms. I think our agreement in many of these areas
    is indicated by the fact that some of the provisions in S. 8 were
    derived from the administrative reforms, and likewise, some of the
    EPA's administrative reforms were based on proposals that I had made in
    the last Congress. Yet, Ms. Browner has nonetheless, remained a
    vigilant supporter of comprehensive Superfund reform. I appreciate her
    position, and I agree with her.
        Today, I hope we get past the rhetoric that clouds this issue. It
    would be unfair and untrue to state that anyone on this Committee
    doesn't want to clean up toxic waste sites. That is not the reason for
    this bill. Instead, this bill recognizes that these sites are not being
    cleaned up fast enough. Our citizens and environment deserve better.
        Today, we will hear from representatives of Federal, State and
    local organizations, from environmentalists, and from businesses large
    and small. I want to take the opportunity in advance to thank the
    witnesses for coming today. By the end of their testimony, I am sure we
    will have a clearer picture of how we should proceed toward
    reauthorizing this important legislation.

        Senator Smith. Senator Lautenberg.

      OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR
                      FROM THE STATE OF NEW JERSEY

        Senator Lautenberg. Thanks, Mr. Chairman.
        In the interest of time and showing my appreciation for
    your calling this hearing, I will be brief.
        I particularly want to see us do the job better and more
    efficiently, to speed cleanups; but in the process, I am not
    willing to abandon the safeguards that protect the public. I
    believe that it's possible, based on our past experience of
    working together--Senator Smith, Senator Chafee, Senator Baucus
    and I came very close to a solution last Congress.
        Perhaps this is a bit of nostalgia. I feel like Frank
    Sinatra--they were very good days, but if we can be assured
    that the costs will be distributed fairly, that the process
    will be closely monitored, we may have a successful law. I
    think there are certainly some weaknesses in the present law.
    We're going to have to work very hard, all of us, if we're
    going to pass a bill that achieves full, bipartisan support.
        I would put my entire statement in the record and Mr.
    Chairman, you heard from our distinguished committee chairman,
    that he promises to read every word of the statement if I put
    it in the record. Thusly, I'm willing to acquiesce and I will
    put my statement in the record.
        I thank you very much.
        [The prepared statement of Senator Lautenberg follows:]
     Prepared Statement of Hon. Frank R. Lautenberg, U.S. Senator from the
                              State of New Jersey
        Mr. Chairman, I welcome this opportunity to hear from the
    Administration and a cross section of stakeholders on the
    reauthorization of the national hazardous waste cleanup law, known as
    Superfund. As you know, this is a program of great importance to my
    State of New Jersey, and to innumerable communities across the country.
    73 million Americans live near toxic waste sites. That is about one in
    every four of our citizens.
        Although it is difficult to say precisely how dangerous there sites
    are, recent data from the Agency for Toxic Substance and Disease
    Registry are troubling. For example, some studies found that in all but
    one of New Jersey's 21 counties, cancer rates in areas around hazardous
    waste sites exceeded the national average. Studies from other parts of
    the country also suggest that those living near toxic waste sites
    suffer disproportionately from serious health problems.
        Beyond their adverse health effects, hazardous waste sites often
    have serious negative economic effects on our cities and neighborhoods.
    If we don't clean these sites up, we will deprive communities of good
    jobs and needed local tax revenues.
        Unfortunately, the Superfund program got off to a slow start.
    However, in recent years, the program has turned around. Under the
    Clinton Administration, toxic waste cleanups have been 20 percent
    faster and 25 percent cheaper. We have seen real progress in cleaning
    up sites, as well as an increased emphasis on fairness to settling
    parties.
        Still, all of us here today are trying to help make the system work
    better yet. We would like very much to speed cleanups, to reduce
    unnecessary litigation, and make the program work more fairly and
    efficiently.
        I am especially eager to hear from our witnesses about the various
    administrative reforms that have been implemented in the program. Many
    criticisms of Superfund address problems that existed long ago. In
    fact, I used to be a leading critic of the program.
        However, today's program has changed considerably, thanks largely
    to improvements begun by Administrator Reilly and a broad range of
    significant new reforms developed by Administrator Browner. EPA's
    reform efforts have led to a Superfund program that is much faster,
    fairer, and more efficient than it was 4 years ago, when these
    reauthorization efforts started. We need to build on those reforms,
    rather than addressing problems that no longer exist.
        During the last Congress, Senators Smith, Chafee, Baucus and I
    spent countless hours, along with the Administration, trying to resolve
    our differences. I remain committed to a process that will improve
    Superfund, and produce a bipartisan bill that deserves the President's
    signature. I am hopeful we will succeed. We have made some significant
    process in certain areas, and have faith that this will continue.
        At the same time, I am deeply concerned about some of the
    provisions in S. 8 that would dramatically reduce the responsibility of
    many polluters. For example, S. 8 relieves from liability generators of
    industrially-derived hazardous wastes if they were savvy enough to have
    buried their waste at a landfill that also accepted ordinary household
    trash. In other words, the companies who elected to use midnight
    dumpers will profit. Responsible industrial generators, who paid a
    higher price to dispose of their wastes at industrial landfills, will
    continue to be enmeshed in Superfund's liability scheme. This makes
    Superfund more unfair, not less.
        I am also concerned that S. 8 fails to adequately protect the
    safety of our drinking water because it fails to require that
    groundwater be cleaned up. The bill also repeals an existing preference
    for cleaning up the pollution to protect future generations and the
    environment. Instead, S. 8 would allow the materials to remain at
    sites, so long as there is a fence around them, even if the materials
    continue to pose health risks.
        In addition, I am very concerned about the broad authority granted
    to States without a showing that they have the technical and financial
    capacity to adequately protect public health and the environment.
        To help us explore these issues, I look forward to the comments
    today of Carol Browner and all the witnesses, in particular the two
    witnesses from New Jersey. Robert Spiegel will explain the importance
    of community participation in Superfund decisionmaking. His experience
    at the CIC site in New Jersey shows the benefits and savings that can
    be achieved if the community is part of the process. I also want to
    welcome one of the leading State managers of hazardous waste cleanup,
    Rich Gimello, who operates the hazardous cleanup program in New Jersey
    and today is representing Governor Whitman and the National Governors
    Association.

        Senator Smith. Senator Chafee.

    OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE
                         STATE OF RHODE ISLAND

        Senator Chafee. Thank you, Mr. Chairman.
        Yes, indeed, I will read Senator Lautenberg's statement. I
    will curl up in bed this evening with it and look forward to it
    as an exciting bit of reading.
        It isn't just this statement of yours, Senator Lautenberg,
    that I'll read, I make an effort to read all of your
    statements. The effort hasn't been totally successful, I will
    confess.
        [Laughter.]
        Senator Chafee. I will not have a long statement, Mr.
    Chairman.
        I just want to say that we've made tremendous efforts to
    accommodate the desires that have been put forth over the
    years. You and I joined together in co-sponsoring S. 8. It's
    not a dream package for any particular interests; it's an
    effort that I believe will greatly improve the status quo.
        I don't think that anybody thinks that the existing law is
    functioning correctly. Our new liability proposal moves a
    considerable distance toward the Administration and the
    proposals that the current minority had made in years past.
        I look forward to Administrator Browner's testimony.
        Mr. Chairman, I also want to thank you for all the time and
    effort you've put into this over the years. You've been a
    stalwart in trying to achieve success in this measure and I
    want to publicly commend you for what you've done.
        [The prepared statement of Senator Chafee follows:]
    Prepared Statement of Hon. John H. Chafee, U.S. Senator from the State
                                of Rhode Island
        Good morning. I want to thank Senator Smith for holding this
    hearing on S. 8, the Superfund Cleanup Acceleration Act of 1997. Thanks
    to his leadership, we are closer to comprehensive reform of this
    troubled program. We are off to a very fast start this year. Working
    together with the Minority and Administration, we stand a good chance
    of enacting Superfund reform legislation in the 105th Congress.
        I also want to thank Senators Baucus and Lautenberg. While I know
    they continue to have problems with provisions in S. 8, I know they are
    ready to roll up their sleeves and get to work on our common agenda:
    real legislative reform for Superfund's problems.
        Finally, I want to thank Carol Browner, EPA Administrator and the
    Administration's leader on Superfund. We have spent many hours together
    personally trying to bridge our differences on Superfund. I look
    forward to her testimony today and to a successful conclusion to the
    bipartisan negotiations we started but could not finish in the 104th
    Congress.
        I would like to say a few words about how S. 8 was developed. At
    the outset of the 105th Congress, the Republican Conference
    collectively decided to include a Superfund reform bill as one of its
    ten highest legislative priorities. S. 8 was drafted in a short period
    of time in order to be introduced with other Republican Leadership
    priority bills on January 21, 1997.
        S. 8 is based on the discussions and negotiations conducted in the
    104th Congress on S. 1285. It differs significantly from its 104th
    Congress predecessor in a number of key areas. The most significant
    changes in S. 8 from S. 1285 are in titles dealing with brownfields,
    selection of remedial actions, liability, and natural resource damages.
    We intentionally drafted S. 8 to considerably narrow the differences
    with the Minority and the Administration that were identified in the
    previous negotiations on S. 1285. I must say, however, after reading
    through EPA's testimony I fear the Administrator may think that this
    bill moved away from her position and not towards it.
        Superfund remains our most troubled environmental statute. The time
    has come to reform this program, which was designed to clean up toxic
    waste sites. Instead, it has brought about too much litigation, not
    enough cleanup, inefficient use of scarce resources, and decaying
    cities, where many abandoned sites are not being redeveloped because
    potential developers fear incurring Superfund liability.
        I have joined Senator Smith in cosponsoring S. 8. The bill is not a
    ``dream package'' for any particular interest. Rather, S. 8 is a
    comprehensive reform effort which, when enacted, will be a tremendous
    improvement over the status quo.
        As we discussed at yesterday's hearing, a central focus of the
    Superfund Cleanup Acceleration Act of 1997 is brownfields
    revitalization. It is our position that comprehensive reform of
    Superfund is necessary to spur redevelopment at low-risk sites, and the
    higher-risk sites that might score high enough to be on the Superfund
    National Priority List. In all likelihood most of these ``NPL-caliber''
    sites never will be added to the list. There are 200 such sites in
    Rhode Island alone, many with redevelopment potential.
        Our new liability proposal moves a considerable distance towards
    the Administration and Minority proposals of years past. It attempts to
    target relief toward three central problems in Superfund liability:
    first, the unfairness of imposing joint and several liability on
    parties whose liability is in fact capable of proportional allocation;
    second, the unfairness of a liability net that is cast so wide that it
    sweeps in parties no one ever foresaw as potentially responsible
    parties, like small businesses; and third, a liability system that
    encourages claims and counterclaims at sites with hundreds or thousands
    of small-volume waste contributors. S. 8 does not create a blanket
    exclusion for any class of site. Instead it focuses on the parties and
    their conduct.
        So who will pay for cleanup under this new proposal? If you
    polluted a site, you will have to pay your proportional share of the
    costs of cleanup. If your liability is excused in some way by the
    public policy-based liability protections in this proposal, your share
    is paid by the taxes we are reimposing upon industry. What could
    possibly be fairer?
        There are significant changes to other provisions of the bill that
    reflect our hundreds of hours of negotiations last year. We have
    clarified groundwater provisions to ensure protection of uncontaminated
    groundwater and where, technically practicable, restore contaminated
    groundwater. We have limited more narrowly the circumstances under
    which an old remedy can be reopened and strengthened the roles of
    governors in that process. We have loosened the cap on additions to the
    NPL. We have streamlined the natural resource damages provision to
    focus on restoration and not speculative damage measures. We have added
    money for Brownfields remediation. We feel we have moved a great
    distance in a short time.
        The effort to reform Superfund should be a bi-partisan one. In the
    last Congress, Senator Smith and I enjoyed a positive working
    relationship with our Minority counterparts, Senators Baucus and Smith.
    I know that the Minority and Administration have concerns over the
    process for moving forward, and I appreciated Senator Baucus' comments
    on this issue before yesterday's hearing. I know we can work out a
    process that is acceptable to all sides.
        President Clinton and others in his Administration, including
    Administrator Browner, have long-since recognized the need to reform
    Superfund. In fact, EPA has undertaken three rounds of Administrative
    reforms of Superfund. While these reforms do address some of the
    problems inherent in Superfund, they are no substitute for a thorough
    legislative overhaul. I know the Administrator agrees with me on this.
        There is merit in many of the EPA reforms. Indeed, many of policies
    contained in these reforms have long been advocated by Republicans. Two
    examples are cleanups based on future use of the site, and an expanded
    use of federal money for orphan shares. However, these administrative
    changes are mere exercises of EPA or Justice Department discretion.
    Because these reforms are discretionary, there is no long-term
    certainty in EPA-issued guidance. Guidance can be changed at the whim
    of the issuing official. For these reasons, any significant changes to
    the Superfund statute must be achieved through the legislative process.
        It is long-past time that we reform the Superfund statute. With a
    concerted bi-partisan effort, we can achieve Superfund reform this
    year. We cannot put off Superfund reform any longer; the cost is simply
    too great.

        Senator Chafee. Thank you, Mr. Chairman.
        Senator Baucus.

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

        Senator Baucus. Thank you, Mr. Chairman.
        Mr. Chairman, I'm not sure anybody's going to read my
    statement, so I'm going to give it. It's very brief.
        As I look out in the audience, I'm struck with how many
    years we've been at this. I'm reminded of Yogi Berra's
    statement, ``It's deja vu all over again.''
        Administrator Browner has talked to us many times about
    Superfund; we've had a large number of witnesses at hearings
    and spent many hours on this subject. During the last 4 years,
    we've had 20 hearings on Superfund.
        We've had 3 days of markup, and we've heard from 161
    witnesses, whose compiled testimony comes out to 4,490 pages
    already and we still don't have a bill. It's my hope, and I
    know it's the hope of all of us, that is going to change, that
    this might be the beginning of the end.
        I'm reminded of Winston Churchill's statement many years
    ago during the Second World War and whether the war was at the
    beginning of the end, and he said that it was the end of the
    beginning.
        It's my hope that this effort is the beginning of the end
    and we're going to wrap this up in this Congress.
        I'd like also to recall a point that I made in yesterday's
    hearing--maybe we can use the Safe Drinking Water Act as a
    model. We worked together, and worked hard without a lot of
    fanfare, getting the job done. As I mentioned yesterday, that
    bill passed because it was a ``win-win'' situation.
        It was win-win, first of all, because we did reduce Federal
    regulations, but we also helped improve the quality of drinking
    water. In this case, I think we can and we should reduce the
    cost of the Superfund program. We should make cleanups more
    efficient. I think we can do that in a new law. In many
    respects, Administrator Browner has already done so with the
    regulatory powers of the EPA Administrator. I think we can also
    make the liability system more fair. Those are very important
    goals.
        On the other side of the ``win-win'' coin, I think we can
    also increase environmental protection. More than 70 million
    Americans live within 4 miles of a Superfund site. I think
    those Americans want us to pass a law that provides them with
    more protection, Mr. Chairman, not less, and also a statute
    that gives them a greater voice in how a cleanup will affect
    the future of their communities. If there is an opportunity for
    more local involvement earlier on, that will help improve
    environmental protection.
        So as we work together, I urge all of us to look creatively
    for win-win solutions.
        Turning very briefly to the specifics of S. 8, first, there
    is good news. S. 8 is better than S285 from last year, in the
    last Congress. That's a fact. A month of discussions and
    negotiations have paid off.
        Still, we still have a long way to go. I have several
    significant concerns which I have described in my prepared
    statement which I know all of you will read very assiduously
    and I ask that be included in the record, Mr. Chairman.
        I'll mention just one, natural resource damages. I don't
    want to belabor the point, I've made it before, and the natural
    resource damages provisions of S. 8 contain improvements over
    previous versions. Let me just say this: The Clark Fork site in
    Montana is the largest Superfund site in the Nation--I repeat,
    the largest Superfund site in the Nation. The natural resource
    damage is massive; it stretches for 135 miles from Butte, MT,
    to Missoula, MT. The State of Montana has filed a damage claim
    for more than $700 million to restore the damaged resources.
        The State of Montana has pressed this case hard to
    Republican administrations, to Democratic administrations in
    Montana for 13 years. The case finally went to trial just a few
    days ago on Monday of this week.
        Maybe we will prove our case, maybe we won't; that's for
    the court to decide. For my part, I will do everything in my
    power to prevent anyone from pulling the rug out from under
    Montana on the courthouse steps.
        These and other remaining issues are very serious, Mr.
    Chairman. We all know that, but they are not insurmountable. It
    is my hope, with a little more hard work, and with the
    cooperation of the Administration, we can get a good bipartisan
    bill this year finally.
        [The prepared statement of Senator Baucus follows:]
     Prepared Statement of Hon. Max Baucus, U.S. Senator from the State of
                                    Montana
        Thank you, Mr. Chairman.
        I never intended to make Superfund the focus of my Senate career,
    but it is starting to seem that way.
        During the 103d Congress, we held 11 hearings and 3 days of mark up
    on Superfund reform. Last Congress, we held nine hearings. We've heard
    from a total of 161 witnesses, and compiled 4,490 pages of testimony.
        Hopefully, today's hearing is the beginning of the end.
        I'd like to make a couple of basic points.
        First, Superfund is a very important environmental program. Love
    Canal was not some kind of a fluke. As our country industrialized,
    there was an unfortunate side effect: the creation of toxic waste sites
    that threaten public health and the environment.
        There are at least 1,300 of these sites, all across the country.
    When State and local resources seemed inadequate to clean these sites
    up, Congress created the Superfund program to get the job done. And we
    were right to do so.
        Second, Superfund has had its problems. The program got off to a
    terrible start. Some people went to jail.
        Even after the initial problems were solved, cleanups were slow,
    paperwork piled up, and transaction costs were out of sight.
        But things have changed. First under Bill Reilly, and now under
    Carol Browner, EPA has made significant improvements in the Superfund
    program.
        As we will hear today from Administrator Browner, EPA has taken
    steps to accelerate cleanup, cut litigation, and improve the quality of
    cleanup. Many of those reforms seem to be working.
        EPA has now cleaned up over 400 sites, begun work at more than
    1,200 sites, and settled liability with 14,000 small parties. These are
    positive steps.
        I believe that we can go even further. For example, I support
    legislative changes to make cleanups more efficient. To reduce
    litigation and other transaction costs, especially for municipalities
    and small businesses. To enhance the State role.
        I also believe that we have a good opportunity this Congress to
    produce a solid bipartisan Superfund bill that the President will sign.
        But we are not there yet.
        Clearly, S. 8 is better than where we started last Congress. The
    months of discussions and negotiations seem to have paid off. But a
    number of serious concerns remain.
        Most importantly, the new bill includes changes that allow up to
    600 existing cleanup agreements to be reopened, restudied and
    renegotiated. Undoing decisions that have already been agreed to will
    only delay cleanup and reopen old wounds.
        It also includes changes that will dramatically reduce the amount
    of cleanup at some sites.
        For example, it allows highly toxic wastes to remain untreated and
    left in place. And it requires groundwater to be cleaned up only if
    doing so will cost less than letting nature do the job or restricting
    the uses of that water.
        It continues to prevent streams, wildlife habitats and other
    natural resources damaged from long-term pollution from being fully
    restored.
        Finally, it exempts many large, viable companies from their
    responsibility to clean up toxic dumps that they helped create. By
    exempting these companies, it puts the burden of paying for cleanup on
    the backs of the taxpayer.
        The proposal would have a particularly harsh effect on my State of
    Montana. It would allow signed cleanup agreements to be reopened,
    thereby delaying cleanups in a dozen places throughout the State. And
    it would undermine efforts to restore the damage along the Clark Fork
    river.
        I don't want to belabor this point. I've talked about it before, at
    some length. And the natural resource damage provisions of S. 8 contain
    some significant improvements over previous versions.
        But let me just say this. The Clark Fork site is the largest
    Superfund site in the Nation. The natural resource damage is massive.
    It stretches for 135 miles, from Butte up to Missoula.
        The State of Montana filed a damage. claim seeking more than $700
    million to restore the damaged resources. Montana has prosecuted this
    case vigorously, through Republican and Democratic administrations, for
    13 years.
        The case finally went to trial Monday.
        Maybe we'll prove our case. Maybe we won't. That's for the court to
    decide. But, for my part, I will do everything in my power to prevent
    Congress from pulling the rug out from under Montana on the courthouse
    steps.
        These and other remaining issues are serious. But they are not
    insurmountable. It is my hope, Mr. Chairman, that with a little more
    hard work, and the cooperation of the Administration, we can get a good
    bipartisan bill this year.

        Senator Smith. Thank you very much, Senator Baucus. I have
    a statement by Senator Boxer for the record.
        [The prepared statement of Senator Boxer follows:]
     Prepared Statement of Hon. Barbara Boxer, U.S. Senator from the State
                                 of California
        Thank you, Mr. Chairman, for calling this hearing today to continue
    discussions toward meaningful reform of the Superfund program. I am
    hopeful that your dedication, and the hard work of Senator Lautenberg
    and other members of this subcommittee, will make Superfund reform a
    reality this session.
        Mr. Chairman, as you know, Superfund is one of the most important
    environmental laws for the people of California. California has ninety-
    six Superfund sites, the third highest number of any State, and seven
    Natural Resource Damage sites, more than any other State. Over forty
    percent of Californians live within four miles of a Superfund site.
        Superfund helps protect the health and environment of millions of
    Californians by addressing some of the most contaminated sites in my
    State. An example is the Montrose Chemical Corporation Site (that
    contaminated with DDTs and PCBs four different groundwater aquifers,
    two of which are a source of drinking water. Another is the Purity Oil
    Sales Site in Fresno, where the soil is contaminated with lead. This
    was an area where the children of migrant farm workers regularly
    played.
        Clearly we need to fix the problems with Superfund, but I am
    concerned that the proposal before us does not adequately reflect
    fundamental principles that I believe need to be the basis for reform.
        We need reform that will streamline the Superfund process, speed-up
    cleanups at Superfund sites, and help eliminate unnecessary litigation
    without compromising the principles of ``polluter pays'' and ``putting
    public health and safety first''.
        Provisions such as the reopening of Records of Decision (ROD's)
    seem to go against the concept of streamlining and speeding up
    cleanups. If ROD's are reopened, the over 46 sites (48 percent of
    California National Priority List Superfund sites) that have a final
    ROD in place could face ROD petitions that would stop all ongoing
    cleanup efforts pending review.
        If ROD's were reopened, the San Gabriel accord (which was signed in
    March 1994) would be undermined. The groundwater aquifer underlying the
    San Gabriel Valley is one of the most complex and contaminated
    Superfund sites in the country. The site has been on the Superfund list
    since 1984. Over 10,000 businesses and other parties potentially share
    liability for this problem. It is a truly unique site that is being
    successfully worked on by PRP's, EPA and the State of California.
        At the Baldwin Park site in San Gabriel Valley, a reopening of the
    ROD could result in an additional year plus $800,000 to redo the
    documentation. The San Gabriel Valley Water Quality Authority has
    estimated that the delays in cleanup would add $25 million to the cost
    of treatment because of further spread of contamination during the
    delay.
        The groundwater aquifer underlying the San Gabriel Valley is one of
    the most complex and contaminated Superfund sites in the country. The
    site has been on the Superfund list since 1984. Over 10,000 businesses
    and other parties potentially share liability for this problem. It is a
    truly unique site that is being successfully worked on by PRP's, EPA
    and the State of California.
        Mr. Chairman, the goal of minimizing the cost of cleanup is a sound
    one, but I believe that cost should come into consideration only after
    we agree to certain cleanup standards and remedies that have been
    selected on the basis of public health and safety. Provisions in the
    bill emphasize cost savings over public health and environmental
    restoration.
        I believe that if we mandate that selection of cleanup remedies be
    dictated by cost considerations, it will inevitably lead to cleanups
    that are less protective of the public health. Putting cost first will
    in effect shift our emphasis away from cleanup toward less expensive
    short term containment strategies. We will in effect be putting the
    burden of cleanup on future generations.
        On the issue of remedy selection, I would also like to emphasize my
    concern with provisions in the bill which could limit EPA's ability to
    protect children and other sensitive subpopulations. This could lead to
    the selection of cleanup remedies that overlook the fact that children
    are more susceptible and more at risk from exposure. Cleanups and even
    containment strategies might not be protective of our children's health
    and safety.
        Mr. Chairman, our liability scheme in Superfund must reflect the
    ``polluter pays'' principle. This principle has been very successful in
    requiring polluters to pay for cleanup. It has helped recast a
    corporate mind-set that once saw the careless dumping of toxic waste as
    every day business-as-usual and has acted to deter careless disposal
    and encourage pollution prevention.
        The bill before us contains very broad liability exemptions that
    will in effect remove cleanup responsibility from polluters and place
    the burden on States and taxpayers. I believe that the goals of the
    Superfund program can best be achieved with a sound liability scheme
    and an effective funding mechanism to pay for cleanups.
        Another concern I have with the bill is the provision that would
    not allow the States to enforce their own stricter cleanup standards
    and recover costs from Potential Responsible Parties. The preemption of
    California's ability to apply stricter cleanup standards would mean
    that, in the case of the Baldwin Park site, the State of California
    would have to pay an additional $5 million in capital and $20 million
    in operation and maintenance costs to bridge the gap between Federal
    and State drinking water standards.
        One other concern I want to briefly mention is the bill's
    provisions on groundwater cleanup which I believe would jeopardize
    groundwater safety. Groundwater cleanup issues are of major concern to
    California. Ninety-two percent of the sites in California involve
    groundwater contamination. Most (81 percent) NPL sites are in
    residential areas. At least 3.2 million people get their drinking water
    from aquifers over which a site is located.
        The bill before us only requires the selection of cleanup remedies
    that will ``prevent or eliminate any actual human ingestion of
    contaminated drinking water''. The most cost effective strategy might
    be to put a filter on a tap or simply provide bottled water--delaying
    any cleanup and allowing contaminated groundwater to spread or go
    unchecked.
        Mr. Chairman, thank you for the opportunity to express my concerns.
    I look forward to continued work with you to achieve meaningful reform
    and would like to extend a warm welcome to Administrator Browner and
    all of today's witnesses.

        Senator Smith. Administrator Browner, before I turn to you,
    I just want to mention one of your aides, Bob Hickmott, who is
    the Associate Administrator for congressional and Legislative
    Affairs, I understand is leaving to go to Secretary Cuomo's
    department. He now goes with Elliott Laws. You're driving
    everybody out of your department now.
        [Laughter.]
        Senator Smith. You can defend yourself on that, if you
    like.
        Let me just say good luck to you, Bob. It's been a pleasure
    working with you.
        I'll turn to you now, Ms. Browner. As you know, your
    statement is made a part of the record and if you can summarize
    as briefly as possible, we'd appreciate it.
        Welcome.

          STATEMENT OF HON. CAROL M. BROWNER, ADMINISTRATOR,
                    ENVIRONMENTAL PROTECTION AGENCY

        Ms. Browner. Certainly, Mr. Chairman.
        Members of the subcommittee, thank you for this opportunity
    to testify on the subject of reforming our country's toxic
    waste cleanup program.
        Several times, I don't think at all 20 hearings, but
    certainly at a number of hearings over the past 4 years, I have
    had the privilege to appear before this subcommittee to discuss
    how we can best work together to eliminate the toxic waste
    sites that plague far too many of our communities, and to do it
    faster, fairer and more efficiently.
        Each time, you have heard me say that legislative reform is
    needed to improve Superfund. Each time, I think there has been
    a consensus in this committee that something should be done
    legislatively to strengthen the program and to enable it to
    fulfill its potential for improving the quality of life in our
    country.
        On behalf of the 1 in 4 Americans, including 10 million
    children who live within 4 miles of a toxic waste dump, we must
    not let Superfund fall short of its promise. We must not shrink
    from our shared responsibility to find better, more effective
    ways to clean up the Nation's worst sites, to work with
    affected communities and to give them hope for the future.
        Mr. Chairman, it is time for us to hammer out responsible,
    consensus-based legislation that we can all agree on and to
    finish the job of ridding America's neighborhoods of toxic
    waste dumps.
        Speaking on behalf of the Clinton administration and the
    array of Federal agencies that have a role in Superfund, let me
    say to you and to each member of this subcommittee and
    committee, we are ready, willing and able to work with you,
    Members of Congress from both sides of the aisle, with
    stakeholders, and especially with the communities across the
    Nation to enact legislation that will cleanup these sites,
    return land to communities for productive use, and protect the
    health of our citizens.
        I would respectfully suggest, Mr. Chairman, that a good
    starting point would be to recognize the positive success of
    the administrative reforms that we have already put in place.
        When we first took office 4 years ago, I said on numerous
    occasions, and the President said, that Superfund was broken,
    that it needed to be fixed, and so we launched a series of
    innovative measures designed to improve the work within the
    current statutory framework.
        I think we've all heard the story about the man, when asked
    why he kept hitting himself in the head with a hammer, replied
    because it feels so good when I stop. Mr. Chairman, I'm happy
    to say that we can now put the hammer away when it comes to
    Superfund.
        The Superfund Program of today, site after site, is vastly
    different than it was 4, 8, 12 years ago. We have made major
    improvements through our administrative reforms, we have made
    it faster, fairer, more efficient.
        We have instilled the system with more common sense and as
    a result, I think it is fair to say that many of the old
    criticisms simply do not apply anymore. Thanks to our
    administrative reforms, today's Superfund provides
    significantly faster cleanup at lower costs. On average, we
    have cut more than 2 years off the time it takes to clean up a
    Superfund site and we are well on our way to a goal of saving
    even more time.
        In addition, our reforms have protected thousands upon
    thousands of small parties from Superfund litigation, removing
    them from the liability system, the liability net, and thus,
    ensuring that their dollars are spent on actual cleanup and not
    on lawyers, not on expensive legal costs.
        We've worked to reduce transaction costs, to work more
    cooperatively with responsible parties, and to increase
    fairness. We've created a National Remedy Review Board to
    review Superfund decisions, ensure consistency, fairness and
    cost effectiveness. We've updated existing remedies to ensure
    they are consistent with the latest science and technology, and
    we have developed standardized remedies for certain kinds of
    sites.
        These save time, they save money by eliminating the need
    for studies that, in effect, have already been performed at
    similar sites.
        We've expanded our contact with stakeholders and citizens,
    appointing a Superfund ombudsman in each region, creating
    community advisory groups, and putting a wealth of Superfund
    information on the Internet.
        We have formed a closer relationship with State
    environmental agencies, helping them forge a greater role in
    the Superfund site selection process, and working with them
    through our Brownfields Initiative to promote the cleanup and
    redevelopment of lightly and moderately contaminated sites.
        Mr. Chairman, these are just some of the improvements that
    have enabled us to complete a total of 250 Superfund cleanups
    over the past 4 years, more than in the previous 12 years
    combined.
        We all recognize that the job is not done. We have promised
    the American people that toxic wastes should be cleaned up,
    should be removed from their communities, and we have a
    responsibility to finish what we have started.
        As President Clinton mentioned in his State of the Union
    Address, we are determined to double our current pace and
    cleanup another 500 toxic waste sites by the year 2000,
    literally allowing millions of children the ability to live and
    play in neighborhoods free of toxic threat.
        We have provided for faster, fairer, more cost effective
    cleanups and more common sense in the system and we will
    continue to do so without sacrificing one iota of our
    commitment to protect the public health and the environment.
    That is this Administration's No. 1 priority.
        Every time we complete another toxic waste site cleanup,
    every time we close the books on a Superfund site, we want to
    be satisfied that those who live in the community, who live
    nearby, can go on with their lives free from worry that the
    site will one day reemerge as a health threat to their
    communities and to their children.
        At the same time, we are also committed to ensuring that
    those responsible for polluting these sites are indeed held
    responsible for cleaning them up. Why should we stick the
    taxpayers with the bill.
        Mr. Chairman, we fully agree that the bulk of Superfund
    money should go to clean up activities and not to lawyers. That
    is why we have acted to reduce transaction costs, that is why
    we have acted to reduce litigation between the parties.
        We agree that the churches, the Girl Scout groups, the mom
    and pop businesses should be protected from the broadly cast
    litigation net, often put in place by private sector parties.
    That is why we have acted to remove more than 9,000 small
    parties from Superfund litigation over the past 4 years.
        Let us not forget the benefits of the unfairly maligned
    Superfund liability system. That system, and we admit there are
    problems, and we have worked to fix those problems, is
    responsible for more than $12 billion committed by responsible
    parties to clean up hazardous waste sites.
        That is $12 billion in money that otherwise would not have
    been available for the critical task of ridding the Nation of
    these highly dangerous hazardous waste sites. That is $12
    billion that responsible parties have committed to clean up the
    polluted environment.
        Is the system perfect? Of course not. Can we continue to
    improve it? Absolutely. That is why we believe we need
    consensus-based, legislative reform.
        We do have problems with S. 8. We believe that it is
    important to build on the proven successes of our
    administrative reform. We are concerned that S. 8 would impose
    a new system that could, unfortunately, result in delay of
    cleanup, shifting costs from polluters to taxpayers, reducing
    community involvement, and preventing hundreds of sites from
    being addressed.
        We believe that S. 8, as we read it, is a creative system
    that is less protective of the public's health than the one we
    have today. We believe it would end requirements for the
    treatment of even the most highly toxic and highly mobile
    waste. Contaminated groundwater might not be cleaned up in
    perhaps most, if not all, cases.
        It would impose redundant expense of time-consuming, new
    risk requirements as well as new cost considerations on
    existing cleanups, cleanups actually being performed in the
    field today resulting in further delay and disruption. We
    believe it might undermine the efforts by the States to work
    with EPA in partnerships to address their hazardous waste sites
    and to limit real community involvement.
        We are also concerned that S. 8's numerous liability
    exemptions and limits basically reject the notion that the
    largest polluters provide the funds for the cleanup costs. We
    believe that is not something the American taxpayers will
    tolerate, nor should they be expected to.
        Mr. Chairman, I want to be very clear that while we do have
    our substantive differences, we do not believe they are
    insurmountable. Many visions in S. 8 where we have problems
    appear to be the result of honest efforts of people in this
    body to address problems that quite frankly, no longer exist in
    the day-to-day operation of the program.
        They seem to be focused on outdated anecdotes about
    goldplated, overprotective remedies, or liability provisions
    that purportedly prevent cleanup. We think that a consensus-
    based process must be based on where we find the program today;
    that by focusing on today's Superfund program, a program that
    now has more than 70 percent of NPL sites cleaned up or in
    cleanup construction, we stand a much better chance of
    developing a consensus and enacting responsible reform
    legislation in this Congress.
        If I might just very, very briefly speak to the four
    points, the four cornerstones of what we think would be
    responsible legislation.
        First, it should protect public health and the environment,
    promote cost effectiveness, and foster the return of
    contaminated sites to protective use by their communities.
        Second, it should hold polluters responsible while at the
    same time, allowing parties to resolve their liability as
    efficiently as possible and not trapping parties unfairly in
    the liability net.
        Third, it should encourage and support citizens in their
    efforts to participate in the cleanup decisions that ultimately
    affect their lives. We have learned over and over again, when
    we involve the citizens on the front end, we save time on the
    back end. Let's bring them to the table, let's make them part
    of the decisionmaking from the beginning.
        Finally, it should support a continued working relationship
    between all levels of government in cleaning up the toxic waste
    sites. This is not something that any one level can do alone.
    It will take all of the Federal, State, and local governments
    working together to get the job done.
        We all know how much Americans want these hazardous sites
    removed from their communities forever; we know how much they
    actually want the Superfund Program to succeed. I believe we
    can, in fact, work out something for their benefit.
        Mr. Chairman, if I might suggest, why don't we get everyone
    together, why don't we pull out a blank sheet of paper, why
    don't we draft a Superfund reform bill that recognizes the
    progress that we've made, addresses the remaining problems, and
    sets the program on the right course for the future, with an
    ultimate goal of ridding our Nation of hazardous waste sites
    and protecting the public health.
        I can assure you that we are eager to get on with the job
    of making America's toxic waste cleanup program faster, fairer
    and more efficient, and thus, bringing relief to many more
    communities. Let us work together to forge a consensus that
    will protect future generations of Americans, let us all say
    yes to a stronger, better, more effective, more successful
    Superfund process.
        We look forward to working with you, Mr. Chairman. We have
    enjoyed I think a very positive dialog over the last several
    years. We would like to build on that. Together we can see
    Superfund legislation drafted and passed this year.
        Thank you.
        Senator Smith. Thank you very much, Administrator Browner.
        Senator Inhofe, do you have a statement you want to make at
    this time?

     OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
                         THE STATE OF OKLAHOMA

        Senator Inhofe. Thank you, Mr. Chairman.
        As you know, we have a Senate Armed Services Committee also
    simultaneously, so I'll have to be leaving.
        I did want to get something in the record, so I do have an
    opening statement, but I'll just read a little bit of it so
    that I can get the point across.
        The point that I have tried to get across in many of these
    hearings over the past 2 years is that even though most of the
    people in this room probably work for the EPA and wouldn't
    agree with this, at the local level, we've had such great
    successes. I won't use the old examples, we've got new ones
    this time, Madam Administrator. Instead of using OxyUSA, let me
    just share an experience in Oklahoma that I think illustrates
    this perfectly.
        Two former refineries were purchased by the same company,
    Arco. Both had similar wastes and similar remedies and both
    needed to be cleaned up. The difference was that the State of
    Oklahoma took the lead for one, while the Federal EPA managed
    the other. The difference was dramatic and underscores the
    inherent problem of directing a local cleanup process from
    Washington, DC. The EPA site took 8 years longer and $37
    million more.
        Specifically, the State site was a refinery located in
    Vinta, OK. Remediation began in 1989, took less than 3 years
    and only cost $6 million. The Federal site was a refinery
    located in Sand Springs, OK. Remediation began in 1985 and it
    was finished in 11 years in 1996, just finished, at a cost of
    $43 million. Both remedies involved the solidification of an
    onsite land filling of petroleum refinery acid sludges.
        I only bring this out because we have case after case, and
    you mention in your fourth point, working together, working
    relationships with the States and the counties and the Federal
    Government. I'm just saying I think we have one very expensive
    step that has not demonstrated that it has been able to clean
    up these sites efficiently.
        I'd ask my entire statement be placed in the record.
        [The prepared statement of Senator Inhofe follows:]
     Prepared Statement of Hon. Jim Inhofe, U.S. Senator from the State of
                                    Oklahoma
        Mr. Chairman, thank you for calling today's hearing and I want to
    commend you for your quick start on Superfund reauthorization. I
    believe we will be able to move Superfund this year, provided we have
    the support of the Administration. You have done a good job of taking
    the Superfund discussions from the last Congress and drafting
    legislation that moves the process forward. I am looking forward to
    working with my colleagues on both sides of the aisle to fix a system
    that everyone agrees is broken.
        While I recognize that EPA has made some administrative changes in
    the Superfund program, it is not nearly enough and a congressional
    overhaul of the entire system is desperately needed. We must:
        1. We must shift the program to the States and local communities.
        2. We must improve the cleanup process and shorten the time it
    takes to clean up a site.
        3. We must reform the liability structure to ensure that parties
    are responsible for only their own actions, not others.
        The best way to change the system is to get the cleanups down at
    the State level. The added bureaucracy of the Federal Government only
    adds unnecessary costs and red tape to the process. Cleanups are
    delayed and more people are exposed to hazardous waste under the
    Federal system. I have one example from Oklahoma that illustrates this
    perfectly.
        Two former refineries were purchased by the same company, ARCO.
    Both had similar wastes and similar remedies and both needed to be
    cleaned up. The difference was that the State of Oklahoma took the lead
    for one while the Federal EPA managed the other. The difference was
    dramatic and underscores the inherent problems of directing a local
    cleanup process from Washington D.C. The EPA site took 8 years longer
    and $37 million dollars more.
        The State site was a refinery located in Vinta, Oklahoma.
    Remediation began in 1989, took less than 3 years, and only cost $6
    million dollars.
        The Federal site was a refinery located in Sand Springs, Oklahoma.
    Remediation began in 1985 and was finished 11 years later in 1996 at a
    cost of $43 million dollars.
        Both remedies involved the solidification and onsite landfilling of
    petroleum refinery acid sludges.
        The extra Federal costs included multiple demonstrations of
    solidification technologies which added years to the project and extra
    EPA reviews of the design documents which caused the project to be
    delayed numerous times. It actually took longer for the EPA to review
    the documents than it did to produce them.
        At the conclusion, the State site cost $92 per cubic yard to clean
    up while the EPA site cost $313 per cubic yard. And this was not a site
    that was cleaned up 15 years ago, it was just finished last year while
    we were debating Superfund. We need to get more sites cleaned up at the
    State level, they do it cheaper, faster, and more efficiently than the
    Federal Government will ever be able to do.
        Mr. Chairman, I am looking forward to working with you on this
    legislation so that we can finally get these Superfund sites cleaned up
    and off the list.

        Senator Smith. Senator Thomas, any opening remarks?

     OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
                            STATE OF WYOMING

        Senator Thomas. Mr. Chairman, I do have a statement I would
    like to have entered in the record.
        [The prepared statement of Senator Thomas follows:]
    Prepared Statement of Hon. Craig Thomas, U.S. Senator from the State of
                                    Wyoming
        Mr. Chairman, thank you for scheduling this hearing, and for your
    hard work to see that the Federal Superfund law is finally
    reauthorized. I want to commend you and Chairman Chafee for your hard
    work on this important issue.
        Nearly everyone agrees the current Superfund law is broken and
    changes need to be made. Unfortunately, the consensus doesn't last much
    past that statement. A program designed in 1980 to clean up hazardous
    waste sites has cost us over $30 billion and we've cleaned up less than
    one-quarter of the over 1300 sites on the National Priorities List
    (NPL). More disappointing than the lack of progress is the fact that by
    some estimates, less than half the money spent goes to actual cleanup.
    So the lawyers line their pockets while the vast majority of Superfund
    sites see little progress. The bottom line is that the current system
    doesn't protect the environment or preserve the health and safety of
    future generations.
        There are several changes Congress must make to the current law if
    we are to achieve our goal of protecting public health: provide a
    common sense approach to cleanups, control costs, reform the liability
    system, accelerate cleanups, increase State and public participation in
    the process, and address Natural Resource Damages (NRD). S. 8 moves us
    toward achieving those goals.
        S. 8 injects some common sense into the cleanup program by allowing
    cost-effective remedies that protect human health and the environment,
    including groundwater. It takes the future use of the site into account
    when selecting the cleanup remedy. In addition, the current rigid
    statutory preferences for permanence will be replaced with flexibility
    to allow consideration of all cleanup options based on several
    important factors. These provisions will help accelerate cleanups and
    control costs.
        If there's one area of the current law that has driven much of the
    public outrage over Superfund, it is the liability system. All across
    the country, and in my State of Wyoming, small business owners who sent
    a tiny amount of waste to an eventual Superfund site are drawn into the
    costly litigation process. Remarkably, the system of liability puts
    every potential party on an equal liability footing, so even though a
    small businessman may have only contributed a small amount of
    contaminant, he's on the hook for the full amount of the cleanup, just
    like the major contributors to the site. S. 8 addresses this concern by
    eliminating liability for small businesses, parties that contributed
    extremely small amounts of waste, and religious and charitable groups
    among others. It also proposes a ``fair share'' allocation process for
    multiparty sites. These changes will dramatically reduce the litigation
    costs associated with Superfund.
        I regard NRD as the ``sleeping giant'' of the Superfund program.
    This is a program that is just beginning to develop, and it's clear
    trustees--States, the Federal Government and Indian tribes will use
    this portion of the law to file huge claims against companies for
    questionable ``values'' of the lost use and non-use of natural
    resources. I'm concerned that reforming the Superfund
        Cleanup program without addressing the NRD portion of the law will
    only move our problems with the current law from one portion of the
    program to another. I am pleased S. 8 addresses this concern by
    eliminating non-use and lost use damages for pre-1980 activities.
        The opponents of Superfund reform like to talk about making the
    ``polluter pay.'' The fact is, however, that the Federal Government is
    the single biggest ``polluter'' in this country. There are over 155
    Federal Superfund sites, there's even one in my State of Wyoming. These
    sites are some of the most complex and costly in the country. The
    inability to control costs, reform NRD and get cleanups done quickly
    result in additional liability to Federal agencies, costs that are
    passed along to the American taxpayer. Therefore it is in everyone's
    interest that we pass substantial reform quickly.
        I am sure we will hear from some of today's witnesses that the
    reforms the Clinton Administration has initiated have solved the
    problems with Superfund. I agree that they have made some improvements
    to the system. However, there remains a good deal of work to be done.
    Even with these reforms, there is too much litigation, cleanups cost
    too much and sites are not being cleaned up quickly. I encourage the
    administration to come to the table so we can work together to pass
    comprehensive legislation in order to truly reform Superfund.
        S. 8 makes some very real improvements to the current mess. It's
    not perfect, but it takes us a step forward on resolving these
    contentious issues. S. 8 represents an excellent effort and I hope we
    can move forward very soon.
        Thank you, Mr. Chairman.

        Senator Thomas. I hope things are going as well as you
    report. Each time you come before Congress, Madam
    Administrator, it sounds like everything is perfect and the
    Congress just ought to keep quiet. Frankly, I have to tell you
    that we have a role too and our role comes from where we live
    and our experience.
        You come and lecture us about how things are going so well
    that we ought to shut up and go home. I just don't agree with
    that and I want you to know that.
        Ms. Browner. Mr. Chairman, if I might just briefly respond.
        I have absolute respect for the role of the Congress. I am
    here today to ask you to please rewrite the law. I am in no way
    suggesting you don't have a very important role.
        Senator Thomas. I'm not just talking about today. We were
    here last year and it just seems like you always talk about
    partnerships, but the partnership is like horse and rabbit
    stew, one horse and one rabbit. It's about that equal.
        I think we could really get along a little better if you
    accepted us as partners, real ones.
        Ms. Browner. Senator Thomas, with all due respect, we
    worked with this committee to craft very important legislation
    last year, we worked in partnership.
        Senator Thomas. Yes, I was on this committee.
        Ms. Browner. And that is what we would like to do here. In
    no way do we suggest, nor have I ever suggested to this
    committee or any body of this Congress, that we don't welcome
    the oversight, that we don't welcome involvement.
        We may have the need for in-depth discussion and debate,
    but if we can sit down together, which is what I am asking for
    here today, and look at where the program is today. It is a
    different program, it is not the same program of 5 years ago.
        Senator Thomas. I don't mean to be argumentative, but I'm
    sharing a perception. You can dismiss it if you like, but that
    is the perception. I'm not the only one in the world who has
    that perception.
        Ms. Browner. I'm sorry if you have that perception. I
    believe that I have demonstrated personally and my agency and
    this Administration have demonstrated a real willingness to
    work. We wrote two pieces of legislation together last year
    that make fundamental changes in programs for the people of
    this country, and we are proud of the work we have done
    together.
        Senator Thomas. I'm sharing my view. You can reject it if
    you choose.
        Senator Smith. Administrator Browner, let me start by first
    of all saying there is no question that you have made great
    strides in regards to making administrative changes during your
    tenure that I think most of us would agree are certainly in the
    right direction.
        Without being confrontational or directly critical, let me
    just say people, private parties, people out in the various
    States say though that although these administrative reforms
    are well-intentioned, in fact, they are not being consistently
    implemented, and that the scenario that you paint here is not
    as rosy as you say it is.
        Could you just respond to that briefly? Is there some
    evidence that you're having a difficult time implementing these
    administrative changes.
        Ms. Browner. The changes which we have unfolded in three
    sets of administrative reforms over the last 3 years are at
    various phases. We'd be the first to admit, the ones we started
    3 years ago are further along than the ones we started a year
    ago.
        There are parties other than EPA that have looked at these
    administrative reforms and their success. For example, the
    Superfund Settlement Project, which is made up of companies
    like Ciba-Geigy, Dupont, General Electric, General Motors, IBM,
    so on and so forth, and we can provide this to the committee,
    looked at the first year of implementation of our
    administrative reforms and what they found is they're working
    and they do make a difference.
        These come on a long history, and I think we would all
    agree, a sometimes painful history, but we have absolutely
    committed ourselves to change, we have been willing, we have
    encouraged third parties to come in and review the changes. The
    Chemical Manufacturers Association, CMA, also has a project
    underway to evaluate our reforms.
        At the end of the day, the best thing we can all do is take
    those reforms, understand them, and rewrite the law. That is
    what is the most important thing to do now.
        Senator Smith. But that report does not cover all of the
    EPA regions is my understanding. That only covers some of them
    and there are some successes in there, but there are other
    regions where the success has not been that good.
        Ms. Browner. The report looked at, in an effort to take a
    snapshot, if you will, of activities across the country, it did
    look at activities outside of Washington. I think that's
    extremely important.
        The reforms are going on in all 10 of the regions. The
    nature of the problems in individual regions will vary. In
    Senator Baucus' part of the country, we have large numbers of
    mining sites and those tend to be different than the sites we
    see in the industrial northeast or the midwest, for example. So
    there are variances in the type of sites.
        I think there is a study now underway in all 10 of the
    regions and we can certainly provide that for the record.
        Senator Smith. Is it still your position that we should
    have comprehensive Superfund reform in spite of the
    administrative changes you've made?
        Ms. Browner. Absolutely. Yes.
        Senator Smith. In your comments about S. 8, if in fact some
    of the changes that we make in S. 8 are based on problems that
    you say don't exist--maybe you're right in some areas, maybe
    we're right--let's assume that many of the problems that we say
    exist don't exist and you have taken care of them, what would
    be wrong--if we codified the changes?
        Ms. Browner. We don't disagree with taking the
    administrative reforms and placing them in legislation.
    Unfortunately, as we now read S. 8, and perhaps we misread it,
    and we will stand corrected if we do, the way in which the
    reforms are playing out, our experience of the reforms in the
    field is not captured in S. 8.
        For example, we do believe it is important to update
    cleanup decisions. We absolutely agree with the need.
    Technology does advance, there are cost savings that can be
    brought to bear.
        As we read S. 8, it would literally allow everything to be
    reopened, including where you have construction underway and we
    think that is, quite frankly, going to result in significant
    delay at far too may sites. So maybe it's a judgment call.
        We agree with the need, the flexibility should be embodied
    in the law to allow the update of remedy decisions, but to
    require every single remedy on the books to be reopened, we
    think will not serve anyone well.
        Another example would be orphan shares. We couldn't agree
    more with the need. I think every time I have testified I have
    spoken to the need for an orphan share fund. We are doing
    orphan share allocations right now. We have more than 20 sites
    where we've made it available, it's more than $50 million.
        The way we read S. 8 would essentially put orphan share
    funding in front of every other activity in the program, and so
    you would again have, we think, unfortunate and unwise delays
    in cleanups.
        I think as both you and Senator Lautenberg said, we've made
    a lot of progress. This is not a gap that cannot be closed. We
    think it can be closed. We would just ask for the opportunity,
    and this is a very detailed process, to actually sit down with
    your staff, with yourselves, whomever, to go through what is
    actually working, what should be put into the law in a very
    strict manner, and where perhaps some flexibility would serve
    all of us, and most importantly, the communities where the
    sites are located.
        I can give you a number of examples where we've moved,
    you've moved, but we're not quite there yet, and I think maybe
    we can get there, but it's going to take some real dialog.
        Senator Smith. Senator Lautenberg.
        Senator Lautenberg. Thanks very much, Mr. Chairman.
        Thanks, Ms. Browner, for your excellent statement.
        As I listened to my distinguished colleagues ask some
    questions about your management and your response to inquiries
    on oversight, I'm reminded of the fact that the Superfund
    program was developed at the end of 1980; that it had its first
    dozen years under Presidents Reagan and Bush; and in the first
    dozen years, this program barely moved and we spent a ton of
    money.
        As a matter of fact, we had one of those terrible incidents
    that occur sometimes in government when the person responsible
    for managing the program was accused and a deputy was punished
    severely for malfeasance or misfeasance, whatever the
    appropriate word is, of duty. So we spent 12 years learning
    what was happening and we've begun to catch up with this thing.
        We had rampdowns and rampups because we couldn't get the
    funding for it, I'd point out to my colleagues here that this
    is a job I think that has developed very well in the last few
    years and it's a testimony of you, Ms. Browner. The fact is
    that you have been responsive.
        I have yet to hear about your unwillingness to appear
    before a committee or unwillingness to answer questions. You've
    been there when asked and I must say I admire your courage
    because you've stood up and taken the criticism not only
    graciously, but also with a follow-up to the programs that
    further distinguishes you and your department.
        I'm pleased to see you here and hope that we can work
    something out that would satisfy both parts, both ends of the
    spectrum. I don't know whether it's possible. I think we have
    an obligation to the American people to do it.
        My mission is not to protect any of the parties who are
    responsible for pollution. Those who are exempt are exempt.
    We've agreed with that, but to make sure that those who are
    responsible pay the price for their deeds, but above all, that
    we protect the citizens who live nearby and whose
    responsibility we share.
        I'd like to just get a couple of questions in and time runs
    fast here.
        Your administrative reforms have been recently reviewed by
    Superfund settlement projects, the Industrial Coalition which
    is chaired by John Quarles at Morgan, Lewis & Bockius.
        Can you tell us about the third round of administrative
    reforms that you implemented and their results? Is that
    something you can do sort of quickly so we can get in as much
    time as possible?
        Ms. Browner. When you take the three rounds of
    administrative reforms, there are more than 50 specific actions
    that they entail. The third round did such things as create a
    National Remedy Review Board which actually looks at sort of
    the most complex, the largest sites, in terms of what is an
    appropriate remedy.
        That group is already meeting. They've been looking at
    sites and they currently estimate potential savings of $15 to
    $30 million based on just 12 remedies at 11 sites. They expect
    to review an additional 10 to 12 remedies in fiscal year 1997.
        Again, this is focusing on the worst, the most complex
    sites. That is what it is designed to do. It comes in prior to
    a final decision to make sure that the best technology is
    really being brought to bear.
        We have also, as I mentioned briefly, created a mechanism
    for reviewing existing remedy decisions, for updating them, to
    take into account the fact that technology does advance in this
    field. Over 30 site remedies have been reviewed because of
    technology advances and the cost savings there are estimated at
    $280 million in future cost reduction, in other words as
    application of the new technologies are brought to bear at the
    site. We will review an additional 60 remedy decisions in the
    coming months.
        We've offered $57 million in orphan share compensation as I
    mentioned previously. We're out there trying out this idea of
    orphan share. We're finding out whether the parties come to the
    table, what does it take to bring them to the table, what does
    it take to get the lawyers out of the picture, to reach an
    agreement on who does what in the cleanup and to actually get
    the cleanup done.
        Finally, we were able to reach an agreement with the
    Department of Treasury that the dollars that the responsible
    parties place in trust funds or escrow accounts, if you will,
    for cleanup costs down the road, can accrue interest and that
    interest goes back into that account, so there are more dollars
    available for those cleanups. It is the Site Specific Interest-
    Bearing Account Program.
        Those are some of the Round 3 reforms. They're up, they're
    working and we can provide you with detailed information on
    each of them.
        Senator Lautenberg. Just one more. That is that S. 8 gives
    the kind of crucial decisionmaking authority on remedy
    selection to PRPs. EPA then has to object in 180 days if they
    disapprove of the PRP-chosen remedy. What are the practical
    implications of the PRP picking their own remedies?
        Ms. Browner. The concern we would have is that a PRP might
    not choose the remedy that clearly protects the public health,
    that protects the environment. You could have a PRP choose a
    remedy, quite frankly, because of dollar amounts and not the
    level of public health and environmental protections that are
    promised to the American people.
        We think there has to be a check and balance in the system.
    In many instances, the sites we're dealing with are sites where
    PRPs have not been forthcoming, have not been willing to accept
    the responsibility to get on with the task.
        Now, to suddenly allow them to make a choice without that
    check and balance, without that public participation, we don't
    think guarantees the environment and public health protections,
    and moreover, we are concerned that we may be moving problems
    onto future generations that we'll just sort of deal with the
    surface problem and leave the underlying problem.
        Senator Lautenberg. Thanks, Mr. Chairman.
        Senator Smith. Senator Chafee.
        Senator Chafee. Thank you, Mr. Chairman.
        I'd just like to comment on that last point of Senator
    Lautenberg. Under S. 8, and I believe under your administrative
    reforms, the PRP has a say in the selection of the remedy with
    the oversight of the EPA. So I don't think it's quite accurate
    to say we're handing it over or to suggest that we're just
    turning the problem over to the responsible party and letting
    them just choose cleanup remedies, the easiest and the least
    expensive.
        You and I met, Madam Administrator, a couple of weeks ago
    and the question I asked you was, ``Who is in charge here from
    the Administration's point of view.'' In your statement, you
    talked about ``We are eager to get on with the job. Let us work
    together.'' The ``us'' and the ``we,'' I assume is you?
        Ms. Browner. It's me.
        Senator Chafee. It's not Ms. McGinty from CEQ and it's not
    the Vice President, and the Department of Justice or the
    Department of Energy, or the Department of Defense. It's you,
    is that correct?
        Ms. Browner. That is right. I am responsible, for the day-
    to-day operation of the Superfund program. Obviously I answer
    to the President, I answer to the Vice President. I am also the
    person that the President has asked to work with Congress to
    fashion a legislative proposal. That is something he asked me
    to do before I even accepted his offer of the nomination to
    this job more than 4 years ago.
        Now, Mr. Chairman, as I know you are aware, Superfund
    involves many parts of the Federal Government. It is not
    something EPA does on its own--the Department of Defense, the
    Department of Transportation, the Department of Energy, the
    Department of Justice all have a role to play in administering
    the law.
        We promise you that whatever consensus-based process this
    subcommittee and committee create, we will undertake the
    responsibility, I, EPA, to ensure that we have the right
    Federal agencies and departments in the discussion at the right
    moment, as we did on drinking water, as we did on food safety.
        Senator Chafee. As you know, last year, I asked, pleaded
    perhaps is a better word, that the rhetoric be reduced on this
    ``polluter pays'' or ``letting polluters off the hook.'' I
    wasn't totally successful in my plea.
        I'm interested in the part of your prepared testimony in
    which you say, ``EPA's reforms''--I'm talking about the section
    at the bottom--``getting the little guy out early.''
        ``EPA's reforms are removing thousands of small volume
    waste contributors from the liability system.'' Under the
    liability system, there is a joint and several liability and by
    definition, the small-volume waste contributors are polluters,
    aren't they?
        Ms. Browner. They are people who have certainly
    participated in a site, that is true.
        Senator Chafee. So what you have done, and I have no
    objection with this, but the facts are you're ``letting the
    polluters off the hook,'' is that correct?
        Ms. Browner. Senator Chafee, as we have said, we do believe
    there are parties unfairly trapped in Superfund, absolutely,
    positively. I don't think Congress, when it created this law,
    when it reauthorized this law, envisioned that a homeowner,
    that a pizza parlor owner would become a part of Superfund.
        What we've sought to do is honor that intent within the
    existing law. So homeowners are absolutely out.
        Senator Chafee. I've only got limited time, Madam
    Administrator, but the facts are that these are polluters. What
    I tried to say last year, as I say without total success, was
    that we're talking a matter of degree. These are polluters. If
    you strictly enforce the law, some dentist that had some
    pollution go into a site, could be responsible and joint and
    several liability for the whole thing, right? That's the law.
        Ms. Browner. I think that it is fair to say that courts
    have interpreted the law as you suggest. I do not think that's
    what Congress intended, I do not think that makes sense for the
    American people and that's why we've had a set of
    administrative reforms.
        No one ever thought when Congress wrote this law that a
    dentist, that a pizza parlor owner would find themselves a
    ``polluter.'' The courts interpreted it that way, EPA has acted
    now to protect them.
        Senator Chafee. Madam Administrator, you have taken on
    yourself, and I don't argue with it, but the facts are that
    you've taken on yourself to excuse some individuals or some
    small companies. You've done that. This is what you say right
    here, ``EPA's reforms,'' and so you've drawn the line at a
    certain place. I don't know where the line is but whatever you
    call a ``small-volume waste contributor,'' here in your
    testimony.
        Ms. Browner. We agree. We've taken them out because we
    don't think you ever intended for them to be there.
        Senator Chafee. Despite what the law says, you've taken a
    position that you thought was our intention. You've done it
    because it makes the whole process much easier. You can move on
    and, similarly, in S. 8, we have also removed some. Yet, you
    don't like what we've done. You think we've gone too far. I
    remind you that it's all part of the same process; we have
    removed some polluters, just as you've removed some.
        Ms. Browner. We do not disagree----
        Senator Chafee. But what gets me is this aggressive
    language--that we all have heard, about ``polluters let off the
    hook,'' or you're not ``making the polluter pay.'' You're
    letting them off the hook and you're not making the polluter
    pay, but you call that reform.
        Ms. Browner. I think we do have agreement here in terms of
    the largest party should pay their fair share and the little
    people should be out. I don't think and you have said
    repeatedly you do not disagree with my efforts to protect the
    small parties which the law say it, this is how courts have
    interpreted it and we have worked around those court
    interpretations in terms of the small parties. This is a
    sensible thing to do and I think we all agree.
        The question now is, and I think the question appropriately
    before all of us who care about legislation, is the middle and
    within that middle, where do you draw a line in terms of who is
    clearly out. The law would state is clearly out, and who
    remains in a fair share allocation system.
        We are concerned that when we read all of the various parts
    of S. 8 and we connect them together--which is how we would
    actually do it in the field, that is how the law would come to
    work in the field--that the effect of all of the various
    sections of S. 8 result in large numbers of parties and sites,
    quite frankly, which we went over and over and around and
    around on last year. We are concerned about the obligation for
    the largest polluters to pay their fair share.
        Senator Chafee. My time is up but I would appreciate it if
    you would take the expression ``letting polluters off the
    hook,'' and bottle it and throw it away somewhere.
        Thank you.
        Senator Smith. Senator Baucus.
        Senator Baucus. Thank you, Mr. Chairman.
        Mr. Chairman, I think we're maybe making a little progress
    here. This last exchange I think illustrates it. Namely, there
    seems to be agreement despite the argument. The argument is
    whether the Administrator is letting ``some polluters off the
    hook.'' That's pretty much irrelevant I think to the greater
    goal here.
        The greater goal here now is what is the solution. I think
    we're agreeing, what's the solution.
        Senator Chafee. The greater goal is what? I missed that.
        Senator Baucus. What's the solution to the problem? That's
    what we're here for, to try to solve problems, not make
    problems.
        Congress somewhat solved the problem when it passed
    Superfund, but also made some problems, so our goal here is to
    solve the problems that Superfund made so that we have a better
    Superfund statute than we had before, namely addressing
    cleanups.
        As I hear the exchange here, it seems to me one of the
    solutions is to let the smaller dentists, outfits, off the
    hook, but I think most Americans would agree, some of the
    largest companies who did pollute should pay the bill, not
    taxpayers. I think most Americans, to repeat myself, think not
    only should taxpayers not pay, but the smallest polluters, the
    dentists, should not pay either because they're unwilling
    parties trapped in the situation caused by the Congress.
        My question to you, Administrator Browner, is this. You've
    outlined a lot of reforms that you've undertaken, you've done
    as much as I think you possibly could given the restrictions of
    the statute.
        You also have said that you'd like a comprehensive bill, is
    that correct?
        Ms. Browner. Yes.
        Senator Baucus. Could you outline for us today again--you
    gave us four points in your prepared testimony, but if you
    could be a little more specific and say the two or three most
    important areas where you think the Congress should still
    address reform even given your argument, that S. 8 deals with
    outdated concepts or problems that no longer are as great as
    they were, say, a few years ago.
        What are the two or three that you'd like to see us
    address, the problems that currently exist that you cannot
    change given the restrictions of the statute but you'd like to
    see changed?
        Ms. Browner. I think it is absolutely important that the
    statute, when rewritten, guarantees public health and
    environmental protections. What I mean by that is let's not
    exempt the requirement, for example, that the hot spots be
    treated, that they actually be cleaned up and treated.
        Senator Baucus. And S. 8 does that in your judgment?
        Ms. Browner. We are concerned that is what S. 8 does.
        Senator Baucus. So don't accept the hot spots. What's next?
        Ms. Browner. No. 2, in terms of public health and
    environmental protections, let's not say that bottled water is
    an appropriate solution when we know that groundwater can, in
    fact, be cleaned up and treated. Let's not have a preference or
    an equal footing. We've had some real confusion in
    understanding this section of S. 8, I'll be honest with you.
        We've gone back and forth with the staff, but we are
    concerned, and I don't think this is necessarily the intention,
    but that you can read S. 8 as allowing for the way the cost
    comes into play, the cost factors and other factors come into
    play, you could end up in a situation where groundwater is not
    addressed even though the NRC and the National Resource Council
    says they can do it.
        Senator Baucus. So groundwater is another one. What's the
    third area?
        Ms. Browner. Then in terms of the largest parties paying
    their fair share.
        Senator Baucus. You're getting into allocation of
    liability.
        Ms. Browner. Now I'm into the second category, right. We
    are concerned that S. 8 takes out a large category of sites
    when you string together the various provisions. This was the
    issue that I think we all spent a lot of time on last year, the
    co-disposal sites, which make up a significant number of the
    sites on the list.
        What we want to do is ensure that you don't needlessly drag
    parties through an allocation system, that there's a bright
    line, you're in, you're out or you're in; that it's very clear
    on the face of the statute and that these 1 percent type
    proposals mean a party has to stay in perhaps for several years
    while we figure out the percentages as opposed to saying, if
    you meet the following definitions, and let's talk about what
    those definitions are.
        Senator Baucus. Are you suggesting we enact something along
    the lines of your fair share allocation?
        Ms. Browner. We would suggest a process. I think this is an
    important example of where we had one position, one opinion 3
    years ago based on in the field experience with our
    administrative reforms. Today, we have a different opinion. If
    I might just briefly explain it.
        We all spent a lot of time 3 years ago looking at an
    allocation system, where there would have to be people who were
    certified, allocated, and it was very rigorous and rigid, if
    you will.
        When we went out and actually used our administrative
    reform allocation system, what we found is people didn't want
    to be limited to a list of who they could choose as their
    allocator. They needed more flexibility.
        We would encourage you, based on that experience, and you
    can talk to parties who have been involved, to provide more
    flexibility in the allocation system. The real point of the
    allocation system, of the orphan share, is to get everyone in
    the room, get the liability resolved, move on to clean up.
        Senator Baucus. I see my time has expired. I just want to
    say, Ms. Administrator, I think you're doing a good job.
        Ms. Browner. Thank you.
        Senator Baucus. You have a nearly impossible task dealing
    with this statute as well as some other statutes that this
    Congress has enacted, all well intended, but sometimes there
    are also some unintended consequences which you have to live
    with.
        I might say for the benefit of my colleagues too that
    you've also responded very well to a lot of local initiatives
    and local concerns, particularly in my State of Montana. The
    best example that I can think of right off the top is a very
    innovative approach I might say to my colleagues here.
        We have a huge Superfund site on the outskirts of Anaconda,
    MT. It's a problem and the local communities as part of the
    cleanup got the approval of EPA to do this, and turn this
    Superfund site into a golf course.
        Jack Nicholas has designed the course. It's a great course
    and it is going to be open this summer. It's going to be so
    good, we're going to rival the U.S. Open. This golf course is
    going to put Montana on the map.
        I invite my colleagues to come out the opening day of the
    Jack Nicholas golf course in Anaconda, MT, which was a
    Superfund site this summer.
        Senator Smith. What are the greens fees to pay for that?
        [Laughter.]
        Senator Baucus. I don't want to get into the Senate gift
    rules, but I urge you to come out this summer on opening day.
        Ms. Browner. If I might say, this is an example of how we
    are taking a very common sense approach to the cleanup plans
    and incorporating future land use. Sixty-three percent of the
    cleanup plans now incorporate the community's desires in terms
    of future land use.
        You're providing an equal level of public health and
    environmental protection, but you're making adjustments within
    the cleanup plan that reflect what the community wants. Here
    they wanted a golf course. That does change your cleanup plan.
    It doesn't change your level of protection, but it allows for
    flexibility in designing cleanup plans.
        Senator Baucus. I might say to the Chairman, I don't know
    about greens fees, but Jack Nicholas is going to be there on
    opening day.
        Senator Smith. Senator Thomas.
        Senator Thomas. Ms. Browner, I haven't heard you mention,
    perhaps you did before I came in, the natural resource damage
    aspect. What's your position on that?
        Ms. Browner. I should explain that you will have people
    testifying later today specifically on the natural resource
    damage portion of the bill. We do believe that there should be
    a natural resource damage provision in a reauthorized Superfund
    bill.
        We're concerned that S. 8, the language on NRD, may impede
    response actions. We are concerned that it may create some
    inflexibility, but we do think that it is an important issue.
    When we say comprehensive, we mean comprehensive and we do have
    with us today the natural resource trustees who will be
    speaking specifically to that.
        Senator Thomas. I see, but if we had the piece of paper out
    here, what would you write down on NRD?
        Ms. Browner. I wish we could write it down in a second. I
    think it would take many, many sentences.
        Senator Thomas. Do you relieve the liability before 1980,
    for example?
        Ms. Browner. No, we would not.
        Senator Thomas. They're too big?
        Ms. Browner. Excuse me?
        Senator Thomas. They're too big a polluter? They don't fit
    in your category?
        Ms. Browner. I think the question of dates, whether it be
    in the case of NRD or in other instances, raises a new round of
    litigation quite frankly and I think the goal of all of us is
    to reduce litigation.
        What will happen is parties will come in and argue they did
    something before or after a particular date and parties will be
    litigating a whole other set of issues. So we have, since we
    began this discussion 4 years ago, consistently recommended
    that we not use dates as a means of determining who is in or
    who is out.
        Senator Thomas. You talked about getting polluters to pay.
    There is a substantial number of these sites that are Federal
    sites, are they not?
        Ms. Browner. Seventy-five percent of the cleanup
    expenditures now underway are being done by the responsible
    parties, by the PRPs if you will. The lion's share are, in
    fact, not Federal sites.
        Senator Thomas. I was confused on the numbers. I noticed in
    some of the material, it said----
        Ms. Browner. I'm sorry, are you talking about Federal
    facility sites?
        Senator Thomas. Yes.
        Ms. Browner. I apologize.
        Senator Thomas. Like Rocky Flats.
        Ms. Browner. You're right, there are a number of very large
    Federal facilities sites in the Superfund Program. You
    mentioned Rocky Flats. There are any number of them.
        I apologize, I thought you were talking about the non-
    Federal sites. My confusion.
        Senator Thomas. We had a hearing last year on Rocky Flats.
    Are we making any progress? We've spent how many million
    dollars there and almost all of it has gone to lawyers as I
    understand it.
        Ms. Browner. I apologize, I know there was a different site
    with a similar name.
        We continue in the dialog. This is not an easy site, as you
    are well aware.
        Senator Thomas. The dialog is we pay the legal fees, while
    somebody else does the talking?
        Ms. Browner. I'm not sure I understand what you mean by we
    pay the legal fees?
        Senator Thomas. That's precisely what we do, is we pay the
    legal fees for the defense and two other parties are in the
    litigation.
        Ms. Browner. Where you have a Federal facility, in the case
    of the example you use, we seek to work with the other Federal
    agencies to shape a solution. There may be litigation in terms
    of other parties who participated in that site, but the energy
    tends to focus on finding a resolution between the Federal
    departments and agencies.
        Senator Thomas. It indicates in some of this material,
    there have been 50 sites cleaned and deleted from NPL in the
    last 2 years.
        Ms. Browner. I'm sorry, could you say that again?
        Senator Thomas. Fifty sites cleaned and deleted from NPL.
    You were talking about 250 or something of that nature?
        Ms. Browner. Right. In the last 4 years, we have completed
    work at more than 250 sites now.
        Senator Thomas. So you did 200 in the first 2 years?
        Ms. Browner. No, I apologize. I'm not familiar with the 50
    number that you're using. If you want to tell me where it comes
    from, that would be helpful.
        Senator Thomas. OK, I'll get it to you and perhaps you can
    respond to it.
        Ms. Browner. The 250, no, we didn't do 200 in the first 2
    years. They are spread out over the 4 years.
        Senator Thomas. Thank you, Mr. Chairman.
        Senator Smith. Thank you, Senator.
        Senator Allard.

     OPENING STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE
                           STATE OF COLORADO

        Senator Allard. Thank you, Mr. Chairman.
        I missed my opening statement, so I'd ask unanimous consent
    that be made a part of the record.
        Senator Smith. Without objection.
        [The prepared statement of Senator Allard follows:]
    Prepared Statement of Hon. Wayne Allard, U.S. Senator from the State of
                                    Colorado
        Thank you, Mr. Chairman. I look forward to today's hearing which I
    hope will shed some light on the urgency of cleaning up highly toxic
    sites around the Nation. In order to quickly and effectively clean up
    these sites, we need to modernize Superfund so it can work effectively,
    that's why I am pleased to be a co-sponsor of S. 8, the Superfund
    Cleanup Acceleration Act of 1997.
        While there may be some concerns with certain aspects of this
    legislation, I believe that if all interested parties make a good faith
    effort we can move this legislation expeditiously through Congress.
    Yesterday's hearing was a good lead in for today. We heard excellent
    testimony from State and local officials who have done as much as they
    can within their authority. We now need to build upon the progress they
    have made in the States and provide them with the responsibility and
    power to clean up the contaminated sites that many of them drive by
    every day.
        If we don't empower State environmental officials to act, we would
    be ignoring the successes we heard yesterday. I believe inaction in
    this case is probably the worst course we could take.
        Mr. Chairman, thank you for leadership in this issue, and I look
    forward to today's hearing.

        Senator Allard. Yesterday, Ms. Browner, we had a variety of
    witnesses who explained the States are doing a good job in
    running their own cleanup programs. Mr. Fields was on one of
    those panels.
        Are you wholeheartedly behind the States in controlling and
    running their cleanup programs?
        Ms. Browner. That is a complicated question. If I might
    take a moment to explain?
        Senator Allard. Yes.
        Ms. Browner. As I understand yesterday's hearing, it was on
    brownfields?
        Senator Allard. Yes, it was. I think we're setting down
    some very basic principles in brownfields and I'm trying to
    figure out if you're willing--and they look to me like they've
    been successful. I'm seeing if you're willing to carry those on
    with the Superfund sites.
        Ms. Browner. We are very proud of our Brownfields Program.
    We think it has been tremendously successful in addressing
    lightly or moderately contaminated sites.
        In terms of the worst sites, the Superfund sites, the big
    sites, it is our experience that in some instances, at some
    sites in some States, working with them in partnership, we
    would even say providing in the law that they take lead
    responsibility makes sense. We have supported those proposals
    in the past.
        The problem we have with the current proposal in terms of
    the States is that we think it is incredibly rigid, that it is
    sort of a one-size-fits-all approach. Let me give you an
    example.
        As we understand the current legislative proposal, if a
    State had what is called a remedial action plan on a site in
    their State, EPA could not become involved. New Jersey, which
    has a State cleanup law, recently had a very unfortunate
    situation involving mercury in an apartment building, actually
    in the walls, underneath the floor. It was a former industrial
    site that had been converted to lots and rented or sold.
        The State had been involved in activities there previously.
    I think it is fair to say they would have what amounted to a
    remedial action plan on that site. When they discovered this
    situation, they needed us to come in. They called us, they
    invited us in and we came in and worked in partnership and are
    working today to address the problem.
        The concern we have with S. 8 is it's an all or nothing
    type approach and we would encourage the committee to recognize
    the need for flexibility in dealing with the worse sites.
        We had another example recently in Georgia. They discovered
    a site literally 24 hours after the business shut down, decided
    to go out of business. They called us and said it's yours; we
    can't deal with this. We've already removed at this site,
    415,000 pounds of mercury. We were literally vacuuming it up at
    the site.
        You need that kind of flexibility so if the State finds
    something it can make a judgment and we can work together to
    address the public health and environmental concerns. So I
    would just say, as I think is true for the majority of
    environmental and public health issues we face today, let's
    avoid a one-size-fits-all, rigid system of the States do
    everything and EPA does nothing or EPA does everything and the
    States do nothing. Let's recognize the differences between the
    States.
        Senator Allard. Would you be happy then to put a provision
    in the bill that said if the States requested you to come in,
    that you could be available as a consultant for them? That's
    what your testimony said.
        Ms. Browner. There are other problems with the State
    section of S. 8. That's one portion I was speaking to and I
    think what you suggest in terms of EPA being able to come in
    may make some sense, but there are other problems. I don't want
    to suggest that is the only problem, and I'm more than I'm
    happy to detail them for you.
        Senator Allard. I'm all ears. Let's hear it.
        Ms. Browner. One example would be when a State files under
    S. 8, when the State seeks delegation of responsibility for
    Superfund in their State, they get to self-certify in terms of
    their ability to assume the program. EPA is not allowed to
    request documents, to verify that self-certification, as we
    understand the provision.
        We have 60 days to make the decision. There is not at the
    conclusion of our decision, a requirement of public notice and
    comment. We think the stakeholders in the State should have an
    opportunity to comment on EPA's decision. If we fail to act in
    60 days, the program is immediately moved to the State.
        Senator Allard. On that issue, what would be the problem
    with us saying if the Superfund is strictly a State issue, let
    them deal with it. If it's on the border of the State and could
    have ramifications with their neighbors, then perhaps maybe the
    neighbors could bring you in on that consulting basis. Would
    you be agreeable to that kind of arrangement in that issue?
        Ms. Browner. We have talked to the States about what they
    are willing to do and what they're comfortable doing. Many
    States, I wouldn't suggest all, do not want to take
    responsibility for every Superfund site in their State. We
    don't think they can.
        Senator Allard. In which case, they could invite you in.
        Ms. Browner. If you give the States the primary
    responsibility, I think the question you need to address is are
    you going to give them the authority in terms of ensuring the
    largest polluters pay their fair share or does the State have
    to pick up the tab.
        Senator Allard. I think those things are working. I don't
    see a real problem.
        Ms. Browner. We would agree that there is a way and we made
    a legislative proposal that has the support of many States to
    recognize the very good work that States can do, are doing at
    these sites. The concern we have is that there are many
    authorities which are vested in us through Congress that are
    important to the successful cleanup of these sites and we have
    not seen a willingness in Congress to delegate all of those
    authorities to the States.
        I think you may put the States, if you're not careful, in
    an awkward position of having responsibility with little or no
    resources to do the job of public health and environmental
    protection.
        Senator Allard. I guess the point I wanted to make is that
    they're closest to the problem, they have to live with the
    problem, I think there would be a real interest in them trying
    to clean up that environmental problem and the sooner you get
    it cleaned up, the better.
        I can understand those problems that may exist on State
    borders where you may have two States in conflict and we'd make
    some provisions in there to adjust that. We're getting away
    from the one-size-fits-all and we're setting up a mechanism
    where resolutions on conflicts can be reached, but basically
    you're not going to be calling the shots, it's going to be
    coming from the local level. You'd be brought in on a
    consulting basis and be supportive of what the States are
    trying to do.
        If we've got two States that can't agree, then maybe you'd
    move in as a mediator, help resolve that joint problem, working
    with both those States.
        Ms. Browner. I think, again this is not an easy issue in
    terms of what States would like and what individual States feel
    they can, in fact, assume. I think when you will find when you
    talk to the States great difference among them.
        I think it's also important to understand that it's not
    just a question of does a site happen to fall in two States and
    there are a number of the Federal facility sites that, in fact,
    do involve more than one State, but you may also have a
    situation in terms of groundwater contamination that could
    affect the site, that would appear to occur in one State, but
    could affect the groundwater supplies for any number of States.
        Senator Allard. Obviously those things have to be worked
    out, again, can be worked out between the States and maybe
    bring you in as a mediator in those situations, but I don't see
    why we can't put more confidence in the State role.
        Ms. Browner. Again, we did make a proposal working with the
    States on how to structure a program so that they could
    assume--we suggested a State be able to assume responsibility
    for individual sites, if that's what they wanted to do.
        I'm a former State Director and let me tell you, there are
    sites in Florida I'd be happy to take over day-to-day
    management and they're the worse ones I wouldn't want to touch
    and I think you have to allow for that kind of literally State-
    by-State dialog between EPA and the State.
        Anything that lock, stock and barrel just moves everything,
    particularly if you don't move all of the legal authorities
    that are important to ensuring that the largest polluters pay.
        Senator Allard. That's not what I'm talking about. I'm
    talking we don't lock, stock and barrel to the States, that we
    give the States that ability to pull in the EPA as a mediator.
        Thank you very much, Mr. Chairman.
        Senator Smith. I want to move on to one more round. We'll
    do 3 minutes and hopefully try to get the next panel up.
        Senator Baucus. Mr. Chairman, are we going to stick within
    our time limits here?
        Senator Smith. We'll do the best we can.
        Senator Baucus. Because I notice we've been pretty liberal.
        Senator Smith. Pretty liberal. I haven't been called
    liberal in a while.
        Senator Baucus. That's why I said it. I was waiting for you
    to pick up on that.
        [Laughter.]
        Senator Allard. Mr. Chairman, if we could get brief
    responses to our questions, I think our time would be much
    better allocated.
        Senator Smith. Let me start, Administrator Browner, by
    going back to Senator Chafee's line of questioning because I
    think that really goes to a major difference between us in
    terms of who you define as those people who should be in and
    who should be out.
        I think again, there's common agreement, as Senator Baucus
    said, Senator Chafee said, we agree with the de minimis
    parties, they should be out, but when you start moving down the
    line, then you're starting to pick winners and losers here and
    that's where we disagree in terms of how we apply that
    standard.
        Let me just use the example on the co-disposal. There's
    been a long debate over whether the cost of cleaning up co-
    disposal sites is driven mostly by toxicity, by hazardous
    materials or whether it's by the volume that's in the site or
    the solid waste.
        Senator Chafee and I thought in S. 8 we had addressed this
    by saying it makes a lot more sense to collect the taxes, the
    environmental income tax, the chemical feedstocks, the oil
    import, collect those taxes and recognize that these other
    sites that we're arguing about here are a problem, take those
    dollars and put them in and cleanup those sites.
        You say we are letting them off the hook. You also say the
    taxpayer pays. I want you to explain to me how the taxpayer,
    any taxpayer is paying for the cleanup of those sites? Where in
    our bill does it say or in any way infer that the taxpayers are
    paying for this?
        Ms. Browner. As we understand the effect of S. 8, if I
    might step back for a second because I do think there is an
    important agreement here.
        When it comes to sole source sites, one party is
    responsible for the site, I think we all agree they should pay,
    solve the problem. There's sort of three categories of sites in
    Superfund--one party, a site, they deal with it; then there are
    what we call multiparty sites where maybe you have six or a
    dozen or so parties at a site and we have mechanisms for that.
    Then that leaves the third category which are these co-
    disposal, largely landfills and I think that's where we've had
    the most difficulty in finding common ground.
        Senator Smith. But other than the taxes, if those taxes are
    reinstated and we do call for the reinstatement of those taxes
    in our bill, those taxes, yes, they are taxes, they are paid,
    but I don't want to speak for the corporations that pay these
    taxes, but the frustration has been that they've not been used
    for cleanup, those dollars. They've been used, in some cases,
    in the general fund, and in others, to pay for attorneys rather
    than cleaning up.
        The point is we reinstate those taxes, those dollars then
    go into these co-disposal sites. Take out this group of people
    that you now want to keep in. The point is if you talk to
    people around the sites, they want the sites cleaned up.
        Ms. Browner. We agree.
        Senator Smith. They're not looking to hunt down people as
    common criminals here and apply a group of penalties; they want
    the sites cleaned up. You say the taxpayer pays. Where does the
    taxpayer pay for this?
        Ms. Browner. First of all, the taxes that are collected for
    Superfund are ultimately passed onto the consumer. I think we
    would all agree with that, the corporate environmental tax, the
    feedstock taxes, ultimately some portion, if not all of that,
    is passed onto the consumer.
        Senator Smith. You're not advocating getting rid of them,
    are you?
        Ms. Browner. No.
        Senator Smith. Then it's an academic argument. We accept
    that. We're on common ground here. We accept those taxes should
    be reinstated. The question is, why not reinstate them, take
    from those funds and go to these co-disposal sites and get
    these people out and stop arguing and doing litigation?
        If you would agree to that, we'd have common grounds on 50
    percent of the bill anyway.
        Ms. Browner. Could I ask a question, a point of
    clarification? I know you get to ask me the questions and I
    answer, but I do have a question here.
        Is it your proposal to take out the co-disposal sites? Is
    that what you're proposing? It would help me to understand
    because I admit, and I have tried to say repeatedly throughout
    this hearing, that we are confused by sections of S. 8. There
    were staff briefings and we came away with one impression;
    perhaps it is wrong. It would be helpful to me to understand if
    your position is----
        Senator Smith. Yes.
        Ms. Browner. Yes, you want to take out the 250 co-disposal
    sites?
        Senator Smith. Yes. You put degrees to it; we want to take
    them out so we don't argue about it.
        My time has expired. I'm not trying to be argumentative,
    I'm trying to get common ground here. I think the frustration I
    feel is you apply a different standard of fairness to a de
    minimis person or site or an entity that happens to have a
    larger liability. I'm fully supportive of taking care of the de
    minimis people, but again, it's still an issue of fairness and
    we're paying. We're going to clean it up.
        Ms. Browner. If I might respond. This is obviously the
    issue we spent a lot of time on last year and we were hoping
    that S. 8 made some progress in this regard. Perhaps it doesn't
    make the progress that we thought it made. If might just
    succinctly state our concern.
        Because someone happened to choose to send their toxic
    wastes to a landfill--that's what these co-disposal sites are
    in large measure. We estimate there are approximately 250 under
    your definition, co-disposal sites. Because they happened to
    send it to a landfill and not to a multiparty site or didn't
    keep it in their backyard, you would say that the nature of the
    site where they sent it excludes them from a responsibility.
    What we're saying is don't do it by site, do it by party.
    That's the only difference here.
        Senator Smith. It's because you wouldn't agree to
    multiparty. I have long been an advocate of repeal of
    retroactive liability, but you won't even get to first base on
    that one, so we have no choice. So we went to co-disposals
    because that's where you were headed to try to get some common
    ground and now you don't want to move on that either.
        Ms. Browner. No, we can address the small parties, the
    municipalities. There is a way to address those people that I
    think we all agree are at the co-disposal sites and unfairly
    trapped in Superfund, if we can do it by party and not by site.
        Senator last year, we costed out, we looked at what it
    would cost to deal with all the co-disposal sites and there are
    many more coming. In fact, we would probably litigate many
    other sites because everyone would try to become a co-disposal
    site to get out of any obligation and quite frankly, we
    couldn't afford it.
        Senator Smith. My time has expired. Go ahead, Senator
    Lautenberg.
        Senator Lautenberg. Vigorous.
        Senator Smith. I was trying to get some common ground.
        Senator Lautenberg. Yes. Madam Administrator, the present
    national contingency plan expresses an expectation that
    aquifers be restored to drinking water uses wherever
    practicable, but S. 8 establishes rules for groundwater
    remedies that favor natural attenuation and give equal weight
    to alternatives such as water treatment systems in people's
    homes rather than removing the contamination from the
    environment.
        Is this backsliding necessary? Does it accomplish what we
    think that the rules ought to accomplish for the safety and
    well-being of our people?
        Ms. Browner. I think it is now well documented by
    independent groups, including NRC, the National Research
    Council, in a 1994 study, that we can, in fact, cleanup
    groundwater. I think everyone recognizes there may be a handful
    of places where it is more difficult than not but in large
    measure, the technology exists.
        Our concern with S. 8 is that it seems to require a
    justification that the cleanup of groundwater substantially
    accelerates the availability of drinking water beyond the rate
    of natural attenuation.
        You have two problems there. No. 1, is why would you do
    that if the technology exists to actually clean it up, but No.
    2, is there are many of these groundwater sites which may not
    today be a drinking water supply but could easily become a
    drinking water supply in the not too distant future. I think
    here is an example where we are very concerned that you're
    passing a problem onto a future generation and unfairly so.
        Senator Lautenberg. The remedy selection in S. 8 that would
    elevate engineering and institutional controls to a level on
    the par with treatment would eliminate the preference for
    permanence or treatment from the present scheme. What might
    this lead to? Are we talking about hazardous waste museums?
        Ms. Browner. The concern we have is that there appears to
    be a provision essentially if implemented would say that if
    cleanup, actual cleanup, removal, treatment cost too much, then
    you can essentially avoid the goal of human health and
    environmental protection.
        The concern is that you could find in situations, sites
    fenced off and again, we had a discussion about this last year.
    We certainly hope that's not what these provisions mean. We've
    gone over this and we are concerned that institutional
    mechanisms being given the kind of equal footing, if you will,
    in terms of solving problems, could result in some sites not
    actually being cleaned up, could result in bottled water being
    made available as opposed to treatment of potential drinking
    water sources.
        Senator Lautenberg. Thanks, Mr. Chairman.
        Senator Smith. Senator Chafee.
        Senator Chafee. Ms. Browner, I just want to point out that
    you specifically stated that you wish a rewrite of the
    Superfund law and it is very apparent that can't be
    accomplished without bipartisan cooperation. There can't be a
    law unless we pass one up here. We can't pass a law without the
    cooperation of the Administration. We certainly can't have it
    enacted into law.
        There have been various attempts to do something about
    this. In the 103d Congress, we had the situation where the
    Democratic Party controlled the House, they controlled the
    Senate and they controlled the presidency. They had a Superfund
    bill that came out of this committee, I voted for it, but it
    didn't pass in the Senate and no Superfund bill passed in the
    House. So there's really a tough challenge. It behooves all of
    us to be in a cooperative mood if we're going to get anything.
        On the co-disposal sites, it was our philosophy that the
    dumping was done legally; that's one of the requirements we had
    under the co-disposal sites, it would be legal when they did
    it. That's where the biggest controversies come, that's where
    they have to hire a hall to take care of all the lawyers. Our
    philosophy was, let's just get it over with but that's a
    philosophy, at this point, you don't agree with.
        I want to say I listened to the three issues you listed.
    Your first one was hot spots and the third one was the co-
    disposal exemption for big industrial waste. We can negotiate
    these. Your second one was on groundwater and I believe that
    there's a misreading or an ambiguity in there and that can be
    straightened out. So this thing can be solved.
        We've got to start with something. This business of taking
    a blank sheet of paper, we spent a lot of time on this and
    we've got to start somewhere. I would hope that you'd give
    further consideration to using S. 8 as a starting vehicle,
    recognizing that it's not written in concrete and it is subject
    to negotiation and to be amended.
        Thank you, Mr. Chairman.
        Ms. Browner. Mr. Chairman, we would like nothing better
    than to work on a consensus-based process with you. We would
    look forward to you setting out a process; we'll be here ready
    to go.
        We would hope, as I think you would, the importance that
    all of the parties, and there are unfortunately many--I'm not
    talking about Federal Government, I'm talking about
    communities, State, local government, PRPs, big, small--be a
    part of that process also.
        I have high hopes that we can finally see Superfund
    rewritten. It remains something that I am personally committed
    to; it is one of the reasons I came to EPA and it is something
    I would like to see done this year.
        Senator Smith. Thank you.
        Senator Baucus.
        Senator Baucus. Madam Administrator, we all agree we want
    to speed up the cleanup of sites, not slow it down. You have
    indicated in your statement that there are portions of the bill
    before us, S. 8, which you think will have the opposite effect,
    that is, it will not speed up cleanups but rather slow down
    cleanups. Could you be much more precise, please?
        Ms. Browner. I can give you examples of provisions that we
    are concerned about.
        First is what we refer to as the ROD reopener, the fact
    that you can go back into essentially any and all of these
    decisions that have been made and reopen them. We would suggest
    that there be a threshold, that cost and technology be brought
    into play because we are concerned that someone could merely
    engage us in a sort of round-robin of discussion where there
    are no new technologies.
        Senator Baucus. As you read S. 8, could all sites be
    reopened?
        Ms. Browner. Our understanding is not only can all
    decisions be reopened, but even once construction has
    commenced, the decision can be revisited.
        Senator Baucus. Would you give us a sense of how that slows
    things down?
        Ms. Browner. We enter into 150 decisions in terms of
    cleanup plans annually. If all of those can be reopened, that
    means there are literally 1,500 right now on the books, if
    every single one is reopened, what is to prevent a party from
    reopening? Why shouldn't a lawyer reopen it, a private party's
    lawyer? It means they don't have to get around to cleaning it
    up anytime soon. You could see us doing almost nothing but
    dealing with these reopeners.
        Senator Baucus. Is there ever a good reason to reopen?
        Ms. Browner. Yes, and we have a program to do just that.
        Senator Baucus. When? Give us a sense.
        Ms. Browner. Where you have a real advance in technology,
    and that does occur, where you have a new discovery, a new
    solution. That is absolutely appropriate.
        Senator Baucus. Can you give us an example, for the record
    if you don't have it right now?
        Ms. Browner. Some of the sites where initially maybe 8 to
    10 years ago the preferred treatment would have incineration,
    today bioremediation solves the problem. That's an example.
        Senator Baucus. So you believe on this issue that there is
    reason to reopen some decisions, but we shouldn't go all the
    way allowing construction or RODs to be reopened?
        Ms. Browner. We do have a program today for updating
    remedies. We have a program right now for sites, to come in, to
    review them, based on cost and technology advances and make
    adjustments. We have made adjustments and we will provide you
    with a list of the sites and the projected cost savings. I
    think the cost savings are $280 million for the sites that we
    have revisited the remedies because of technology advances.
        Senator Baucus. Thank you very much.
        Thanks, The Chairman.
        Senator Smith. Senator Allard.
        Senator Allard. Thank you, Mr. Chairman.
        You would agree that the liability is a real problem with
    these Superfund sites, I believe, and if we don't get the
    liability issue straight, I guess no amount of money is going
    to lead to clean up of sites because everything is going to be
    eaten up by lawsuits and lawyers and we'll never get around to
    getting the bottom line resolved. Would you agree with that?
        Ms. Browner. I think it's important to understand what EPA
    spends its money on. A very, very small percentage of Superfund
    dollars go to parts of the program other than cleanup. This
    chart shows you that 77.6 percent of the money you appropriate
    goes to clean up activities from people out in moonsuits to the
    brownfields work we're doing and a very, very tiny part goes to
    a variety of other efforts.
        Certainly in reauthorizing Superfund, the question of who
    pays is not a small question. We absolutely agree that the
    little parties should be taken out, absolutely, positively. We
    have programs doing that as I said. We've taken out more than
    9,000 parties in the last 4 years; homeowners are protected
    now.
        I think the discussion that we will all need to engage in
    as we seek to find consensus is, of the remaining parties, is
    it appropriate to shift their responsibility to the fund and
    thereby to the taxpayer.
        Senator Allard. Is it possible for a company that's been
    cleaned up under CERCLA, to then have RCRA applied to that same
    site?
        Ms. Browner. I think the easiest way to make a distinction
    here is RCRA is for facilities that are ongoing operations and
    it requires a certain set of activities to prevent problems and
    to address any problems that may develop in an ongoing action.
        Superfund not exclusively, but does tend to focus on those
    facilities, those sites where the parties may have moved on or
    occasionally, what you have in Superfund is a situation where
    part of the site is Superfund and then there is an ongoing
    activity adjacent.
        Senator Allard. So it is possible for a company to have to
    deal with both CERCLA and RCRA?
        Ms. Browner. And appropriately so. They should have to deal
    with RCRA because that is the permitting program we have in
    place, the law in place, to ensure in part that we are not
    creating future Superfund sites.
        Senator Allard. I haven't got any prejudged opinion on
    this, I'm just asking is there a potential for a double
    jeopardy effect?
        Ms. Browner. Not for the same contamination, no. They would
    be handled separately.
        Senator Allard. Because one is ongoing and the other has
    already occurred?
        Ms. Browner. That's one distinction. There are not any
    bright lines, unfortunately. Another distinction would be you
    might have an ongoing activity where there is historical
    groundwater contamination all underneath the ongoing site. That
    would perhaps be addressed through Superfund and then if there
    was some accident that happened, some inappropriate action that
    had taken place in the meantime, that might be addressed
    through RCRA, but you don't use both laws to address the same
    problem.
        It is true that a company, a site, there may be RCRA
    problems and Superfund problems but they are for different
    contaminants or contamination activities.
        Senator Allard. That's all, Mr. Chairman. Thank you.
        Senator Smith. Thank you, Senator.
        Administrator Browner, thank you very much for being here
    this morning and I think perhaps we made some progress. I think
    I understand some of the concerns you have. I think we
    certainly are going to pledge to you to work with you and with
    our colleagues on the other side of the aisle to do our best to
    get a bill because I think it's in the best interest of the
    country to get it done. We're going to do our best to do it and
    we look forward working with you.
        Ms. Browner. That is our interest too. Thank you.
        Senator Smith. The next panel could come up--I'm just going
    to call the names here rather than take a recess--Mr. Richard
    Gimello, assistant commissioner for Site Remediation, New
    Jersey Department of Environmental Protection, speaking on
    behalf of the National Governors' Association; Ms. Linda
    Biagioni, vice president of Environmental Affairs, Black &
    Decker Corporation on behalf of The Superfund Action Alliance;
    Ms. Karen Florini, senior attorney, Environmental Defense Fund;
    Ms. Barbara Williams, Sunny Ray Restaurant, Gettysburg, PA, on
    behalf of the National Federation of Independent Business; and
    Ms. Karen O'Regan, Environmental Programs Manager, city of
    Phoenix.
        Welcome ladies and gentlemen for being here this morning
    and let me just indicate to you that your statements will be
    made a part of the record as written. If you could summarize
    your statement in 3 or 4 minutes, it would be appreciated.
        We'll set the clock at 4 minutes and hopefully we can wrap
    it up in 4 minutes and then go to some questions.
        Mr. Gimello, why don't we start with you. Welcome.
        Senator Lautenberg. If I may, Mr. Chairman, Mr. Gimello is
    a New Jerseyite. Unfortunately, we have grown very
    successfully, Superfund sites all across our State. It happened
    as a result of our proud industrial past and Mr. Gimello has
    had a lot of experience. We welcome him here this morning
    representing the Governors' Association.

     STATEMENT OF RICHARD GIMELLO, ASSISTANT COMMISSIONER FOR SITE
    REMEDIATION, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION,
              ON BEHALF OF NATIONAL GOVERNORS' ASSOCIATION

        Mr. Gimello. Thank you.
        The testimony that I offer today is on behalf of the
    National Governors' Association. As I am sure you can
    appreciate, the NGA has a strong interest in Superfund reform
    and believes that a variety of administrative, as well as
    legislative and regulatory changes are needed to improve the
    Superfund Program's ability to clean up the Nation's worse
    sites.
        We realize the importance of passing legislation this year
    and want to ensure that the collective interests of the States
    are considered carefully in development of the final bill.
    Funding is essential for the continuation of cleanups in this
    country and the ultimate objective of the Superfund Program
    depends on the continued funding.
        The Governors appreciate the opportunity to review and
    comment. I'd like to begin by stating that NGA is very
    appreciative of the many improvements made in the bill over
    last year's bill. The Governors acknowledge the vast
    compromises that the bill reflects and commend the committee
    for introducing legislation that addresses many State concerns.
    Today, I'd like to address NGA's overall assessment of the bill
    and suggest a few areas where improvements could be made.
        With regard to brownfields revitalization and voluntary
    cleanup programs, the Governors believe that brownfields
    revitalization is critical to the successful redevelopment of
    many contaminated former industrial properties and we commend
    the committee for including the brownfield language.
        Many States have developed highly successful voluntary
    cleanup programs that have enabled sites to remediate more
    quickly and with minimal governmental involvement. It's
    important that any legislation supports and encourages
    successful programs by providing clear incentives and by
    ensuring that any minimum program criteria established by the
    Environmental Protection Agency be extremely flexible.
        Also, in the event that EPA discovers an imminent and
    substantial threat to human health and the environment at a
    site, or at the request of a State, it should be able to
    continue using its emergency removal authority.
        With regard to State role, the impacts of hazardous waste
    sites are felt primarily at the State and local levels. The
    Governors are very supportive of the efforts of the chair,
    Senator Chafee and others to strengthen the role of the States
    in this program. We appreciate the inclusion of options for
    both noncomprehensive and comprehensive delegation.
        We especially support allowing States to operate their
    programs in lieu of the Federal program. It is critical that
    States, with established goals and standards, be able to apply
    at all sites these standards regardless of the lead agency and
    without a cost shift.
        We cannot support EPA being allowed to withdraw delegation
    on a State-by-State basis. Withdrawal of delegation should be
    consistent with the approval or rejection of a State's
    application for delegation.
        The Governors strongly support the 10 percent cost share
    for both remedial actions and operation and maintenance, and we
    appreciate the inclusion of this provision in the bill.
    However, we do not support any change that will require the
    State cost share for removal actions. States are not currently
    required to cost share in this area and we don't think it's
    appropriate.
        Selection of remedial actions, the Governors believe that
    changes in remedy selection should result in more cost
    effective cleanups and a simpler, streamlined process for
    selecting remedies and more results oriented.
        Allowing State-applicable standards to apply at both
    national priority list sites and State sites is one way of
    ensuring such an approach. Any caveats to the use of State RARs
    must be minimal.
        The Governors believe that groundwater is a critical
    resource that must be protected. The use of State applicable
    standards and the opportunity for State and local authorities
    to determine which groundwater is actually suitable for
    drinking are essential.
        We also believe, however, that groundwater resources must
    be forwarded a sort of receptor status to prevent any future or
    ongoing impacts during the remedy selection.
        The Governors recognize that there are some records or
    decisions that should be reopened because of cost
    considerations or technical impracticability. However, we
    believe the Governors should have the final decision on whether
    to approve a petition for the reopening of a ROD.
        With regard to liability, liability schemes employed in any
    hazardous waste cleanup program are critical to the success of
    the program. However, the current system has a history of
    leading to expensive litigation and transaction costs.
    Therefore, the Governors can support liability reform.
        In general, we support the elimination of de minimis and de
    micromis parties and believe the liability for municipalities
    needs to be addressed. However, we question broader releases of
    liability for other categories or responsible parties.
        Further, we support the concept of an allocation process so
    that costs are assigned appropriately to responsible parties,
    but we need assurance that funding will be available for this
    process, including support for State allocation programs.
        Finally, as I mentioned earlier, we fully support the
    release of Federal liability at non-NPL sites where a release
    of liability has been granted under State cleanup laws.
        With regard to Federal facilities, the Governors support
    legislation that ensures a strong State role in the oversight
    of Federal facility cleanups. We urge you to strengthen the
    program by amending the statute of limitations to run for 3
    years with regard to natural resource damages.
        In general, I want to emphasize on behalf of the States
    that we do recognize the extent of the compromises reflected in
    this draft and are eager to work with this committee and
    Federal EPA to finalize this job that we've started.
        I thank you.
        Senator Smith. Thank you very much, Mr. Gimello.
        Ms. Florini.

          STATEMENT OF KAREN FLORINI, ESQ., SENIOR ATTORNEY,
                       ENVIRONMENTAL DEFENSE FUND

        Ms. Florini. Thank you, Mr. Chairman.
        On behalf of the Environmental Defense Fund and its 300,000
    members, thank you for this opportunity to present our views on
    S. 8.
        While the Environmental Defense Fund supports an improved
    Superfund Program, we regret to say that, in our view,
    virtually all provisions of S. 8 would not in fact lead to that
    result. Rather, they would have, in many instances, the
    opposite effect.
        For example, with regard to clean up standards, the bill
    seems to regard doing cleanups fast as more important than
    doing them right. Speeding cleanups by making them weaker is a
    giant step in the wrong direction.
        The cleanup provisions have numerous flaws that exacerbate
    each other. Specifically, the bill largely puts polluters in
    control of decisionmaking and constrains both EPA and public
    oversight. Even polluters who are under criminal indictment for
    illegal dumping at a particular site potentially could end up
    with the lead role if they hire the right consulting firm.
    Polluters can let cost considerations override cleanup goals
    including health goals.
        In addition, the bill completely repeals the existing
    preference for permanent treatment so that even highly toxic
    hot spots could remain onsite. Likewise, the bill makes no
    effort to promote restoration of land to productive use.
    Indeed, the future uses that can be considered are specifically
    limited to those that are currently planned or zoned or those
    that have a substantial probability of occurring. That is an
    inappropriately high standard, one that effectively requires a
    community to either have a crystal ball or limit its
    consideration to today's probabilities, instead of tomorrow's
    possibilities.
        All these problems are made worse by the outrageous
    provisions under which polluter-written cleanup plans get
    approved by default if EPA is unable to act to review it within
    180 days. Cleanup decisions are complex and high stakes ones
    for communities, particularly site neighbors. Default approval
    has no place in the Superfund program.
        The bill also undermines public participation in several
    ways. It fails to let the public participate in decisions about
    which States shall implement the program, even though State
    delegation greatly, and in my view, inappropriately, constrains
    EPA's ability to act.
        It limits technical assistance grants to $100,000 without
    exception even though the bill's changed cleanup standards will
    often lead to remedies that demand long-term community
    oversight, oversight that the bill fails to empower communities
    to provide.
        S. 8 even lets polluters ignore existing cleanup decisions
    until and unless EPA catches them at it. Then the polluters get
    to decide whether to comply with the existing plan or to modify
    it. S. 8 reopener provision for existing decisions are also
    structured in a way that thwarts effective public participation
    and would additionally cause considerable delay in the program
    overall.
        Another highly objectionable feature of the bill is
    inclusion of an arbitrary cap on the number of additional sites
    that can be added to the National Priority List, namely 100
    until the year 2001 and 10 a year thereafter.
        A cap has profound consequences because unless a site is
    listed, EPA cannot undertake long-term site cleanup activities.
    This approach effectively dumps the problem on the States
    regardless of their capacity to deal with it.
        Finally, the bill's liability provisions create new forms
    of what amounts to corporate welfare. While it may well be, and
    in fact, probably is appropriate to tailor the liability system
    as applied to entities it will be unable to pay or have only a
    very limited connection with a site, S. 8 goes way too far.
        The co-disposal provisions of this bill would exempt large
    companies as well as small ones, and would inappropriately let
    companies that can well afford to pay off the hook. Similarly,
    the small business exemption applies to future as well as past
    conduct, thereby wiping out Superfund's powerful and
    significant incentives to avoid future pollution. The bill
    requires paybacks to polluters, including those who have
    already agreed to do work under existing settlements.
        What's more, there is no firewall between liability to
    carve out dollars and S. 8's other provisions, so there is no
    assurance that adequate funds or indeed, any at all, will
    remain available for the other elements of the program.
        Mr. Chairman, a substantial and growing number of
    environmental and public health organizations are investing
    major resources in Superfund reauthorization at this point. We
    would welcome an opportunity to work proactively with you to
    improve the program.
        We are currently finalizing a set of principles on
    Superfund and hope to provide those to you later this month.
        Thank you.
        Senator Smith. Thank you, Ms. Florini.
        Ms. Biagioni.

     STATEMENT OF LINDA BIAGIONI, VICE PRESIDENT OF ENVIRONMENTAL
    AFFAIRS, BLACK & DECKER CORPORATION, ON BEHALF OF THE SUPERFUND
                            ACTION ALLIANCE

        Ms. Biagioni. Thank you, Mr. Chairman and members of the
    subcommittee for inviting me to testify.
        My name is Linda Biagioni and I am vice president of
    Environmental Affairs for the Black & Decker Corporation.
        Black & Decker is headquartered in Towson, MD, and is the
    world's largest producer of portable electric power tools,
    power tool accessories, residential security hardware, and
    electric lawn and garden tools. We are also leaders in small
    household appliances, plumbing products and engineering
    fastening systems.
        In the United States, we employ several thousand people in
    more than 30 manufacturing facilities in 16 States and at Black
    & Decker service centers throughout the country.
        I'm here in support of S. 8 because of the unnecessarily
    high transaction costs we have incurred due to the current
    liability scheme and the tendency to select unreasonably
    stringent remedies. We are disappointed and frustrated by the
    failure of the previous Congresses to resolve the
    inefficiencies in the program.
        Superfund was designed to clean up old hazardous waste
    sites, but the existing law causes us to proceed too slowly on
    many serious sites and to spend too much time and money on low
    priority environmental concerns and legal proceedings. Years of
    serious criticism of the existing Superfund Program from almost
    every segment of the political spectrum have damaged its
    credibility and periodically paralyzed its progress.
        EPA's administrative reforms have apparently been somewhat
    successful, but the most important failings can only be cured
    by Congress. The program needs a new congressional mandate,
    public support and assured funding. I hope that the 105th
    Congress can find a middle ground and finish reauthorization
    this year before electoral politics once again polarize the
    discussion.
        The Senate is off to a good start. Superfund reform has
    been identified as a high priority objective by the Majority
    Leader and the members of this committee from both parties
    appear to be moving forward constructively. S. 8 looks to us
    like a balanced and thoughtful attempt to resolve the crucial
    problems that bedevil the Superfund Program.
        Like everyone else, we recommend certain changes to S. 8,
    but the desire for a more perfect bill should not obscure the
    fact that overall, S. 8 would be a vast improvement over
    existing law. We commend you for your diligent efforts to craft
    a workable approach that can attract bipartisan support.
        I'll address two areas where the existing Superfund law is
    seriously flawed and needs immediate repair--the liability
    scheme and the remedy selection criteria.
        With one exception, Black & Decker is not the owner,
    operator or a predominant generator at any Superfund National
    Priority List site. Nevertheless, Black & Decker accepts that
    it should bear a reasonable portion of cleanup costs where it
    contributed hazardous substances to a disposal site that has
    become an environmental hazard.
        We also recognize the necessity for the business taxes that
    support the Superfund, but the burden of the current
    retroactive, strict, joint and several liability system is
    simply too high. In practice, the current law delays cleanups,
    misdirects the energies of responsible parties, and generates
    enormous transaction costs wasting money that should rightfully
    be directed at cleanup efforts.
        The liability title of S. 8 would significantly reduce
    these costs. First, the exemptions for 1 percent de minimis
    parties, de micromis parties and certain other parties, along
    with the limitations on liability for municipalities will
    remove the threat of liability for thousands of parties at
    hundreds of Superfund sites.
        The exemptions for small quantity generators are
    particularly appropriate because their volumetric contribution
    is usually of minimal environmental significance and they had
    little or nothing to do with the management of the original
    site.
        Second, for the parties who remain liable for National
    Priority List sites, the allocation system in S. 8 would
    ameliorate much of the unfairness inherent in the current
    system. In my opinion, S. 8 would be fairer if it expanded the
    orphan share to cover fully the unallocable shares, not just
    shares of known insolvent parties or parties whose liability is
    capped.
        There is one aspect of the liability system that S. 8 does
    not address: the small party exemptions and the allocation
    system only apply to National Priority List sites. Private
    cleanup sites which have engendered a tidal wave of litigation
    would still be governed by the inequitable retroactive, strict
    joint and several liability provisions of the existing laws.
        We believe that Congress should return the lawmaking power
    over these sites to the States by limiting the application of
    section 107(a), to National Priority List sites and other sites
    where the Federal Government has either conducted or ordered
    remediation.
        Again, our desire for changes to the proposed liability
    scheme of S. 8 does not detract from our enthusiasm for S. 8 as
    compared to the status quo.
        Remedy selection, the selection of the most appropriate
    remedy for each site, is the heart of the Superfund Program. In
    1986, Congress created a series of inflexible remedy selection
    rules requiring a preference for permanence and treatment,
    compliance with applicable and relevant and appropriate State
    and Federal laws, and groundwater standards that seem to
    require that all potentially usable groundwater at Superfund
    sites meet drinking water standards in the ground as soon as
    possible.
        These inflexible standards have contributed significantly
    to the misdirection of resources and remedial activities that
    produce little or no benefit to the public.
        In reality, Superfund sites vary widely in the nature of
    the risk they present and in the nature of their geological
    land use, locational and other circumstances. These facts
    should determine what remedial technology can usefully be
    employed.
        S. 8 wisely drops most of these arbitrary requirements. It
    directs EPA and the States to focus on the real risk to public
    health and the environment posed by each site using site-
    specific data wherever possible to meet the protectiveness
    standards, taking into account long-term reliability,
    effectiveness, public acceptability, technical practicability,
    costs, and the nature of existing and reasonably anticipated
    land and water uses.
        Cost is just one factor to be balanced in the good judgment
    of the agency, neither an overriding consideration, nor
    subordinate or irrelevant.
        Unfortunately, S. 8 does not appear to apply this risk-
    based approach fully when it comes to groundwater. While it is
    true that groundwater moves and many aquifers are
    interconnected, the same intellectual analysis and the same
    criteria should apply to remediation of groundwater as
    elsewhere, namely identification of real risk and the
    reasonable remedial measures that can be employed to ameliorate
    those risks.
        Finally, the review of remedies already selected under the
    existing law is crucial. Having learned from more than a decade
    of experience that our existing remedy selection criteria are
    ill-suited to the task, it would be foolish not to reconsider
    previously selected remedies where significant cost savings
    could result from applying S. 8's new criteria.
        In conclusion, let me reiterate the important point. It's
    time for Congress to act. Only Congress can correct Superfund's
    crucial deficiencies and put the Superfund Program back on
    track.
        I commend this subcommittee for its work and thank you for
    the opportunity to present our views.
        Senator Smith. Thank you, Ms. Biagioni.
        Ms. Williams.

    STATEMENT OF BARBARA WILLIAMS, SUNNYRAY RESTAURANT, GETTYSBURG,
      PA, ON BEHALF OF NATIONAL FEDERATION OF INDEPENDENT BUSINESS

        Ms. Williams. Good morning, Mr. Chairman and members of the
    committee. Thank you for the opportunity of appearing before
    you again.
        I am Barbara Williams. My business is Sunny Ray Restaurant
    in Gettysburg, PA. I have been a member of NFIB since 1982 and
    am grateful for their support.
        I want clean air and water for myself and the generations
    that will follow me. I am not the enemy of the environment. My
    trash is not the problem. Small businesses are not the enemy of
    the environment. I am here to tell you again that your
    wonderful idea of cleaning up our country's environment through
    the EPA and CERCLA does not work in the real world. Your
    intentions were not followed. You legislated for results, you
    got bureaucracy, regulation and litigation. Legions of
    environmental attorneys, not environmental solutions were
    created.
        I fight not only the unjust burden of this lawsuit, but the
    injustice of the landfill on the Superfund National Priority
    List 10 years and still no cleanup has been started. I have no
    graphs or charts, no auditors' reports. I believe we can all
    agree on this--too much time, too much money, too few results.
        Please remember the more than 700 third and fourth party
    defendants are not businesses which regularly produce hazardous
    or toxic waste. We are in this suit not because of what we
    discarded, but because of how much waste someone has estimated
    we threw away. We simply and legally put out the trash
    according to local and State regulations.
        CERCLA is unfair because it imposes strict liability on the
    public without any real notice as to what we should or should
    not put in the trash. If ballpoint pens are hazardous waste,
    why are there no directions for their disposal? There is no
    evidence that any third or fourth party defendant sent
    hazardous substances to the site. Our guilt is based on an
    expert's report which assumes some hazardous material in all
    garbage, but there is no real evidence.
        For small businesses, this suit can be devastating. It is
    an uninsured loss; the money for settlement is considered a
    penalty, so it will not be deductible as a business expense.
    Small businesses will have to make enough money to pay this on
    top of our other bills and payroll. So here we are. The
    landfill is not cleaned and the litigation goes on.
        When I testified last April, I was encouraged by your
    statement that you understood our situation and were resolved
    to remedy it. That hope was reinforced when I read S. 8. I am
    very pleased to see that S. 8 addresses many areas I was
    concerned about--municipal solid wastes, small business
    defendants, and co-disposal landfills. I believe you listened
    and responded. It means a great deal to learn that our voices
    were heard.
        It appears plain to me that in S. 8, your intentions are to
    resolve the issues that have been used to allow litigation to
    take precedence over cleanup. I believe that you know how
    critical the wording of this bill is.
        My concern is that others will not see it so clearly. I am
    concerned that there will always be a well-meaning official who
    believes he knows better than you what you meant when the law
    was written. My fear is that these officials will challenge the
    authority and intentions of Congress and the President, that
    some judge somewhere will listen and rule that you did not
    write the law to say what you meant and this current course of
    action will continue indefinitely.
        I am one American citizen crying out against injustice. Are
    regulations more important than rights and results? When
    Lincoln came to Gettysburg, he expressed concern for our system
    of government of the people, by the people, for the people. My
    concern is that we are perilously close to losing the
    government Lincoln described, not because of outside enemies,
    but because of an ever-growing, all-powerful bureaucracy. You
    are our hope. Thank you.
        Senator Smith. Thank you very much, Ms. Williams.
        Ms. O'Regan.

      STATEMENT OF KAREN O'REGAN, ENVIRONMENTAL PROGRAMS MANAGER,
      CITY OF PHOENIX, AND ON BEHALF OF AMERICAN COMMUNITIES FOR
         CLEANUP EQUITY, INTERNATIONAL CITY COUNTY MANAGEMENT
    ASSOCIATION, NATIONAL LEAGUE OF CITIES, NATIONAL ASSOCIATION OF
    COUNTIES, U.S. CONFERENCE OF MAYORS, AND NATIONAL SCHOOL BOARD
                              ASSOCIATION

        Ms. O'Regan. Chairman Smith and members of the
    subcommittee, my name is Karen O'Regan. I'm the Environmental
    Programs manager for the city of Phoenix where I have been for
    6 years. Prior to that, I had jobs in the Federal Government,
    State and private and now the local roles. I've been involved
    with Superfund for about 16 years.
        I'm providing this testimony on behalf of the International
    City County Management Association, National League of Cities,
    the U.S. Conference of Mayors, National Association of Towns
    and Townships, the Municipal Waste Management Association, and
    the American Communities for Cleanup Equity. We very much
    appreciate the opportunity to present this testimony.
        We represent thousands of cities, towns and counties
    throughout the United States. Because hazardous waste sites
    impact the health of our citizens and the environmental and
    economic viability of our communities, we are well-qualified to
    provide the committee with comments on how the program can be
    improved.
        Phoenix has been heavily involved in Superfund as a
    generator of municipal solid waste, an owner-operator of a co-
    disposal site, a water provider with wells closed due to
    contamination, and a representative of citizen concerns. We've
    also been involved with four Federal Superfund sites and nearly
    a dozen State Superfund sites without or about our borders and
    paid approximately $20 million in response costs at various
    Federal and State Superfund sites.
        We're honored to provide you with suggestions on S. 8
    beginning with its proposed liability scheme.
        Across America, local governments are burdened with
    millions of dollars of liability simply because we owned or
    operated municipal landfills or sent garbage or sewage sludge
    to landfills that were also used by generators and transporters
    of hazardous waste.
        Most of us are drawn into Superfund because of the past co-
    disposal of municipal trash with more toxic industrial waste.
    Our situation justifies statutory relief because we are
    required to provide waste collection and disposal services for
    public health purposes. There is strong consensus in support of
    municipal liability relief and the related provisions of your
    bill are definitely a step in the right direction. However, we
    do have some concerns.
        First, limiting the local government owner, operator,
    generator and transporter relief provisions to cost incurred
    after the date of enactment leaves us open to potentially large
    costs incurred prior to the date of enactment. We urge that
    liability relief that is provided to local governments for
    activities related to municipal solid waste and sewage sludge
    should include relief and credit for costs incurred that have
    not yet been settled prior to the effective date.
        Second, the conditional nature of the relief for Subtitle D
    facilities is slightly troubling. The bill would make the
    Subtitle D liability cap at co-disposal sites unavailable to a
    facility that was not operated in substantial compliance with
    local laws and permits.
        Granted, we administer those local laws and permits.
    However, we'd request that you make the language a little more
    specific to ensure that local governments are not penalized for
    minor infractions such as vector control.
        Third, local governments who are owners and operators of
    co-disposal sites would be asked to pay up to 20 percent of
    cleanup costs while generators and transporters of hazardous
    waste are exempt. We suggest you consider a more balanced
    liability scheme.
        Fourth, the bill should address potential liability arising
    from municipal ownership and operation of public sewer systems
    and related treatment works. We provide this vital public
    service to protect the health and welfare of the community and
    should not be liable under Superfund.
        Finally and most important, the liability scheme must be
    workable within the financial limits of the Fund and the
    demands of the cleanup program.
        Onward to remedy selection. The bill has many positive
    remedy selection provisions that add needed flexibility to the
    statute. We are concerned that although it may just be an
    ambiguity in the way we read it, that the focus upon treatment
    at the point of use may not adequately protect the groundwater
    resource.
        We urge the committee to require containment of contaminant
    plumes when drinking water or future potable water sources are
    threatened.
        In addition, the Remedy Review Board has broad powers and
    we are concerned that this board would overturn agreements
    reached after years of negotiation with stakeholders, including
    local governments and citizens.
        While we understand that RODs need to be reviewed given new
    technology, we propose instead that an advisory board be
    established to provide guidance on remedy selection and monitor
    Superfund Program activities. We urge that local governments be
    part of any such body.
        The brownfields grants proposed in the bill are critical to
    help local governments and we very much appreciate the
    opportunities to redevelop and reuse brownfields with the money
    it provides. However, because many communities want to
    encourage private investment activities, we ask the
    subcommittee to consider other incentives such as Federal tax
    incentives.
        We support the community response organizations. However,
    we are concerned that the bill establishes them as the only
    formal mechanism for local governments to participate in the
    decisionmaking process. We, therefore, recommend that we have a
    separate and distinct route for input on decisions affecting
    our communities and that the bill be amended to require EPA to
    directly consult with us when developing and implementing
    cleanup plans.
        In conclusion, the Superfund Program must ensure that sites
    are cleaned up quickly and effectively without threatening the
    economic viability of our communities. The Superfund Program
    must provide adequate funding for site remediation and
    establish cleanup standards that are reasonable, yet protective
    of human health and the environment. This will ensure that
    sites are not continuing problems for our communities.
        We appreciate the opportunity to comment on the bill and if
    you have any questions, I would be happy to try and answer
    them.
        Thank you.
        Senator Smith. Mr. Gimello, let me ask you, many critics of
    giving the States more authority have said that there would
    somehow be a race to the bottom in terms of cleanup which would
    result in ``crummy cleanups.''
        Speaking for your own State and what you have done, do you
    agree with that assertion?
        Mr. Gimello. I couldn't disagree more, Senator. I think
    that any rational look at the way cleanups are being done in
    this country must acknowledge the flexibility and the
    aggressive nature of States in actions on these areas.
        We, in the State of New Jersey, as an example, are looking
    at 1,500 voluntary cleanup applications on a monthly basis.
    Other States, Massachusetts, I'd be hard pressed to point to a
    State that is not experiencing a lot of action in this area and
    I think this notion somehow that the Feds are doing cleanups
    one way and the States are doing them another way and not being
    protective of human health and the environment is just
    categorically incorrect.
        Senator Smith. Is there any justification to the argument
    that some States may not be handle it as well as you do in New
    Jersey?
        Mr. Gimello. I think many States have acknowledged the fact
    that program size is going to differ. I think in those
    situations, a partnership with EPA is important and I think the
    opportunity for that partnership exists and it will be improved
    by many of the provisions in this bill.
        Senator Smith. Ms. Biagioni, I also want to say that we
    worked very closely with Black & Decker on legislation to
    provide for the recycling of rechargeable batteries and we
    appreciate your help on that.
        Ms. Biagioni. We very much appreciate your help on that.
        Senator Smith. Do you think the allocation process we've
    outlined in S. 8 will reduce litigation?
        Ms. Biagioni. Yes, I absolutely do because there will be
    more effort placed at finding the responsible parties up front
    rather than finding one or two large parties and then leaving
    the allocation process up to the parties to argue and fight
    amongst themselves.
        Senator Smith. Do you support the right for Governors to
    have a veto right over any record of decision, any ROD
    reopener?
        Ms. Biagioni. I wouldn't be surprised that Governors would
    want that right and I think they probably have the right to
    have that, yes.
        Senator Smith. Ms. Florini, I know you're very critical of
    the legislation and we appreciate hearing your criticisms. I
    don't agree with all of them, but let me just give you an
    example of the frustrations we feel in regard to trying to get
    to the bottom of some of these problems and trying to come to
    accommodation on a bill.
        Right down the road from here is the Navy Yard. There is a
    proposal to add the Navy Yard to the NPL and interestingly
    enough, the Sierra Club Legal Defense Fund is challenging the
    listing. The reason they're challenging it is they think it's
    just the Navy's way of creating another bureaucratic hangup.
        What does that tell you about the policies and the problems
    faced by the Superfund program if one environmental group
    thinks by putting it under the NPL, it's a way to get out of
    getting it cleaned up?
        Ms. Florini. Senator, I don't think that is a legitimate
    characterization of the Sierra Club Legal Defense Fund's
    position on the matter. In point of fact, this is a setting
    where for many years the site has been evaluated and processed
    and things are moving along. The question is would putting that
    site on the NPL accelerate the process or not?
        In addition, it's very important to remember that what the
    Navy was doing was arguing that the existing litigation that
    the Sierra Club Legal Defense Club had brought in fact should
    be stayed pending the process of putting it on the NPL.
        What the court recently did was say there is no reason to
    stay the lawsuit.
        Senator Smith. Well, the direct quote from the Washington
    Post from the Sierra Club is ``We feel that this is just the
    Navy's way of creating a bureaucratic hangup. We want to see
    some action. The Navy wants Superfund because it's a lengthy
    process and we can't sue them.''
        Ms. Florini. That's because there is a pending lawsuit that
    would be disrupted by placement of that site on the NPL. This
    is an effort to dismiss the Sierra Club Legal Defense Fund
    lawsuit on the basis of an NPL listing. That is why it was
    being resisted.
        Senator Smith. Senator Lautenberg.
        Senator Lautenberg. Thanks very much.
        Mr. Gimello, you and I know that New Jersey has one of the
    best hazardous waste cleanup programs in the country, but there
    have been times, several times, when New Jersey felt
    incompetent to handle the cleanup and asked the Federal
    Government to take over. Some of the sites, you and I will know
    the names, but we'll put them in the record--Chemsol, Montclair
    site, Fairlawn Wells, Montgomery-Rocky Hills site, to name a
    few, Grand Avenue site in Hoboken.
        If the State prepares a remedial action plan that isn't
    adequate to do the job, whether the State lacks the competence
    or whether there are so many problems that we can't get by the
    court suits et cetera, should the Federal Government come in
    and lend their expertise if the States aren't getting the job
    done?
        Mr. Gimello. I think so and I think that kind of
    partnership has served us well in New Jersey as you articulate.
        Senator Lautenberg. I think it has, but I thought from your
    National Governors' Association presentation that it was
    intimated, if not suggested directly, that the further the
    Federal Government steps away from it.
        Mr. Gimello. Perhaps I could be more clear. I think what
    the Governors are trying to say is that the option to involve
    the Federal Government ought to be one that's available, but in
    the absence of a need to go there in a delegated State with a
    clear track record of successful cleanups, that the preference
    for how Superfund sites are cleaned up or other sites ought to
    lie with the State. So it's a matter of degree, Senator. I
    think that is what the Governors were trying to say.
        Senator Lautenberg. You know it happens when you put down a
    proposal here, either of the sides will embrace it more
    forcefully than perhaps you intended. I think what we have to
    do is make sure the record reflects our intention.
        What do you think, Ms. Florini, about the Federal
    Government jumping in? Do States always have adequate cleanup
    programs?
        Ms. Florini. Unfortunately, clearly they don't. There are
    some States that really have not done a very effective job.
        Senator Lautenberg. So should we say, let the citizens of
    that State suffer?
        Ms. Florini. No, Senator. I actually believe that it's
    entirely appropriate for States that have adequate resources,
    adequate authorities and adequate political will to get first
    dibs on cleaning up sites in those States, but those are big
    ifs. There needs to be a process for assuring accountability,
    and that in fact those conditions are met, since they aren't
    always. That's a sad fact, but I think it is, indeed, a fact.
        Senator Lautenberg. Ms. Biagioni, I'm surprised and a
    little confused by your testimony. My understanding is that the
    S. 8 proposal says that regarding groundwater remedies,
    contaminated groundwater may be allowed to migrate if it's not
    consumed, and that the bill requires equal consideration of
    temporary remedies--water purifiers under the sink, for
    example--as opposed to remedies that will allow the aquifer to
    be used as a drinking water source by future generations.
        I think that your testimony indicates that you think S. 8's
    provisions regarding groundwater remedies don't go far enough
    in taking into consideration the ``real risk,'' and that you
    don't believe that aquifers ought to be cleaned up for their
    own sake.
        I would ask what do you think ought to happen, just kind of
    let it stand and let it seethe, boil, or whatever happens in
    those sites?
        Ms. Biagioni. I believe where the aquifer is a potential
    future source or a current source of groundwater or drinking
    water, that every effort ought to be made to clean that water
    up. However, there are many situations where there is no
    potential future use for that water or the technical
    practicability or the cost of the cleanup is just out of
    proportion to the future use of that aquifer.
        If that's the case and if there are other ways to provide a
    drinking source or if that water is never going to be used for
    a drinking source, then natural attenuation or some other sort
    of process ought to be allowed to happen.
        Senator Lautenberg. There could be quite a difference of
    view as to what potential use of that aquifer might be?
        Ms. Biagioni. That's right.
        Senator Lautenberg. Thanks, Mr. Chairman.
        Senator Smith. Thank you, Senator.
        Senator Allard.
        Senator Allard. Thank you, Mr. Chairman.
        S. 8 eliminates non-use damages for natural resource
    damages. Ms. Florini, how do you interpret in your mind what
    non-use damages for natural resources would include?
        Ms. Florini. Senator, with respect, I do not work on the
    natural resource damages issues. I believe that other
    environmental organizations will be submitting testimony for
    the record addressing those issues, but it is simply not within
    my expertise.
        Senator Allard. I apologize and I appreciate your candor in
    that response.
        Ms. Florini. I'm always happy to admit when I don't know
    something or at least willing to do so.
        Senator Allard. Mr. Gimello, in your opinion, what three
    items, maybe we're putting you on the spot here, but what three
    items would you think would be absolutely essential if we were
    going to successfully reform or modernize Superfund?
        Mr. Gimello. I think it's interesting because you've been
    touching on them all morning and for several years. I think the
    whole liability issue must be resolved. I think we're very
    close and I'd hate to see us lose that opportunity to finally
    figure out a way to address the problems and have the money to
    do it.
        I spoke to you from the National Governors' Association
    testimony which is a balance between the State program and its
    applicability versus a potential conflict with the Federal
    program and it needs to be resolved. I think it's time for the
    preeminence of the States to be recognized and not to be
    excluded from involvement upon request or emergency situations,
    but I think the balance needs to be assured on the side of the
    States because I think that's where the action is.
        Finally, I think this whole notion of when it is we're
    going to revisit RODs and how we're going to reopen them is a
    critical issue.
        Senator Allard. Ms. Florini, you deal with the liability
    side. Do you agree that something needs to be done on the
    liability in the current Superfund law and what is your
    response to the National Governors' Association as to reform on
    the liability provisions?
        Ms. Florini. I agree that there have been grievous and
    unacceptable abuses of the liability system, by private parties
    who have turned around and bought third and fourth party
    contribution actions. I am more than happy to see those abuses
    curtailed.
        I think S. 8 goes too far, but I do agree that it is
    appropriate and sensible to keep out of the liability system
    folks who aren't going to end up paying much because they don't
    have an ability to pay. I also think it's appropriate to get de
    micromis parties out. There are some concerns about the way the
    de minimis provisions of S. 8 are worded in detail, but the
    basic concept of getting the small fry out of the liability
    system is one I in fact support.
        Senator Allard. How would you define the small player?
        Ms. Florini. That's the hard part, isn't it? I think it's
    important to have an element that is focused both on size of
    the company in terms of number of employees and on annual
    receipts because I think it's inappropriate, for example, to
    say that a very, very small company that was making $500
    million a year would be exempted from liability.
        Exactly how those lines get drawn will be unquestionably
    the source of considerable discussion and one in which I'm
    happy to participate.
        Senator Allard. You don't necessarily think the degree of
    pollution the individual contributed should be a factor in
    that?
        Ms. Florini. I'm sorry?
        Senator Allard. You may have somebody who maybe is right on
    the margin, for example, that maybe they contributed a lot to
    the Superfund site.
        Ms. Florini. I do agree that there should be, if you will,
    a kick-in provision for a particular entity who would otherwise
    be exempted has in fact been a significant contributor. There's
    language in the bill with regard to this, I think, for the de
    minimis parties.
        Senator Allard. And you're comfortable with that?
        Ms. Florini. Again, I've got some concerns about the
    precise way the details are set out, but the basic concept is
    one that I would support.
        Senator Allard. Do you think you can work with the
    direction of this committee and the EPA in coming up with a
    compromise?
        Ms. Florini. I do have major concerns. The site carve-out
    approach for co-disposal sites, which lets large as well as
    small entities out, is very troubling to us. I would hope,
    however, we can find a way to reach agreement on that. I think
    everybody really is primarily concerned about getting the
    ``small fry'' out or the small players, if you will. I think it
    may well, in fact, be possible to reach an agreement on that
    approach.
        Senator Allard. Do you have any problem with combining the
    Superfund legislation with the brownfields sites?
        Ms. Florini. I've got a major problem with the way the
    latter portion of title 1 is set up. Essentially, a relatively
    nebulous concept--any remedial action plan from a State--will
    wipe Superfund off the book with respect to that site,
    irrespective of whether the remedial action plan was developed
    with any public participation, irrespective of what it says,
    and irrespective of whether it will actually be carried out,
    irrespective of whether the State has the ability to make sure
    that it's carried out.
        Leaving that rather large category of concerns aside, there
    are grants provisions in the brownfields program that we
    certainly don't have a particular problem with. Whether it
    makes more sense to move those as part of Superfund versus as
    an independent bill, I don't think is something that needs to
    be resolved fully at this point.
        Senator Allard. Thank you, Mr. Chairman.
        Senator Smith. Thank you, Senator.
        Let me just ask a couple more questions and if Senator
    Allard has anymore questions, I'll be happy to go back to him.
        Ms. Williams, along with your testimony, you submitted a
    letter from a 9-year-old girl by the name of Sierra Bair?
        Ms. Williams. Yes, sir.
        Senator Smith. I just want to read a couple of lines from
    it. ``I'm 9 years old and I live in Hanover, PA. I'm writing to
    you because of the lawsuit of Keystone Sanitation, my parents,
    grandparents and other family members and other small
    businesses. I find it unfair and totally out of place for us to
    be involved in this horrific mess. We paid top dollar for
    people who took the garbage to a place where it was approved by
    the State and now we're being sued and we didn't do anything.''
    She concludes by saying, ``I'm hopeful that my little voice
    might make a difference,'' and I guess she sent the letter to
    the President.
        [The letter follows:]

        Dear President Clinton: My name is Sierra Bair. I am 9 years old
    and I live in Hanover, Pennsylvania. I am writing to you because of the
    lawsuit of Keystone Sanitation.
        My parents and grandparents and other family members are in small
    businesses such as ours. I find it unfair and totally out of place for
    us to be involved in this horrible mess. We paid top dollar for people
    who took the garbage to a place where it is approved by the State! Now
    we are being sued and we didn't do anything. It is not our fault that
    the landfill owners put in bad garbage. My family owns restaurants and
    they serve food not hazardous stuff. Since when is food bad for us.
    Come on, get real; it's not like oil.
        Last year in school seminar we talked about and learned about the
    environment. We were taught that oil, lead paint, batteries, roof
    shingles, et cetera, are bad. Never did the topic of foods come up. The
    point I'm trying to make is that food is not hazardous.
        When I lay in bed, I think about my future and what the world is
    becoming. I want a future, a full life of happiness, but the way things
    are now those things might get taken from me and my brother. The way I
    see it, if there were six kids and one was bad, all of the kids would
    get punished. I guess we're just one of those six kids being punished
    in this lawsuit. Isn't it a shame so many are getting punished for a
    few.
        If I were President, I would have stopped this before it started.
    Why is this happening? And why haven't you taken charge. You know it
    took one black woman to give all equal rights for all black people, one
    woman to take prayer out of our schools and hopefully my one little
    voice will make a difference in the Keystone lawsuit when you think
    about what my little voice has said.
                Sincerely,
                                                   Sierra Bair.

        P.S. I pray every night that my dreams come true and you can make
    that happen.

        Senator Smith. What connection is there with Sierra Bair
    and you?
        Ms. Williams. There is none.
        Senator Smith. OK. Let me ask you, in your testimony you
    indicated that to the best of your knowledge the only thing you
    put in the co-disposal site other than your normal restaurant
    garbage was ballpoint pens, is that accurate?
        Ms. Williams. When I repeatedly asked what I had thrown
    away that is considered to be so hazardous and toxic, I've been
    repeatedly given the example that if I've thrown away one
    ballpoint pen in the 24 years of the liability of this suit,
    that I have contributed toxic waste.
        My contention is what we all contributed was the same waste
    every person creates every day and we did it legally.
        Senator Smith. Are you a polluter?
        Ms. Williams. Do you want my personal opinion or do you
    want the opinion of the law?
        Senator Smith. Under the statute?
        Ms. Williams. My personal opinion, I am no more a polluter
    than every person in this room and every person in this
    country.
        Senator Smith. But under the statute, you are defined as a
    polluter and have been in litigation how many years now?
        Ms. Williams. I've been in litigation a year-and-a-half
    now.
        Senator Smith. Do you feel that the legislation we're
    proposing adequately addresses your concerns?
        Ms. Williams. It appears very promising to me. It addresses
    issues that I've been concerned about, the small business
    issue, the co-disposal site, the municipal solid wastes are all
    addressed in this bill.
        What I think sometimes and what the environmental attorneys
    end up telling me are sometimes different. It appears plain to
    me that you have addressed the inequities that I find myself
    living under.
        Senator Smith. Certainly the intent, although we don't know
    the exact, specific circumstances of your own case in terms of
    where you are and your record of decision and all that, but the
    intent certainly is to help people like you.
        This is the frustration that we all feel. We all have
    differences on this legislation. We've been 4 years trying to
    reauthorize it, reform it, change it, and there are some areas
    we have common ground on, but there are other areas we just
    can't agree on.
        That brings me to the next question. Ms. O'Regan, I'd like
    to ask you the same question I asked Administrator Browner. You
    may remember it if you were in the room at the time.
        That is, concerning the debate over co-disposal sites,
    where you have the toxicity of hazardous materials versus the
    volume of solid waste. What we get into is litigation over that
    issue.
        When Senator Chafee and I wrote this legislation, we just
    thought it would make more sense to take these environmental
    taxes, environmental income taxes, chemical feedstock taxes,
    oil import, take those dollars and put them in the fund, spend
    the money specifically to clean up sites, reinstate the taxes
    and use that to clean up sites.
        The difference between the Administration and us at this
    point, as I understand it on this issue, is that they don't
    feel that if there is hazardous material placed in that site by
    someone other than a Barbara Williams or Sunny Ray Restaurant,
    somehow if there's somebody a little bit bigger than that, they
    should not be removed from the liability scheme.
        I would just ask you what is your position on this? Would
    you prefer to see the dollars taken from the taxes collected
    specifically for Superfund reform address this concern, get the
    administrative fees and the lawyers out and get the sites
    cleaned up or continue along the same vein that we're in now,
    which is getting no where?
        What is your experience with this type of case?
        Ms. O'Regan. That's a very long question, Senator Smith and
    I'll try and answer that concisely.
        The city of Phoenix has been involved in co-disposal
    allocations on several Superfund sites and it's extremely
    difficult to determine who disposed of what at these sites, so
    I think that S. 8 which provides a cap for municipal liability
    is clearly a step in the right direction.
        The concern that we have is that municipalities will be
    paying owner-operators 10 or 20 percent of the co-disposal
    sites based upon our population. Phoenix is a very large city
    and we'd be paying the 20 percent.
        At the same time then, there is an 80 percent sort of
    orphan share, so we're being asked to step up to the plate and
    I guess the question is, is that completely balanced or does
    there need to be a similar cap on industrial generators that
    disposed of the industrial waste in our landfills because
    that's quite a large orphan share and again, we are being asked
    to step up to the plate.
        I guess I would pose that to you and the question is really
    one of funding and can those taxes take care of those sites
    that need to be addressed in our communities.
        Senator Smith. Of course that's a legitimate question and I
    think you can only try to give the best estimate on that in
    terms of the taxes collected, approximately $2 billion a year,
    but a lot of those dollars go for paying lawyers that don't go
    for cleanup.
        I think again, I've talked to I don't know how many
    hundreds of people who have been involved in cleanup or live
    near sites that are toxic and they tell me they could care less
    who pays, they just want it cleaned up so that they don't have
    to live next to it anymore. So they are not interested in who
    pays, they just want to get it cleaned up.
        It's very frustrating as we try to go through this thing
    but we are looking at degrees of definitions of polluters. You
    just said by your own definition, Ms. Williams, you're not a
    polluter. I agree with you, but somebody else who did something
    legally in a co-disposal site in a municipality or some other
    place that is a larger company than you are, perhaps has a lot
    more assets than you, there is a different set of standards
    applied to them and that's where the big dollars come from in
    terms of these lawsuits.
        It just seems to me if we can expedite cleanup, then why
    not just do it. Take the environmental income taxes, et cetera,
    put them in the fund. You say you're letting people off the
    hook, but people aren't off the hook. They didn't do anything
    wrong when they did it. We're not letting illegal dumpers out.
    These are people that did what they thought was right, they put
    some hazardous material in there.
        What we're saying is let's get together, take the
    environmental taxes, put them over here, get these people out
    of the system and stop arguing with each other and move on, the
    same thing we want to do with the de minimis folks, but we
    cannot get accommodation on this issue, and that is what
    frustrates me.
        We could, I suppose, take the short route and let all the
    de minimis people out and nibble around the edges in this thing
    and not change the law, not dramatically change the law but
    it's unfair. You don't think it's unfair?
        Ms. Florini. No. I think it is absolutely fair to hold the
    entities that are able to pay for cleaning up the messes that
    they made, liable for doing so. I have no problem with that
    whatsoever. The fact that it was not illegal at the time--
    actually, under your bill they have to have been caught and
    convicted within the relevant statute of limitations--but the
    fact that it was not illegal for them to do what they did at
    the time is irrelevant. They made a mess, they ought to clean
    it up.
        Senator Smith. Then why shouldn't Ms. Williams clean hers
    up?
        Ms. Florini. Letting the small parties out of the system is
    a matter of making the system work efficiently. It would be
    fair, it just doesn't happen to be efficient. So let the small
    parties out.
        In point of fact, I think for her kind of waste, there is a
    real question as to whether in fact it generated any toxicity
    at all. That's somewhat separate question, but in terms of the
    big entities, I have no problem with fairness of leaving them
    on the hook.
        Senator Smith. Do you have a response?
        Ms. Biagioni. I was going to say we're a big entity and we
    have situations where we're being sued. We're in exactly the
    same position as Ms. Williams, we put only trash in a site,
    cafeteria waste, probably the very same material that her
    restaurant put in the site, yet because we are the big player
    and the big, deep pocket, we're in litigation. No hazardous
    waste went into that site.
        Ms. Florini. For me, small refers to both the size of the
    company and the quantity of the stuff.
        Senator Smith. Well, you've helped us to understand why we
    have a difficult problem ahead of us. Thank you very much and
    let's move to the next panel. I appreciate you all being here.
        The third panel consists of Mr. Terry Garcia, Acting
    Assistant Secretary for NOAA; Mr. Larry Lockner, manager of
    Regulatory Issues, Shell Oil Company, on behalf of the American
    Petroleum Institute; Mr. Bob Spiegel, director, Edison Wetlands
    Association, Edison, NJ; Mr. Charlie De Saillan, assistant
    attorney general for Natural Resources, Environmental
    Enforcement Division, State of New Mexico; and Mr. Rich Heig,
    senior vice president, Engineering and Environment, Kennecott
    Energy Company.
        Let me just say, gentlemen, it is kind of late and I
    apologize to you all. It's been a pretty long hearing this
    morning. Your statements will be made a part of the permanent
    record and if you could summarize in 3 or 4 minutes, I'll put
    the clock on at 4 minutes and if you can watch it when it goes
    to yellow and wrap it up, we'd appreciate it.
        I'll start with Mr. Garcia. Go ahead.

    STATEMENT OF TERRY GARCIA, ACTING ASSISTANT SECRETARY, NATIONAL
                 OCEANIC AND ATMOSPHERIC ADMINISTRATION

        Mr. Garcia. Good afternoon, Mr. Chairman and members of the
    committee.
        I'm Terry Garcia, the Acting Assistant Secretary of Oceans
    and Atmosphere for the National Oceanic and Atmospheric
    Administration of the Department of Commerce. I'm here today
    representing the interests of the U.S. Departments of Commerce,
    Interior, Defense, and Energy.
        I would like to reassert for the 105th Congress the Clinton
    administration's steadfast commitment to protecting and
    restoring this Nation's natural resources. I will begin my
    testimony by quickly reviewing the progress made by the trustee
    agencies toward restoring natural resources under the existing
    laws and rules governing damage assessment activities.
        I would then like to highlight reforms to the natural
    resource damage (NRD) provisions of CERCLA that this
    Administration proposes. The final portion of my testimony will
    focus on the provisions of the Superfund Cleanup Acceleration
    Act of 1997. S. 8, that we feel would impede our efforts to
    protect and restore the Nation's natural resource heritage.
        Significant progress is being made by the trustees toward
    restoring natural resources injured by hazardous substances. By
    working within EPA's remedial process, trustees have reached
    agreements with responsible parties to restore habitat and
    injured resources at more than 25 hazardous waste sites as part
    of comprehensive government settlements.
        Restoration is underway at sites in Baytown, TX; New Castle
    County, DE; Tacoma, WA; New Bedford, MA; John Day River, OR;
    Lake Charles, LA; and the central California coast. The
    restoration work at these sites is detailed in my written
    testimony.
        Last October, the Administration forwarded to the committee
    and other committees with jurisdiction a proposal for reforming
    the natural resource damage provisions of CERCLA. Federal
    trustees carefully considered criticisms of NRD that had been
    raised during previous reauthorization efforts.
        Our proposal for reform is specifically designed to shift
    the emphasis away from monetizing the value of injured natural
    resources and litigation and refocusing it on restoring injured
    and destroyed resources. The proposal is based on our practical
    experience with the natural resource damage assessment and
    restoration process.
        These reforms are designed to improve the NRD programs by
    providing greater clarity concerning restoration, by assuring
    the more timely and more orderly presentation of claims and by
    discouraging premature litigation.
        NOAA and the other Federal trustees consider this proposal
    the foundation for reforming Superfund's NRD provisions during
    the 105th Congress.
        The Federal trustees believe that revision of CERCLA's NRD
    provision should be based on two principles: No. 1, restore
    resources to baseline condition and No. 2, restore the losses
    that the public suffers from the impairment of natural
    resources from the time of injury until restoration is
    complete.
        The Administration proposal was intended to strengthen the
    focus of restoration and reduce the cost associated with damage
    assessment claims by eliminating or reducing unnecessary
    litigation. Specifically, the proposal calls for adopting the
    restoration-based approach developed in NOAA's natural resource
    damage assessment regulations.
        The Administration's proposal shifts the emphasis of CERCLA
    damage assessment efforts to restoration and away from the
    determination of economic damages or monetization of the
    injury. This fundamental shift will avoid litigation and
    expedite the restoration of injured resources.
        We suggest amending the statute of limitations to provide
    that a claim for damages be presented within 3 years from the
    date of completion of a damage assessment by a trustee in
    accordance with the regulations or the completion of a
    restoration plan adopted after adequate public notice.
        Further, we clarify that a natural resource damage claim
    may be brought after an action for any other relief under
    CERCLA. These revisions will resolve the sequential claims
    issue to reduce premature filings, protect against claim
    splitting, and provide time for effective restoration planning,
    thus preserving important trust rights.
        Clarifying the judicial review provision for NRDA
    assessment to provide for a publicly-available administrative
    record to be developed to guide the selection of a restoration
    plan, and the judicial review of such plan be limited to the
    administrative record with an arbitrary and capricious review
    standard.
        Finally, relying on cost effective restoration, cost
    effective is defined in our proposal and in the NOAA
    regulations as the least costly activity among two or more
    restoration measures to provide the same or comparable level of
    benefits.
        Moving to S. 8, the Federal natural resource trustees
    recognize the efforts of this committee. We understand the hard
    work that went into drafting it. As stewards of the Nation's
    resources, we appreciate the provisions contained in S. 8 that
    reflect our concerns regarding natural resources.
        Nevertheless, we believe that S. 8 would weaken our ability
    to protect and restore the Nation's resource heritage. S. 8
    precludes the restoration of non-use values, which include both
    ecological and human services provided by natural resources.
    Although these values are often difficult to quantify, they
    nevertheless are real.
        The sights and sounds of the Connecticut River, the
    historical significance of the Housatonic River to the people
    of Massachusetts and Connecticut and the cultural significance
    of the Snake and Salmon Rivers are examples. To allow them to
    be destroyed by pollution and not restored is not acceptable.
        S. 8 requires that responsible parties be allowed to pay
    for natural restoration over time based on the period of time
    over which the damages occurred. The trustees often agree to
    installment payments and negotiated settlements to reflect a
    responsible party's limited ability to pay or the time that
    would be needed for restoration. However, the amount of time
    over which the damage to resources occurred should not be
    considered in a settlement schedule.
        Finally, S. 8 appears to preclude the recovery of all
    interim losses, both use and non-use.
        I'll stop there. Thank you.
        Senator Smith. Mr. Lockner.

      STATEMENT OF LARRY L. LOCKNER, MANAGER, REGULATORY ISSUES,
      SHELL OIL COMPANY, ON BEHALF OF AMERICAN PETROLEUM INSTITUTE

        Mr. Lockner. Thank you, Mr. Chairman. I'm Larry Lockner
    with Shell Oil Company and chairman of the American Petroleum
    Institute's CERCLA Task Force. API appreciates this opportunity
    to present its views on reform of the Superfund Program. I'd
    like to point out that API strongly supports comprehensive
    reform of Superfund. We want to work with subcommittee members
    to accomplish this objective this Congress. S. 8 makes many
    needed changes to the program and is an excellent vehicle to
    begin this work.
        The petroleum industry has a unique perspective with regard
    to Superfund. It's estimated that the industry is responsible
    for less than 10 percent of the contamination at Superfund
    sites, yet has historically paid over 50 percent of the taxes
    that support the trust fund. This inequity is of paramount
    concern to API members. It's caused the industry to focus on
    those elements that affect the cost of the program and the
    authorized uses of the trust fund.
        When Superfund was enacted in 1980, Congress envisioned a
    program that would cost $1.6 billion and be complete within 5
    years. Almost 17 years later, however, billions have been spent
    but relatively few sites on the NPL have been cleaned up. This
    program appears to be without end.
        API members are pleased that the Senate bill would reduce
    the number of sites to be added to the NPL and commend the
    sponsors for taking this important step. Limiting new additions
    to the NPL ensures a more reasoned Federal program with reduced
    future funding requirements. In our view, this provision in
    your legislation is critical to the reform effort.
        Additionally, we support the bill's provisions that would
    delegate Superfund remedial authority to the States at non-
    Federal NPL sites. In general, the States have well-established
    programs and have demonstrated capabilities for cleaning up
    sites.
        API member companies also support liability reform. Reform
    in this area will expedite cleanups and reduce transaction
    costs. Clearly under current law, too much money is wasted on
    legal costs. However, as an industry that has borne a highly
    disproportionate share of the taxes that support the trust
    fund, the petroleum industry is concerned about the impact that
    any liability changes would have on the program costs. For
    example, under the liability provisions contained in S. 8, the
    fund would pick up orphan share costs as well as enactment
    costs, response costs at co-disposal landfills for generators,
    transporters and arrangers who contributed waste prior to
    January 1, 1997. Municipal owners and operators liability would
    be capped at such landfills. In addition, de micromis and de
    minimis parties and others would be exempt.
        API members need to understand whether the cost savings
    associated with the bill's reform measures are sufficient to
    offset the additional costs arising from this shift in
    liability from PRPs to the fund or whether the program as
    envisioned under S. 8 would place increased demands on the
    fund. As the largest group of taxpayers to the fund, API
    members cannot conclude their evaluation of the legislation
    without fully understanding those costs ramifications.
        Some of the additional costs arising from liability
    exemptions will be offset by other reform measures and API
    supports many of the remedies, selections, and reform measures
    provided in S. 8. We've also outlined those areas for
    additional reform in our written statement.
        In closing, I want to note that Superfund sites are a broad
    societal problem, thus taxes raised to remediate those sites
    should be broadly based rather than focused on specific
    industries. Without substantial reform of the underlying
    program and the tax system supporting the fund, API opposes
    authorization of any Superfund taxes. API members believe it is
    critical that Congress structure the taxes that support the
    fund. Thank you for the opportunity to present our views.
        We'll be happy to answer any questions.
        Senator Smith. Thank you, Mr. Lockner.
        Mr. Spiegel.

        STATEMENT OF ROBERT SPIEGEL, DIRECTOR, EDISON WETLANDS
                              ASSOCIATION

        Mr. Spiegel. Thank you very much for allowing me to testify
    today. My name is Robert Spiegel. I'm the director of the
    Edison Wetlands Association, a group dedicated to the
    preservation of the environment in New Jersey.
        I'm familiar with Superfund's highs and lows. New Jersey
    has 116 sites on the National Priorities List, more than any
    other State in the Nation. However, I'm here to tell you that
    I'm pleased about EPA's Superfund presence in Edison. I know
    that sounds a little strange and let me explain why.
        Edison has 90 contaminated sites listed by the State of New
    Jersey. Of these, only three--Kin-Buc Landfill, The Chemical
    Insecticide Site and the Renora Site are on the Superfund List.
    I have been involved in both the identification and remediation
    of many of these sites, both EPA and State lead, and I must
    tell you EPA leads are far superior to the cleanups that the
    State does.
        In looking at the difference between EPA and State-led
    cleanups, it breaks down to two major differences which are
    thoroughness of investigation and cleanup and the second is
    public participation.
        EPA investigations and cleanups examine in detail onsite
    and offsite contamination and groundwater contamination. State-
    lead sites rely on the polluter to submit data and the State
    rarely if ever challenges the data. State-lead sites often
    ignore offsite contamination believing in the magic fence
    theory which states that the contamination stops at the fence
    line.
        Only in extremely rare circumstances will the State force
    the polluter to investigate offsite contamination or
    groundwater pollution.
        The EPA has also aggressively pursued public input and
    there is an outreach program for every site in Superfund. At
    State-lead sites, you're lucky if you can get one of the
    project managers on the phone and if you want to review
    documents they have, it will cost you $100.
        I'm here today to talk about an EPA Superfund success story
    and how it might be affected by S. 8, the Superfund
    reauthorization bill. My involvement with Superfund started in
    1989 with a site called the Chemical Insecticide Superfund
    Site, also known as CIC.
        Chemical Insecticide manufactured pesticides, herbicides,
    and fungicides including the military defoliant, Agent Orange.
    The site operated from 1954 to 1971 and as a result of CIC
    operations, the site became contaminated.
        After EPA confirmed that the runoff had indeed leached from
    the site, we decided to form a community working group. From
    1991 to 1993, we had a very difficult time working with EPA. It
    quickly became an us against them attitude. We battled
    constantly in the press, the cleanup was stalled and it seemed
    as though we were getting nowhere fast.
        In 1993, the EPA encouraged us to apply for a technical
    assistance grant, also known as a TAG. We applied and received
    the grant.
        Since 1993, this site was turned from one of the biggest
    public relations disasters into a model EPA should use for all
    its cleanups. EPA has not just developed a community relations
    plan at the site, but has developed a community relationship.
    It was no small part due to the TAG Program.
        It helped us understand the Superfund Program is a
    complicated answer to a complex problem. We found that most of
    the problems stem from the lack of understanding about the
    nature of environmental pollution and remediation and the
    unrealistic expectations that Superfund can be a quick fix to
    these problems.
        I'm happy to say that the offsite cleanup of the
    residential neighborhoods around the site is complete and
    restoration work has begun. EPA has not only finished this
    ahead of schedule, but has also finished $2 million under
    budget.
        What's interesting to note here about EPA cleanup is that
    by going through a full public process and by being responsive
    to our concerns, EPA probably ended up slowing down the pace of
    the cleanup but ultimately did a better job.
        The contaminated offsite areas downstream from CIC could
    have been left under S. 8 because S. 8 does not protect highly
    exposed or unusually sensitive groups, given the way the bill
    tilts risk assessment by use of central estimates. S. 8 dumps
    toxic pollution on communities and is a bailout for the
    polluters
        The Government should be looking for ways to strengthen the
    Superfund instead of weakening it. Provisions that will pierce
    the corporate veil need to be included in any new
    reauthorization bill. The owner of the CIC site has escaped
    liability behind the corporate veil and has contaminated four
    sites, two of which are Superfund.
        In closing, I would like to say that we need a strong
    Superfund Program, one that goes after polluters, protects the
    public and identifies and cleans up contaminated sites. S. 8 is
    not this bill. The reality is, we know industry is necessary.
    Everything we do, use or have is due to industry in one form or
    another. However, we refuse to accept that we have to allow
    polluters to poison our water and land and allow them to walk
    away without liability.
        I hope you will go back and revise the bill so that it does
    not protect the American people against what is perhaps the
    greatest threat to our national security, the poisoning of our
    citizens, their land and water and air. Superfund is not
    perfect, but it is the only game in town.
        Thank you.
        Senator Smith. Thank you.
        Mr. de Saillan.

     STATEMENT OF CHARLES DE SAILLAN, ASSISTANT ATTORNEY GENERAL,
    NATURAL RESOURCES, ENVIRONMENTAL ENFORCEMENT DIVISION, STATE OF
                               NEW MEXICO

        Mr. de Saillan. Thank you, Mr. Chairman and members of the
    committee.
        I'm Charles de Saillan, assistant attorney general for the
    State of New Mexico. I'm testifying today on behalf of Attorney
    General Tom Udall who regrets that he was not able to be here
    today.
        Attorney General Udall is the immediate past president of
    the National Association of Attorneys General and he is on the
    Association's Environment and Energy Committee.
        We very much appreciate the opportunity to appear here
    today and present our testimony on S. 8, the proposed Superfund
    Cleanup and Restoration Act that would amend and reauthorize
    CERCLA. This legislation is extremely important to the State of
    New Mexico and to many of the State attorneys general.
        In reviewing S. 8, we immediately recognized that many of
    our concerns had been addressed in this legislation. For
    example, the bar on preenforcement review of remedy decisions
    which is currently in section 113(h) of CERCLA would have been
    eliminated in the bill that was introduced in the last
    Congress. It has been retained in S. 8 and we're very pleased
    that it is. This provision has been very effective in limiting
    litigation and allowing cleanup to proceed expeditiously. We
    very much appreciate that the committee has taken into
    consideration our comments on this issue and others.
        We view S. 8 as a significant improvement over S. 1285, the
    Superfund bill that was introduced in the last Congress and we
    very much appreciate the hard work that has gone into it. We,
    nevertheless, have very serious concerns with the bill.
        One of our major, overall concerns with S. 8 is simply its
    length and complexity. It would completely rewrite CERCLA. The
    cleanup standards, the remedy selection process, the liability
    scheme, the natural resource damage provisions would all be
    changed drastically and in innumerable ways. Yet, every change
    in the law will need to be interpreted, first by the
    implementing agency and second, in too many instances, by the
    courts.
        The result, we fear, will be the shifting of limited agency
    resources to writing new regulations and new guidances, the
    nullification of 15 years of hard-fought judicial precedent,
    new rounds of litigation, more transaction costs, and most
    distressingly, further delays in cleanup.
        We strongly urge the committee to focus on those provisions
    of CERCLA that really need revision and to draft narrow,
    straightforward, concise legislation to make those revisions.
        Let me now summarize some of our comments on the bill. More
    detailed comments are included in our written testimony.
        First, in the State role title, we strongly support
    provisions to delegate the Superfund Program to qualified
    States. We appreciate the flexibility that the bill provides in
    allowing States to receive either comprehensive delegation or
    partial delegation.
        We do strongly recommend that the bill be revised to
    clearly allow an authorization option in addition to
    delegation. Under the authorization approach, which is taken
    under RCRA and the Clean Water Act and other Federal
    environmental laws, EPA would authorize qualified States to
    implement their program in lieu of the Federal program.
        Under this approach, the States would have the flexibility
    to apply requirements that are more stringent than the Federal
    requirements without needing to pick up the tab for the cost
    differential.
        Second, although NAAG has not taken an official position on
    remedy selection, we have a number of concerns regarding this
    title. We are very concerned that the relaxation of remedy
    selection standards will lead to less permanent remedies, and
    that the States will be left to deal with problems in years to
    come.
        Further, we're particularly concerned that the bill does
    not adequately protect groundwater. We're also troubled by the
    new, completely revised remedy selection procedures which allow
    the responsible parties to select the remedy despite the
    obvious conflict of interest. We believe that remedy decisions
    should be made by EPA or State agencies that have a duty to
    protect human health and the environment.
        Third, on the liability title, we are very pleased that the
    bill retains the liability for preenactment disposal activities
    or so-called ``retroactive liability.'' This issue is a very
    important one to the State attorneys general.
        We're concerned, however, that the various exemptions in
    the bill are too broad. We're particularly concerned about the
    co-disposal landfill exemption which would inequitably exempt
    generators and transporters of hazardous wastes simply because
    they sent their waste to a site that also received a
    substantial amount of municipal solid waste. We further
    question how these exemptions will be funded.
        Fourth is the Federal Facilities Title. We generally
    support the concept of transfer of EPA's authority over Federal
    facilities to qualified States. We have some concerns about how
    the bill would do this, and we provide more detailed comments
    in our testimony.
        We also strongly encourage the committee to adopt a clear
    and unambiguous waiver of Federal sovereign immunity in CERCLA.
        Finally, we have numerous concerns about the natural
    resource damage title. These provisions would largely handicap
    the program in most States. The bill would substantially limit
    recovery for pre-1980 releases, it would eliminate recovery for
    passive use values, and it fails to clarify the ambiguous
    statute of limitations.
        On the positive side, we're very pleased to see a record
    review provision in the title.
        That concludes my prepared statement and I'll be happy to
    take any questions that you have.
        Senator Smith. Thank you.
        Mr. Heig.

     STATEMENT OF RICH A. HEIG, SENIOR VICE PRESIDENT, ENGINEERING
               AND ENVIRONMENT, KENNECOTT ENERGY COMPANY

        Mr. Heig. Thank you, Mr. Chairman, for this opportunity to
    testify. My name is Rich Heig. I'm senior vice president of
    Engineering Services, Kennecott Corporation.
        Kennecott supports balanced Superfund reform which will
    accelerate cleanups based upon good science. Reform must also
    include changes to the natural resource damage provisions so
    that it clearly focuses on restoration of existing services.
    With these two points in mind, let me say there is a lot we
    like about this bill.
        Kennecott has had firsthand experience with the
    inefficiencies of the current Superfund Program. At our Bingham
    Canyon copper mine in Utah, once a historic mining area,
    Kennecott has spent over $230 million for cleanup. This effort
    included cleaning up and relocating over 25 million tons of
    historic mining wastes. This is equivalent to over 1 million
    dump trucks of material. Over 5,500 acres have been reclaimed
    for wildlife habitat and recreational uses.
        Thankfully after Administrator Browner visited Utah and
    recognized the depth of Kennecott's commitment to a successful
    cleanup program, she supported a memorandum of understanding in
    which Kennecott, EPA and the State of Utah agreed that placing
    the Kennecott sites on the NPL would be deferred if Kennecott
    completed certain cleanup programs, most of which were already
    underway.
        In the midst of the Bingham Canyon cleanup, Utah's NRD
    trustee filed an NRD lawsuit for contaminated groundwater.
    Kennecott needed a resolution that would not require us to pay
    for a cleanup twice, once for a Superfund cleanup remedy and
    once for NRD. Ultimately, such a settlement was reached.
        Kennecott's Superfund experiences have led us to believe
    that Superfund reform should No. 1, create a flexible mechanism
    to conduct responsible cleanup without the site becoming a
    proposed Superfund site; No. 2, require cleanups and remedies
    to be based on reasonable risk assumptions and reasonable land
    and water use designation; No. 3, restrict NRD recoveries to
    restoration and eliminate double cleanup requirements.
    Restoration should be cost effective and reasonable based upon
    what is needed for actual restoration with a reasonable cap on
    ultimate liability and no NRD retroactivity.
        Mr. Chairman, Kennecott is pleased to see the efforts being
    made by the sponsors of S. 8 to reform Superfund. However, we
    respectfully ask the committee to consider the following
    comments.
        Title 1 should include a voluntary Federal response program
    in addition to that which is proposed for the States. Kennecott
    generally supports the concepts of remedial action provisions
    of title 4 which No. 1, require the selection of remedies that
    are cost effective; No. 2, are based onsite-specific conditions
    and risk assessments; No. 3, consider reasonably anticipated
    future uses of land and water; No. 4, allow for the
    consideration of natural attenuation and biodegradation in
    groundwater remediation; No. 5, recognize institutional and
    engineering controls; and No. 6, eliminate the preference for
    permanence and treatment.
        Kennecott supports the attempt in title V to fairly
    allocate response costs at non-Federal multiparty sites
    including mixed funding for orphan shares. We ask that an
    additional provision be included that would allow remining of
    historic mining sites for the economic recovery of metals or
    minerals without imposing Superfund liability for past
    releases. Remining may be the only practical approach to a cost
    effective cleanup and in virtually all cases, could be a boost
    to local economies.
        We believe the changes to NRD included in title 7 are a
    good start. However, there are several areas that we believe
    could be clarified and we have discussed those in our written
    testimony.
        The NRD Program should be modified to complement not
    duplicate cleanup remedies. The improvements to be gained from
    cleanup reforms will be lost if NRD trustees can require
    additional cleanup under the guise of restoration.
        While Kennecott and Utah were able to reach a compromise
    that so far avoids a double cleanup, this type of result should
    be formalized for all NRD claims rather than left to an NRD
    trustee's discretion.
        A more detailed analysis of S. 8 is included in our written
    testimony and I ask that it be included in the hearing record.
        Mr. Chairman, thank you for this opportunity to testify.
        Senator Smith. Thank you. It will certainly be a part of
    the written record.
        Mr. Garcia, let me start with you. Again, in the testimony
    regarding the Administration views, we continue to have what I
    consider to be rather strong statements. ``The Administration
    believes that S. 8 does not represent an acceptable basis for
    achieving bipartisan consensus on Superfund reform,'' et
    cetera. How does this kind of rhetoric help the process?
        The Senate puts together a bill that worked on for 2 years
    with the Administration and our colleagues on the other side.
    Granted, we didn't come to accommodation, I'd be the first to
    admit that, but there was no attempt here to write a bill
    without their input or to impose our will upon them and yet,
    you still continue to use these statements. What is an
    acceptable basis for achieving bipartisan agreement, your bill
    only, your position only?
        Mr. Garcia. Mr. Chairman, in my oral statement I indicated
    there were certain weaknesses which we had identified--non-use
    values, interim losses, the time payments. Those are real
    weaknesses and they're material weaknesses in terms of our
    ability to conduct natural resource damage assessments.
        We are willing to engage in a bipartisan effort to achieve
    a consensus on Superfund reform and we've been working with the
    stakeholders for months now. We have worked with your staff,
    we'll continue to work with the staff. We welcome the
    opportunity to do so. We have submitted a proposal which we
    believe balances, in an appropriate manner, the legitimate
    interests of the stakeholders, of the responsible parties, and
    the Government's interest, the trustees' interest in restoring
    natural resources. As a member of the panel said, it's a
    restoration-based approach.
        Senator Smith. But you won't even give us this as a
    starting point. You're basically saying it's not even a
    starting point.
        Mr. Garcia. I don't believe that I said that in my
    statement. I would suggest, and the Administration would
    support, that we each come to the table with our proposals and
    we discuss them. I acknowledged in my testimony that S. 8 had
    incorporated certain provisions that acknowledge the concern of
    the trustees, but there are other provisions that are of very
    serious concerns to us. Again, I would suggest that we sit down
    with our proposal, the Administration's proposal, and S. 8 and
    begin that discussion.
        Senator Smith. In the heading of your testimony, you say
    that you speak on behalf of the U.S. Departments of Interior,
    Agriculture, Energy and Defense. Do they all agree with you?
    They totally agree with your statement? There is no dissension
    among any of those?
        Mr. Garcia. The statement was cleared through the
    interagency process and my understanding is that we're in full
    agreement on these matters.
        Senator Smith. Mr. Lockner, I was somewhat interested in
    your comments regarding the taxes. As you know, when CERCLA was
    written, it's 101.14, there is an exclusion for petroleum,
    including crude oil or any fraction thereof as well as natural
    gas or liquified natural gas from being covered under
    Superfund.
        Now, are you saying now that no taxes is your position, no
    taxes be collected whatsoever?
        Mr. Lockner. No, I'm not saying that at all. Our position
    is that the program needs reform, not only of the programmatic
    issues but the tax base as well. The imbalance is clear. We're
    paying 50 percent of the taxes, yet only have 10 percent of the
    liability. That's the issue. It's an issue of fairness.
        Senator Smith. You don't suggest we eliminate the petroleum
    exclusion, do you?
        Mr. Lockner. No, I wouldn't wish that CERCLA be placed on
    those petroleum issues at all. Let's be frank, let's talk about
    what that could do to the country. Our friend with the small
    business here could face a problem, farmers could face
    problems, the users of our products who would blame the
    complexity and bureaucracy of CERCLA on the users of petroleum
    and petroleum products would be a nightmare.
        Senator Smith. Aren't you somewhat frustrated or are you
    somewhat frustrated that the taxes that are collected from the
    petroleum industry in many cases are not used directly for
    cleanup?
        Mr. Lockner. Indeed. We're 17 years now into a 5-year
    program and they seem to be without end and they're used for
    budget-balancing purposes, for nonrelated purposes and they
    just go on forever. We'd like to see some sort of finality to
    this, some sort of agreement we could reach conclusion with
    this and that's why we support turning a lot of the program
    over to the States. Let them manage the program. They seem to
    be well-equipped in a lot of instances.
        Senator Smith. Senator Baucus.
        Senator Baucus. Thank you, Mr. Chairman.
        Gentlemen, I'd like to explore the degree to which
    restoration should include extrinsic value or sometimes known
    as non-use value which is a big technical term, but basically
    it's extrinsic value or intrinsic value.
        For example, the Grand Canyon, wilderness area, old growth
    forests, deep stream lakes, 30 or 40 feet down, I'd like you to
    tell us the degree to which, Mr. Heig, I'll start with you, the
    restoration should include intrinsic value as well as lost
    human use. Let me ask the first question, should it at all?
        Mr. Heig. I don't believe it should.
        Senator Baucus. At all?
        Mr. Heig. The real focus on NRD should be for restoration.
    Paying for past lost use and non-use is surplus to restoration.
    It is punitive.
        Senator Baucus. So it doesn't matter to you whether the
    Grand Canyon is destroyed, even though you've not visited it?
    It does not matter to you or the Washington Monument is
    destroyed or say a wilderness area is no longer wilderness, so
    long as the human use of that, if you can quantify the number
    of visitors and so forth is met, it doesn't matter to you or do
    you think it should not matter to the American public?
        Mr. Heig. Well, first of all, I'm dealing with this mining
    situation.
        Senator Baucus. I'm talking about the basic principle of
    intrinsic value in an area that's been destroyed or
    substantially damaged.
        Mr. Heig. If restoration occurs----
        Senator Baucus. Should restoration deal with intrinsic
    value?
        Mr. Heig. In my opinion, no.
        Senator Baucus. Mr. de Saillan, your view on that?
        Mr. de Saillan. We definitely believe that non-use values
    or passive-use values should be considered in determining the
    value of natural resources. If you just consider natural
    resources based on the value of the board feet of the timber in
    the forest, or the market value of the fish in the stream, you
    wind up undervaluing the resources.
        One of the difficult things in the natural resource damage
    program is how you put a value on the resources. By considering
    passive use values, it gives us an ability to comprehensively
    or more fully place a value on resources which are very hard to
    quantify because they are not traded in the market. That's what
    we're trying to get at with passive use values.
        Senator Baucus. Your view is, even though they are hard to
    quantify, they should be valued and considered in determining
    their restoration?
        Mr. de Saillan. Absolutely. In our experience, even though
    it's not real easy to quantify it, most of these cases are
    negotiated, settlements are reached. The cases that are being
    litigated are really the exception.
        In New Mexico's experience, we have not litigated a single
    natural resource damage claim. We sit down with the responsible
    parties, we give our arguments, they give their arguments, and
    we come to a settlement.
        Senator Baucus. Mr. Lockner, your view on this?
        Mr. Lockner. The problem with the issue is that there's no
    real way to quantify the losses, if indeed they are losses.
    Every citizen that might be questioned under a scheme such as
    contingent valuation, would have a different opinion.
        Though I'm not an expert at NRD, these problems appear
    readily apparent. I think if you would turn your attention to
    the testimony that will be provided to the record by the
    Coalition of Legislative NRD Reform, I think they will be more
    explicit in those issues.
        Senator Baucus. But as difficult as it is to value, should
    an attempt be made to try to value it?
        Mr. Lockner. Again, I think if an attempt is made, the
    answer that is received is going to be completely without
    value. It's going to be based on esoteric values by
    individuals.
        Senator Baucus. So you see no need to attempt to restore
    the lost intrinsic value of a resource, the beauty of a
    resource. That does not make any difference?
        Mr. Lockner. Not based on the methods that are available.
        Senator Baucus. That's not the question I asked. The
    question I asked is, should we make the attempt to try to deal
    with that or not even make the attempt?
        Mr. Lockner. I don't see how you can.
        Senator Baucus. So you don't think it's worth making an
    attempt to restore say the loss of the Grand Canyon?
        Mr. Lockner. I think that's a hypothetical situation.
        Senator Baucus. I'm asking a hypothetical. I'm asking you
    to address the hypothetical.
        Mr. Lockner. I really don't see how you can arrive at those
    decisions based on the tools at hand today. I just don't know
    how.
        Senator Baucus. Should we try to find better tools?
        Mr. Lockner. I think that's very logical.
        Senator Baucus. So you think maybe we should make the
    attempt?
        Mr. Lockner. To find tools?
        Senator Baucus. Yes. Should we make the attempt to find
    tools?
        Mr. Lockner. To make a realistic assessment of what is
    really involved here.
        Senator Baucus. So you do think we should make the attempt
    to find better tools to deal with this issue? I'm not trying to
    put words in your mouth, I'm trying to find out where you are.
        Mr. Lockner. Let's try to focus on the loss of the services
    involved and I think that's where we really need to turn.
        Senator Baucus. We're not dealing with that. That's a
    separate issue. I'm talking about lost intrinsic value.
        Mr. Lockner. Again, I really haven't given this a lot of
    thought. I'm not an expert on those issues.
        Senator Baucus. Mr. Garcia.
        Mr. Garcia. As my testimony indicated, absolutely, we
    believe that those are real values, real values the public
    should be compensated for. There are two issues when a resource
    is injured. One is primary restoration, bringing that resource
    back to baseline. The other is compensating the public for the
    lost use of those resources, both direct and indirect or non-
    use or passive use.
        I grant you that it's difficult to quantify those values,
    but it is possible and has been done. I would also submit that
    the committee review the Administration's proposal for dealing
    with injuries to resources, including interim losses and the
    restoration-based approach that we have advanced in our
    proposal and which is contained in NOAA's regulations--which
    does not involve quantification or monetization of the injury.
    Rather, it focuses solely on how do you restore that injury;
    how do you restore the injured resource itself, as well as how
    do you compensate the public for their loss, whether it's a
    direct use or a passive use.
        Senator Baucus. I appreciate that. I know it's an extremely
    difficult issue but in my personal opinion, it's an effort we
    should undertake, how we deal with this and quantify this.
        Do you want to speak to that, Mr. Spiegel?
        Mr. Spiegel. Yes. I'd like to make a quick comment.
        One of the things this bill seems to do is engage in
    linguistic detoxification of chemical pollution.
        Senator Baucus. What does that mean?
        Mr. Spiegel. Linguistic detoxification means that you
    detoxify with words but we like to use that phrase basically
    because it seems like some of my colleagues here feel that
    allowing levels of contaminants in the environment is
    acceptable.
        One of the things I always felt, and I know that the people
    in my community feel, is you really cannot put a price on clean
    air, clean water, and clean land. You really can't. It's
    necessary for our survival, it's necessary for our children's
    survival.
        One of the things I've learned is the Indians use a seventh
    generation ideology which means they look at everything, how
    it's going to affect seven generations down the road, how it's
    going to affect not only their children, but all the way down,
    how it's going to affect the future.
        I think that when we look at natural resource restoration,
    and we look at natural resource damages, we should look at it
    not in terms of is it strictly economics. Would it cost more to
    clean it up than leave it dirty? Of course. What is reasonable?
    Is it reasonable to leave elevated levels of contaminants
    because we don't think we're going to use the natural resource?
    What about our great, great grandchildren, may they use the
    resource?
        Senator Baucus. I appreciate that. My personal view, and I
    believe this very strongly, that we have a duty to our country
    to try to find some way to solve this question. Otherwise, a
    wilderness area, for example, is destroyed or a portion of it
    is destroyed, the solution will be to try to find alternate
    hiking days somewhere else and not restore that wilderness or
    not try to do what we can do reasonably to try to restore it.
        This is a tough issue. We're getting into nonlogical
    matters here, but yet very, very important. It's analogous to
    what is beauty, how do we define beauty? It's very hard to
    define.
        Justice Potter Stewart, when asked to define something
    else, pornography, he said, I don't know but I know it when I
    see it and beauty is somewhat the same.
        I think there is some basic, spiritual, something to do
    with one's soul. It's very valuable when some special natural
    resources are destroyed--a Glacier Park in Montana. That's a
    hypothetical but there are some wonderful rivers and streams in
    this country which have been seriously damaged.
        Sure, we can measure damage by the lost use, people don't
    fish or hunt as much or what not but there is another value
    too, particularly because that river was so beautiful. It's
    hard to describe and we have to find some way to reasonably
    deal with that issue. Otherwise, we're not serving our people
    as well as we can or should. It's hard, I grant you it's hard
    but I think we have an obligation to do whatever we can to try
    to address it in the most reasonable way.
        As I read this bill, it essentially says those areas are
    off limits. It cannot be compensated, it cannot include those
    intrinsic values attempting to restore a damaged or lost
    natural resource. I think that is wrong.
        Senator Smith. Let me just pick up on that point, Senator
    Baucus. The whole premise, I believe, of NRD is that we can
    reduce these things to a dollar amount. Your comment, Mr.
    Lockner, was right on target, I think in terms of
    quantification.
        The premise is that we can quantify it. The truth of the
    matter is we can't.
        Senator Baucus. Can or cannot?
        Senator Smith. We cannot.
        Senator Baucus. I think we can. There are ways to do it. In
    fact, right now there are techniques being used by trustees to
    try to answer that question. I might say too that as we sit at
    this very moment, the State of Montana is in litigation and has
    techniques and measurements and so forth to try to answer that
    question.
        I grant you it's a hard matter to measure, but I submit
    ever so strongly, we should try to do our very best to try to
    find a way and maybe devote our time in a hearing to all the
    various different techniques and different tools to try to find
    the best way rather than to categorically dismiss it.
        Senator Smith. I hear you but again, we're using double
    standards on quantification. For example, in the area of
    eminent domain, when you go take granddad's farmhouse and you
    decide it's worth $50,000, you're going to build a new highway,
    do you quantify that? Do you get into the loss use, non-use of
    those people, what's the aesthetic value of that farm? We don't
    do that. We don't do that at all.
        So suddenly we come up with this NRD concept here and in
    the case of natural resource damages, we now fly this
    quantification standard that we don't apply anywhere else.
    That's what is wrong with it.
        When you come out and fully support when we take the old
    farmhouse and we can say, these people are entitled, there are
    a lot of people that like to look at that farmhouse, they like
    to walk on that land, they like to hunt, they like to fish and
    when you reimburse those people for all of that, then OK, I'll
    talk to you, but that's not happening.
        We're applying this standard one way and you cannot
    quantify it. We've argued about this, we've discussed this.
    This is the problem. Meanwhile, while we argue it, we're not
    restoring which is what Mr. Heig said we want to do, to restore
    these properties to their use where we can all enjoy them.
        You said, Mr. Garcia, that you can put a real value and I
    think you mean that. But all right, I want to use the Grand
    Canyon, what's that real value to me? Who much is it, give me a
    dollar amount?
        Mr. Garcia. As I said, it's difficult to quantify. Let me
    make a point.
        Senator Smith. That's the point, isn't it, it is difficult.
    We're trying to quantify it, that's my point here. That's what
    is so frustrating.
        Mr. Garcia. We have quantified those values in a number of
    cases. What I wanted to suggest is that there is an
    alternative. There is an alternative to rejecting the concept
    of passive use values, but there is a way of capturing those
    values.
        The alternative, again, I submit is embodied in the
    Administration's proposal. It is a restoration-based proposal.
    It focuses not on the quantification or the monetization of the
    injury which leads to litigation, is complicated but can be
    done, but rather it focuses on how do you restore the injury so
    the entire inquiry is not what is the value of that resource.
    Rather, it is how do you compensate the public for the loss of
    that resource, how do you compensate the public for the loss of
    the use of that resource without getting into the
    quantification issue?
        You develop a restoration plan as we've done a number of
    times in accordance with NOAA's regulations, in our damage
    assessment process. We have laid out a proposal for the staff
    which I think allows the trustees to fulfill their obligation
    to make the public and the environment whole as a result of an
    injury--by compensating the public both for the loss of the
    resource as well as the loss of the use of that resource and to
    do it without having to monetize the injury.
        The measure of damage under our proposal is the cost of the
    restoration project, not the value of the resource.
        Senator Smith. I don't disagree with you on the
    restoration. We should restore it and there is some argument
    about how much certain entities would have to spend to do that,
    but when you start going beyond that, that's where you get lost
    use, non-use, that's where you start getting into the dollars.
    You say it isn't, but it's the money. There are numbers put on
    these NRD lawsuits, huge numbers, but hundreds of millions of
    dollars in some of these cases and I don't know where they come
    up with the figures on lost use and non-use.
        As I said, somebody on the panel, tell me what is the
    dollar amount for me not being able to see the Grand Canyon?
        Mr. Spiegel. Senator, I think the way the argument is being
    framed here is not exactly the best way to frame it. I think
    that to sit there and ask people to spit out a dollar amount,
    to put on a specific resource, I think is the wrong way to
    frame the argument.
        Senator Smith. That's what we do.
        Mr. Spiegel. The way you're framing the argument right now
    I think it is not positive. I think a positive way to look at
    the argument and frame it where you can get real debate as to
    which way we should frame this in the bill is to look at
    potential use, there are people who are experts in the field.
    How much would it cost to restore this property, how much would
    it cost reasonably to safeguard against how people use it?
        Where I live in Edison, about 70 sites are located right in
    my general area, and they all drain into the river. There are
    fishing advisories--you can't fish because the fish have high
    levels of PCPs. The river is gorgeous, teeming with life. You
    can't eat the crabs, you can't eat the fish. They don't want
    you to come in contact with the water. How do you put a number
    on that?
        Senator Smith. What about Barbara Williams' lost use, non-
    use? We're not applying any lost use, non-use to her. What
    about all the aggravation she's had and the dollars that she's
    spent in litigation on a Superfund site where everybody admits
    she shouldn't even be in?
        Mr. Spiegel. I'm not going to comment on that because I
    don't know anything about it.
        Senator Smith. But I'm just using it as an example. The
    point is we isolate these NRD cases and we say we're somehow
    going to put a specific number and we do put specific numbers
    and that's my point. If you look at these cases, they are very
    specific dollar amounts and nobody can tell me where they come
    from.
        I can understand the restoration. We may disagree on the
    amount but I understand that, that's specific because it cost x
    number of dollars to be restored.
        Senator Baucus. Mr. Chairman, I think what we ought to do
    is use your analogy and give it to a jury because right now
    when we are trying to wrestle with this issue, first, as you
    well know, we're only talking about those sites that are on the
    NPL, a certain threshold has to be met before that's triggered.
        Then we begin to grapple with what the restoration should
    be. In this case, it's in the public interest and the trustees
    here are trustees for the public. So the intrinsic value of a
    national resource that is destroyed is valued by the public not
    just a single individual, it's by the public and that I think
    means the trustees should be held to a very high standard and
    it also means any determination they come up with is
    necessarily going to be perhaps a little bit higher in amount
    of value because we're trying to protect the public interest
    here as opposed to the private interest.
        Take the case of a taking, first of all, as a threshold
    what is not a taking. Once that decision is made, then it goes
    to the jury usually for damages. The jury is going to sit down
    and try to figure out what is the damage when the taking has
    been triggered. They're going to probably take intrinsic value
    into account.
        They're going to take a farmhouse, for example, the person
    can't use his farm anymore, it's not there. What is the
    economic loss and so on. I'll bet you dollars to doughnuts that
    jury is also going to think in the back of its mind, the lost
    intrinsic value to that individual, that is the beauty of the
    countryside, the value of working the land and so forth.
        Maybe the answer here is to just turn it over to a jury.
    People have common sense. They know things pretty well. They
    can't quantify to the decimal point but they've got a sense
    here so maybe the answer is let's turn it over to a jury and
    the jury will determine what the restoration plan will be.
        I don't think most people want to do that but at least
    people do include intrinsic values into their conclusions as to
    what damages should be and we just have to do our best, as
    difficult as it is, to try to find some way apart from giving
    it to a jury, for us to develop some process to do the same.
        Mr. Garcia. I just wanted to make one point and that is we,
    under our current approach, are restoring injuries to resources
    including the lost services, use and non-use, without
    monetizing the injury, so we are doing it without presenting a
    bill to the responsible party that says here is the value that
    has been damaged or destroyed.
        Rather, we are presenting a bill that is for the cost of
    the restoration project and that restoration project
    compensates not only for the lost resource but for the lost
    services, both use and passive and it can be done. We have done
    it, we're doing it every day.
        I would submit we would be happy to sit down with your
    staff and discuss how we have done it. It's embodied in our
    proposal. You do not necessarily have to monetize the injury;
    there is another way to do it and you can still capture those
    passive use values which are true losses and must be preserved.
        Senator Smith. Truthfully, it is a tough issue and we've
    all been willing to take it on. It's been basically ducked in
    the past in this reauthorization, so we're going to try to deal
    with it, but it's tough.
        Did anybody else have a final comment?
        Mr. Spiegel. I just to want to say that EPA currently is
    already doing this. In my community, they have restored areas
    that have been damaged by environmental destruction at the
    three sites. They are engaged in restoration activities to try
    to minimize the amount of damage to the environment, so it's
    something that is already occurring.
        I think if you can somehow strengthen it or quantify it,
    that's good, but it's already occurring, so it's not something
    you're talking about an abstract in the future. They're already
    doing it.
        Senator Smith. Let me thank you all for coming.
        Senator Baucus. If I might say, Mr. Chairman, I think it's
    been a very good hearing and I compliment you on it. In this
    wonderful form of government we have called democracy,
    everybody is entitled to their point of view and I want to
    thank everybody here for vigorously expressing his or her point
    of view.
        I think it shows, Mr. Chairman, that we've got some work
    ahead of us and there are very real differences on this bill,
    but I think in reading between the lines, it's clear that
    people do want to resolve it and find some solutions.
        Thank you.
        Senator Smith. If members have questions they want to
    submit, additional questions, they can do that by Monday and
    you'd have until the following Monday to respond to those
    questions.
        The hearing is adjourned.
        [Whereupon, at 1:01 p.m., the subcommittee was adjourned,
    to reconvene at the call of the Chair.]
        [Additional material submitted for the record follow:]

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     Prepared Statement of Carol M. Browner, Administrator, Environmental
                               Protection Agency
                                  introduction
        Good morning, Mr. Chairman, and Members of the Committee. I am
    pleased to have this opportunity to appear before you to describe the
    Superfund program and discuss legislative reform of Superfund in the
    105th Congress.
        Superfund is an important, and above all, a necessary program,
    dedicated to cleaning up our nation's hazardous waste sites. EPA has
    worked closely with the Agency for Toxic Substances and Disease
    Registry (ATSDR) in evaluating the impacts of these sites on public
    health. ATSDR studies show a variety of health effects that are
    associated with specific sites, including birth defects, cardiac
    disorders, changes in pulmonary function, impacts on the immune system
    (the body's natural defense system from disease and sickness), and
    increases in chronic lymphocytic leukemia. These findings support EPA
    risk estimates that show the impacts of these sites on public health.
    EPA also works with other Federal agencies to assess the impacts of
    hazardous material releases on natural resources and the environment.
    Together, the efforts of these agencies, working with EPA, provide the
    basis for targeting cleanups to protect public health and the
    environment, and show the need for Superfund.
        The Clinton Administration remains committed to responsible,
    Superfund legislative reform. We are also committed to participating in
    a process by which Republicans, Democrats, the Administration and a
    broad cross-section of stakeholder representatives work together to
    build consensus on the elements of Superfund legislative reform. As
    drafted, the Administration does not believe S. 8 provides the basis
    for consensus based legislative reform. The Administration is ready to
    work with you to craft Superfund reform legislation that can attract
    broad consensus support. Only through a consensus based legislative
    process can we craft a proposal that is fully protective and delivers
    on our commitment to the American people to accelerate toxic waste
    cleanup. By developing a broad consensus based process, we believe we
    can achieve Superfund reform in the 105th Congress.
        We are determined that our third try at legislative reform address
    today's Superfund program, not out of date problems now resolved. The
    Superfund program is fundamentally different and better. It is faster,
    fairer, and more efficient--reality, not just rhetoric--than when the
    legislative debate started 4 years ago. Responsible legislative reform
    must buildupon initiatives and reforms that have brought about program
    improvements, and must address remaining legislative barriers to
    success with an eye toward the 21st Century, in which we can all hope
    to see less exposure from toxic waste sites for all Americans, and the
    return of these resources to productive reuse.
        My purpose today is threefold: (1) to forge an understanding of
    where the Superfund program is today by sharing with you the
    substantial accomplishments EPA has achieved over the past few years,
    not only maintaining, but accelerating the pace of cleanup through
    three rounds of Administrative Reforms; (2) to discuss a vision and
    potential components for responsible Superfund legislative reform; and
    (3) to discuss our concerns with S. 8, which fails to meet our
    principles for responsible, Superfund legislative reform in this
    Congress.
        Finally, the Administration remains concerned over the expiration
    of the authority to replenish the Superfund Trust Fund. Without the
    availability of these funds, the Administration will be unable to
    continue cleaning up sites at the current pace, or guarantee our
    ability to respond to environmental threats.
                    a fundamentally better superfund program
        Proof of a faster, fairer, more efficient Superfund program can be
    found in three simple indicators: first, We have completed cleanup at
    423 sites on the National Priorities List, and 485 more are in
    construction. We have reduced by more than a year the average duration
    of the long-term cleanup process, with much faster cleanups at sites
    using presumptive remedies. The President's budget request for Fiscal
    Year 1998 allows us to establish a new cleanup goal of 900 completions
    by the end of the year 2000, representing approximately two-thirds of
    the sites on the NPL. Our most recent analysis make us optimistic that
    we can achieve our goal of a 20 percent reduction, or 2 years, in the
    total cleanup process time; and second, responsible parties are
    performing or funding approximately 75 percent of Superfund long-term
    cleanups, saving taxpayers more than $12 billion. Meanwhile, EPA has
    succeeded in removing over 14,000 small contributors from the liability
    system and has, in 1 year, offered orphan share compensation of more
    than $57 million to responsible parties willing to negotiate long-term
    cleanup settlements; and third, costs of cleanups, are decreasing
    because of a number of factors, including: the use of reasonably
    anticipated future land use determinations, which allow cleanups to be
    tailored to specific sites; the use of a phased approach or multiple
    approaches to groundwater cleanups; EPA's current policy of
    concentrating on principle threats at sites, not the entire site; and
    EPA's 15 plus years of implementing the program provided greater
    efficiencies and lower costs when selecting cleanup options.
        In addition, through the commitment of EPA, State, and Tribal site
    managers, and other Federal agencies, EPA has achieved real results for
    public health and the environment while experimenting with and
    instituting changes to our cleanup process through three rounds of
    Administrative Reforms. EPA is committed to further administrative and
    regulatory (including NCP) improvements in the Superfund program in the
    years ahead. Our objectives for administrative reforms have been to:
         Protect public health and the environment over the long-
    term, while lowering the cost of cleanups
         Increase the pace of cleanups
         Preserve the principle that parties responsible for
    contamination should be responsible for cleaning it up, while promoting
    fairness in the liability scheme, and reducing transaction costs and
    litigation
         Involve local communities, States, and Tribes in
    decisionmaking
         Promote economic redevelopment at Superfund sites
        The success of the Administrative reforms has been demonstrable. In
    a recent report, the Superfund Settlements Project (SSP), a private
    organization comprised of industry representatives, published in
    December 1996, acknowledges EPA's ``substantial'' track record ``since
    EPA began implementing the October 2,1995 administrative reforms . . .
    especially in light of the severe obstacles that EPA encountered during
    fiscal year 1996 as it began implementation of these reforms.'' These
    positive comments, from a group of large corporations involved in many
    Superfund cleanups, echo the Agency's recent Superfund Administrative
    Reforms Annual Report, for Fiscal Year 1996, which details specific
    program accomplishments.
    Providing Protective Cleanups at Lower Costs
        EPA has initiated a number of administrative reforms which promote
    cleanups that are technologically and scientifically sound, cost-
    effective and appropriately consistent. These reforms will lower
    cleanup costs, while assuring long-term protection of human health and
    the environment.

                          National Remedy Review Board

        EPA has achieved significant success in creating substantial future
    cost reductions for parties at complex, high-cost Superfund sites
    across the country, by creating a national board of technical and
    policy experts within EPA to review high cost, long term cleanups. This
    newly established National Remedy Review Board, comprised of both
    Headquarters and Regional experts is providing targeted review of
    cleanup plans, prior to final remedy selection, without delaying the
    overall pace of cleanup. The Board's preliminary analysis indicates it
    has identified potential reductions in the range of $15-30 million in
    total estimated future costs for reviews completed during FY96.

               Using Technology and Science Updates to Save Money

        Approximately $280 million in future cost reductions are predicted
    as a result of the Agency's review and updates to previous remedy
    decisions made in the early years of the Superfund program. These early
    remedies were based on ``state-of-the-knowledge-and-practice''
    available at the time. Where science and technology have advanced and
    adequate levels of public health and environmental protection are
    assured, EPA is revising remedies where future cost reductions can be
    achieved while still preserving appropriate levels of protection, and
    the current pace of the program.

                Better Land Use Assumptions in Remedy Selection

        EPA has improved its cleanup decisions by consistently using
    reasonable assumptions about current and future land use. Recognizing
    that land may be appropriate for uses other than residential use can
    yield a more realistic risk assessment and less expensive remedy. EPA
    is working with local land use planning authorities, other government
    officials and the public as early as possible during site investigation
    to develop reasonable land use assumptions to use in the decisionmaking
    process. EPA also is making extra efforts to reach out to communities
    which may have environmental justice concerns to ensure that they are
    fully informed and able to participate in these decisions. Currently,
    about 60 percent of EPA's Records of Decision (RODs) include a land use
    scenario other than residential land use, typically where there is no
    residential land use onsite or adjacent to the site.

                        Setting Priorities for Cleanups

        To ensure that available funds are directed to the highest priority
    response projects on a national basis, EPA established a National Risk-
    Based Priority Panel (Panel) in August 1995. Prior to this reform,
    individual Regions established the relative priority of their cleanup
    projects which were then funded on a first-come, first-served basis.
    This reform established a national priority system to fund cleanups
    based on the principle of ``worst problems first.'' The Panel evaluates
    proposed cleanup actions, looking at the following factors: risks to
    humans and the ecology; stability and characteristics of contaminants;
    and economic, social and program management considerations. With the
    exception of emergencies and the most critical removal actions, cleanup
    projects are generally funded in order of priority based on the
    recommendations of the Panel. By early 1997, the panel had ranked
    projects approaching $1 billion in cleanup costs.
    Increasing the Pace of Cleanups
        The completion of 423 Superfund toxic waste site cleanups (as of
    February 28, 1997) is a hallmark of the improved pace of cleanups. At
    the Lord-Shope Landfill near Erie, Pennsylvania (the 400th site to be
    cleaned up), parties used innovative technology to remove contaminants.
    Tons of industrial wastes had been dumped over 20 years (including
    organic and inorganic chemicals, solvents, cooling acids, and caustic
    agents) that resulted in groundwater contamination. Today, the
    community no longer needs to worry about the safety of drinking water,
    the impact on farmland near the site, the effect on property values of
    their homes and businesses, or the possibility of children wandering
    onto the site and playing among the drums of toxic chemicals.

                                      SACM

        EPA (with the support of the Corps of Engineers and the Bureau of
    Reclamation and their cleanup contractors) also has implemented reforms
    which streamlined its rapid action cleanup authority. EPA's Superfund
    Accelerated Cleanup Model (SACM) accelerates cleanup and risk reduction
    at sites by consolidating site-assessment into a one-step process. SACM
    includes the following initiatives: taking early actions while
    assessing long-term cleanup; using ``presumptive'' remedies where
    appropriate; initiating enforcement activities earlier; and addressing
    the worst threats to people and the environment first. SACM reduces
    cleanup time through a single, continuous site assessment and early
    action process.

                              Presumptive Remedies

        The Agency is saving time and money by using standardized or
    ``presumptive'' remedies for certain types of sites. Presumptive
    remedies are based on scientific and engineering analyses performed at
    similar Superfund sites and are used to eliminate duplication of
    effort, facilitate site characterization, and simplify analysis of
    cleanup options. EPA issued presumptive remedy guidances for the
    following: municipal landfill sites; sites with volatile organic
    compounds in soil; wood treater sites (with an update 2 years later);
    and a groundwater presumptive response strategy. Regions are reporting
    significant reductions in costs and time required to complete remedies.
    A recent Office of Inspector General report focused on an independent
    review of the use of a presumptive remedy and concluded that ``Use of a
    Presumptive Remedy increased consistency in decisionmaking by taking
    advantage of lessons learned at similar sites, and allowed speedup of
    the Feasibility Study process.''
    Promoting Fairness in Enforcement
        As I have stated, a core principle of the Superfund program is that
    the parties responsible for contamination should be responsible for the
    cleanup. EPA's ``Enforcement First'' strategy has assured that
    responsible parties perform or pay for approximately 75 percent of
    long-term cleanups, thereby conserving the Superfund trust fund for
    sites for which there are no viable or liable responsible parties.
        Over the course of the Superfund program's implementation, however,
    stakeholders have expressed a variety of concerns regarding the
    fairness of the liability system. Issues related to excess litigation
    and associated transaction costs, the perceived inequities in the
    issuance of cleanup orders, the liability of parties contributing small
    amounts of hazardous substances to Superfund sites, the liability of
    parties that have limited assets, and the liability associated with the
    disposal of municipal solid waste, have all contributed to criticisms
    of the program. Through Administrative Reforms, EPA has addressed these
    concerns.

                          Recognizing the Orphan Share

        EPA has fundamentally changed the way it conducts settlements at
    Superfund sites through implementation of its 1996 ``orphan share
    compensation'' policy. Under the new orphan share reform, EPA offers to
    forgive a portion of its past costs and projected future oversight
    costs during every settlement negotiation for long-term cleanup or non-
    time critical removal, to cover some or all of the orphan share at the
    site. The orphan share policy encourages parties to settle, rather than
    to litigate, and enhances the fairness and equity of settlements.
    Without a settlement, responsible parties at a site are potentially
    liable under the Superfund law for the entire cost of the cleanup,
    including the share that might be attributable to other parties that
    are insolvent or defunct. EPA's new approach creates a major incentive
    for responsible parties to agree to perform the cleanup without
    litigation and the associated transaction costs. In FY96, the Agency
    offered over $57 million in orphan share compensation to potential
    settling parties across the United States.

                      Getting the ``Little Guy'' Out Early

        EPA's reforms are removing thousands of small volume waste
    contributors from the liability system. PRPs that are liable for
    cleanup costs have sometimes sued huge numbers of small businesses that
    had little or no connection to the toxic contamination--sometimes
    simply by naming every business in the local yellow pages as a
    defendant in a contribution lawsuit. EPA's reforms have responded to
    the burden this can place on parties that made a very limited
    contribution to the pollution at a site by using its settlement
    authority to remove small volume waste contributors from Superfund
    litigation. To date, the Federal Government has completed settlements
    with over 14,000 small volume contributors of hazardous waste at
    hundreds of Superfund sites. These settlements protect the settling
    parties from expensive private contribution suits. In addition, EPA has
    stepped in to prevent the big polluters from dragging untold numbers of
    the smallest ``de micromis'' contributors of waste into contribution
    litigation by publicly offering to any such party $0 (i.e., no-cost)
    settlements that would prevent lawsuits by other PRPs.

                         Site Specific Special Accounts

        Prior to the Administrative Reforms, any funds recovered in early
    settlements at a particular site were usually deposited in the
    Superfund Trust Fund, and could not be spent until appropriated. When
    appropriated, these funds could be spent at other sites. Through the
    use of Site Specific Special Accounts, EPA is able to direct settlement
    funds, as well as interest earned on those dollars, to future response
    actions at a specific site. As of August 31,1996, $226 million in
    principal, and $35 million in interest, had been set aside for
    exclusive use at specific sites.

                           Equitable Issuance of UAOs

        To address the criticism that EPA routinely issues cleanup orders
    under section 106 of the Superfund law (unilateral administrative
    orders or UAOs) only to a subset of the parties identified at a
    particular site, EPA has established a protocol requiring a detailed
    explanation of the basis for not including certain parties when issuing
    a UAO. This new requirement will ensure greater equity among parties
    receiving UAOs, because these orders will be issued to the largest
    manageable number of PRPs at each site.

                              Piloting Allocations

        EPA is conducting pilot projects that test a fundamentally
    different approach to the allocation of Superfund costs (called the
    allocations pilots) in order to promote fairness in settlements.
    Allocations are one approach to determine PRPs' share of cleanup costs
    which may be used to settle their liability with the United States. A
    neutral party, known as an allocator, selected by parties to the
    process, conducts an out-of-court allocation. The allocator assigns
    shares of responsibility for cleanup costs among all PRPs at a site. In
    concert with an allocation, EPA expects to pay the ``orphan share,''
    which includes the shares of parties which are defunct or insolvent.
    EPA has offered allocation pilots at 12 Superfund sites.
        EPA is evaluating the pilot projects and has learned valuable
    lessons about the relationship of allocations to settlement. We have
    learned, for example, that some PRPs prefer not to participate in a
    formal allocation process, instead preferring to allocate shares of
    responsibility among themselves. We have also learned that a single
    allocation process is inappropriate for all sites, and that any process
    must be flexible to meet site-specific needs and promote settlements.
    We hope our on-going evaluation of the allocation pilots will continue
    to reveal valuable information about the process of conducting
    allocations.

               Reducing Costs for PRPs Through Reduced Oversight

        PRPs incur costs at sites in part because of EPA's need to oversee
    the quality of cleanup work. Oversight is the process EPA uses to
    ensure that all studies and work performed by PRPs are technically
    sound and comply with statutory requirements, regulations, guidances,
    policies, and the signed settlement agreement. Oversight may include
    reviewing reports submitted for approval, ensuring interim cleanup
    milestones are met, or conducting site visits. As the Superfund program
    matures, parties performing cleanup work have developed a considerable
    body of experience in conducting response activities at sites. EPA can
    reduce oversight of such parties while continuing to exercise
    sufficient oversight to ensure that the work is performed properly and
    in a timely manner.
        EPA Regions have initially identified approximately 100 sites where
    reductions in oversight of ongoing work for cooperative and capable
    PRPs have occurred or will occur--significantly reducing PRP costs at
    some of these sites. EPA also may look at opportunities to involve
    communities in deciding the appropriate level of PRP oversight.
    Involving Communities and States in Decisionmaking
        The Agency supports the principle that communities must be involved
    in the cleanup process from the time a site is discovered to the time
    it is finally cleaned up.

                   Involving Communities in Remedy Selection

        EPA is promoting ``consensus-based'' approaches to the remedy
    selection process by involving community stakeholders in site pilot
    projects. This effort is intended to empower local citizens and other
    stakeholders to be involved in the remedy selection process that
    ultimately results in EPA choosing common sense remedies that meet
    statutory and regulatory requirements. For example, at the Lower East
    Fork Poplar Creek Site in Oak Ridge, Tennessee, the cleanup strategy,
    agreed to in August 1995, reflected the concerns of the local community
    in the remedy selection process. This included input into a change in
    cleanup goals. Through a citizen working group established by the
    Department of Energy, working in partnership with EPA and the State of
    Tennessee, the citizens' influence on the remedy selection decision
    averted the expenditure of more than $100 million and helped protect
    human health and the environment more quickly.
    Regional Ombudsmen
        EPA established an Ombudsman in every Region to serve as a direct
    point of contact for stakeholders to address their concerns at
    Superfund sites. Prior to this reform, stakeholders raised concerns
    with Regional personnel, but had no formal mechanism for having their
    issues elevated. The Ombudsmen now serve as facilitators for
    stakeholders on concerns that have not been resolved between Regional
    personnel and the stakeholder through informal means. The Ombudsman
    reports to a top Regional management official in every Region to assure
    management attention to issues raised.

                Improving Public Access to Superfund Information

        EPA recognized that improving communication with stakeholders and
    improving access to Superfund information will help the public become
    more aware of, and informed about, Superfund. EPA is using electronic
    tools to improve communication, including having sites for both the
    Office of Emergency and Remedial Response (OERR) and the Office of Site
    Remediation Enforcement (OSRE) on the Internet, with separate pages
    devoted to Superfund reform. Each Region also is developing Internet
    ``home pages'' which will include information on Regional Superfund
    programs, such as Superfund site lists, site-specific information,
    successful site cleanup actions, and links to State Superfund
    activities.

                 State Programs Speed Cleanup of Non-NPL Sites

        EPA recognizes the important role that State environmental agencies
    have in encouraging economic redevelopment of brownfields. EPA plans to
    provide $10 million, earmarked in FY97 appropriations, to encourage the
    development or enhancement of State programs that encourage private
    parties to voluntarily undertake early protective cleanups of less
    seriously contaminated sites, thus accelerating their cleanup and their
    redevelopment. EPA recently issued a memorandum setting out an interim
    approach for its relations with State voluntary cleanup programs. The
    memorandum includes criteria for State voluntary cleanup programs that
    are enabling EPA and the States to start negotiating a division of
    labor between EPA and the States in memoranda of agreement (MOAs) as
    well as ensuring protection of public health and the environment. Nine
    States have now signed MOAs with EPA regarding sites cleaned up under
    voluntary cleanup programs. The growing number of States creating and
    operating voluntary cleanup programs provides a unique opportunity to
    respond to the brownfields cleanup and redevelopment issues.

                  Greater Power for States in Picking Remedies

        The goal of this reform is to provide qualified States with an
    increased role in the selection of cleanup alternatives at sites on the
    NPL, whenever possible. States selected for this reform enter into
    ``Participating States'' agreements with EPA, through which the States
    conduct the remedy selection process, consistent with applicable law
    and regulations. Participating States supervise the remedy selection
    process with minimal EPA oversight or involvement, giving the State
    significantly more control than usual over NPL site cleanups. Selected
    Federal facilities are achieving similar success through incorporation
    of a lead agency concept in interagency cleanup agreements.
    Promoting Economic Redevelopment
        EPA is promoting 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 brownfields sites exist in this country, affecting virtually
    every community in the Nation. EPA believes that environmental cleanup
    is a building block, not a stumbling block, to economic development,
    and that cleaning up contaminated property must go hand-in-hand with
    bringing life and economic vitality back to communities. The
    Brownfields reforms are directed toward empowering States, communities,
    and others to work together to assess, safely cleanup, and sustainably
    reuse these sites. EPA efforts have been accomplished through the
    Brownfields Action Agenda-an outline of specific actions the Agency is
    conducting. The initial Brownfields Action Agenda outlined four key
    areas of action for returning brownfields to productive reuse: (1)
    awarding Brownfields Assessment Demonstration Pilots; (2) building
    partnerships to all Brownfields stakeholders; (3) clarifying liability
    and cleanup issues; and (4) fostering local workforce development and
    job training initiatives. A new Action Agenda for fiscal years 1997 and
    1998 will further identify, strengthen, and improve the commitments EPA
    and its colleagues can make to brownfields.

                Brownfields Pilots are Encouraging Redevelopment

        The Brownfields Assessment Pilots form a major component of the
    Brownfields Action Agenda. EPA exceeded its commitment to fund at least
    50 pilots by actually funding 76 pilots at up to $200,000 each by the
    end of 1996. And, just this month, EPA announced the addition of two
    more pilots, bringing the total to 78. These 2-year pilots are intended
    to generate further interest in Brownfields redevelopment by bringing
    together public and private efforts including Federal, State, and local
    governments and affected communities. The Brownfield pilots will
    develop information and strategies that promote a unified approach to
    site assessment, environmental cleanup, and redevelopment. Many
    different communities are participating, ranging from small towns to
    large cities. Stakeholders tell the Agency that Brownfields development
    activities could not have occurred in the absence of EPA efforts. As
    the National Community Reinvestment Coalition (NCRC) said ``[W]e
    wholeheartedly support the EPA's Brownfields Economic Redevelopment
    Initiative. NCRC believes that [EPA's] multifaceted initiative
    represents a significant step forward by the Administration in working
    with distressed communities on the local level in their revitalization
    efforts.''

                         Getting Sites off the ``List''

        Prior to reform, EPA kept track of all potential hazardous waste
    sites in an inventory known as the Comprehensive Environmental Response
    and Liability Information System (CERCLIS). Even sites where no further
    Federal Superfund interest was warranted remained in the CERCLIS
    inventory. This practice led to unintended barriers to the
    redevelopment of these properties because sites listed in CERCLIS could
    be automatically considered risky by some lenders, making it difficult
    for potential purchasers to secure loans to develop these properties.
    To avoid this result, EPA redefined CERCLIS, deleting or archiving
    sites from the active CERCLIS inventory. EPA has archived approximately
    30,000 sites (e.g., sites where `no further Federal remedial action
    [is] planned') from CERCLIS to date, and EPA expects to archive over
    2,000 additional sites from CERCLIS per year over the next several
    years.

                      Deleting Clean Parcels from the NPL

        Prior to the Administrative Reforms, EPA's policy had been to
    delete releases from the NPL only after evaluation of the entire site.
    However, deletion of entire sites does not communicate the successful
    cleanup of portions of those sites. Total site cleanup may take many
    years, while portions of the site may have been cleaned up and become
    available for productive use before cleaning has been completed at
    other portions of the site. Some potential investors or developers may
    be reluctant to undertake economic activity at a cleaned up portion of
    real property that is part of a site listed on the NPL. This reform
    allows EPA to delete portions of sites, as appropriate, upon the
    receipt of petitions from interested parties, allowing redevelopment to
    occur quickly. Four parcels are currently moving through the deletion
    process.

          Removing Redevelopment Barriers Based on Liability Concerns

        EPA is promoting redevelopment of contaminated properties by
    protecting prospective purchasers, lenders, and property owners from
    Superfund liability. EPA's ``prospective purchaser'' policy is
    stimulating the development of sites where parties otherwise may have
    been reluctant to take action by clarifying (through agreements known
    as ``prospective purchaser agreements'') that bona fide prospective
    purchasers will not be responsible for cleaning up sites where they did
    not contribute to or worsen contamination. EPA issued new guidance in
    May 1995, which allowed the Agency greater flexibility in entering into
    such agreements. The new guidance expanded the universe of sites
    eligible for such agreements to include instances where there is a
    substantial benefit to the community in terms of cleanup, creation of
    jobs, or development of property. Of the 50 agreements to date, 60
    percent have been reached since issuance of the May 1995 guidance. At
    the Indiana Woodtreating Site near Bloomington, Indiana, the work
    performed under a prospective purchaser agreement will prevent
    contaminants from entering Clear Creek, which is a drinking water
    source for the city of Bloomington, Indiana.
        People owning property under which hazardous substances have
    migrated through groundwater also feared liability under the statute.
    EPA responded by announcing that it will not take enforcement actions
    under CERCLA against owners of property under which contaminated
    groundwater has migrated, but where the property is not also a source
    of contamination. Further, EPA also will consider providing protection
    to such property owners from third party lawsuits through a settlement
    that affords contribution protection.
        EPA has given reassurance to the lending industry and to government
    entities acquiring property involuntarily. EPA outlined in guidance
    what it considered appropriate actions a lender may undertake without
    becoming a liable party. In September 1996, Congress passed legislation
    very similar to EPA's policy and guidance on lenders. EPA also is
    providing assurances (``comfort/status letters'') in appropriate
    circumstances to new owners, lenders, or developers which assure them
    that they need not fear incurring Federal environmental liability.
        The Agency is proud of the improvements to Superfund that have been
    made through Administrative Reforms. Throughout the course of the
    reauthorization process, we have heard stakeholders express their
    concerns and have taken the opportunity to address those concerns. We
    recognize, however, that there are areas of the law that could benefit
    from legislative provisions. Therefore, the Administration continues to
    seek responsible Superfund legislative reform to further improve the
    program.
              vision for responsible superfund legislative reform
        Legislative reform must buildupon the successes and lessons learned
    through the Administrative Reform effort and provide solutions to the
    problems that cannot be addressed administratively or through
    regulatory change. Our goals for legislative reform are consistent with
    the objectives of Administrative Reforms. We want a Superfund program
    that protects human health and the environment through cost-effective
    cleanups which are reliable over the long term and foster economic
    redevelopment. We want a Superfund program in which those who pollute
    are held responsible, but allows parties to resolve their liability as
    efficiently as possible and does not catch inappropriate parties in the
    liability net. We want a Superfund program in which citizens are
    encouraged and supported in their efforts to participate meaningfully
    in the cleanup decisions that affect their lives. We want a Superfund
    program that supports the continued development of State and Tribal
    cleanup programs and fosters collaboration between the Federal, State,
    and Tribal governments to divide up the enormous task of hazardous
    waste cleanup in this country in sensible, mutually supportive ways.
    Long-Term, Cost-Effective Protection
        Any legislative changes addressing cleanup decisions must, as a
    baseline, continue to ensure that cleanups are protective of human
    health and the environment over the long term. Cleanups should also be
    cost-effective, and foster productive reuse of contaminated property,
    to the degree practicable.
        In order to facilitate these goals, the Administration supports
    addressing statutory remedy preferences and supports treatment for
    those wastes that are highly toxic and/or highly mobile, in light of
    the continuing challenges in ensuring the long-term reliability of
    engineering and institutional controls, as well as the limitations that
    containment and institutional controls place on productive reuse or
    redevelopment of property. It is important to note that we can see the
    market impacts of the treatment mandates under current law in the
    development of new, often in-situ technologies which are giving us more
    alternatives to incineration, and a decline in the costs of those
    technologies as they are used increasingly. These changes in the
    treatment market are part of the reason for the decline in estimated
    remedy costs I mentioned earlier.
        Additionally, legislation should not alter our goal of restoring
    groundwater to beneficial uses. Over half of this nation's population
    relies on groundwater as its source of drinking water. Superfund has
    raised consciousness about the need to prevent contamination of this
    resource by demonstrating the consequences--financial, technological,
    and practical--of contamination that threatens real people now and
    future generations.
        ``Smart'' groundwater remediation as EPA has defined it in a series
    of Administrative Reforms is another major reason for declining remedy
    cost estimates. In the early days of the program, we relied solely on
    extraction and treatment of groundwater to achieve cleanup objectives.
    In 1995, 60 percent of our groundwater cleanup decisions reflect
    extraction and treatment being used in conjunction with other
    techniques, such as bioremediation, underground treatment walls, or
    monitored natural attenuation, which is often used to reduce low levels
    of contaminants. In 1995, about 25 percent of Superfund groundwater
    remedies included monitored natural attenuation of contamination. It is
    worth noting that our success in developing groundwater cleanup policy
    is consistent and concurrent with ongoing developments in science and
    technology and it uses the flexibility afforded under current law.
    Participants in the process of defining Superfund legislative reform in
    this Congress will have to balance thoughtfully the desire to be clear
    and specific to promote transparency and certainty, and the benefits of
    our current flexibility that permits continuous improvements to be made
    as our knowledge progresses.
    Fairness and Reduced Transaction Costs
        In discussing any proposed legislative changes to the Superfund
    liability scheme, it is imperative to retain the fundamental principle
    of holding the polluter responsible for the cleanup. This has been the
    cornerstone of our ability to obtain as many cleanups as we have, and
    has left the Superfund trust fund available for truly abandoned sites
    and public health and environmental emergencies.
        The Administration would support liability reform for de micromis
    parties. Their liability is often less in dollars than the transaction
    costs they incur in defending against a lawsuit. These are parties
    contribute truly small volumes of hazardous waste. The government does
    not currently bring these parties into the system, but they have
    occasionally been pulled in by other parties, with expensive and
    unfortunate results. Last year before this very committee, we heard
    from Ms. Williams, who runs a restaurant in Gettysburg, Pennsylvania.
    She was pulled into litigation at the Keystone Superfund site, not by
    the government, not by the PRPs brought in by the government, but as a
    fourth tier of PRPs pulled into the litigation by other responsible
    parties. We do not believe that a party such as this should be involved
    in the Superfund process, and we have worked to enter into settlements
    with these parties to help get them out. A de micromis liability
    exemption would protect Ms. Williams from other over-zealous PRPs.
        Last year, EPA began offering orphan share compensation during
    every negotiation for long term cleanup and non-time-critical removal.
    The work we have done with orphan share compensation has significantly
    enhanced the fairness of the Superfund program. Although EPA does not
    need statutory authority to offer orphan share compensation, EPA would
    support legislation creating a separate mandatory spending account for
    orphan share, so that funds for orphan share do not compete with
    cleanup dollars.
        We would also like to address the liability of municipalities and
    others who generated or transported municipal solid waste. EPA and the
    Justice Department have embarked on an exercise to address this issue
    through additional administrative reforms. As the legislative debate
    proceeds on Superfund reform, statutory provisions that efficiently and
    fairly address the liability of municipalities and generators and
    transporters of municipal solid waste should be considered. In
    addition, we believe that we should address the issue of prospective
    purchasers in our efforts to make sure that we can cleanup and reuse
    brownfield properties.
        Finally, I reiterate that any changes to the liability and
    enforcement provisions of Superfund must ensure that those who created
    the problems be held responsible for cleanup. Further, changes in the
    law must not compromise the availability of cleanup dollars or endanger
    the speed or thoroughness of site cleanups and our ability to
    accomplish the President's goal of completing 500 additional cleanups
    by the year 2000. Any exemptions or limitations on liability--or use of
    Trust Fund money--must be considered against the backdrop of these
    principles. Therefore, the Administration has consistently opposed, and
    continues to oppose site-based ``carve outs'' that relieve viable,
    responsible parties of their obligation to clean up sites.
    Meaningful Community Involvement
        Through years of implementation of the program, EPA has determined
    that early and meaningful community involvement can increase the
    overall pace of cleanups. Though enhanced community involvement may add
    steps in the early portions of the cleanup process, this investment
    generally accelerates later cleanup stages, as all parties are informed
    and have had time to work through their concerns. EPA has learned the
    hard way that a decision process that alienates the people our cleanups
    are supposed to protect results in constant revisiting of decisions,
    not quicker cleanups.
        We have also learned that we need a variety of tools and resources,
    and the flexibility to tailor the application of those tools and
    resources, to meet the particular needs of citizens at different sites.
    No two sites or communities are alike. We have citizens who are
    disinterested in large-scale NPL cleanups, and keenly interested
    citizens at smaller scale removal sites.
        Consistent with our experience, we would like to see Technical
    Assistance Grants (TAGs) available to citizens at non-NPL sites, in
    addition to NPL sites. Additionally, the Administration would like to
    ensure direct input from citizens into the development of assumptions
    regarding reasonably anticipated land uses upon which remedies are
    based. While we support processes which build consensus within
    communities, the achievement of consensus should never be the price of
    admission into the decisionmaking process. We must always listen to the
    diversity of views among citizens affected by hazardous waste sites.
    Enhanced State and Tribal Efforts
        In addition to the many changes and accomplishments that have
    occurred in the Superfund program over the last 4 years, the context in
    which the program exists is also dramatically different. We recognize
    and support the continued growth of the State and Tribal regulated and
    voluntary programs which have greatly expanded the number of hazardous
    waste sites cleaned up to protect human health and the environment.
    Superfund legislation should address greater opportunities for States
    and Tribes to address a full range of hazardous waste sites for which
    they have the necessary response capacity, while providing the
    financial and technical support needed to further improve existing
    programs. We must recognize that retention of strong cleanup standards,
    enforcement authorities, and sufficient resources at the Federal level
    provides States and Tribes with resources critical to the effectiveness
    of their own programs. It is particularly vital that the Federal
    emergency prevention, preparedness, and response capabilities, which
    are looked to as a model, and for support the world over, remain vital
    and effective.
        Over the last 4 years, States, Tribes, and EPA have been finding
    their own ways of dividing up the broad universe of contaminated site
    work. Under this emerging model of customized partnerships, all
    regulators work together to determine which sites should proceed under
    what authorities, and under whose lead, seeking to reduce overlap and
    duplication in favor of more complementary, mutually supportive
    arrangements. In general, States and Tribes have the primary role in
    the process of discovering new sites and making screening decisions
    about which sites warrant action. In comparison to just a few years
    ago, States now exert substantial control over not only which sites
    will be included on the National Priorities List, but also in the
    CERCLIS inventory. By contrast, States, in many cases by their choice,
    are in the lead at only roughly 140 of the 1300 NPL sites. However, the
    more interesting story here is the tremendous variety of arrangements
    EPA and States and Tribes have worked out to address waste sites.
        When it comes to the role of States and Tribes, Superfund
    legislative reform must consider comprehensively the scope of the
    hazardous waste contamination problem Federal, State and Tribal
    programs are trying to address across this country and where we are
    succeeding today in our efforts to organize our collective resources to
    achieve more protective cleanups by more parties. The types of
    authorities, resources, and flexibilities best suited to harness the
    positive forces of a Federal program in a manner which supports the
    cleanup efforts of States and Tribes and, through their voluntary
    cleanup programs, private parties, needs to be considered in that
    context.
    Economic Redevelopment
        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 buildupon these successful
    first steps and launch others, we must not lose sight of our overall
    goal to revitalize communities. Future efforts under the Brownfields
    Economic Redevelopment Initiative must be viewed as an important
    component of any Superfund legislative reform strategy. With the
    breadth and variety of activities and stakeholders converging on the
    brownfields issue, we have tried to establish a framework that
    articulates a complete and comprehensive brownfields program. It is
    against this framework that we will measure proposals regarding the
    brownfields.
        Brownfields legislative reforms should continue the progress made
    under EPA's administrative reforms and address the full range of
    Brownfield issues including: technical assistance funding for
    brownfields identification, assessment, and reuse planning; cooperative
    agreement funding to capitalize revolving loan funds for brownfields
    cleanup; support for State development of voluntary cleanup programs;
    liability protection for bona fide prospective purchasers and innocent
    landowners of contaminated property; support for mechanisms for
    partnering with Federal, State, local and tribal governments, and other
    non-governmental entities to address Brownfields; and support and long-
    term planning for fostering training and workforce development.
        In summary, the above discussion has highlighted some of the major
    elements we believe could be addressed in order to achieve consensus
    based, responsible Superfund legislative reform. Our intent is to work
    within the Administration over the next few weeks to develop a set of
    principles and associated key components for this legislative reform
    process. These principles will also include the topic of Natural
    Resource Damages (NRD), which will also be addressed in other testimony
    before this Committee today. When these principles are complete, the
    Administration will share this product with your Committee.
                 the superfund cleanup acceleration act of 1997
        The Administration has evaluated S. 8, the Superfund Cleanup
    Acceleration Act of 1997, against many of the same criteria which have
    guided our Administrative Reform efforts and which describe our goals
    for legislative reform.
        I was pleased to see that one of the top priorities of this body is
    Superfund reform. The early introduction of S. 8 reflects the
    commitment with which you, Mr. Chairman, have approached the
    legislation. The Administration's most serious concerns are that: (1)
    the bill may fail to ensure long-term protection of human health and
    the environment; (2) it will slow down cleanups; (3) it lets polluters
    off the hook and shifts costs to taxpayers and consumers; and (4) it
    provides incomplete support for communities, States, and Tribes, and
    economic redevelopment. But perhaps more fundamentally, S. 8 does not
    reflect the current status of the Superfund program, and fails to
    recognize the vast changes made to this program in the last 4 years.
    Inadequate Protection
        Remedies under S. 8 would not assure protection of human health and
    the environment over the long term because highly toxic, highly mobile
    waste would not be treated and because contaminated groundwater may not
    be cleaned up in most, if not all, cases.
                Elimination of Treatment for Long-Term Reliability
        While S. 8 retains a decision process not dissimilar to the current
    program, in which tradeoffs between cleanup options with respect to a
    common set of criteria are balanced to select a cost-effective
    response, the results would be dramatically different. S. 8 eliminates
    all of the treatment provisions of CERCLA, under which EPA generally
    seeks to reduce the intrinsic hazards of the highly toxic and/or highly
    mobile waste constituting the ``principal threats'' at a site.
    Treatment of highly toxic, highly mobile wastes helps ensure that any
    materials managed onsite over the long term would not pose a serious
    threat to human health and the environment, should engineering and
    institutional controls fail at some point in the future. And obviously,
    the more contaminated material that remains onsite and the higher the
    potential risks it poses, the less likely productive reuse of that
    property, or significant portions of that property, will occur. Despite
    improvements in our knowledge about how to make engineering and
    institutional controls work, significant uncertainties related to the
    long-term management of hazardous waste remain.
        Worse still, S. 8 establishes a new ``mega'' technical
    impracticability waiver from the fundamental requirement to protect
    human health and the environment in addition to the existing (and
    continued) waiver from applicable or relevant and appropriate
    requirements (ARAR) waiver for technical impracticability. This
    ``mega'' waiver can be invoked if ``there is no known reliable means of
    achieving at a reasonable cost the goals for remedy selection.'' As a
    result of this finding, the protectiveness goal is eliminated in favor
    of ``remedial measures that mitigate the risk to human health and the
    environment.'' Under this process, cost would receive more emphasis in
    deciding not only the method of protection for a site, (likely to be
    cheap exposure controls such as fences), but whether to protect at all.
    S. 8 may leave the real business of cleanup to a future generation, and
    it reflects concerns with treatment of wastes based on old anecdotes--
    not the current program.
                Contaminated Groundwater Will Not Be Cleaned Up
        Contaminated groundwater is a problem at over 85 percent of
    Superfund sites. With over fifty percent of the U.S. population relying
    on groundwater for their drinking water, the Administration holds firm
    to the belief that this critical public health and environmental
    concern should continue to be addressed. I think you would agree that
    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 the generations to come.
        Despite this, S. 8 would replace the goal under the current program
    to restore contaminated groundwater to beneficial uses, wherever
    practicable, with the tragically modest mandate to ``prevent or
    eliminate any actual human ingestion of contaminated drinking water.''
    This goal could be met through treatment at the tap or simply by
    preventing the use of the water. Though S. 8 does provide for
    protection of uncontaminated groundwater, it relies too heavily on
    natural attenuation to provide this protection.
        Even if actual cleanup of contamination in the groundwater were
    proposed as a cleanup alternative, S. 8 sets up a burdensome three part
    test which must be passed to justify its selection. The bill would
    require: (1) ``a determination regarding the technical practicability
    of restoration''; (2) a justification that demonstrates that active
    cleanup can ``substantially accelerate the availability of groundwater
    for use as drinking water beyond the rate achievable by natural
    attenuation''; and, in the final analysis; (3) consideration of active
    cleanup ``on an equal basis'' with institutional and engineering
    controls. Under S. 8, we may all need to buy our own water treatment
    plants. S. 8 reflects concerns about groundwater cleanup from the
    1980's--not the current Superfund practices.

                                 Other Concerns

        S. 8 also fails to provide specific cleanup and protection
    standards for surface water, and adds prescriptive language regarding
    risk assessment, which is a glaring example of how the bill is out of
    touch with the Superfund program of today. Under the Administrative
    Reforms, EPA has met with stakeholder representatives from industry,
    Indian Tribes, environmental groups, and local government and citizen
    representatives from communities with hazardous waste sites to develop
    an agenda for technical improvements to the Risk Assessment Guidance
    for Superfund and to improving stakeholder involvement in the process
    of conducting a risk assessment which are very different than the
    technical and risk communication principles S. 8 would dictate by law.
    Risk assessment is a key area where policy needs to be able to evolve
    with new scientific understandings and changing stakeholder needs.
                              s. 8 delays cleanups
        The seminal mission of Superfund is to protect public health and
    the environment through cleanup. To better accomplish this mission, a
    reformed Superfund must speed the pace of cleanup. Unfortunately, S. 8
    will involve more lawyers in the process and therefore increase the
    time required for cleanup decisions dramatically, resulting in slower
    cleanups. Transaction costs will also increase commensurate with
    delays.
    ROD Reopeners
        The provision for ROD ``reopeners'' will cause significant
    disruption to and delay of ongoing cleanups. The complex thresholds for
    reopening RODs are based solely on cost savings anticipated, and thus
    have little to do with modifications of RODs based on advances in
    science and technology. Delays and disruptions will occur at sites
    where cleanups are well underway, and have been accepted by the
    community and PRPs, yet the RODs will be reopened, unless vetoed by the
    Governor of the affected State. Not only will RODs have to be amended,
    but consent decrees and interagency agreements that incorporate these
    RODs would have to be modified as well. This provision will increase,
    not reduce, transaction costs.
    Multiple Reviews of Cleanup Decisions
        In a marked departure from EPA's successful Administrative Reform,
    which provides a review of costly remedies to see if savings can be
    made, S. 8 institutes a series of decision points for a ``remedy review
    board.'' While the Agency's National Remedy Review Board was
    implemented to promote national consistency in prospective decisions in
    such a manner that minimizes disruptions or delays, the framework of S.
    8 provides for a petition process that affects both prospective and
    past cleanup decisions, and provides for many disruptions and delays
    that can only be avoided if there is a finding that the delay is so
    unreasonably long that it threatens human health and the environment.
    These provisions do not prevent delays, which may cause increased costs
    as contamination spreads, nor do they give voice to the communities
    affected by the site caught up in this process.
    Overly Prescriptive Risk Assessments
        S. 8 institutes new risk assessment provisions that can only be
    described as redundant, expensive, and time-consuming, but without
    apparent benefit. The requirement for risk ranges of 10-4 to
    10-6 and risk distributions and central estimates of average
    exposed individual risk for each facility only adds wasteful steps to
    the evaluation process, as a central estimate would fall within either
    a range or distribution, and a distribution is merely a graphical
    representation of a range. Additionally, because of the requirement to
    utilize site-specific information, instead of using valid assumptions,
    risk assessments will no longer benefit from time and cost savings due
    to the Agency's experience in performing these evaluations. Instead,
    risk assessments are likely to be more expensive and take more time
    under S. 8, delaying the cleanup. While we support appropriate uses of
    site-specific information in risk assessments, the bill's insistence
    onsite-specific data for all key variables would be not only time
    consuming and impractical, but downright impossible for many factors.
                      s. 8 has broad liability exemptions
        The Administration has several concerns regarding many of the
    liability provisions of S. 8. The proposed legislation exempts or
    limits the liability of parties that are viable and liable and should
    remain responsible for cleanup of their sites. As an example, S. 8
    exempts generators and transporters of any waste, whether municipal
    solid waste (MSW) or extremely hazardous waste, found at a ``co-
    disposal'' site. This provision exempts parties regardless of the
    hazard associated with their waste or the impact that waste may have on
    the cleanup. At the Delaware Sand and Gravel Site, for example, S. 8
    likely would exempt major industrial generators of hazardous substances
    merely because they chose to dispose of their hazardous waste at a site
    which accepted MSW.
        S. 8 also limits the liability of private owners and operators of
    ``co-disposal'' sites--a position EPA has never endorsed. Under the
    terms of S. 8, major waste management companies that are liable, viable
    and understand the costs of this business, would be relieved of their
    liability. At many sites, this could mean that cleanup costs will be
    shifted to the Fund through S. 8's orphan share funding provisions. In
    fact, as S. 8 is currently written, the collective ``co-disposal''
    provisions result in a de facto co-disposal carve out, which we believe
    is inconsistent with good public policy.
        The co-disposal provisions raise other issues of concern. Under S.
    8, a ``co-disposal'' landfill is one at which there ``may'' be a
    ``substantial portion'' of municipal solid waste. The term
    ``substantial'' is not defined. The absence of a definition is certain
    to encourage litigation. Further, where a site continues to receive
    municipal solid waste, its status may change over time. These new and
    vague terms are fertile ground for litigation.
        The de minimis exemption found in S. 8 is another example of an
    exemption that is broader than is needed to address the intended
    parties of concern. This provision, probably intended to exempt only
    those very small contributors of waste which we all agree should not be
    forced to incur the transaction costs associated with Superfund
    liability, goes well beyond exempting contributors of very small
    amounts of waste. The 1 percent cutoff of this provision potentially
    will exempt parties that have contributed very large amounts of
    hazardous waste, and may leave very few responsible parties remaining
    liable. For example, at the Bypass 601 Site in North Carolina, a 1
    percent contribution represents approximately 3 million pounds of lead-
    bearing materials. Only 20 of the approximately 4,000 responsible
    parties at this site contributed volumes in excess of 1 percent. This
    is another example of an exemption that violates the principle that
    parties that are responsible for the contamination should remain
    responsible for the cleanup.
        Finally, the liability exemptions and limitations in S. 8, when
    read together with the Orphan Share Funding provisions, would create an
    enormous obligation for the Trust Fund and could divert funds from
    cleanups. Because orphan share funding is not provided from a source
    separate from cleanup dollars, cleanups will be competing for the same
    dollars as the Orphan Share claimants. To make matters worse, S. 8
    provides that orphan share funding is an entitlement. As such, claims
    for orphan share funding would be legally superior to other claims
    against the Fund, including the costs of cleanups.
        S. 8 also requires EPA to reimburse responsible parties for costs
    that exceed their allocated share--this includes in many cases, costs
    and work that parties have already agreed to perform. These provisions
    for ``Fund Contribution'' present several problems. First, they require
    EPA to repay recalcitrant parties working under an order in the same
    manner we would repay a cooperative party working under a consent
    decree. This would be a windfall to the recalcitrant parties. Second,
    these provisions require EPA to pay costs within 1 year. If large
    numbers of applications are received at once, this could cause funding
    shortfalls and resource drains resulting in major cleanup delays.
    Third, final settlements will be reopened and parties who have
    previously incurred the costs of negotiations will have to proceed
    through an allocation to determine their share of liability for the
    purpose of reimbursement. Such reconsideration of liability effectively
    duplicates transaction costs previously incurred.
    Narrow and Unworkable ``Illegal Activity'' Exception
        S. 8 attempts to prevent a person from claiming a liability
    exemption where a court determines, within the applicable statute of
    limitations, that the person violated a Federal or State law relating
    to the hazardous substances at issue. Because Superfund addresses the
    results of acts that frequently took place many decades before cleanup,
    and at a time when applicable laws may have been unclear, proof of
    illegal or culpable behavior may have been impossible at most sites, as
    the provision requires court action at the time of the activity.
    The Allocation Process is Broad and Prescriptive
        The Administration has a number of concerns with S. 8's allocations
    provisions. First, the large number of sites subject to a mandatory
    allocation will result in extraordinary allocation costs, will increase
    transaction costs, and will slow the settlement process. S. 8 requires
    formal and prescriptive allocations at all multi-party sites on the NPL
    where post-enactment costs are outstanding, even where the parties are
    exempt under S. 8. In addition, Under S. 8, the allocator alone makes
    the determination as to which parties not already settled out are to be
    considered exempt or liable. These provisions preclude EPA from
    excluding small volume contributors or parties with an inability to
    pay, and thus from protecting them from the transaction costs
    associated with an allocation. As drafted, courts could interpret S. 8
    to require EPA to accept ``cashout'' settlement offers. This provision
    could rapidly turn Superfund into a public works program, with the
    government undertaking the cleanups. Finally, S. 8 allows no means for
    the allocation process to be set aside if some parties wish to settle,
    rather than proceed with the allocation. This allows just one party to
    hold other parties hostage, even in cases where a settlement could be
    easily reached.
        In 1994, as part of Administrative Reforms, EPA implemented an
    Allocations Pilot Project at 12 Superfund sites. Although the pilots
    are not yet complete, much has been learned about the strengths and
    weaknesses of the allocations process. Based on this experience, EPA
    cannot support a mandatory allocations process at every multi-party
    site. For example, some responsible parties do not want to use an
    allocation process, even where EPA has offered orphan share
    compensation. Based on our experience with allocating and our
    allocation pilot projects, EPA is reevaluating the need for legislation
    establishing a detailed allocations process.
    Other Liability Concerns
        S. 8 imposes a bar on additional enforcement, cost recovery or even
    private party actions against a party after the issuance of an
    administrative order, even in situations where an order is used as an
    interim measure to address an emergency, or where orders are used to
    achieve portions of work at large or complex sites. Another provision
    of S. 8 precludes Federal or administrative enforcement action at any
    facility that is subject to a State remedial action plan. There are no
    exceptions to this provision for emergencies, threats to human health
    or the environment, or in cases where the State requests EPA to act. S.
    8 further requires that where a facility is not subject to a State
    remedial action plan, that is, in cases where the State is not taking
    the lead, all CERCLA section 106 orders issued by the U.S. relating to
    that facility cease to have effect after 90 days if the State does not
    affirmatively concur on the order. This would put a huge burden on the
    States, creates a potentially duplicative system, and could disrupt
    cleanups. Each of these provisions inappropriately impose restrictions
    on the ability of the U.S. to enforce Federal law, and to act to
    protect public health and the environment.
                s. 8 provides incomplete support for communities
        The Administration supports the principle that communities must be
    involved in the cleanup process from the time a site is discovered to
    the time it is finally cleaned up. Because one out of four Americans
    lives within five miles of a hazardous waste site, Superfund is a
    Federal program that truly has local impacts. Additionally, EPA
    recognizes and supports the continued growth of State regulated and
    voluntary programs, and the successes States have achieved in
    addressing their sites.
    Community Response Organizations
        While S. 8 adds many provisions regarding enhanced community
    involvement, there are significant weaknesses. The bill establishes
    Community Response Organizations (CRO) to serve as the primary conduit
    of information to and from the community to appropriate Federal, State
    and local agencies and PRPs concerning development and implementation
    of remedial actions. Among the concerns the Agency has with the
    provisions addressing communities, the CRO provisions limit
    participation to the remedial action phase of cleanups. We support
    meaningful community involvement throughout the cleanup process and
    from the earliest possible opportunity during site assessment and
    before NPL listing. The Agency supports giving substantial weight to
    CRO recommendations on future land-use and other significant decisions
    throughout the cleanup process. The CRO should represent community
    concerns directly to the Agency, as opposed to the mere requirement for
    CRO consultation (assuming a CRO exists) on input from the local land
    use authority. Unfortunately, involvement of this type is absent from
    the provisions of S. 8.
    Technical Assistance Grant Limitations
        Another concern with the community involvement provisions of S. 8
    is the implementation of a changed Technical Assistance Grant (TAG)
    program. The purpose of the TAG program is to provide local citizens
    with resources to obtain and evaluate technical information. S. 8
    requires that if a CRO exists, it is the preferred recipient of a TAG.
    Aside from the inherent conflicts of interest that may arise from PRP
    participation in CROs, by requiring that the TAG be awarded to a CRO,
    the bill eliminates the opportunity for other community-based
    organizations to access TAG funds. Giving preference to CROs when
    awarding TAGs is not the way to ensure that the local citizen's groups
    will bring an equal voice to the table. In addition, S. 8 limits TAG
    grants to sites listed or proposed to the NPL, limiting community
    involvement in other facets of the Superfund program (i.e., removal
    actions and non-NPL cleanups).
             s. 8 provides incomplete support for states and tribes
    Problematic State Delegation Process
        S. 8 sets up an elaborate ``menu'' approach for providing
    delegation of the Federal program to States, which allows States to
    pick and choose authorities they would like to undertake. Unlike prior
    legislative provisions that had EPA support, it raises the potential
    for increased delays and costs due to uneven divisions of labor and
    could hamper coordination among Federal agencies. Partial or limited
    delegations can allow States to undertake portions of cleanup
    activities or studies, and then require EPA to perform the portions
    that the State declined to perform, either on a site by site or State
    by State basis. In some cases, this could lead to implementation delays
    and higher costs associated with attempting to implement a State plan
    at the Federal level using different personnel or contractors. It could
    also create inconsistent approaches, confusion, and could greatly
    compromise cost recovery if the work is Fund-lead.
        Even the delegation process itself is problematic in S. 8. The bill
    provides for no public notice or comment on a proposed approval or
    disapproval of a State application to take over the program. RCRA, the
    program most closely related to the Superfund program requires such
    procedures, however, S. 8 does not. In the case of S. 8, where the
    decision as to the lead regulatory agency is made on a site-specific
    basis, this is very troubling. In many cases, the public has very
    strong views about which agency is best suited to oversee the cleanup.
    In addition, the default approvals of State programs could have
    unintended consequences, and could even lead to a lack of protection of
    public health and the environment in cases where a State is
    automatically approved to take over a site because of the default
    provisions, but does not currently have the resources available to
    devote to the particular site.
    Limiting Application of State Law
        One of the most troubling aspects of S. 8's treatment of the role
    of States in the Superfund program is the effective preemption of State
    law involving remedy selection. Under S. 8, this occurs when a
    delegated State attempts to select a remedy more costly than what EPA
    would have selected, in which case the State must pay the difference in
    cost and cannot recover the costs through State or Federal cost
    recovery, even if it would otherwise be covered by their own State
    cleanup requirements. Aside from the question of costs or resources
    necessary to duplicate the State remedy process for comparison purposes
    every time a remedy is challenged, this represents a preemption of the
    State's ability to select remedies under its own authority, as well as
    a preemption of the State's liability scheme.
    Other State Issues
        Besides the issues listed above, there are other potential problems
    with the provisions of S. 8. For example, the new State cost share
    requirements could add $90 to $100 million to the cost borne by the
    Trust Fund, based on 1994 estimates, and under S. 8, this cost may be
    increased by State petitions for further reductions. Additionally,
    early authority to delist sites from the NPL could negatively impact
    sites where cleanup has not been completed, or at RCRA facilities or
    other sites with ongoing activities which might give rise to new
    problems or releases. S. 8 does not recognize Indian Tribes at all.
      s. 8 fails to adequately promote and enhance economic redevelopment
        One of the most important aspects of any Superfund legislation is
    its ability to promote and enhance economic redevelopment at Superfund
    sites. Because of this EPA is very encouraged to see substantial
    Brownfields provisions, as well as voluntary cleanup program
    provisions, within S. 8. However, in reviewing the provisions, several
    concerns were apparent.
    Brownfields Grants are Limited
        One of the major concerns with S. 8's Brownfields characterization
    grants provision is the exclusion of States from the list of eligible
    recipients for the program. EPA's experience with the Brownfields Pilot
    Program has taught us that in the case of many smaller communities, it
    may make more sense and be more efficient to provide the grants
    directly to States. Additionally, the limitation on funding per year
    for these grants may restrict and inhibit the grant recipient from
    efficiently managing and benefiting from the grant itself. Finally, in
    the definition of Brownfields, S. 8 improperly excludes sites where
    removals have occurred, or are planned to occur, and sites deleted from
    the NPL with ``No Action'' RODs. These sites may be appropriate
    candidates for redevelopment. In addition, EPA has first-hand
    experience with prospective purchaser redevelopment of these
    properties.
    Voluntary Cleanup Program Concerns
        The Administration is opposed to provisions in S. 8 regarding
    voluntary cleanup that 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. Under S. 8,
    the mere existence of such a cleanup plan eliminates any Federal
    authority to respond to a release or threatened release of hazardous
    substances--even where there may be an imminent and substantial
    endangerment to human health and the environment. This compromise of
    public protection is alarming. The provisions of S. 8 could leave us
    powerless to respond to immediate threats from the worst toxic sites
    (Voluntary Response Programs are given authority to clean up NPL sites)
    even where the State's VRP program lacks the resources and expertise to
    ``qualify'' under the provisions of S. 8.
        In addition, the level of community involvement provided by S. 8 is
    questionable. The bill limits the community to an ``adequate
    opportunity'' for public involvement and does not guarantee
    participation in all levels of the cleanup process or determinations
    regarding end uses of the property. Finally, the preclusion of all
    private and citizen suits belies the apparent commitment in S. 8 to
    strengthen community participation.
                                 other concerns
        The problems discussed above are not a complete list of problems in
    S. 8. The bill significantly restricts restoration of natural resources
    injured as a result of hazardous waste contamination. Further, the bill
    prematurely limits Federal involvement in the effort to clean up
    hazardous waste sites by mandating that only a limited number of sites
    may be added to the National Priorities List (NPL) over the next
    several years. EPA estimates that hundreds of sites currently meet the
    eligibility criteria for NPL. Without adequate Federal involvement,
    these sites would become the responsibility of State and local
    governments that may not have the resources to address them.
        The Administration views these and other problems I do not have
    time or space to mention here as sufficiently numerous and serious to
    suggest that S. 8 is probably not an effective vehicle by which to
    forge consensus regarding Superfund legislative reform in this
    Congress.
                                   conclusion
        The Clinton Administration believes that responsible, consensus
    based Superfund legislative reform is necessary to remedy some inherent
    problems in the existing statute. However, any such reform must be
    based upon an understanding of where the program is today. I have tried
    in my testimony today to start the process of forging a common
    understanding of the current Superfund program by describing our
    accomplishments under the Administrative Reforms. We need to continue
    this dialog through a consensus building process in which the full
    array of stakeholders participate so that we can clear away phantom
    issues that cloud our ability to share a common vision of what the
    Superfund program of the future should look like. We are prepared to
    start over, and work together to develop Superfund reform legislation.
    The Administration is fully committed to participating in such a
    process and to seeing that responsible, consensus based Superfund
    legislative reform is enacted in the 105th Congress.
        Mr. Chairman, thank you for this opportunity to address the
    Committee. Now we'll be happy to answer any questions you or the other
    Members may have.

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      Responses of Carol M. Browner to Additional Questions from Senator
                                     Smith
        Question 1. EPA's administrative reforms are welcome and recognize
    a need to improve the current program. However, a number of States and
    private parties say that these reforms, while meritorious, have not
    been implemented consistently, nor have they achieved the kind of
    results that your testimony suggests. Are EPA's administrative reforms
    being implemented consistently by each region?
        Response. One of the main goals of EPA's administrative reforms is
    to promote national consistency in the Superfund program. EPA has
    achieved significant successes through implementation of the reforms to
    date. For example, through the National Remedy Review Board, a panel of
    national experts is ensuring that costs are given an appropriate role
    in remedy selection. EPA's orphan share compensation reform has
    produced a fundamental and nationally uniform change in the enforcement
    process--orphan share compensation is now offered at every eligible
    site to parties agreeing to perform cleanups. The General Accounting
    Office currently is evaluating development and implementation of the
    administrative reforms and will soon issue a report that provides
    additional information about the reforms' implementation on a national
    basis.

        Question 2. Is EPA the lead agency for articulating the
    Administration's position on Superfund.
        Response. EPA is the lead agency on behalf of the Administration on
    Superfund reauthorization issues. EPA will continue to work together
    with other Federal agencies as the Administration addresses Superfund
    reauthorization issues in the 105th Congress.

        Question 3. Ms. Browner, page 1 of your testimony states ``the
    Administration does not believe that S. 8 provides the basis for
    consensus based legislative reform.'' Are you aware of whether this is
    a new precondition for negotiations.
        Response. The Superfund program has been considerably improved and
    has produced significant accomplishments over the past 4 years.
    Therefore, Superfund legislation should reflect the current status of
    the program. EPA does not believe S. 8 reflects the current status of
    the program, thus, it does not provide the basis for consensus based
    legislative reform.

        Question 4. One of your administrative reforms is a remedy review
    board. I congratulate you on this particular reform. Apparently, in
    only 12 reviews you have saved over $15 million dollars. However, the
    decisions of this board, even if they are equally effective and less
    costly, are not binding on the Region. Why is this the case? Do you
    support looking at remedies through a remedy review board?
        Response. In general, EPA policy and guidance recognizes the need
    for decisions tailored to site-specific circumstances. The National
    Remedy Review Board (the Board) focuses on achieving cost effectiveness
    and appropriate consistency with EPA policy and guidance for high cost
    remedies prior to the development of a proposed plan, but it was never
    intended to supersede Regional decisionmaking authority. Because
    National Priorities List (NPL) sites are generally large and complex
    cleanup projects that require intense study and planning, it is the
    Regional personnel who are the most familiar with these sites, their
    cleanup strategies, and other criteria that are essential to sound
    cleanups (e.g., the preferences of the community). EPA believes that
    combining the Board's senior policy expertise with the experience and
    site-specific knowledge of the Regions will result in the most
    effective remedies.
        Although the Board's recommendations are not binding, EPA Regional
    decisionmakers give them substantial consideration when proceeding with
    a cleanup decision. We expect that Regions will adopt all Board
    recommendations that are appropriate to the site-specific
    circumstances, and are consistent with the interests of the local
    community.
        EPA is extremely encouraged by the success of the National Remedy
    Review Board so far. As you know, focusing our efforts on high-cost,
    high priority cleanups has generated estimated future cost savings of
    between $15 million and $30 million in fiscal year 1996 alone.
        The proposed remedy review boards in S. 8 substantially expand
    authority beyond that of EPA's Remedy Review Board. The involvement of
    multiple review boards in reopening remedies, proposing alternative
    remedies and making recommendations to the Administrator appears to
    interfere with EPA's current policy of delegating decisions to Regional
    officials and could substantially delay cleanups and undercut community
    involvement in the remedy selection process. In addition, EPA does not
    support submitting all potential remedies to the Remedy Review Board.
    EPA specifically designed the National Remedy Review Board to ensure:
    that it enhances the remedy selection process; that it avoid delays in
    cleanup; and that it avoids the alteration of the public's role in
    remedy selection.
        Because the Board's review takes place before a remedy is formally
    proposed, community members and other stakeholders still retain their
    ability to participate in the remedy selection process through their
    review and comment of the proposed remedy. Our careful consideration in
    designing the review process, and the decision to focus on high-cost,
    high priority NPL sites, has played a large part in the Board's
    success, and has provided significant estimated fixture cost savings,
    while minimizing delays in cleanup. This does not mean, however, that
    the impacts of the Board are limited to the remedies it reviews.

        Question 5. To address the problem of co-disposal site litigation,
    Senator Chafee and I thought it made a lot more sense to take the taxes
    collected from polluting industries, recognize that these sites are a
    national problem, and get them cleaned up. In your testimony you
    disagree with this proposal stating that major waste management
    companies'' (p. 21) would get off the hook.
        However, in the proposal you made last year, you were willing to
    waive liability from entities that had fewer than 25 employees and less
    than $2 million in gross revenue. How is it that you say it is OK to
    let to let those polluters off the hook, but kick up such a fuss when
    we try to deal with these contentious co-disposal sites? I am
    particularly curious about this because when Congressman Sherry
    Boehlert floated this idea 2 years ago, you said it was a pretty good
    idea.
        Response. I have always been opposed to any site carve-out. I agree
    that the so called ``co-disposal sites'' offer unique problems, and
    that there are parties that Congress never intended to be caught up in
    the liability ``net'' (e.g., pizza parlors, beauty salons, homeowners,
    other small parties with purely MSW). However, I oppose a co-disposal
    site carve-out because many contributors of large volumes of hazardous
    waste are exempted; Fund dollars that should be spent at orphan sites
    are used for providing relief to large viable parties; and defining
    what is a ``co-disposal'' site is difficult. For example, at just the
    Delaware Sand & Gravel Site (DE) and the Global Sanitary Landfill Site
    (NJ), approximately $40 million would be shifted to the Fund in order
    to provide companies such as E.I. Dupont, Chevron, BFI, and General
    Motors with liability relief.
        The Administration has always supported providing relief to those
    parties that were never intended to be caught up in the Superfund at
    these co-disposal sites. We can provide these parties liability relief,
    eliminate the lawyers and the ``contentiousness'' of cleanup, without
    exempting the large industrial and hazardous waste generators and
    transporters. The longer we delay the passage of a Superfund bill, the
    longer the parties that we both want to help are left with little or no
    relief at all.

        Question 6. Since May 26, 1995, only 50 sites have been cleaned up
    and deleted from the NPL. Is this an acceptable pace for toxic waste
    cleanup?
        Response. Over the past several years, EPA has made it a priority
    to improve the Superfund program through a number of initiatives to
    make it work faster. In 1993, EPA began to focus on Construction
    Completions as a more representative measure of program accomplishments
    than deletions. At more than 420 sites (roughly one-third of the sites
    on the National Priority List (NPL)), cleanups have been completed, and
    an additional 485 have long-term cleanup construction activities
    underway. EPA plans to accelerate the program, in conjunction with the
    President's Superfund budget proposal, so that we can increase our goal
    for construction completions in the year 2000 from 650 to 900. That
    represents roughly two thirds of the NPL. EPA believes this will
    represent an appropriate rate of progress for the program, and is
    working hard to ensure that cleanups are completed as quickly as
    possible. In fact, this is one of the principles we have taken into
    account in evaluating proposals for legislative changes to the
    program--the need to avoid disrupting or slowing cleanups.

        Question 7. The issue we keep coming back to when we discuss
    Superfund is liability. This is the issue that gets lawyers involved
    and lengthens cleanup and inflates costs. Now we all believe that law
    breakers should be punished, but, is that the situation we have here?
    I'm speaking about those sites which we consider co-disposal sites.
    These are the sites where sometimes hundreds of individuals and
    companies paid to have their waste safely disposed of only to face
    lawsuits when the firm handling the site under Superfund turns around
    and sues them. This doesn't seem fair. Our bill changes that and lets
    individuals, small business, and other generators and transporters that
    followed the law out of the Superfund web. What is wrong with that?
        Response. I agree that the so called ``co-disposal sites'' offer
    unique problems, and that there are parties that Congress never
    intended to be caught up in the liability ``net'' (e.g., pizza parlors,
    beauty salons, homeowners, other parties with purely MSW). However, I
    oppose a co-disposal site carve-out because many contributors of large
    volumes of hazardous waste are exempted; Fund dollars that should be
    spent at orphan sites are used for providing relief to large viable
    parties; and defining what is a ``co-disposal'' site is difficult. For
    example, at just the Delaware Sand & Gravel Site (DE) and the Global
    Sanitary Landfill Site (NJ), approximately $40 million would be shifted
    to the Fund in order to provide companies such as E.I. Dupont, Chevron,
    BFI, and General Motors with liability relief.
        The Administration has always supported providing relief to those
    parties that were never intended to be caught up in the Superfund at
    these co-disposal sites. We can provide these parties liability relief,
    eliminate the lawyers and the ``contentiousness'' of cleanup, without
    exempting the large industrial and hazardous waste generators and
    transporters. The longer we delay the passage of a Superfund bill, the
    longer the parties that we both want to help are left with little or no
    relief at all.
                                     ______

      Responses by Carol M. Browner to Additional Questions from Senator
                                     Thomas

        Question 1. Is the prompt and effective cleanup of contaminated
    sites your highest priority.
        Response. Specific hearing questions about the Natural Resources
    Damage program are better addressed by Mr. Terry Garcia, who testified
    on behalf of NOAA and the Department of Commerce, the Department of
    Interior, and the Department of Agriculture. The protection of human
    health and the environment through the cleanup of hazardous waste sites
    and the restoration of natural resources is a high priority for EPA and
    the Administration.

        Question 2. Is it the Administration's position that making NRD
    liability more predictable and adding more certainty to the cleanup
    process would impede response actions.
        Response. Specific questions about the Administration's NRD
    position are better addressed by the Department of Commerce or other
    Federal Trustee agency. The Administration's NRD legislative reform
    position is based upon the following principles: Restore injured
    resources to baseline; and restore the losses the public suffers from
    their inability to use the resources from the time of injury until
    restoration is complete.

        Question 3. Does the Administration support any reforms to CERCLA's
    NRD provisions?
        Response. Specific questions about the Administration's NRD
    positions are better addressed by the Department of Commerce or other
    Federal Trustee agency. The Administration supports the reforms
    contained within the legislative proposal transmitted to the committee
    in October 1996.
                                     ______

      Responses of Carol M. Browner to Additional Questions from Senator
                                     Allard

        Question 1. In a handout before the subcommittee from EPA, it was
    noted that 77.6 percent of all Superfund dollars went to cleanup/
    response. The amount indicated is $1,594.7 billion. Below that number
    are numerous subcategories, could EPA please provide us with funding
    for each subcategory, along with a more detailed description of each
    category?
    Cleanup/Response--$1,594.7
         Brownfields ($80.9)--Funding used to address abandoned,
    idled, or under-used industrial and commercial properties where
    expansion or redevelopment is complicated by real or perceived
    environmental contamination.
         Feasibility Study ($4.1)--Used to develop and evaluate
    potential remediation alternatives to clean a hazardous waste site and
    forms the foundation for the Record of Decision (ROD) which codifies
    the remedy that is selected to abate ecological and human health risks
    at a site, and addresses site conditions and proposed future land use.
         RD (RP/Fund) ($60.0)--Remedial design is a CERCLA design
    that establishes the general size, scope, and character of a project,
    and details and addresses the technical requirements of the RA selected
    in the ROD.
         RA (RP/Fund) ($766.5)--Remedial action is performed upon
    approval of the remedial design and represents the actual construction
    or other work necessary to implement the remedy selected.
         Early Actions ($300.0)--Incidents where a response is
    necessary within a matter of hours (e.g., threats of fire or explosion)
    and time critical removal actions to protect human health and the
    environment.
         USACE/BUREC ($5.5)--USACE/BUREC contributes to the direct
    cleanup at many sites. These Federal Partners implement most high cost
    Fund-financed remedial actions, provide on-site technical expertise,
    and ensure that project management is consistent between Fund and PRP
    financed projects.
         Lab Analysis ($36.4)--Management of the process by which
    site samples are scheduled and analyzed. Includes acceptance of CLP
    data to ensure consistent and accurate validation of CLP data packages
    according to established protocols and standard operating procedures,
    and consistent with established data quality objectives.
         Site Assessment ($78.0)--Assessing ecological and human
    health risks at sites brought to the Agency's attention by States,
    Tribes, Federal agencies, citizens, or other sources. Assessment
    information is used to determine the course of response actions,
    including removal and remedial actions.
         Response Mgmt ($51.3)--Management of the Superfund program
    including contract support and NPL listings and evaluation of program
    implementation activities to determine effect of program policies.
         State/Tribal ($27.7)--Through cooperative agreements,
    funding to State/Tribal governments is used to assess and cleanup
    hazardous waste sites in their jurisdictions increasing the resources
    available for direct cleanup.
         Community Involvement ($19.2)--Community relations
    activities serve to encourage valuable communication with affected
    citizens and public participation in the decisionmaking process.
    Funding helps communities become more involved so that cleanup
    decisions make the most sense at the community level. Technical
    Assistance Grants provide citizens with information and support to be
    active participants in site decisions that affect their communities.
         Federal Facilities ($16.8)--The Superfund Federal
    Facilities response program supports the cleanup of federally owned or
    managed hazardous waste sites on the NPL.
         TIO ($5.2)--The Technology Innovation Office contributes
    to a more cost effective and efficient site assessment and cleanup
    process by advancing the use of innovative site characterization and
    remediation technologies.
         CEPPO ($4.1)--The Chemical Emergency Response program
    supports strong emergency response preparedness. This provides the
    necessary emergency response capability to address the Nation's worst
    chemical accidents and hazardous waste releases.
         Salary/Expenses ($136.0)--Salaries/expenses.
         ORD Tech Support ($3.0)--Office of Research and
    Development Technical Support.

        Question 2. Is it true that if a State is not satisfied with a
    Superfund cleanup undertaken by the Federal Government that the State
    could utilize its RCRA authorities subsequently, to go after the same
    issue?
        Response. One of EPA's highest priorities is to foster a productive
    relationship with States, and to minimize duplication of effort between
    EPA and the States. In the Superfund program, it is commonplace for EPA
    and a State to sign a cooperative agreement which identifies the
    appropriate lead agency for the NPL sites in the State. EPA also enters
    ``memoranda of understanding'' which give States resources and
    technical support in developing voluntary cleanup programs. In
    addition, in September, 1996, EPA issued a guidance which specifically
    sought to minimize duplication between the RCRA and Superfund programs.
    Although the law does not explicitly address whether a State may use
    RCRA authority if it is not satisfied with EPA's cleanup under
    Superfund, EPA believes that cleanups under RCRA corrective action or
    CERCLA will substantively satisfy the requirements of both programs.
                                     ______

      Responses of Carol M. Browner to Additional Questions from Senator
                                   Lautenberg

        Question 1. Oklahoma Sites: Senator Inhofe referred to two sites in
    Oklahoma that he said had comparable hazardous waste problems, but
    different cleanup approaches and durations, depending upon whether
    these were conducted under State or Federal auspices. Please provide
    information on the two sites, including the pace and cost of cleanup,
    the nature of the problem at each, etc.
        Response. Please refer to the attached letter of March 12, 1997 to
    Senator Inhofe, which outlines the differences between the two
    cleanups.

        Question 2. Co-disposal Sites: Please indicate whether EPA has
    identified the number of NPL sites which could qualify as ``co-
    disposal'' sites under the definition contained in S. 8 (sites where
    ``a substantial portion of the total waste disposed of at the landfill
    consisted of municipal solid waste or sewage sludge that was
    transported to the landfill from outside the facility''). Please
    indicate the effect on the program if liability were eliminated for
    these sites. Please identify the types of parties that might profit
    from this exemption. What would happen, under S. 8, for example, at a
    site like the Lipari Landfill in New Jersey.
        Response.
    Number of ``co-disposal'' sites
        It is uncertain how many sites would be considered ``co-disposal''
    sites as defined by S. 8 for a number of reasons:
        S. 8 defines co-disposal sites to be those where a ``substantial''
    portion of the waste at the site was MSS or MSW. S. 8 does not define
    what ``substantial'' means. This creates a great deal of uncertainty in
    determining how many sites would be considered to have a
    ``substantial'' amount of MSW or MSS. There could be a large incentive
    to litigate the issue of how much waste is ``substantial'' and to
    define it as liberally as possible. For example, if there is a
    determination that a site has a ``substantial'' amount of MSW or MSS,
    then all generators and transporters (including the industrial,
    hazardous waste generators/transporters) at the site will be exempt.
    However, if at the same site, there is a determination that there is
    not a substantial portion of MSW or MSS, then only the MSW or MSS
    generators and transporters are exempt. Obviously, large industrial and
    hazardous waste generators and transporters will have an incentive to
    litigate this issue and to make sure that a ``co-disposal'' site has a
    ``substantial'' amount of MSW or MSS.
        Additionally, S. 8 expands the definition of MSW to include
    appliances such as refrigerators, washers, dryers, etc. The expanded
    definition of MSW could increase the sites ``carved out'' by S. 8.
    Effect on program
        The ``co-disposal'' site provisions in S. 8 are a de facto site
    carve-out. Thus, approximately \1/4\ of the work currently performed by
    PRPs (or more depending on the issues raised above) would shift to the
    Fund. The money that could have been spent on addressing sites that
    were truly orphan (e.g., no available, viable owners and operators)
    would be spent on providing a windfall to large commercial generators
    and transporters of hazardous and industrial waste.
    Types of parties likely to profit
        Some of the responsible parties that might benefit from the
    liability provisions in S. 8 include all generators of materials which
    happened to be disposed of at a site where MSW was also taken. These
    parties include: Waste Management, BP America, E.I. DuPont, Chrysler,
    General Motors, Chevron, Hercules, Zenica Inc. (formerly known as ICI
    America), Occidental Chemical Corp, and Browning-Ferris Industries
    (BFI). These represent parties that benefited directly by transporting
    waste, or parties that were large industrial producers of waste, that
    benefited from cheap disposal.
    Examples:
        At the Global Sanitary Landfill site, the elimination of generator
    and transporter liability under S. 8 would shift an estimated $30
    million in future cleanup costs to the orphan share of the Superfund
    Trust Fund. Major generators and transporters at the site include
    Browning-Ferris Industries (BFI), DuPont, and Chevron. Eighty-six
    thousand citizens live within three miles of this site. Contaminants
    from the site have reached the aquifer directly beneath the landfill
    and have impacted nearby wetlands and marsh. The Global Sanitary
    Landfill site qualifies for the exemption because several
    municipalities contributed municipal solid waste to this privately
    owned and operated landfill. Although as much as 75 percent of the
    waste is municipal solid waste, this waste is not contributing
    significantly to either the contamination or cost of the cleanup. The
    commercial and industrial waste generated and transported by many small
    and large private companies is the chief cause of the dangers posed by
    the site.

        Question 3. De minimis Exemption: Does EPA support an exemption for
    de minimis parties? Are there other sites like the Bypass 601 site,
    where the majority of parties contributed 1 percent or less by volume,
    and therefore, would be exempt under S. 8?
        Response. EPA does not support an exemption for de minimis parties.
    However, EPA holds strongly to the belief that many of these parties
    should be given the opportunity to settle their responsibility early in
    the cleanup process, enabling these parties and others to reduce their
    transaction costs. Any formal absolutely categorize de minimis parties
    should provide for a site-specific determination to be made, if
    appropriate. For certain sites, 1 percent of the volume (as defined by
    S. 8) could be a very large volume in absolute terms.
        For example, at the Tonolli Site in Pennsylvania, 1 percent is over
    1 million gallons of waste from a single responsible party. At this
    site, an exemption for contributors of 1 percent or less would exempt a
    total of almost 40 million gallons of waste. This volume is much larger
    than the total volume of waste disposed of at some Superfund sites.
    Finally, if the cutoff for the exemption is so high that it exempts an
    inordinate numbers of responsible parties, too few responsible parties
    will remain liable, and the cleanup of the site will be shifted to the
    Fund. At the Operating Industries site in California, with a cutoff of
    1 percent of the total industrial waste (waste containing hazardous
    substances), only three generator parties, of the approximately 4,000
    responsible parties would remain responsible for cleanup of the
    enormous contamination at the site. These three parties are responsible
    for only 14 percent of the industrial waste at the site.

        Question 4. Non-Municipal Owners of Co-Disposal Sites: S. 8 limits
    the liability of non-municipal owners/operators of co-disposal NPL
    sites. Please indicate whether any major national waste companies would
    benefit from this limitation. Please describe the effect of this
    limitation on the Superfund program.
        Response. Under S. 8, the aggregate liability of private parties
    who own or operate a ``co-disposal'' facility is limited to 30 percent
    of the costs at the site. This provision severely reduces the liability
    of many large, viable responsible parties. Many of these companies
    acquired contaminated sites with full knowledge of the contamination.
    Further, because these companies are in the business of MSW and
    hazardous waste management, they are often in the best position to
    prevent the problems associated with contamination. Further, these same
    businesses are often the most culpable parties at these sites. The
    public policy justification for elimination of this category of
    liability is unclear.

        Question 5. Illegality: S. 8 excludes from its liability exemptions
    and limitations persons who violated RCRA or other requirements
    relating to disposal of MSW or MSS. Do you think the exclusion will
    leave liability intact in most instances?
        Response. The exception to which you refer is extremely narrow and
    will have little impact in retaining liability as to those parties who
    have acted irresponsibly--the ``bad actors.'' S. 8 provides that the
    exemptions and limitations established in S. 8 would not apply to any
    person whose act, omission, or status that is determined by a court or
    administrative body, within the applicable statute of limitation, to
    have been a violation of any Federal or State law pertaining to the
    treatment; storage, disposal or handling of hazardous substances, if
    the violation pertains to the substance or release that caused the
    response costs to be incurred. The effect of this provision is to
    divide the world of violators into two groups, those who got caught and
    those who benefit from the ``rewards'' of exemption or repayment.
        This provision requires successful court or administrative action
    to have been taken at the time of the activity (within the statute of
    limitations of the law applicable at the time of disposal), and does
    not apply to actions which were pursued under common law (i.e.,
    nuisance) or local law or regulation. Since many of these actions took
    place (1) before there were Federal laws in place, and (2) when there
    were very few State laws in place that directly pertained to the
    treatment, storage, disposal or handling of hazardous substances, this
    provision would be inapplicable in most cases. Further, since Superfund
    addresses the results of acts that frequently occurred many decades
    before cleanup, proof of illegal or culpable behavior may be impossible
    at most sites. Also for this reason, documentary evidence typically is
    scarce or non-existent and witnesses are unavailable or have incomplete
    memories. Further, since activity at Superfund sites occurred many
    years ago, it may not be clear today what behavior was permitted and
    what was prohibited by a given law, including State law, even if a
    prosecution was successful.

        Question 6. RACs: Please identify the number of times that EPA has
    indemnified Response Action Contractors (``RACs''), and the cost to EPA
    of providing such indemnification. In your experience, have RACs been
    sued so often that pre-emption of State negligence laws is warranted?
        Response. Prior to the publishing of the Final Indemnification
    Guidelines in 1993, EPA routinely offered indemnification to its RAC
    contractors. Sixty-eight contracts contained indemnification provisions
    and approximately 100 subcontractors were provided indemnification. A
    small subset of these contractors were authorized to purchase insurance
    to offset the Governments liability. The cost of providing
    indemnification was thus the dollars expended on insurance premiums in
    addition to the cost of defending RAC claims (note that the original
    indemnification was unlimited in scope until renegotiated following the
    publication of the Final Guidelines. Fifty five of the 68 contracts
    have been renegotiated to insert indemnification limits). Since
    offering indemnification, EPA has been presented with 11 claims for
    indemnification coverage. Approximately 1.2 million dollars have been
    paid out for these claims, primarily to pay for defense costs. No
    judgments have been made against a RAC under 119 provisions; half of
    the claims were dismissed in court, 2 are still in process.
        Since 1993 EPA has only offered limited indemnification 4 times.
    Indemnification was offered where there was inadequate competition and
    indemnification was cited as a reason for the lack of competition. All
    other RAC procurements have not included indemnification, although some
    firms have purchased insurance (as a reimbursable expense) to cover
    their pollution release liability.
        This Administration has consistently opposed preemption of State
    response action contractor laws. EPA has not seen any information about
    litigation against RACs that would suggest a change in the
    Administration's position.

        Question 7. Recycling: Please describe the effect on the program
    generally if liability were eliminated for generators and transporters
    who ``recycled'' their waste. Please describe how S. 8 expands the
    exemption from that seen in previous [Senate] legislative proposals,
    and the effect of such expansion. Is it correct to state that former
    ``recycling sites'' pose some of the worst environmental problems?
    Please provide examples.
        Response. S. 8 is different than previous recycling provisions in
    that it expands the definition of ``scrap metal'' to include mining
    waste. S. 8's definition of scrap metal includes mining tailings,
    slags, skimmings, and drosses--materials that are products of the
    mining process. EPA has never supported including this language in the
    definition of scrap metal.
        The other provisions in S. 8 are similar to the recycling
    provisions proposed by the Senate in S. 1834 and in S. 607. At a site
    that met the criteria established in S. 8, the generators and
    transporters would be exempt, thus shifting their share of the
    liability to the Fund. The parties that would benefit from this
    provision is not limited to small business and individuals, but also
    large industrial and fortune 500 companies, entities that clearly have
    the financial resources to pay for their fair share.
        Since the generators and transporters would be exempt, the owners
    and operators would have to perform the cleanup at the site. For those
    sites without viable owners and operators, the cost of cleanup for the
    entire site would be shifted to the Fund. Since many of the recycling
    sites owned or operated by small business with limited resources, the
    recycling site provisions in S. 8 may have the effect of creating
    another de facto site carve-out.

        Question 8. Small business: Please describe the potential impact on
    the program of S. 8's ``small business'' exemption. Please explain
    whether persons such as those responsible for the methyl parathion
    problem in Mississippi, and now, Louisiana, might not avail themselves
    of the exemption.
        Response. S. 8 would exempt ``small business'' which is defined as
    those businesses with fewer than 30 employees or less than $3M in
    annual gross revenues. The ``or'' provision results in an exemption for
    all businesses that have 30 employees, regardless of its revenues, and
    an exemption for all businesses with revenues of $3 million or less,
    regardless of the number of employees. In addition, the exemption would
    apply even in those situations where the small business is the owner/
    operator of the site, has impeded cleanup, has not complied with CERCLA
    Sec. 104(e) or other applicable laws, or has been uncooperative in
    allowing EPA to address the contamination. Finally, the exemption would
    apply even where hazardous substances generated or transported by the
    business have contributed significantly to the costs of the response or
    to natural resource damages. Thus, S. 8's ``small business'' exemption
    is overbroad and would result in many parties being relieved of
    liability inappropriately.
        The Administration previously has supported a narrower ``small
    business'' exemption. The Administration proposal would have exempted
    those small business generators or transporters who have annual gross
    revenues less than $2 million, have 25 or fewer employees, have not
    impeded cleanup, and are not affiliated with any other liable party.
    Furthermore, the exemption would not apply if the small business had
    not complied with requests under CERCLA Sec. 104(e) or if the hazardous
    substances generated or transported by the business contributed
    significantly to the costs of the response or to natural resource
    damages.
        EPA does not have information indicating whether persons involved
    with the methyl parathion problem in Mississippi and Louisiana would
    meet the definition of a ``small business'' under S. 8.

        Question 9. NFIB: Please describe the nature and volume of waste
    disposed by Barbara Williams at the Keystone Sanitation Company, Inc.
    Superfund site; and steps taken by the United States to get Barbara
    Williams, and parties like her, out of the litigation regarding that
    site. Please describe whether instances of multi-party and multi-tier
    litigation, such as that occurring at Keystone, are the norm. Please
    provide examples of instances where EPA has successfully deterred the
    type of joinder that has occurred at Keystone. Please describe whether
    S. 8's, or last year's democratic alternative, would have relieved Mrs.
    Williams from litigation like that at Keystone if her small business
    contributed waste consisting of materials other than MSW. Please
    explain whether relief for small contributors, or MSW parties, is in
    your view a rejection of the ``polluter pays'' principle?
        Response.
    Keystone--Barbara Williams
        Ms. Williams is a fourth-party defendant, involved in this
    litigation because other companies have brought her into this lawsuit
    seeking contribution. The United States did not pursue Ms. Williams for
    its costs, or for cleanup. However, other companies have joined her in
    this litigation in Federal district court (U.S. V. Keystone Sanitation
    Company et al., Case No. 1: CV-93-1482 (M.D. Pa.), Chief Judge Sylvia
    H. Rambo). The United States sued 11 parties (three site owners and
    eight companies who disposed of industrial waste at the landfill) to
    recover the costs of cleanup. The United States is also using its
    enforcement authorities against the same 11 parties to clean up the
    site.
        EPA has made and continues to make significant progress in this
    case to eliminate small parties from the litigation, and implement one
    of the key administrative reforms. EPA has prepared a settlement with
    167 de micromis parties in which these parties will resolve their
    liability for only $1.00. The settlement is currently pending entry by
    the court.
        In November 1994, the court entered an expedited de minimis
    settlement between the United States and 8 parties, each of whom
    certified that they brought no more than 6,500 cubic yards of waste to
    the site. In the spring of 1995, prior to Ms. Williams' joinder, EPA
    initiated a second de minimis settlement for third-party defendants
    (using the same volumetric cutoff of 6,500 cubic yards).
        In September, 1995, the approximately 170 third-party defendants
    sued approximately 590 fourth-party defendants, including Ms. Williams.
    Ms. Williams certified that her restaurant sent at most 4,346 cubic
    yards of waste to the site consisting of food and paper refuse; other
    responsible parties allege that she sent over 11,000 cubic yards. Mrs.
    Williams was not a candidate for a de micromis settlement for $1.00
    because she certified that she sent more than 1,800 cubic yards of
    waste to the site. However, the United States is continuing to explore
    a settlement with the remaining non-de micromis third-and fourth-party
    defendants. Recently, liaison counsel provided information requested by
    EPA that allowed the Agency to consider a settlement offer to resolve
    the involvement of third-and fourth party defendants at the site. EPA
    is soon to respond to the offer.
    EPA's Protection of Small Volume Waste Contributors from Litigation
        EPA has used its settlement authority to protect more than 14,000
    small volume contributors. EPA established a policy to provide these de
    micromis parties (parties that have contributed 110 gallons or 200
    pounds of materials containing hazardous substances) with contribution
    protection through settlements with the United States for the amount of
    $1.00 (EPA has revised this policy to now settle with these parties for
    $0 dollars). Further, to reduce the litigation against small volume
    waste contributors that contributed somewhat greater amounts of waste
    to the site, and therefore do not qualify for de micromis status, EPA
    has established guidance to provide de minimis settlements (the Agency
    established a presumption that a de minimis party is one that has
    contributed less than 1 percent of materials containing hazardous
    substances to the site, a presumption that can be deviated from
    depending uponsite specific circumstances). For a dollar amount based
    on the volume of waste the party contributed to the site, parties are
    offered an opportunity to settle their liability early in the cleanup
    process, thereby receiving contribution protection and avoiding the
    transaction costs associated with litigation brought by other
    responsible parties.
        Countless parties fall within the de micromis category. EPA only
    offers a de micromis settlement to parties whom are actually being
    sued, face the concrete threat of suit or have requested a settlement
    because they expect to be sued and EPA has determined that such an
    expectation is reasonable. EPA established this policy primarily to
    deter parties from suing de micromis parties. As to EPA's de minimis
    settlement policy, as of January 1997, EPA has completed settlements
    with over 14,000 parties.
    Legislative Approaches to Relieving Small Volume Waste Contributors and
            Small Businesses of Liability Where the Party Has Sent Waste
            Other than MSW
        EPA cannot assess whether Mrs. Williams' business would qualify for
    special treatment that would be accorded small businesses under the
    Administration's past liability proposals or under S. 8 because we do
    not have information regarding the number of the business's employees
    or the annual gross revenues. However, the Administration believes that
    parties who contributed very small amounts of waste should not be
    caught up in Superfund liability. In the past, the Administration has
    supported three approaches to reducing the number of small volume
    contributors and small businesses caught up in Superfund. The
    Administration has supported an exemption for parties that sent less
    than 110 gallons or 200 pounds of materials containing hazardous
    substances. S. 8 expands the definition of de micromis to parties that
    have contributed up to 1 percent of the waste at a site. The
    Administration opposes such an expansion because it would
    inappropriately relieve contributors of substantial amounts of
    hazardous materials from liability.
        A second approach, presently EPA policy, is to settle with de
    minimis parties that have contributed less than 1 percent of materials
    containing hazardous substances. This is distinguishable from S. 8, in
    that parties settling under the policy are paying their share of
    responsibility for a site, but are also resolving their liability and
    any litigation. EPA seeks early settlement with these parties because
    such settlements reduce transaction costs for both the de minimis party
    and other parties. Finally, during negotiations in the last Congress,
    the Administration proposed exempting some small businesses, those with
    less than $2 million in gross revenues and no more than 25 employees.
    The Administration is still open to considering various methods of
    relieving the burden on small businesses.
    Relief for Small Volume Contributors or MSW Contributors is not a
            Rejection of the ``Polluter Pays'' Principle
        We continue to believe that when Congress enacted CERCLA and SARA,
    it never intended to hold ``homeowners and pizza parlors'' responsible
    for disposing of household, or similar wastes. We believe that to do so
    is patently unfair; and while EPA's policies seek to protect these
    parties, a ``bright line'' is necessary to provide protection from
    third-parties seeking reimbursement through litigation or other means.
        Further, it is unfair for responsible parties to incur litigation
    costs that would exceed their share of responsibility. As we have
    indicated, because de minimis parties settle for their share of
    responsibility at a site, the treatment of these parties is consistent
    with the ``polluter pays'' principle. Finally, the proposals supported
    by the Administration provide that where the materials contributed by
    the party contributed significantly or could contribute significantly
    to the costs of response or to natural resource damages, or the party
    has not complied with all CERCLA section 104 information requests, the
    party would not be eligible for the liability protection.

        Question 10. Groundwater Remedies: You mentioned in your oral
    testimony that ``the NRC'' had recently reported that groundwater
    plumes may indeed be cleaned up. Please provide a copy of this report.
    Please explain whether S. 8's rules for selecting groundwater remedies
    take into account findings such as these.
        Response. The National Resource Council (NRC) report referenced
    during the testimony was taken from a book entitled ``Alternatives for
    Groundwater Cleanups,'' which was jointly written by the Committee on
    Groundwater Cleanup Alternatives, the Water Science and Technology
    Board, the Board on Radioactive Waste Management, and the Commission on
    Geosciences, Environment, and Resources. It was published in 1994, by
    the National Academy Press.
        The text makes several references to groundwater remediation
    (pertinent text attached), generally finding that ``cleaning up large
    portions of these [groundwater] sites is possible, even if limited
    areas remain contaminated.'' The text supports EPA's efforts to treat
    groundwater as an important environmental resource, and shows that
    efforts to provide treatment of contaminated groundwater are generating
    benefits.
        Assuring the availability of clean groundwater is a very high EPA
    priority, as groundwater constitutes 86 percent of the fresh water in
    the United States. Additionally, over 50 percent of the United States
    population gets its drinking water from groundwater; in rural areas, 95
    percent of households depend on groundwater. Thirty-four of the 100
    largest cities in the United States rely completely or partially on
    groundwater for their drinking water supplies.
        Despite these facts, S. 8 would replace the goal under the current
    program to restore contaminated groundwater to beneficial uses,
    wherever practicable, with the very different mandate to ``prevent or
    eliminate any actual human ingestion of contaminated drinking water.''
    This goal could be met through treatment at the tap or simply by
    preventing the use of the water. Though S. 8 does provide for
    protection of uncontaminated groundwater, it relies too heavily on
    natural attenuation to provide this protection.
        Even if actual cleanup of contamination in the groundwater were
    proposed as a cleanup alternative, S. 8 sets up a burdensome three part
    test which must be passed to justify its selection. The bill would
    require: (1) an affirmative finding that restoration was technically
    practicable; (2) a justification that demonstrates that active cleanup
    can ``substantially accelerate the availability of groundwater for use
    as drinking water beyond the rate achievable by natural attenuation'';
    and, in the final analysis; (3) consideration of active cleanup ``on an
    equal basis'' with institutional and engineering controls.
        The current provisions of S. 8 make no acknowledgment of the
    successes EPA has achieved in its efforts to clean up contaminated
    groundwater, and the benefits such treatment provides. This is a clear
    difference in premise from the text identified during the testimony,
    which shows that groundwater remediation is not only possible in many
    instances, but beneficial.

        Question 11. Remedy Selection: In your testimony, you referred to a
    ``63 percent'' figure regarding consideration of land use. Could you
    please clarify this reference and explain its significance?
        Response. The 63 percent figure refers to the frequency at which
    EPA selected a land use ``other than residential'' in its Records of
    Decision (RODs) for FY95. It should also be noted, however, that
    multiple uses can be, and in fact are, assumed in the same ROD, if the
    future land use is uncertain. Based on EPA's review of these RODs, it
    is evident that EPA assumed a residential land use in only 37 percent
    of FY95 RODs typically where there was residential use onsite or
    adjacent to the site. This is a very important response to those who
    claim that EPA defaults to clean ups for residential use in all cases,
    or are unaware of the current practices pertaining to remedy selection.
        Based on an internal analysis of EPA's fiscal year 1995 RODs,
    containing a potential site universe of 231 sites, 127 involving soil
    cleanup, the reasonably anticipated land use assumed in those decisions
    (i.e., 127 sites) were as follows (because of multiple uses as some
    sites, the total exceeds 100 percent):
         37 percent (48 sites) assumed residential use.
         61 percent (78 sites) assumed industrial/commercial use.
         10 percent (13 sites) assumed recreational use.
         9 percent (11 sites) assumed use as landfills/waste
    management units.
         7 percent (9 sites) assumed the site would remain a
    military installation.
         5 percent (7 sites) assumed agricultural use.
         3 percent (4 sites) were remediated because of ecological
    concerns.

        Question 12. Administrative Reforms: Senator Baucus inquired about
    the number of sites where EPA has ``updated'' RODs. Please provide
    information about the number of instances, criteria, and results, where
    ROD's were ``updated.''
        Response.
    Number of Instances
        As part of implementing the Update Remedy Decisions Reform (Third
    Round of Superfund Reforms, October 1995), EPA has been tracking the
    remedy updates made, and their associated cost savings throughout FY96
    and in the first quarter of FY97. In FY96, remedies with cost savings
    were updated at 30 sites, while in the first quarter of FY97, remedies
    with cost savings were updated at 9 sites.
    Criteria
        Modifications to the record of recision (ROD) must still comply
    with policies regarding remedy selection, treatment of principal
    threats, preference for permanence, establishment of cleanup levels,
    applicable or relevant and appropriate requirements (ARARs) waivers, or
    the degree to which remedies must protect human health and the
    environment. The goal of the 18 reform is to promote the use of the
    best science and most appropriate technologies at Superfund sites while
    limiting the impacts to the pace of cleanups, not to reopen RODs solely
    on the basis of cost savings.
    Results
        For FY96, 30 sites resulted in a total estimated future cost
    reduction of over $280 million. Of this $280 million, approximately
    $250 million resulted from remedy updates of the kind identified in
    EPA's reform guidance (dated September 27, 1996). Approximately 63
    percent (19 of 30) of the changes were Explanation of Significant
    Differences (ESDs) while approximately 33 percent (10 of 30) of the
    changes were ROD Amendments. Some 50 percent of the changes were EPA-
    initiated while the remaining 50 percent were initiated by other
    parties (e.g., PRP, State, etc.). Approximately 63 percent (19 of 30)
    of the changes related to the soil media alone, while only 20 percent
    (6 of 30) of the changes related to the groundwater media alone.
        For the first quarter of FY97, 9 sites resulted in a total
    estimated future cost reduction of over $28 million. Over 66 percent (6
    of 9) of the changes were ESDs, while approximately 22 percent (2 of 9)
    of the changes were ROD Amendments. About 56 percent (5 of 9) of the
    changes were EPA-initiated, while the remaining 44 percent (4 of 9)
    were initiated by other parties. Approximately 67 percent (6 of 9) of
    the changes related to the groundwater media alone, while only about 22
    percent (2 of 9) of the changes related to the soil media alone.

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    Prepared Statement of Richard Gimello, Assistant Commissioner for site
         Remediation, New Jersey Department of Environmental Protection
                                  introduction
        Good morning Mr. Chairman. I am Richard Gimello and I am Assistant
    Commissioner for Site Remediation for the New Jersey Department of
    Environmental Protection. This testimony is presented on behalf of the
    National Governors' Association (NGA). NGA has a strong interest in
    Superfund reform and believes that a variety of administrative as well
    as legislative and regulatory changes are needed to improve the
    Superfund program's ability to clean up the nation's worst hazardous
    waste sites quickly and efficiently. We realize the importance of
    passing legislation this year, and we want to ensure that the
    collective interests of the states are considered carefully in the
    development of a final bill. We recognize that Superfund reform is
    particularly critical this year because the taxing authority has
    lapsed. Funding is essential to the continuation of site cleanups, the
    ultimate objective of the Superfund program.
        The Governors appreciate the opportunity to review and comment on
    S. 8. I would like to begin by stating that NGA is very appreciative of
    the many improvements made in this bill over last year's bill, S. 1285.
    The Governors acknowledge the vast compromises that this bill reflects
    and commend the committee for introducing legislation that addresses
    many state concerns with the Superfund program. We would like to
    continue working cooperatively with you to develop a final bill that
    enjoys bipartisan support. We truly believe that this type of support
    requires the types of moderate compromises that you've made in S. 8.
    Today, I would like to address NGA's overall assessment of the bill and
    suggest a few areas where improvements could be made.
           brownfields revitalization and voluntary cleanup programs
        The Governors believe that brownfields revitalization is critical
    to the successful redevelopment of many contaminated former industrial
    properties, and we commend the committee for including brownfields
    language in the bill.
        The Governors would like to emphasize the importance of state
    voluntary cleanup programs in contributing to the nation's hazardous
    waste cleanup goals. Many states have developed highly successful
    voluntary cleanup programs that have enabled sites to be remediated
    more quickly and with minimal governmental involvement. It is important
    that any legislation supports and encourages these successful programs
    by providing clear incentives and by ensuring that any minimum program
    criteria set by the Environmental Protection Agency (EPA) are extremely
    flexible.
        It is the view of NGA that voluntary cleanup programs and
    brownfields redevelopment are currently hindered by the pervasive fear
    of federal CERCLA liability. We strongly support the provisions in S. 8
    that encourage potentially responsible parties and prospective
    purchasers to voluntarily clean up sites and reuse and redevelop
    contaminated property, respectively. S. 8 achieves this goal by
    precluding subsequent federal enforcement at sites where cleanup has
    occurred under state programs and by providing needed liability
    protections for prospective purchasers and owners of property
    contiguous to contaminated sites. However, in the event EPA discovers
    an imminent and substantial threat to human health and the environment
    at a site, it should be able to continue using its emergency removal
    authority. Any assignment of liability, however, must be consistent
    with liability assigned under state cleanup laws.
                                   state role
        The impacts of hazardous waste sites are felt primarily at the
    state and local levels. The Governors are very supportive of the
    efforts that Senators John H. Chafee and Robert C. Smith have made to
    strengthen the role of states in this program. We appreciate the
    inclusion of options for both noncomprehensive and comprehensive
    delegation in the bill and feel that this allows for maximum
    flexibility to meet state needs and objectives. We especially support
    allowing states to operate their programs in lieu of the federal
    program. States need to be able to apply state applicable standards at
    any site without any cost differential.
        We cannot support allowing EPA to withdraw delegation on a site-by-
    site basis. Withdrawal of delegation should be consistent with the
    approval or rejection of a state's application for delegation. In
    addition, EPA should periodically review state performance instead of
    involving itself in site-by-site oversight.
        The Governors strongly support a 10 percent state cost share for
    both remedial actions and operations and maintenance and appreciate the
    inclusion of this provision in S. 8. However, we do not support any
    change that would require a state cost share for removal actions.
    States are not currently required to cost-share removals, and we would
    like to ensure that this remains the case.
        In addition, the Governors would like to express concern about the
    provision for states to petition the Office of Management and Budget
    (OMB) as a mechanism to deal with any cost shifts resulting from
    changes in liability. States must have assurance that adequate funding
    is available and that cost shifts will not be an issue.
                         selection of remedial actions
        The Governors believe that changes in remedy selection should
    result in more cost-effective cleanups; a simpler, streamlined process
    for selecting remedies; and a more results-oriented approach.
        As you know, allowing state applicable standards to apply at both
    National Priorities List (NPL) and state sites is an area of great
    importance to the Governors. We greatly appreciate and strongly support
    measures to allow state applicable standards and promulgated relevant
    and appropriate requirements (RARs) to apply to all site cleanups.
        The Governors agree with the importance of considering different
    types of land uses when determining cleanup standards and appreciate
    the inclusion of provisions in S. 8 that provide the opportunity for
    state and local control in making determinations of foreseeable land
    uses. We would like to ensure that, when appropriate, feasible, and
    cost-effective, the cleanup standards chosen allow for unrestricted use
    of the site. In addition, we would like to ensure that land-use
    decisions are not second-guessed by EPA.
        The Governors believe groundwater is a critical resource that must
    be protected. The use of state applicable standards and the opportunity
    for state and local authorities to determine which groundwater is
    actually suitable for drinking are essential during the remedy
    selection process. We appreciate the addition of language in S. 8
    offering greater protection for groundwater and surface water that is
    or could be used as a drinking water source and would like to recognize
    this provision of the bill as an area of significant improvement over
    last year's bill.
        The Governors recognize that there are some records of decision
    (RODs) that should be reopened because of cost considerations or
    technical impracticability. However, we believe the Governor should
    have the final decision on whether to approve a petition to reopen a
    ROD in a state. As we understand the bill, a Governor's decision to
    reject a petition can be denied by EPA's remedy review board. This is a
    provision we cannot support.
        Finally, as we understand Section 134(c)(1), EPA could release a
    responsible party from any and all future liability, including state
    and local laws, if a site is cleaned up and deemed available for
    unrestricted use. This represents a clear preemption of state law that
    we cannot support.
                                   liability
        The liability scheme employed in any hazardous waste cleanup
    program is critical to the success of that program. The current CERCLA
    liability scheme serves some purposes well. It has proved effective at
    encouraging better waste management, and it has provided resources for
    site cleanups. However, the current system has a history of leading to
    expensive litigation and transaction costs. Therefore, the Governors
    are not averse to changes in liability, though we are concerned with
    the resulting effects on the states.
        In general, we support the elimination of de minimis and de
    micromis parties and believe the liability of municipalities needs to
    be addressed. However, we question broader releases of liability for
    other categories of responsible parties. In any case, we would like to
    see convincing analysis that any changes in the liability scheme are
    adequately funded so that sites can continue to be cleaned up and so
    that there will be no cost shifts to the states.
        Further, we support the concept of an allocation process so that
    costs are assigned appropriately to responsible parties, but we need
    assurance that funding will be available for this process, including
    support for state allocation programs.
        Finally, as I mentioned earlier, we fully support a release of
    federal liability at non-NPL sites where a release of liability has
    been granted under state cleanup laws protective of human health and
    the environment. We greatly appreciate the addition of language in S. 8
    that addresses this issue.
                               federal facilities
        The Governors support legislation that ensures a strong state role
    in the oversight of federal facility cleanups. The double standard of
    separate rules applying to private citizens and the federal government
    has a detrimental effect on public confidence in government at all
    levels. Therefore, the Governors believe that federal facilities should
    be held to the same process and same standard of compliance as private
    parties. We would like to make sure that this is the intent of language
    in the bill that we have interpreted as allowing state applicable
    standards to be applied at federal facility sites in the same manner
    that they apply at non-federal facility sites.
        In addition, we believe that states should be able to obtain
    comprehensive delegation for federal facilities and that the self-
    certification process should be the same as for private sites. We
    believe this is not the case in S. 8 as written. Our interpretation is
    that federal facilities may be delegated to states, but that they must
    use the federal remedy selection process. We do not understand the
    justification behind this language.
        In addition, in virtually every other environmental statute,
    Congress has waived sovereign immunity and allowed qualified states to
    enforce state environmental laws at federal facilities. A clearer, more
    comprehensive sovereign immunity waiver should be proposed that
    includes formerly used defense sites. Several states have proposed
    language for this waiver.
                            natural resource damages
        The current natural resource damage provisions of CERCLA allow
    federal, state, and tribal natural resource trustees to require the
    restoration of natural resources injured, lost, or destroyed as a
    result of a release of a hazardous substance into the environment. The
    Governors feel this is an important program that must be maintained.
        Although this title is greatly improved from last year's bill,
    there are still a few issues of concern to the Governors. We urge you
    to strengthen the program by amending the statute of limitations to run
    three years from the completion of a damage assessment; removing the
    prohibition on funding natural resource damage assessments from the
    trust fund; and not eliminating the ability to receive compensation for
    nonuse damages.
                                 miscellaneous
        The Governors would like to respond to the provision in this title
    that limits new listings on the NPL to a specific number each year.
    Although this approach differs slightly from last year's provision to
    cap the NPL, we still feel that it greatly jeopardizes the intent of
    the Superfund program--namely, to clean up contaminated sites and
    protect human health and the environment. Further, by requiring the
    Governor's concurrence on any new listings, a sufficient and
    appropriate limitation is placed on new listings. We do not feel that
    further limitations are necessary. Because of differences in capacities
    among states, the complexities and costs of some cleanups, the
    availability of responsible parties, enforcement considerations, and
    other factors, the Governors are concerned about severe limitations on
    new listings. We need assurance that there will be a continuing federal
    commitment to clean up sites under such circumstances.
                                   conclusion
        The National Governors' Association would like to thank you for
    your hard work on this important program and for providing me with the
    opportunity to communicate the views of the Governors on Superfund
    reform. Again, the Governors are very supportive of the direction you
    have taken with this legislation, and we look forward to working with
    you to develop a bill that enjoys broad bipartisan support.
                                     ______

    Testimony of Karen Florini, Senior Attorney, Environmental Defense Fund
                                i. introduction
        On behalf of the Environmental Defense Fund and its 300,000
    members, I want to thank Chairman Smith, Ranking Member Lautenberg, and
    the other members of the Committee for this opportunity to discuss S.
    8, the ``Superfund Cleanup Acceleration Act of 1997,'' amending
    Superfund. 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 two Congresses.
        While EDF supports an improved Superfund program, we believe that
    S. 8 would weaken rather than strengthen the program. In many
    instances, the bill's ``cures'' are far worse than the problems they
    purport to address. S. 8 fails to acknowledge that the Superfund
    program today is faster and more streamlined than was the case in
    earlier years. According to EPA, cleanups have been completed (except
    for ongoing groundwater treatment) at some 400 sites; at nearly another
    500, construction is now underway. While many of these cleanups were
    too long in coming, S. 8 would either retard the pace of cleanups, or
    make them faster by cutting out essential safeguards.
        The bill's most objectionable features include provisions:
         Lputting polluters in charge of cleanups without effective
    government or public oversight, both at Superfund sites and at so-
    called ``voluntary'' cleanups sites (which may themselves be Superfund
    sites);
         Lletting costs to polluters trump community health and
    resource protection in choosing remedies;
         Ldumping cleanup problems on States, regardless of whether
    they can handle them;
         Lfurther retarding cleanups by reopening hundreds of
    existing decisions; and
         Lcreating new kinds of corporate welfare by rolling back
    liability even for many large industrial polluters who dumped waste at
    certain sites, and by requiring expansive ``polluter paybacks.''
        Accordingly, EDF strongly opposes S. 8.\1\ Some of our key concerns
    are detailed below.\2\
    ---------------------------------------------------------------------------
        \1\ There are certain elements of the bill we do support. These
    include dropping the existing requirement for matching contributions
    and allowing up-front payments for Technical Assistance Grants. [SCAA
    Sec. 301(a), adding CERCLA Sec. 117(f)(3)(A) & (B), p. 70].
        \2\ This testimony is by no means exhaustive. For example, EDF also
    has serious concerns about the Natural Resources Damages provisions in
    Title VII of S. 8; the structure of the allocation process and the
    number of sites at which it is mandated; the level of spending
    authorized by the bill, which is too low to permit the program to meet
    the additional burdens the bill imposes on it (e.g., orphan shares,
    allocations, etc.); and the 20% reduction that the bill imposes on the
    budget of ATSDR, which is charged with assessing public health at
    Superfund sites.
    ---------------------------------------------------------------------------
      ii. s. 8's remedy selection provisions: a recipe for crummy cleanups
        Among the most critical features of any Superfund bill are the
    provisions governing what standards actually apply to cleanups, and how
    specific cleanup decisions are made. S. 8 comes nowhere close to being
    acceptable on this count. Procedurally, it largely puts polluters in
    control; substantively, it sets inadequate cleanup standards that are
    further weakened by a variety of loopholes. Each flaw aggravates the
    other.
    A. Putting Polluters in Control of Cleanups.
        One of the most startling aspects of the bill is its sweeping use
    of default provisions, including those for default approval of
    polluter-written cleanup plans. Parties who are potentially liable
    under the statute (Potentially Responsible Parties, or PRPs) may
    prepare the Remedial Action Plan (RAP) if they want to do so; if EPA
    fails to take action within 180 days of the RAP's submission, ``the
    plan shall be considered to be approved and its implementation fully
    authorized'' [SCAA Sec. 404, adding CERCLA Sec. 133(b)(5)(F)(ii), p.
    121].
        Because EPA will have extremely limited resources to review these
    highly technical RAPs, PRP-written RAPs will be implemented without
    receiving adequate oversight. PRPs naturally have an incentive to save
    themselves money; this bill creates no countervailing mechanism through
    which remedies will be selected that actually protect communities, not
    just polluters' pocketbooks. Such cleanups will lack public
    credibility, and deservedly so. To make matters worse, EPA is only
    allowed to review ``the work plan, facility evaluation, proposed
    remedial action plan, and final remedial design'' [Sec. 133(a)(1)(C),
    p. 107]. These limitations could preclude EPA from reviewing important
    underlying data, rendering effective oversight impossible.
        It's as if taxpayers were invited to select their own tax bracket,
    with the IRS getting only 180 days to review the return. And if the IRS
    does reject a taxpayer's return, there are no penalties the taxpayer
    just has to prepare another return, which the IRS again only gets 180
    days to review!
        Simply put, default approvals of PRP-written plans are entirely
    unacceptable, particularly in a program as complex and controversial as
    Superfund. This ``cure'' is far worse than the delays sometimes
    occasioned by slow governmental review of cleanup proposals submitted
    by PRPs.
        These concerns are especially acute because EPA must allow a PRP to
    take the lead if the PRP demonstrates financial resources and
    ``expertise'' [Sec. 404, adding CERCLA Sec. 133(a)(1)(D)(i), p. 108-
    109]. Under these provisions, a PRP that hires a consulting firm could
    take the lead even if the company is under criminal indictment for
    illegal dumping at the site, or has a history of recalcitrance at other
    sites. Absolutely no consideration is given to whether the community
    has any confidence in the PRP.
        Moreover, even after a cleanup plan is adopted, PRPs can disregard
    it at will, since PRPs need not get prior approval of RAP
    modifications. Rather, the bill provides that if a PRP ``has deviated
    significantly'' from a RAP, EPA notifies the PRP, who at the PRP's
    option either complies with the RAP or submits a notice for modifying
    the plan [SCAA Sec. 404, adding CERCLA Sec. 133(c)(1), p. 124].
        In short, the PRP is at liberty to depart from the RAP: if it gets
    caught, it gets to choose whether to comply with the RAP or modify it.
    RAPs won't be worth the paper they're written on.
    B. Inadequate Cleanup Standards
                1. Overview
        S. substantive cleanup provisions are extremely weak. The basic
    cleanup goals are inadequate, and various loopholes undercut even those
    limited goals. The inadequacies in the goals are critical, because EPA
    can select only those cleanups that are ``cost effective'' in meeting
    the narrowly formulated goals [SCAA Sec. 402, amending CERCLA
    Sec. 121(a)(l)(A), p. 84].\3\ Particularly conspicuous is the absence
    of a goal of restoring land to productive use where doing so is
    practical.
    ---------------------------------------------------------------------------
        \3\ Although community views are to be taken into account, this
    applies only in choosing a remedial alternative ``from among
    alternatives that achieve the goals'' [SCAA Sec. 402, amending CERCLA
    Sec. 121(a)(1)(D), p. 93].
    ---------------------------------------------------------------------------
                2. The Overriding Role of Cost
        Before turning to specific deficiencies in cleanup goals, it must
    be noted that the bill expressly provides that all goals--even
    protection of community health--can be overridden based on cost
    considerations. Specifically, the bill provides that cleanup goals need
    not be met if doing so is ``technical infeasib[le],'' i.e., if ``there
    is no known reliable means of achieving at a reasonable cost'' the
    specified goals [SCAA Sec. 402, amending CERCLA Sec. 121(a)(2), p. 94-
    95]. ``Reasonable cost'' is not defined.
        This open-ended language is particularly outrageous given that the
    bill severely constrains EPA and public oversight of PRP cleanup
    decisions, leaving PRPs liberty to construe this term for themselves.
    In effect, PRP willingness to pay will become the determining factor in
    determining the stringency of remedies, including the level of health
    protection provided to communities. Such an approach is especially
    unacceptable with regard to health protection goals, as it is always
    possible to especially protect community health through relocation if
    by no other means.
                3. Additional Factors that Undercut Strong Cleanups
        Several additional factors further contribute to weak cleanups.
    First, the current preference for permanent treatment is wiped out,
    even for highly contaminated areas [SCAA Sec. 402, striking CERCLA
    Sec. 121(b), p. 83]. Instead, the bill expressly provides that
    institutional and engineering controls ``shall be considered to be on
    an equal basis with all other remedial action alternatives'' [SCAA
    Sec. 402, amending CERCLA Sec. 121(a)(5), p. 101]. Taken with the cost-
    effectiveness requirement, this means that put-up-a-fence remedies will
    prevail. Adding insult to injury, states may apply their own more-
    protective standards only by paying the incremental cost [SCAA
    Sec. 201, adding CERCLA Sec. 130(d)(3)(B)(ii), p. 44-45].
                4. Weaknesses in Specific Goals

    a. Health: Unprotective Goals Are Exacerbated by Flawed Risk Assessment
                                 Provisions.\4\
    ---------------------------------------------------------------------------

        \4\ The bill also fails to address the inherent underlying flaw in
    risk assessment as it is currently practiced: contaminants are presumed
    to be safe absent considerable information, both qualitative and
    quantitative, about toxicity. Current risk assessments also make no
    pretense at evaluating synergistic effects of multiple contaminants.
    These deficiencies mean that decisions based on risk assessments are,
    at best, of uncertain protectiveness.
    ---------------------------------------------------------------------------
        S. 8 fails to establish a national uniform cleanup goal that would
    assure communities around the country of a baseline level of
    protection. Instead, the bill sets an explicit cancer risk-range goal
    that spans two orders of magnitude (one in a million to one in ten
    thousand [SCAA Sec. 402, amending CERCLA Sec. 121(a)(1)(B)(i)(I), p.
    85]. The requirement to use a ``cost-effective'' remedy option, along
    with the fact that cleaning up more-stringently is inherently costlier
    than cleaning up less-stringently, means that as a practical matter the
    one-per-ten-thousand standard will always prevail.
        In addition, the bill's risk-assessment provisions are written in a
    way that may undercut protection. For example, the bill requires use of
    ``central estimates'' of risk [SCAA Sec. 403, adding CERCLA
    Sec. 131(c)(3), p. 104-105]. This tilts risk assessment toward
    considering the average risk to the average individual and fails to
    assure protection of those who are highly exposed or highly
    susceptible, such as children, those with chronic diseases, and others
    such as subsistence farmers and fishers. Any legislation must expressly
    require evaluation of risks to groups with higher exposure or
    susceptibility than average, so as to ensure that cleanup plans--
    including those written by polluters--cannot ``overlook'' them.
        Concerns also arise from the bill's emphasis on evaluating
    exposures ``considering the actual or planned or reasonably anticipated
    future use of the land or water resources'' in facility-specific risk
    evaluations [SCAA Sec. 403, adding CERCLA Sec. 131(b)(1), p. 103].
    While it may be appropriate to consider future land use, there are two
    major problems with the approach taken in S. 8. First, the bill
    apparently focuses solely on current and future use of the site itself,
    ignoring the uses of neighboring parcels even though many Superfund
    sites directly adjoin residential neighborhoods. Superfund must protect
    the health of site neighbors, not just individuals who will be present
    on the site itself, given the well-documented ability of contaminants
    to migrate off-site (e.g., as wind-blown contaminated dust or as
    vapors).
        Second, the bill defines a ``reasonably anticipated future use'' as
    one that the local land use planning authority, in conjunction with the
    community response organization, determines has ``a substantial
    probability of occurring based on recent (as of the time of the
    determination) development patterns in the area in which the is located
    and on population for the area'' [SCAA Sec. 401, amending CERCLA
    Sec. 101(41)(B)(i)(II), p. 82]. As discussed below in section II.B.4.d,
    this is an unworkable standard--and one that may well lead to cleanups
    that turn out to be inadequate following land-use changes that were
    plausible but didn't rise to the ``substantial probability'' level.
        More generally, the role of facility-specific risk assessments is
    also confusing at best and profoundly disturbing at worst. Under the
    bill, cleanups are to meet the specific cleanup goals and comply with
    other applicable laws ``on the basis of a facility-specific risk
    assessment'' [SCAA Sec. 402, amending CERCLA Sec. 121(a)(1)(A), p. 84].
    The bill is silent as to what happens if a PRP's risk assessment
    purports to find that complying with applicable standards is not
    necessary in order to meet the cleanup goals. Even apart from these
    substantive concerns, allowing the validity of applicable standards to
    be rehashed at every Superfund site is a guaranteed way of delaying
    cleanups, increasing transaction costs, and infuriating communities.
        Moreover, the bill provides PRPs with ample opportunities to
    manipulate risk assessments in a direction that minimizes their cleanup
    costs. The bill calls for use of ``the most scientifically
    supportable'' assumptions [SCAA Sec. 403, adding CERCLA Sec. 131(c)(3),
    p. 105], potentially allowing challenges to default assumptions that
    are, as a matter of sound public health policy, intentionally crafted
    to be protective in the face of scientific uncertainty. Likewise, the
    bill calls for using ``chemical and facility-specific data . . .  in
    preference to default assumptions'' [SCAA Sec. 403, adding CERCLA
    Sec. 131(b)(3), p. 103]. Even a single data-point, or data of
    questionable reliability, could be used to replace protective defaults.
    As a result, risk assessments could seriously understate risks.\5\
    ---------------------------------------------------------------------------
        \5\ In addition, the bill calls for comparisons of ``risks from the
    facility to other risks commonly experienced by the community'' [SCAA
    Sec. 403, adding CERCLA Sec. 131(c)(4) p. 105]. The approach ignores
    critical attributes such as whehter those other risks are also
    involuntary, allowing PRPs to produce risk characterizations that
    ignore critical factors.
    ---------------------------------------------------------------------------

              b. Environment: A Scientifically Unworkable Standard

        The bill's stated environmental goal is protecting ``ecosystems
    from significant threats to their sustainability'' [SCAA Sec. 402,
    amending CERCLA Sec. 121(a)(1)(B)(ii), p. 85], and sustainability is
    defined as ``the ability of an ecosystem to continue to function within
    the normal range of its variability absent the effects of a release of
    a hazardous substance'' [SCAA Sec. 401, adding CERCLA Sec. 101(42), p.
    83]. The bill thus puts on the government the burden of demonstrating
    that particular contaminants threaten ecosystem sustainability. That
    burden is likely to prove unmanageable in many instances, not only
    because of the scarcity of federal and state resources, but also
    because of current limits of scientific knowledge. As a result,
    resources will be written off during Superfund cleanups not because
    they truly lack value, but because there is not enough evidence to
    demonstrate their impact on sustainability.

            c. Groundwater: An Illusory Goal of Resource Protection

        Although the bill nominally protects uncontaminated groundwater as
    a resource, this is illusory. Four provisions of the bill undercut the
    no-contamination provision:
         LFirst, the ``reasonable cost'' loophole [SCAA Sec. 402,
    amending CERCLA Sec. 121(a)(2)(B)(i), p. 95], which will allow PRP-
    written cleanup plans to declare that avoiding contamination is too
    expensive;
         LSecond, the ``natural attenuation'' loophole, bill's
    provision that expressly allows natural attenuation where it won't
    interfere with anticipated future use [SCAA Sec. 121(a)(4)(C), p. 97],
    despite the inherent uncertainties of predicting when groundwater will
    be needed;\6\
    ---------------------------------------------------------------------------
        \6\ Even assuming agruendo that natural attenuation may sometimes
    be appropriate, the bill conspicuously fails to include appropriate
    safeguards, such as thorough characterization of all contaminants,
    ongoing monitoring to assure that attenuation occurs as expected, and
    designation of fall-back approaches if attenuation fails or if the
    water is needed earlier than was originally anticipated.
    ---------------------------------------------------------------------------
         LThird, the bill's express proviso that engineering and
    institutional controls ``to be considered on an equal basis with all
    other remedial action alternatives'' [SCAA Sec. 121(a)(5), p. 101]; and
         LFourth, the bill's express proviso allowing point-of-use
    treatment devices [SCAA Sec. 121(a)(4)(D)(iv)(II), p. 99-100].\7\
    ---------------------------------------------------------------------------
        \7\ Point-of-use systems (whether at individual homes or at
    municipal facilities) simply let contamination continue to spread
    unchecked, forcing public and private well owners to either conduct
    costly testing in perpetuity or gamble that their wells won't be hit by
    a contaminated groundwater plume. Should such contamination occur, it
    will persist for dozens or hundreds of years. While point-of-use
    devices may be the only practical option in some circumstances, they
    should be the last, not the first, resort. Moreover, At-tap treatment
    systems force homeowners to obtain and install replacement filters
    periodically, a chore many families lack time to add to their busy
    schedules.
    ---------------------------------------------------------------------------
        The upshot will be that PRPs will be able to claim that preventing
    contamination is too expensive compared to waiting until the water
    cleans itself up, forbidding its use, or sticking a filter on the tap.
    In short, the bill fails to protect groundwater as a resource for
    future generations.
        In essence, under the natural attenuation loophole, clean
    groundwater is allowed to get dirty in the hope that it will clean
    itself back up before the water is needed. This approach implicitly
    assumes that it is possible to reliably project (i) long-term
    groundwater flows, (ii) long-term attenuation patterns, and (iii)
    future groundwater needs. In actuality, each of these is uncertain at
    best; taken together, they amount to Congressional endorsement of
    gambling with groundwater. Decision makers can only reliably predict
    future groundwater movement, and future groundwater needs,\8\ for a
    handful of years at a stretch. Absent the rare case where natural
    attenuation can confidently be predicted to restore groundwater within
    an equally short time frame, these ``remediation'' techniques should be
    used only if no others are available. These provisions are especially
    objectionable because they would apparently ``trump'' state groundwater
    laws that require protection of uncontaminated groundwater as a
    resource (i.e., without having to be specifically identified as a
    future source of drinking water within a particular time).
    ---------------------------------------------------------------------------
        \8\ The ``delisting'' provisions of section 134 [p. 130] are
    ambiguous, but it is far from clear that PRPs would be responsible for
    securing alternate water supplies if groundwater covered by an
    attenuation remedy is needed earlier than initially anticipated.
    ---------------------------------------------------------------------------
        Finally, by weakening Superfund's groundwater cleanup provisions,
    the bill undercuts important incentives for currently managing wastes
    in a way that protects groundwater. Anyone familiar with the current
    hazardous-waste regulatory system is painfully aware that innumerable
    wastes, though hazardous in fact, are not now regulated as hazardous.
    Superfund's aggressive groundwater cleanup requirements help prompt
    responsible behavior today, and need to be maintained.

             d. The Missing Goal: Restoring Land to Productive Use

        An especially notable weakness of the goals is the one that simply
    isn't there: restoring land to productive use when doing so is
    feasible. Moreover, the interplay of several provisions will operate to
    discourage returning land to productive use. As noted above, in the
    absence of a land-resource goal, the requirement to use a cost-
    effective remedy and the proviso that institutional and engineering
    controls ``shall be considered to be on an equal basis with all other
    remedial action alternatives'' [SCAA Sec. 402, amending CERCLA
    Sec. 121(a)(5), p. 101] means that put-up-a-fence remedies are likely
    to prevail.
        The fundamental problem is the bill's heavy emphasis on
    containment-based remedies--remedies that inherently limit a site's
    potential availability for future redevelopment. Even assuming that
    such remedies effectively protect health if appropriately maintained,
    they restrict the community's flexibility to use that land over time:
    if a site is capped with contamination in place, that cap must then be
    maintained in perpetuity. Doing so generally rules out excavation and
    construction activities. While containment-based remedies may make
    sense in a limited set of circumstances, they should not be the remedy
    of first choice given that they deprive communities of future
    flexibility in using the site.
        For instance, suppose a particular community wanted to be able to
    use a site that is now a Superfund site and, like most Superfund sites,
    not currently used--for an industrial park following a cleanup.
    Surrounding properties are also industrial, but no developer has
    expressed a specific interest in redeveloping that particular site. The
    PRPs have proposed a cleanup under which the site would be capped, with
    the cap maintained for the indefinite future, thus (supposedly)
    avoiding human exposure. The PRPs argue that such a plan is consistent
    with the land uses allowed to be considered under Sec. 121: the actual
    use (here, no current use); the planned use (here, no current plans
    exist); or the ``reasonably anticipated future use,'' defined as one
    that has a ``substantial probability of occurring'' (here, none
    specifically identified). Further, suppose that capping the site is
    substantially cheaper than to treating or removing the contaminated
    materials.
        In such a scenario, the cap would apparently be selected as a cost-
    effective remedy that meets the bill's narrowly defined goals. At the
    end of the process, however, the community would be left with a
    permanent dead zone that cannot be put to productive use. The PRPs may
    be better off, but the community has not shared those benefits.\9\
    ---------------------------------------------------------------------------
        \9\ As noted above, the ``community acceptability'' criterion for
    remedy section [SCAA Sec. 402, amending CERCELA Sec. 121(a)(1)(D), p.
    93] does not alleviate this problem, because those criteria are to be
    used in selecting between remedies that meet the goals. In any event,
    individual criteria are not permitted to predominate in choosing from
    among alternatives.
    ---------------------------------------------------------------------------
        The scenario spelled out here may well prove to be the rule rather
    than the exception. Many Superfund sites are abandoned industrial
    properties. Only rarely will a developer have proceeded far enough that
    a potential redevelopment will be the ``planned'' use for a site
    following cleanup. Similarly impractical is the criterion that a
    particular use has ``a substantial probability of occurring.''
        Rather than this convoluted and unworkable approach, the bill
    should establish an explicit objective of returning land to productive
    use where technologically and economically feasible. That approach will
    provide communities with the flexibility they need to grow and prosper
    through redevelopment for years and decades into the future.
        Such redevelopment often occurs in ways that may not be easily
    ``anticipated'' and even a few years ago would not have been viewed as
    having ``a substantial probability of occurring.'' For example:
         LThe New York Times recently described significant urban
    redevelopment that was not envisioned, and indeed was sometimes
    marginally legal, under the City's zoning regulations (but occurred
    nonetheless and reportedly has proven largely beneficial).\10\
    ---------------------------------------------------------------------------
        \10\ K. Johnson, ``Where Zoning Law Failed, Seeds of a New York
    Revival. New York Times, p. 1, April 21, 1996.
    ---------------------------------------------------------------------------
         LSimilarly, the Christian Science Monitor has reported on
    the growing phenomenon of ``infill development.''\11\ A recent article
    cites efforts underway in San Jose, California; Portland, Oregon;
    Boulder, Colorado; and Minneapolis--St. Paul, where ``[t]he idea is to
    shift growth to the inner part of a city, using vacant or
    underdeveloped areas for new housing and businesses.''
    ---------------------------------------------------------------------------
        \11\ D. Sneider, ``To Halt Sprawl, San Jose Draws Green Line in
    Sand,'' Christian Science Monitor, April 17, 1996.
    ---------------------------------------------------------------------------
         LMore generally, significant portions of the U.S.
    experienced more than 25% population growth in their metropolitan areas
    in the single decade following Superfund's enactment in 1980.\12\
    ---------------------------------------------------------------------------
        \12\ A few statistics help illustrate how dramatically land uses
    change in a few decades. Urban areas in America have expanded from 15.5
    million acres in 1960 to over 56.6 million acres in 1987. U.S. Dept. of
    Agriculture, Economic Research Service (1991), Major Uses of Land in
    the United States: 1987, p. 33, Agricultural Economic Rep. No. 643.
        During the first decade following Superfund's enactment, the
    population in the Western U.S. grew by 22.3%, an increase of nearly 10
    million people. United States Bureau of the Census (1994), Statistical
    Abstract of the United States: 1994 (114th Edition), p. 27. The state
    of California alone accounted for 25% of the total national growth,
    increasing its population by over 6 million; its urban land area grew
    from 4.2 million acres to over 5.2 million acres. U.S. Department of
    Agriculture (1991), Major Uses of Land in the United States: 1987, p.
    33.
        On a more localized basis, the 10 years after Superfund became law
    saw the Los Angeles' metropolitan area population expand by 26% (3
    million people), while the Phoenix metropolitan area increased by
    almost 40%, and the Las Vegas metropolitan area increased by 61.5%.
    U.S. Bureau of the Census (1994), Statistical Abstract of the United
    States: 1994, Fig. No. 42. Many smaller cities of the region also
    showed substantial expansion, with cities such as Reno, Modesto,
    Sacramento, and Tucson all experiencing growth between 25% and 40%.
    Ibid.
        See also, Testimony of EDF on Superfund Reauthorization before the
    House Committee on Transportation and Infrastructure's Subcommittee on
    Water Resources and the Environment, June 21, 1995.
    ---------------------------------------------------------------------------
        In short, S. 8's narrow approach to future land use invites, and
    even forces, communities to be short-sighted. This may save PRPs money,
    but the costs thus saved are shifted to our children.
                5. The ``Voluntary'' Cleanups Loophole for Superfund Sites
        Under S. 8, site-specific state remedial action plans (RAPs)
    override all CERCLA enforcement authorities [SCAA Sec. 103, adding
    CERCLA Sec. 129(a), p. 18]. Apparently, such RAPs need not even be
    issued under a qualifying state voluntary response program [SCAA
    Sec. 102, adding CERCLA Sec. 128, p. 15],\13\ but rather can be any
    document designated by any state as a RAP--regardless of whether there
    has been any public participation whatsoever in development of that
    RAP, regardless of whether there have been any effective state review
    of a polluter-written RAP, regardless of whether RAP will be
    protective, regardless of whether the RAP is actually being complied
    with, and even regardless of whether the state has the legal or
    practical capacity to enforce the RAP. Once a state RAP exists, EPA is
    barred from acting even where a site presents an imminent and
    substantial endangerment to health or the environment (save by using
    the Fund, without cost-recovery). This approach is indefensible.
    Apparently, even current Superfund sites (i.e., those already listed on
    the National Priorities List), as well as sites proposed for NPL
    listing, can be thus removed from Superfund's ambit.
    ---------------------------------------------------------------------------
        \13\ In order to obtain technical assistance funds from EPA, state
    voluntary programs must meet certain criteria such as ``adequate
    opportunities for public participation, including prior notice and
    opportunity for comment in appropriate circumstances, in selecting
    response actions,'' and ``oversight and enforcement authorities or
    other mechanisms that are adequate to ensure that voluntary response
    actions will protect human health and the environment [SCAA
    Sec. 102(b), adding CERCLA Sec. 128(b)(2), (4), p. 15]. However, this
    provision is independent of the CERCLA override in section 129. To add
    to the confusion, states apparently may self-designate as having a
    qualifying voluntary response program; there is no mechanism for EPA
    review of whether state program actually has the required elements, nor
    any opportunity for public participation in determining the adequacy of
    a state program. Furthermore, the ``as appropriate'' qualifier for
    public participation means that the level of public participation is
    left to the State's whim.
    ---------------------------------------------------------------------------
        There are no substantive standards whatsoever for state RAPs.
    Unless a state opts to establish regulations, each site's plan will be
    issued an ad hoc basis with no baseline standards to assure the safety
    or adequacy of cleanups,\14\ meaningful public participation, judicial
    review, or any other safeguard. Tens or hundreds of thousands of sites
    may be dealt with on an ad-hoc basis, making effective public oversight
    completely impossible even apart from the fact that the bill makes no
    provisions for community technical assistance. And meanwhile,
    Superfund's authorities are banished.
    ---------------------------------------------------------------------------
        \14\ The only exception is that NPL and NPL-proposed sites must
    ``implement applicable provisions [CERCLA] or of similar provisions of
    State law in a manner comporting with State policy'' so long as the
    remedy protects health and the environment as specified in Sec. 121
    [SCAA Sec. 102(b), adding CERCLA Sec. 128(c), p. 17]--provisions that
    are non-protective, as discussed above. Moreover, nothing requires
    compliance with CERCLA's public participation mechanisms.
    ---------------------------------------------------------------------------
        We strongly oppose these sweeping and unjustifiable limits on
    Superfund authority. While carefully crafted liability relief for
    prospective purchasers may well be desirable (assuming community
    participation rights are assured), wholesale roll-backs of Superfund
    authorities for a large but amorphous range of sites are indefensible.
    They are also unnecessary: the private market is increasingly providing
    mechanisms for moving forward brownfield redevelopment today, with
    Superfund in place.\15\
    ---------------------------------------------------------------------------
        \15\ See 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].
    ---------------------------------------------------------------------------
    iii. shutting the public out: weaknesses in s. 8's public participation
                                   provisions
        Numerous provisions of S. 8 undercut meaningful and effective
    public participation in cleanup programs, such as the state delegation
    provisions of Title II (and, as discussed in section II.B.5 above, the
    ``voluntary cleanup'' provisions of Title I). Moreover, the explicit
    public participation provisions in Title III have a number of
    weaknesses. And ultimately, of course, public participation is
    meaningless if the bill's key provisions on the quality of cleanups are
    inadequate.
        In addition to the problems noted below, S. 8 fails to strengthen
    public participation adequately. Specifically, it fails to require EPA
    to provide reasonable public notice and a public hearing (if requested)
    before critical steps in the cleanup process, including undertaking the
    health assessment, preliminary assessment and site investigation; and
    completing the facility work plan. S. 8 also fails to provide for the
    creation of state-wide organizations to ensure wide dissemination of
    information about toxic sites in a community-friendly manner. Creating
    citizen-run state-wide organizations would be an important step toward
    ensuring that those living next to or on toxic dump sites have the
    necessary tools at their disposal to make sound judgments about the
    future of their communities.
    A. Shutting the Public Out of State Delegation Decisions
        Under S. 8, states can obtain delegation of one or more of 5
    categories of authorities\16\ [SCAA Sec. 201(a), adding CERCLA
    Sec. 130(a)(2), p. 32-34]. EPA has 60 days to approve or disapprove a
    petition for delegation (120 days for 8 states without RCRA corrective
    action authority) [SCAA Sec. 201(a), adding CERCLA Sec. 130(c)(3)(A),
    p. 39]. If EPA doesn't act in that time, the delegation petition is
    approved by default [Sec. 130(c)(3)(B), p. 40].
    ---------------------------------------------------------------------------
        \16\ These include investigation/evaluation; alternatives
    development/remedy selection; remedial design; performance of remedial
    action; information collection/liability allocation. EPA cannot
    delegate research and development, or issuance of community Technical
    Assistance Grant [Sec. 130 (a)(8), p. 36].
    ---------------------------------------------------------------------------
        Conspicuous by its absence is any provision for public
    participation in EPA review of state program adequacy, and the
    ridiculously short time limits preclude meaningful participation in any
    event. To make matters worse, once a state obtains delegated authority,
    EPA's hands are largely tied absent state concurrence even if the state
    is failing to act and thus delaying cleanup at the site, or if state
    actions are not protective [SCAA Sec. 201(a), adding 130(e)(5), p.
    54].\17\ S. 8's delegation provisions are thus doubly deficient.
    ---------------------------------------------------------------------------
        \17\ Otherwise, EPA may act only upon determining that ``an
    emergency * * * poses an immediate and significant danger'' [SCAA
    Sec. 201(a), adding 130(e)(4)(C), p. 54]. This is a new statutory
    standard of uncertain meaning that will give rise to litigation and
    retard swift preventive action.
    ---------------------------------------------------------------------------
    B. Shutting the Public Out through Inadequate Technical Assistance
            Provisions
        Under S. 8, Technical Assistance Grants (TAGs) are limited to a
    $100,000 cap, with no exceptions [SCAA Sec. 301(a), adding CERCLA
    Sec. 117(f)(7)(B), p. 72] even though many of the remedies likely to be
    selected under the bill will be institutional controls or natural
    attenuation remedies for which long-term community oversight would be
    needed. In addition, TAGs are limited to sites listed on or proposed
    for the NPL, or on a State Registry [Sec. 117(f)(5), p. 70].\18\ TAGs
    cannot be used for collecting field samples [Sec. 117(f)(8)(B), p. 73],
    so if PRPs take inadequate samples, the community will lack resources
    to collect appropriate samples.
    ---------------------------------------------------------------------------
        \18\ The term ``State Registry'' is not defined, but some states
    have very limited registries. In addition, nonlisted sites are limited
    to 1/8th of all TAGs [Sec. 117(f)(6)(B), pp. 71-72].
    ---------------------------------------------------------------------------
        Moreover, the ``preferred'' recipient of a technical assistance
    grant is the ``Community Response Organization,'' if any
    [Sec. 117(e)(5)(A), p. 66].\19\ This restriction may exclude local
    environmental or community groups with a greater need for, or ability
    to use, a TAG.
    ---------------------------------------------------------------------------
        \19\ CROs will have 15 to 20 members including local residents,
    local medical personnel, public interest groups, local governmental
    officials, and local businesses. ``Local residents''--but not
    necessarily those most heavily affected by the site--are to comprise at
    least 60% of the members [Sec. 117(e)(6)(C) & (D), pp. 67 & 68].
    ---------------------------------------------------------------------------
        Finally, it appears that the funds made available for TAGs may be
    grossly inadequate. The authorization for Technical Assistance Grants
    is only $15 million through 2002 [SCAA Sec. 906, adding CERCLA
    Sec. 111(t), p. 258]. On average, that's $11,500 per site an amount
    clearly insufficient, particularly given the widespread availability of
    re-openers for many sites with already-decided cleanups. (This
    provision appears to be inconsistent with another under which 2% of
    annual appropriations, or roughly $28 million annually, may be used for
    TAGs [SCAA Sec. 301, adding CERCLA Sec. 117(f)(6), p. 70].)
    C. Shutting the Public Out of Cleanup Decision Revisions\20\
    ---------------------------------------------------------------------------
        \20\ Even for future cleanup decisions, S. 8 unjustifiably provides
    differential access to decision makers. Specifically, although PRPs who
    prepared a cleanup plan or are implementing a cleanup can get the plan
    reviewed by the Remedy Review Board, the community is not able to
    initiate Board review [SCAA Sec. 404, adding CERCLA
    Sec. 133(a)(5)(E)(ii), p. 118]. White the PRPs are able to meet with
    the Board, the community is not [Sec. 133(a)(5)(E)(v), p. 120]--even
    though the Administrator is required to give ``substantial weight'' to
    the Board's determination as to whether the remedy meets the cleanup
    requirements, is feasible, and is reasonable in cost
    [Sec. 133(a)(5)(E)(iv) & (v)(II), pp. 119-120]. Such differential
    access is unjustifiable.
    ---------------------------------------------------------------------------
        As discussed in section IV.B below, provisions for widespread
    reopening of existing cleanup decisions essentially eliminate
    opportunities for meaningful public participation. Given that review
    boards are to complete their review within 180 days \21\ [SCAA
    Sec. 406, adding CERCLA Sec. 135(b)(2)(A), p. 134], communities will
    not be able to participate meaningfully. This is particularly true at
    sites where no Technical Assistance Grant is currently in effect. Even
    where TAGs are already in place, the flood of simultaneous petitions
    will make it impossible for the limited number of community-oriented
    technical experts to provide effective support at the large number of
    sites where reopener petitions are likely to be filed.\22\
    ---------------------------------------------------------------------------
        \21\ The Administrator may extend this period ``for good cause.''
        \22\ As noted in section IV.A., EDF strongly opposes the ROD
    reopener provisions on a variety of grounds beyond public participation
    concerns.
    ---------------------------------------------------------------------------
        Similarly, as discussed in section II.A above, PRPs are at liberty
    to ignore RAPs until EPA catches them at it--and then have the option
    of changing the remedy or of conforming to the original one. Such
    provisions for after-the-fact changes to cleanup decisions render
    community participation little more than a mirage.
    D. Shutting the Public Out through Silent Vetoes
        Yet another way the public is shut out of meaningful participation
    arises from provisions under which new sites can be added to the
    Superfund list ``only with the concurrence of the Governor of the
    State'' in which the sites is located. [SCAA Sec. 802, adding CERCLA
    Sec. 105(i)(3), p. 253]. Similarly, State can block any administrative
    cleanup order under Sec. 106 by failing to concur within 90 days
    (orders automatically expire after 90 days without state concurrence)
    [SCAA Sec. 103, adding CERCLA Sec. 129(a), p. 18].
        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 an NPL listing or a 106 order even though the site will
    not otherwise be cleaned up. The State need not even give any reasons
    for failure to concur, inviting potential abuses (if, for example, a
    major PRP at the site also happened to be a campaign contributor to a
    high-ranking State official). Moreover, these provisions invite
    creation of ``pollution havens'' by Governors seeking to lure business
    from other states by declaring an indefinite moratorium on NPL
    listings. EPA should defer to a state only upon affirmatively
    determining that the State will conduct an adequate, timely cleanup
    absent the listing or 106 order.
                             iv. superfund slowdown
    A. Slowdowns Through Weak and Ambiguous Cleanup Provisions
        Though styled the ``Superfund Cleanup Acceleration Act,'' S. 8
    ironically contains a host of provisions that will delay cleanups by
    introducing confusing (and weak) new standards for cleanups, as
    discussed in section II.B above. For example, the bill is replete with
    new terms that invite lengthy argument, e.g., whether assumptions used
    in the risk assessment are ``the most scientifically supportable;''
    whether a particular projected land use has ``a substantial probability
    of occurring based on recent development patterns''; whether particular
    substances pose ``significant threats to [ecosystems']
    sustainability.'' Cleanups will be delayed while these and other new
    terms are endlessly debated.
    B. Slowdowns from ``Re-opener'' Petitions
        S. 8 also expressly invites the filing of petitions to reopen (and
    weaken) existing cleanup decisions, potentially several hundred of
    them, with attendant diversion of resources from ongoing cleanup
    efforts. These reopener provisions are as unnecessary as they are
    poorly constructed. EPA already has ample discretionary authority to
    consider requests to modify existing cleanups decisions where
    particular circumstances warrant.
        The bill's reopener provisions are unwieldy and unworkable.\23\
    Within 90 days of the bill's enactment, the implementor of a current
    cleanup decision may petition to substitute an alternate remedial
    action. The petition must be granted if the proposal satisfies Sec. 121
    and meets certain cost thresholds [SCAA Sec. 406, adding CERCLA
    Sec. 135(b)(3) & (4), pp. 137-141]. For pre-construction sites, the
    cost threshold is $1.25-$2.5 million, depending on cost and type of
    cleanup [Sec. 135(b)(3)(B) & (4)(B), pp. 137 & 140], but no threshold
    applies ``if the petitioner demonstrates that technical data generated
    subsequent to the issuance of the [ROD] indicates that the decision was
    based on faulty or incorrect information'' [Sec. 135(B)(3)(D), p.
    139].\24\
    ---------------------------------------------------------------------------
        \23\ Re-opener petitions are to be reviewed by ``remedy review
    boards'' comprised of ``independent technical experts within Federal
    and State agencies'' with cleanup responsibilities [Sec. 135(b)(1), p.
    134, referencing Sec. 133(a)(5)(E), p. 118-120].
        \24\ Factors that may be raised in such petitions include future
    land use [SCAA Sec. 135(b0(3)(c), p. 138]; it is not clear what if any
    role the community would play in determining future land use.
    ---------------------------------------------------------------------------
        Hundreds of existing cleanup decisions may be eligible for
    reopening; at the least, PRPs will be able to flood EPA with petitions
    that will have to be reviewed to see if they in fact cross the cost
    thresholds, much less meet the other criteria. The associated resource
    drain will slow cleanups across the board; make it all the more likely
    that EPA won't be able to meet the 180-day turnaround for new RAPs thus
    triggering default approvals; and encourage PRPs to drag their heels in
    carrying out an existing cleanup at a particular site in hopes of
    getting it revamped.
        Moreover, the generous opportunities given to PRPs to force EPA to
    reopen decisions and apply this bill's weaker standards forms a
    dramatic contrast with the lack of analogous reopeners when Superfund's
    standards were strengthened in the 1986 amendments. There, the bill as
    enacted expressly provided that the new standards ``shall not apply to
    any remedial action for which the Record of Decision was signed, or the
    consent decree was lodged, before date of enactment,'' while RODs
    signed within 30 days of enactment were required to meet the new
    standards ``to the maximum extent practicable.''\25\
    ---------------------------------------------------------------------------
        \25\ This provision, enacted as section 121(b) of the Superfund
    Amendments and Reauthorization Act of 1986, was not codified but
    appears as a note to 42 U.S.C.A. 9621. Pub. L. No. 499, 99th Cong., 2d
    Sess. 100 stat. 1613, 1678.
    ---------------------------------------------------------------------------
        Simply put, S. 8's re-opener provisions should be dropped.
           v. the npl cap: dumping cleanups on communities and states
        Another highly objectionable feature of the bill is its inclusion
    of an arbitrary cap on the number of additional sites that can be added
    to the National Priorities List. Under S. 8, EPA cannot add more than
    100 sites to the Superfund National Priorities List until 2001, and
    then 10 sites/year thereafter [SCAA Sec. 802, adding CERCLA
    Sec. 105(i)(1)(A), p. 251-252]. A cap has profound consequences
    because, unless a site is listed, EPA cannot undertake cleanup
    activities (other than a short-term, low-cost emergency removal). In
    effect, this provision dumps the problem of Superfund site cleanups
    into the laps of the States--regardless of whether they have the
    resources or capacity to conduct those cleanups.
        The General Accounting Office recently estimated that the cap could
    force States to accept responsibility for 1,400 to 2,300 sites (1,100
    already identified by EPA, along with an estimated 300-1,200 yet-
    undiscovered sites). The estimated cleanup costs range from $8.4 to
    $19.9 billion.\26\
    ---------------------------------------------------------------------------
        \26\ U.S. General Accounting Office, Impact on States of Capping
    Superfund Sites. GAO/RCED-106R. March 1996.
    ---------------------------------------------------------------------------
        The GAO report makes painfully clear that the States are in no
    position to take on this added burden. Indeed, States are having
    difficulty securing resources for their current cleanup efforts. Of the
    states surveyed by GAO,

        L``three of the seven states with active programs said that taking
    on these additional cleanups would exacerbate an already difficult
    financial situation. Two other states said that they expect to face
    funding shortfalls beginning in fiscal year 1997 that will make it
    difficult to absorb the additional cleanup responsibilities, at least
    for a few years subsequent to that time. Another two states said that
    while they had sufficient funds to manage their own inventories,
    funding the additional cleanups would be difficult.''\27\
    ---------------------------------------------------------------------------
        \27\ Ibid., p. 2.

        This provision also undercuts two of the valuable incentives
    created by Superfund: that which prompts voluntary cleanup of non-NPL
    sites in order to avoid a potential future NPL listing, and that which
    prompts careful management of wastes generated now.
        An example of Superfund's effectiveness in the former arena emerges
    from a recent story in the Cleveland Plain Dealer about the Ashtabula
    River Partnership, a group that is working to avoid a potential
    Superfund listing by creating ``a better-than-Superfund cleanup plan''
    for the river's heavy-metal and PCB contamination problems. The paper
    quoted Rep. Steve LaTourette (R-OH) as remarking that ``[t]he prospect
    of a Superfund designation has proven to be a more effective tool than
    the Superfund itself. Without Superfund, however, most parties wouldn't
    even be at the table.''\28\
    ---------------------------------------------------------------------------
        \28\ ``Toxic Cleanup: Ohioans Aim to Skirt Superfund Listing,''
    Greenwire (electronic newsletter), June 14, 1995 (synopsis of story
    from June 11 Cleveland Plain Dealer).
    ---------------------------------------------------------------------------
        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.\29\ In short, a cap on the number of Superfund
    sites may have the perverse effect of creating a greater need for more
    Superfund listings, by reducing incentives for non-Superfund voluntary
    cleanups.
    ---------------------------------------------------------------------------
        \29\ GAO, p. 3.
    ---------------------------------------------------------------------------
        The NPL cap will also undercut incentives for sound prospective
    waste management. Facilities will be able to gamble that states will
    lack, or forego use of, cleanup enforcement authorities for tackling
    sites created after the NPL list is effectively closed. The continuing
    nominal availability of litigation authorities under Sec. 107 is far
    from an adequate substitute, given that Sec. 107 suits can only be
    brought to recoup expenditures thus requiring cash-strapped States to
    front all the cleanup money. Where they are unable to do so, today's
    polluters will evade cleanup responsibilities, and sites will remain
    unaddressed.
        In short, the cap should be eliminated.
     vi. overly broad liability ``reforms'': corporate welfare by another
                                      name
        There is no dispute that Superfund's existing liability system has
    often been abused by some PRPs who have filed massive contribution
    actions against entities with minimal or no connection to the site.
    Curbing these abuses is necessary, but does not necessarily require
    legislation, since EPA clearly has ample authority to provide
    contribution protection to settling parties.
        Even if legislation on this point were viewed as desirable, S. 8
    goes far beyond the boundaries of common sense. The bill
    inappropriately rolls back liability for vast numbers of companies that
    are well able to help pay for cleaning up their own messes, and who
    should remain responsible for doing so. In several instances, these
    overly broad carve-outs apply to future as well as past conduct,
    undercutting Superfund's vitally important incentives for safely
    managing today's wastes.
    A. Overly Broad Exemption for ``Co-disposal'' Sites: Letting Large
            Industrial Polluters and Dump Owners Off the Hook
        S. 8 repeals polluter-pays liability for generators and
    transporters of wastes at hundreds of ``co-disposal'' sites at which
    industrial wastes were dumped along with municipal trash [SCAA
    Sec. 501(b), adding CERCLA Sec. 107(q), p. 148]. Even giant chemical
    companies will get entirely off the hook for wastes they sent to those
    sites. And even private dump-owners--those in business to make a
    profit--get their liability capped at 30% of cleanup costs (or the cost
    of closure) [Sec. 501(b), adding CERCLA Sec. 107(t), p. 150].
    B. Overly Broad Exemption for ``Small'' Businesses
        While EDF does not necessarily oppose curtailing liability for
    truly small businesses with a limited connection to a site who have
    limited ability-to-pay in any event, the current exemption is ill-
    crafted. First, the $3 million annual-revenue threshold is simply too
    high [SCAA Sec. 501(b), adding CERCLA 107(s), p. 150]. Moreover, the
    exemption applies to companies with either fewer than 30 employees, or
    less than $3 million gross revenues. This potentially exempts wealthy
    corporations that happen to have few employees.
        In addition, the exemption applies to conduct in the future, thus
    eliminating incentives for small businesses to manage hazardous
    substances carefully in the future: an unjustifiable ``pollute with
    impunity'' clause for small businesses. In addition, any liability
    exemption for small businesses should be conditioned on cooperating
    with appropriate information-gathering and cleanup activities.
    Similarly, the exclusion should be inapplicable where the Administrator
    determines that the material has or may significantly contribute to the
    response costs at the site (cf. SCAA Sec. 501(b), adding CERCLA
    Sec. 107(r)(2), p. 149 (exception to exemption for de minimus
    contributors)).
    C. Overly Broad Exemption for ``Recyclers'' Including Mineral Wastes
        In another unfortunate example of ``corporate welfare,'' the
    partial exemption for certain recyclers inappropriately includes
    ``metal byproduct[s] (such as slag, skimming or dross)'' in the
    definition of scrap metal [SCAA Sec. 510(a), adding CERCLA
    101(48)(A)(ii), p. 214, and SCAA Sec. 510(b), adding CERCLA
    Sec. 107(w), p. 215]. While it may be appropriate to craft a narrow
    liability exemption to encourage the collection of post-consumer
    recyclables i.e., materials that otherwise become part of the municipal
    waste stream slags and drosses are industrial by-products that come
    nowhere close to fitting within that rationale.
    D. ``Polluter Paybacks'' That Compete Directly with Cleanup Dollars
        Although parties who have already received cleanup orders must
    carry out the cleanup, they get repaid for all costs attributable to a
    party whose liability is limited [SCAA Sec. 502, adding CERCLA
    Sec. 112(g)(1) & (2), p. 157]. These paybacks apparently apply even for
    all future costs incurred under existing settlements. Payback payments
    ``shall be made upon receipt'' of an application [Sec. 112(g)(3), p.
    157-158], and must be made within a year [Sec. 112(g)(6), p. 158-159].
    In addition, parties to an allocation are entitled to be promptly
    reimbursed for any costs they incur attributed to an orphan share [SCAA
    Sec. 503, adding CERCLA Sec. 136(o), p. 192-193].
        This language creates a legal entitlement, as contrasted with
    discretionary authorization to use the Fund for cleanups and other
    purposes, so paybacks will have first claim on the funds. Because there
    is no ``firewall'' between funds for paybacks and funds for cleanups,
    all of the moneys in the Superfund could be exhausted providing
    polluter paybacks, leaving none for actual cleanups, oversight, and
    enforcement by EPA, as well as vitiating programs for Technical
    Assistance Grants. If moneys remaining in the Superfund are inadequate,
    one of three unacceptable outcomes will occur: taxes will have to be
    raised, cleanup standards will have to be further weakened, or cleanups
    will again slow to a snail's pace.
                                vii. conclusion
        Thank you for this opportunity to present our views. We would
    welcome an opportunity to work with you in crafting a Superfund reform
    bill that protects public health, particularly children and other
    vulnerable groups; preserve community land and water resources; holds
    polluters, rather than taxpayers, responsible for clean-up costs;
    assures meaningful community participation in Superfund decisions,
    while making the program more efficient and streamlined, and
    reinstating the Superfund Trust Fund taxes.
                                     ______

    Prepared Statement of Linda H. Biagioni, Vice President, Environmental
                      Affairs, Black & Decker Corporation
        Thank you Mr. Chairman and members of the Subcommittee for inviting
    me to testify on this important matter. My name is Linda H. Biagioni
    and I am Vice President for Environmental Affairs at The Black & Decker
    Corporation. In recent years I have also served as Chair of the
    Environment Management Council of the Manufacturers Alliance for
    Productivity and Innovation, a policy research organization with 500
    members from among the leading manufacturers in America. I am currently
    Chair of the International Environment Forum of the World Environment
    Center, a global, non-profit organization whose purpose is to create
    bridges between participants from industry, government, and academic
    and non-governmental organizations to contribute to sustainable
    development worldwide. My professional training is in the field of
    chemistry. I am not a lawyer, but Superfund has taught me a great deal
    more about litigation and about this law than I ever expected to know.
        The Black & Decker name is one of the most widely known brands in
    the world. Headquartered in Towson, Maryland, Black & Decker
    manufactures and markets products and services in more than 100
    countries and is the world's largest producer of portable electric
    power tools, power tool accessories, residential security hardware, and
    electric lawn and garden tools. It is also the largest global supplier
    of engineered fastening systems to the automotive and other markets we
    serve. Our household products business is the North American leader and
    a major global competitor in the small electric appliance industry, and
    our plumbing products business is one of the three largest faucet
    manufacturers in North America. Black & Decker also produces products
    as diverse as golf club shafts and glass container making equipment. We
    employ several thousand people at more than 30 manufacturing facilities
    in 16 States in the United States and at Black & Decker Service Centers
    throughout the country.
        Black & Decker's manufacturing operations are not heavy industry,
    and with one exception Black & Decker is not the owner, operator, or a
    predominant generator at any Superfund National Priorities List site.
    Nevertheless, because of our well-known name and the perception that we
    are a deep pocket, we have been forced to devote very substantial
    resources, in the range of tens of millions of dollars, to what often
    should be relatively straightforward or low priority environmental
    problems. A large part of our expenses and energies in this field have
    also been spent on litigation in connection with private cleanup sites
    that are not on the National Priorities List and with our insurance
    carriers over their contractual obligations to cover Superfund cleanup
    expenses.
        I am pleased to participate in this Hearing because I believe that,
    for Black & Decker and for many other American businesses, the existing
    Superfund law frequently misdirects our energies and our resources. The
    problem of cleaning up old hazardous waste sites is important, but
    existing law causes us to proceed too slowly on many serious sites,
    while at the same time causing us all to spend too much time and money
    on low-priority environmental concerns and far too much money on legal
    proceedings. While the EPA has made increasingly vigorous efforts to
    reform Superfund by administrative action, apparently with some
    success, the most important failings of the Superfund law and program
    can only be cured by Congress.
        Black & Decker has no Washington office and no full-time lobbyists,
    but we have devoted significant efforts to Superfund reform for the
    last several years, working with the Superfund Action Alliance, the
    National Association of Manufacturers, and other trade associations to
    promote comprehensive improvements in this law. Frankly, we are quite
    disappointed and frustrated by the failure of the 103d and the 104th
    Congresses to resolve these urgent issues. We hope the 105th Congress
    can find the middle ground and finish reauthorization this year, before
    electoral politics once again polarizes all discussion of this issue.
        From what we can see, the Senate is off to a good start in 1997.
    Superfund has been identified as a high-priority objective by the
    Majority Leader, and the Members and staff of the Environment and
    Public Works Committee from both parties appear to be moving forward
    constructively. We hope that the early introduction of S. 8 by the
    Majority, followed closely by the introduction of S. 18 by the
    Minority, will set the stage for prompt action. Our own reading of S. 8
    leads us to believe that it is a balanced and thoughtful attempt to
    resolve the crucial problems that bedevil the Superfund program. We
    understand that it reflects the months of negotiations between Majority
    and Minority staffs and the Administration last year. We commend the
    Committee and its staff for their diligent efforts to craft a workable
    approach that can attract bipartisan support.
        Like every interested party in this process, we would of course
    prefer certain changes in S. 8, and I will mention a few of them in
    this testimony. But the desire for a more perfect bill should not
    obscure the fact that overall, S. 8, just as currently written, would
    be a vast improvement over existing law. We believe it deserves careful
    consideration by every Member of this Subcommittee, and prompt action
    to make whatever changes are necessary and reauthorize the law.
        The two areas that I will address in some detail are the liability
    scheme and the remedy selection criteria. In each of these areas, the
    existing Superfund law is seriously flawed and needs immediate repair.
                                liability reform
        With respect to liability reform, let me say at the outset that
    Black & Decker accepts that it should bear a reasonable portion of
    clean-up costs where it contributed hazardous substances to a disposal
    site that has become an environmental hazard. We also recognize the
    necessity for the business taxes that support the Superfund, and we
    urge their reauthorization as a reasonable means of financing the
    Superfund clean-up program. Black & Decker has not advocated an across-
    the-board repeal of retroactive liability. Moreover, we recognize that
    in some contexts the strict liability system has a salutary effect in
    facilitating cleanup; for example, to reinforce the viability of the
    allocation system proposed in S. 8.
        But the price of the current retroactive strict joint and several
    liability system is simply too high. This Subcommittee has heard
    extensive testimony over the past 4 years about the adverse
    consequences that flow from the existing liability scheme, and I will
    not repeat those facts here. It is sufficient to say that in practice
    the structure of the current law delays cleanups, misdirects the focus
    of responsible party activities, and generates enormous transaction
    costs.
        The liability title of S. 8 would significantly reduce those costs.
    First, it would free a great many small contributors from the legal
    tangle of strict joint and several liability. The exemptions for 1
    percent (1 percent) de minimis parties, de micromis parties, generators
    and transporters of materials sent for recycling, municipal waste, and
    certain small businesses, along with the limitations on liability for
    municipalities, will remove the threat of liability for thousands of
    parties at hundreds of Superfund sites. The small quantity exemptions
    are particularly appropriate because their volumetric contribution is
    virtually always of minimal environmental significance, and their
    participation in the planning and management of the site is non-
    existent.
        These changes alone will eliminate an important part of the
    aggravation associated with Superfund for Black & Decker. We accept the
    necessity of participating in the cleanup of sites where we were a
    significant generator. But the necessity, because of joint and several
    liability exposure, to participate actively on clean-up committees at
    sites where Black & Decker has de minimis status is disproportionately
    expensive and a frustrating headache.
        For the greater-than-one-percent responsible parties who remain
    liable for National Priorities List sites, the allocation system
    proposed in S. 8 promises to be an enormous improvement over the
    current litigation-laden approach to allocation. The explicit
    provisions for orphan-share funding should also greatly facilitate
    settlements on terms that responsible parties will consider reasonable.
    S. 8 would be fairer to responsible parties if it expanded the orphan
    share to cover fully the unallocable shares, not just shares of known
    insolvent parties and parties whose liability is capped or eliminated
    by the bill. But even as written S. 8 will ameliorate much of the
    unfairness inherent in the current system.
        There is one aspect of the liability system that S. 8 does not
    address: as written, the small-party exemptions and the allocation
    system only apply to National Priorities List sites. Other sites, which
    have been the subject of a tidal wave of private litigation, would
    still be governed by the inequitable retroactive strict joint and
    several liability provisions of the existing law. We believe that for
    these sites the best solution to liability reform is to return this
    lawmaking power to the States. S. 8's provisions for expanded State
    responsibility and the proposed limitations on the number of sites that
    can be added to the National Priorities List reflect a congressional
    desire to transfer to the States as much of the hazardous waste cleanup
    responsibility as possible. As part of this objective, Congress should
    also turn over to the States the crafting of the liability scheme for
    non-NPL sites. It could accomplish this result by limiting the
    application of Section 107(a) to National Priorities List sites and
    other sites where the Federal Government has either conducted or
    ordered remediation or restoration activity under Superfund. Almost all
    States currently have Superfund-type legislation with similar, though
    not identical, liability provisions, so the short-term impact of this
    change would be relatively small. But over time, State legislators
    could decide for themselves the extent to which they believe that
    retroactive strict joint and several liability, with or without various
    exemptions, is appropriate. Without this change, the reforms in S. 8
    will fail to address a large segment of the litigation that the
    existing law generates.
        Again, our desire for changes to the proposed liability title of S.
    8 does not detract at all from our enthusiasm for S. 8 as compared to
    the status quo, and we urge Congress to proceed as quickly as possible
    to mark up this title and enact the needed reforms.
                                remedy selection
        Selection of the most appropriate remedy for each site is the heart
    of the Superfund program. The choice of remedy determines what benefits
    will be achieved, how much will be spent, and what it will be spent on.
    When Superfund was enacted in 1980, Congress gave the EPA little
    guidance on how to determine the desired cleanup levels and how to
    relate those levels to cost and technical feasibility constraints. The
    Agency, itself relatively inexperienced in these matters, borrowed a
    variety of existing legal standards, some of which were designed for
    very different contexts, to fill this gap. Then in 1986 Congress
    codified those standards and added others, creating a series of
    arbitrary rules requiring a preference for permanence and treatment,
    compliance not only with applicable State and Federal laws but also
    with ``relevant and appropriate regulations,'' and a groundwater
    requirement that has been read to mean that, with few exceptions, all
    potentially usable groundwater at Superfund sites must meet drinking
    water standards in the ground as soon as possible. These inflexible
    remediation standards have contributed significantly to the
    misdirection of resources into remedial activities that produce little
    or no benefit to public health or the environment.
        In reality, Superfund sites vary widely in the nature of the risks
    they present and in the nature of the geological, land use, locational,
    and other circumstances that fundamentally shape what remedial
    technologies can usefully be employed. In many cases, the EPA and State
    personnel know full well that the remedies they are now requiring have
    little practical utility, but they are driven by the requirements of
    the Act to impose them anyway.
        S. 8 fundamentally changes this approach by dropping most of these
    arbitrary requirements. It directs the EPA and the States to focus on
    the real risks to public health and the environment posed by each site
    using site-specific data wherever possible, and to ameliorate those
    risks and meet the protectiveness standards within the bounds of
    technical practicability and reasonable cost, taking into account
    reliability, effectiveness, public acceptability, the nature of
    existing land and water uses and the nature and timing of reasonably
    anticipated future uses.
        In particular, the role of cost considerations in remedy selection
    is, with a few exceptions, appropriately addressed in S. 8. Cost is one
    of several co-equal factors to be balanced in the good judgment of the
    Agency in selecting the remedy. It is not an overriding consideration,
    and there is no mandate to choose the most cost-effective solution, but
    neither is it a subordinate or irrelevant factor in remedy selection,
    as is so often the case under the present law.
        Unfortunately, S. 8 does not appear to carry through fully with
    this risk-based approach with respect to groundwater. While it is true
    that, unlike soil, groundwater moves and that in the long run many
    aquifers are interconnected, the same intellectual inquiry and the same
    criteria should apply to remediation of groundwater as apply to other
    media and other exposure risks; namely, what real risks to existing and
    reasonably anticipated uses of the resource can be identified, and what
    remedial measures should be employed to ameliorate those risks within
    the bounds of technical practicability and reasonable cost. The notion
    that certain natural resources should be preserved for their own sake
    independent of any measurable risk to human health or the environment
    or entirely without regard to cost or feasibility considerations is a
    prescription for irrational expenditure of funds, whether public or
    private. We urge the Subcommittee to take a hard and skeptical look at
    inflexible rules for remedy selection, whether with respect to
    groundwater or any other medium.
        Finally, the provisions in S. 8 for the review of remedies already
    selected for Superfund sites under the existing law are a crucial
    element of remedy selection reform. Having learned from more than a
    decade of experience that our existing remedy selection criteria are
    not well suited to the task, it would be foolish not to direct the EPA
    to reconsider previously selected remedies, at least where significant
    cost savings could result from applying the new criteria that this
    Congress establishes. While we cannot recover funds already misspent,
    there is no reason to extend the mis-expenditure into the future. The
    EPA has recognized this fact in its recent administrative reform on
    ``relooking at existing remedies.'' The provisions for objection by the
    State Governor in case of unreasonable delay provide additional, though
    perhaps not necessary, protection against abuse.
                              comprehensive reform
        As it should, S. 8 also addresses brownfields, State roles,
    community participation, Federal facilities, natural resource damages,
    government contractors and funding. None of those issues has a
    particular impact on Black & Decker, but each of them deserves your
    attention as part of a coherent reshaping of this program. Attention
    should also be directed to those elements of the program that will grow
    in importance in the future, such as long-term operation and
    maintenance costs, delisting, and site reuse.
        As I mentioned, Black & Decker is participating actively in the
    Superfund Action Alliance, which recently adopted the attached
    ``Superfund Fundamentals,'' a set of principles that address many of
    these concerns. We believe that the SAA Superfund Fundamentals are
    practical, well-reasoned policy recommendations, and we encourage the
    Congress to use them as a guide in its work on Superfund
    reauthorization.
                              concluding comments
        In conclusion, let me reiterate the important point: it is time for
    Congress to act. We need to get past polarization and on to consensus
    and compromise. The years of serious criticism of the existing
    Superfund program from virtually every segment of the political
    spectrum have damaged its credibility and periodically paralyzed its
    progress. While the EPA's administrative reforms have helped in some
    respects, only Congress can correct crucial deficiencies and put the
    Superfund Program back on track. The Superfund Program needs a new
    congressional imprimatur, public support, and assured funding. I hope
    that this Subcommittee and the 105th Congress can finally succeed in
    this effort where the 104th Congress and 103d Congress could not.
        I commend the Subcommittee for its work and thank you again for
    this opportunity to present our views.
                                     ______

                           Superfund Action Alliance
                             superfund fundamentals
        The 105th Congress has the opportunity to pass legislation that
    will accelerate cleanup of Superfund sites across the country. After 4
    years of deliberation on Superfund reauthorization, this is the time to
    make comprehensive reform happen.
        The following document outlines some of the key provisions that
    need to be included when Superfund is reauthorized.
    Remedy Selection
         Human health and the environment must be protected by
    Superfund response actions which balance reasonable cost and technical
    feasibility and which accelerate the progress of remediation.
         Remedy selection should reflect actual and reasonably
    anticipated future uses of land and water resources, taking into
    account the nature and timing of that use.
         The remedy selection process should be simplified and
    performance goal-driven.
         Site-specific risk assessments should be used to guide
    selection of remedies rather than generic relevant and appropriate
    standards (RARs) and preferences for permanence and treatment.
         Substantive applicable state standards should be
    considered and their implementation balanced by such factors as
    reliability, community views, cost, technical feasibility, short-term
    risk, effectiveness.
         In selecting remedies to protect usable groundwater or
    remediate contaminated ground water needed for drinking in the future,
    due consideration should be given to the nature and timing of the use
    of the groundwater and the cost and technical feasibility of
    remediation.
         Consistent with timely protection of health and the
    environment, the benefits of reform should be available at existing
    sites.
         Early and informed local community involvement should be
    encouraged and supported with technical resources where needed.
    Liability
         Superfund's liability system should be reformed to
    maximize the flow of resources to cleanup, not lawyers.
         Reforms that eliminate inequities and reduce transaction
    costs, including allocation mechanisms that ensure cooperative parties
    are not forced to pay more than their own share of cleanup costs, are
    critical.
         Liability limitations or exclusions for any group should
    be contemplated only as part of the meaningful Superfund
    reauthorization described in this paper.
         Liability limitations or exclusions granted any party
    should be assumed by the Fund and not reallocated to other parties at
    sites.
    Brownfields
         The revitalization of cities is a critical national issue
    worthy of efforts by, and funds appropriated to, a number of federal
    agencies. Efforts to redevelop brownfields cannot, and should not, be
    funded from the Superfund cleanup fund but instead should represent a
    broader national effort.
         Finality is important. Reluctance by U.S. Environmental
    Protection Agency to issue a statement indicating work is complete and
    liability extinguished, and the inability of states to do so in lieu of
    the Federal Government, have discouraged property owners (potential
    ``sellers''), developers and other potential buyers from investing in
    brownfields. Liability protection for prospective purchasers is also
    necessary.
         Incentives should be provided to encourage states to
    develop and enhance voluntary cleanup programs which reflect due
    consideration for current and future use of resources.
    State Role
         Devolution of Superfund authority to the states is
    desirable, and the appropriate roles of the Federal and State
    governments at future remediation sites should be addressed in
    reauthorization.
         It is important that each Superfund site have a ``single
    master'' overseeing remediation in order to encourage cleanup by
    providing certainty and eliminating duplication.
    Funding
         Superfund's business taxes should be dedicated to cleanup
    of NPL sites, and the program's administration funded from the existing
    Trust Fund surplus as well as general revenues, just like the Clean Air
    and Clean Water Acts.
         Consistent with future NPL cleanup needs, limits should be
    placed on the duration and amount of tax responsibilities.
         Taxes for Superfund must be accompanied by legislative
    reform that improves the program. Both the legislative reforms and the
    examination of taxes must be consistent with fundamentals outlined in
    this paper.
    Natural Resources Damages
         It is important to clarify the scope of natural resource
    damage claims and to limit them to restoration of services provided by
    injured public resources.
         NRD restoration plans should be cost-effective, based on
    ecosystem/population impacts, and achievable over a reasonable period
    of time.
         NRD liability should apply equally to private and public
    PRPs.
                                     ______

                           Superfund Action Alliance
        3M
        Aerojet
        Allied Signal Inc.
        American Automobile Manufacturers Association
        American Car Rental Association
        American Crop Protection Association
        American Iron & Steel Institute
        American Textile Manufacturers Institute
        American Trucking Associations
        AMP Inc.
        Apex Environmental, Inc.
        Association of American Railroads
        Associated Builders and Contractors, Inc.
        The Bankers Roundtable
        Bayer Corporation
        Bethlehem Steel Corporation
        Biotechnology Industry Organization
        The Black & Decker Corporation
        BP America, Inc.
        Browning-Ferris Industries
        Burlington Northern Sante Fe
        Chemical Manufacturers Association
        Chevron Corporation
        Chrysler Corporation
        Ciba Specialty Chemicals
        The Dow Chemical Company
        Dresser Industries, Inc.
        DuPont
        Electronic Industries Association
        Environmental Industry Association
        The Flexible Packaging Association
        FMC Corporation
        Ford Motor Company
        General Electric
        General Motors
        Georgia Pacific
        Gulfstream/Stablex
        Harris Corporation
        Hazardous Waste Action Coalition
        Hercules Incorporated
        Hoechst Celanese Corporation
        Hughes Electronics
        Independent Lubricant Manufacturers Association
        Institute of Scrap Recycling Industries
        The Int'l Assoc. of Environmental Testing Laboratories
        The Int'l Assoc. of Independent Tanker Owners
        Lockheed Martin Corporation
        LTV Steel Company
        Mobile Corporation
        Monsanto Company
        Motorola
        National Association of Convenience Stores
        National Association of Manufacturers
        National Automobile Dealers Association
        National Electrical Manufacturers Association
        National Realty Committee
        National Rural Electric Cooperative Association
        National Steel Corporation
        Northrop Grumman Corporation
        Olin Corporation
        Petroleum Marketers Association of America
        Philips Electronics
        PPG
        The Raytheon Company
        Rohm and Haas Company
        Society of Independent Gasoline Marketers of America
        Union Carbide Corporation
        Union Pacific
        United Technologies Corporation
        Westinghouse Electric Corporation
        WMX Technologies, Inc.
        Zeneca Inc.
                                     ______

      Responses of Linda H. Biagioni to Additional Questions from Senator
                                     Smith
        Question 1. Ms. Biagioni, our bill includes an allocation process
    which attempts to fairly determine how much a company is responsible
    for at a toxic waste site. It allows small business and individuals out
    of the process, but larger companies would stay in most cases. Do you
    think the allocation process in S. 8 would reduce the litigation which
    surrounds the current Superfund process?
        Response. Definitely yes. The Superfund Fundamentals adopted by the
    Superfund Action Alliance state that ``Reforms that eliminate
    inequities and reduce transaction costs, including allocation
    mechanisms that ensure cooperative parties are not forced to pay more
    than their own share of cleanup costs, are critical.''
        As I noted in my written testimony, the establishment of an
    allocation system would be ``an enormous improvement over the current
    litigation-laden approach to allocation.'' Moreover, the exemptions for
    small businesses and for all de minimis contributors will dramatically
    reduce the number of parties, often to a much more manageable level, at
    many National Priorities List [NPL] sites. Together, these two changes,
    which have been supported in concept by Members from both political
    parties and by the Administration for several years, hold great promise
    for rapid and efficient resolution of the ``who pays how much''
    question at multi--party NPL sites.

        Question 2. You stated in your testimony that you were
    uncomfortable with the groundwater cleanup provisions contained in S.
    8. Could you please expand on these comments.
        Response. The Superfund Fundamentals state that ``In selecting
    remedies to protect usable groundwater or remediate contaminated
    groundwater needed for drinking in the future, due consideration should
    be given to the nature and timing of the use of the groundwater and the
    cost and technical feasibility of remediation.''
        One important result of enacting S. 8 would be the elimination of
    several inflexible rules on remedy selection in the current law that
    prevent the EPA from acting on a rational evaluation of the risks
    presented by an NPL site and the relative desirability of possible
    remedies to ameliorate those risks.
        Unfortunately, with respect to groundwater, certain provisions in
    S. 8, such as the language about protecting ``uncontaminated
    groundwater,'' seem to impose equally inflexible new rules on remedy
    selection, undercutting the inclusion of natural attenuation as an
    acceptable remedy and ignoring the real feasibility limits on our
    technological capability to remove contaminants. We have learned over
    the past decade that for various contaminants the expenditure of large
    sums for active groundwater pump-and-treat systems does not produce
    significantly faster remediation than would reliance on natural
    processes. Black & Decker believes that the overall approach to
    evaluation of the remedial alternatives in S. 8, based on the balancing
    of factors set out in the bill, should be applied to groundwater
    remediation as well.

        Question 3. Ms. Biagioni, currently it is common that industrial
    sites are cleaned up to residential standards, even if it is known that
    the site will be zoned industrial in the future. Is it possible to
    justify cleanup standards based on future-use site-risk?
        Response. The Superfund Fundamentals state that ``Remedy selection
    should reflect actual and reasonably anticipated future uses of land
    and water resources, taking into account the nature and timing of that
    use.''
        Black & Decker believes that it is irrational to expend funds to
    clean up hazardous waste to levels in excess of those necessary to
    safely allow the foreseeable human uses and environmental functions of
    the affected properties (whether or not they are formally designated as
    part of the ``site.'') Limitations on future use can and normally are
    reinforced with zoning restrictions and deed restrictions, thus
    necessitating the involvement of government officials and the public in
    any change from the anticipated future uses and placing the burden of
    further cleanup that may be necessary on those who wish to use the
    property in a manner that was not foreseeable at the time the remedy
    was selected.
        S. 8's overall remedy selection scheme takes a rational approach to
    this matter, and we support that approach. As noted in response to
    Question 2, this approach is equally applicable to groundwater, and the
    same policies should apply.

        Question 4. You stated in your testimony that you thought this bill
    required a more moderate approach to Superfund reform. Do you know of
    any reasons why any member of this Committee, or the Senate for that
    matter, should not be a cosponsor of this legislation?
        Response. As I noted in my written testimony, ``[T]he desire for a
    more perfect bill should not obscure the fact that overall, S. 8, just
    as currently written, would be a vast improvement over existing law.''
    While we recognize that Superfund reform is an extremely complex,
    multi--faceted subject, we believe that S. 8 is a balanced bill that
    carefully addresses the central issues of Superfund reform in a manner
    that largely reflects the consensus of the affected communities. We
    hope that the Committee will be able to proceed soon to mark up S. 8 to
    refine and reinforce that consensus. After 6 years of hearings and
    debates on Superfund reform, Congress should move quickly to a
    bipartisan consensus on legislation to accomplish this vital objective
    this year.
     Response of Linda H. Biagioni to an Additional Question from Senator
                                   Lautenberg
        Question. Your written testimony indicated that you are affiliated
    with the Superfund Action Alliance. Were you testifying on behalf of
    Black & Decker or were you also testifying on behalf of the Alliance?
    Does the Alliance endorse the positions taken in your testimony?
        Response. As the membership list attached to my testimony
    indicates, the Superfund Action Alliance is a broad--based organization
    representing a large number and wide variety of businesses and trade
    associations who agree on the necessity for prompt Superfund reform.
    The Alliance has been in existence for some years, but it has only
    recently taken substantive positions on specific elements of Superfund
    reform. Black & Decker has been an active participant in the Superfund
    Action Alliance and participated in the process of formulating the
    Superfund Fundamentals.
        Beyond the Superfund Fundamentals, however, Black & Decker's
    testimony was not formally endorsed by the Alliance. It reflects our
    own experience as a company that has been named as a responsible party
    at a number of sites, but with one exception is not the owner,
    operator, or a predominant generator at any NPL site. Other members of
    the Alliance might have given greater priority to other issues.
                                     ______

     Prepared Statement of Barbara Williams, Owner of SunnyRay Restaurant,
                                 Gettysburg, PA
        Welcome to how Superfund ``works'' for the people of the
    Gettysburg-Hanover Area of Pennsylvania, specifically the ``Keystone
    Landfill.''
         1982--Local residents and the Commonwealth of Pennsylvania
    were aware of offsite residential water supply contamination. The
    Commonwealth of Pennsylvania allowed dumping to continue at the site.
         1984--Environmental Protection Agency (EPA) Field
    Investigation.
         1987--Site placed on the National Priority List of
    Superfund Sites. Pennsylvania-Division of Environmental Resources and
    US-Environmental Protection Agency allowed dumping to continue at the
    site.
         1990--Site ceased to accept waste because it was filled to
    capacity.
         9/27/93--EPA filed suit against site owners and 11
    original/generator defendants.
         8/30/94--The original/generator defendant site owners, NOT
    THE EPA, filed suit against 180 small businesses, boroughs and school
    districts.
         10/5/95--The third part defendants, NOT THE EPA, filed
    suit against over 550 other small businesses and individuals.
         2/5/97--EPA discovered buried waste outside the area
    listed for capping. Cleanup was delayed again.
         Current Keystone Status: The site cleanup has not started
    YET. No one is out of the lawsuits YET.
        I sincerely thank the chairman and members of the committee for
    inviting me back.
        I am Barbara Williams. My business is SunnyRay Restaurant in
    Gettysburg, Pennsylvania. I have been a member of the National
    Federation of Independent Business (NFIB) since 1982. Joining NFIB was
    one of the best business decisions I have ever made. Every small
    business needs all the help it can get. NFIB has been my coach and
    cheerleader. You cannot beat teamwork like that.
        Speaking of teams, I want to thank my staff. They know that I am
    fighting to save their jobs. Some of these great people have been with
    me since I opened almost 16 years ago. I am proud of the tremendous job
    they do. I am grateful for their loyalty.
        I am a fourth party defendant at Keystone. I have been sued by my
    friends and neighbors. Why did they do this? Because the only options
    they were given by their attorneys was to either pay the exorbitant
    amount of money that the first and second parties had sued for, or to
    sue others in order to lessen the amount they would be forced to pay
    for settlement.
        My being brought into this suit defies common sense. I have
    recycled for years. I have used the trash hauler that was approved and
    permitted by my borough government. I am told that my trash was then
    dumped into the Keystone landfill, a site permitted by the Commonwealth
    of Pennsylvania. I would appreciate someone explaining how I have
    become liable even after I obeyed all State and local regulations. What
    was I supposed to do with the food scraps? What have I disposed of that
    is not found in every household?
        I am being sued for $76,253.71. That is a lot of money to me, more
    money than I pay myself a year. The continuing cost of legal
    representation is not included in that figure.
        I want clean air and water for myself and the generation that will
    follow me. I am not the enemy of the environment. My trash is not the
    problem. Small businesses are not the enemy of the environment. I am
    here to tell you again that your wonderful idea of cleaning up our
    country's environment through the EPA and CERCLA does not work in the
    real world. Your intentions were not followed. You legislated for
    results. You got bureaucracy, regulations and litigation. Legions of
    environmental attorneys, not environmental solutions, were created.
        I fight not only the unjust burden of this lawsuit, but the
    injustice of a landfill on the Superfund National Priority List--10
    years, and still NO CLEANUP HAS STARTED.
        I have no graphs or charts, no auditors reports. I am not here to
    toss about facts, figures and percentages. I do not intend to enter the
    fray over the number of sites cleaned, the time it takes to clean them
    or even to debate the number of billions spent on litigation and
    administration. All day could be wasted on whose figures are correct. I
    believe we can all agree on this: TOO MUCH TIME. TOO MUCH MONEY. TOO
    FEW RESULTS.
        I want to tell you how Superfund impacts lives in south central
    Pennsylvania. This area has many extremely frustrated people for many
    reasons. People who live in the area of the landfill are physically
    sick, frustrated and still waiting for the promised cleanup from 10
    years ago. People who recently bought and built houses in the area and
    are just now finding out their neighbor is an uncleaned Superfund site
    and they are livid.
        I would like to share some quotes from Mary Minor, a Hanover
    Pennsylvania women, who has fought to have the pollution problem
    resolved long before the EPA was involved. She has lived daily with the
    effects of pollution and the stress of waiting for the promised
    cleanup.
         ``Living near a Superfund site is very stressful.''
         ``Stress is a global disease.''
         ``Stress and the mind and body's responses can shatter
    individuals, communities, entire societies.''
         ``Dealing with agencies and institutions who have power
    over people and are most often non-responsive or inefficient only
    exacerbates the stress, resulting in psychophysiological health
    effects.''
         ``We cannot afford this as a society.''
         ``It is unjust for these problems not to be resolved.''
         ``Everyone in our communities suffer.''
        These remarks were taken for the paper There Is No Away, presented
    at the International Conference on the Effects of Hazardous Waste on
    Human Health and the Environment in Atlanta, Georgia.
        Take it from me, the third and fourth party defendants in the
    Keystone case are extremely stressed and frustrated and we are still
    waiting for a solution.
        Please remember the more than 700 third and fourth party defendants
    are not businesses which regularly produce hazardous or toxic waste. We
    are in this suit not because of what we discarded, but because of how
    much waste someone has estimated we threw away. We simply and legally
    put out the trash according to local and State regulations.
        CERCLA is unfair because it imposes strict liability on the public
    without any real notice as to what we should or should not put in the
    trash. I am told that ball point pens are hazardous waste. However, I
    still have not purchased a ball point pen with directions for hazardous
    waste disposal. Present CERCLA prohibits disposal of hazardous
    substances, but there is no evidence that any third or fourth party
    defendants sent hazardous substances to the site.
        Our guilt is based on an expert's report which assumes some
    hazardous material is in all garbage, but there is no real evidence. We
    simply put out the garbage. And even though that is not what CERCLA was
    aimed at, we are told we are guilty and expected to meekly write our
    checks without even being given total and complete indemnification
    against further claims for additional money.
        For small businesses this suit can be devastating. It is an
    uninsured loss. After years of premiums for liability and umbrella
    liability policies, we are told we are not covered for our attorney
    fees or for possible settlement costs. The money for settlement is
    considered a penalty so it will not be deductible as a business
    expense. Small businesses will have to make enough money to pay this on
    top of our other bills and payroll.
        Allow me to introduce you to some of my fellow defendant:
    restaurants, like myself, campgrounds; apartment owners; antique shops;
    furniture stores (not furniture manufacturers); motels; laundromats;
    dress shops; pizza shops; department stores; trailer parks; convenience
    stores; ice cream shops; book stores; pet shops; flower shops;
    groceries; theaters; delis; and gift shops. We are small business
    owners. Another example is the Vietnam Vet who's dream was to own a
    neighborhood tavern. But now he is fighting the government that he not
    long ago fought for.
        We, our employees, and our children live with this cloud over us
    every day. A child should not have to worry about what's going to
    happen to her family's business. A 9-year old, Sierra Bair of Hanover
    Pennsylvania, in her letter to President Clinton says, ``My family owns
    restaurants and they serve food not hazardous stuff. Since when is food
    bad for us. Isn't it a shame so many are getting punished for a few.''
        Why is this happening? What are we doing to our children? Do you
    think they will want to grow up and own a small business after they
    have seen their parents' hopes and dreams destroyed. Our legal battle
    has been a never-ending expensive roller coaster ride. And the ride is
    not over yet. Everyone is still paying local and liaison attorneys.
        So here we are: The landfill is not cleaned up and the litigation
    goes on. Now it is the time to change. If we do not change our actions
    we will never change our results.
        When I testified last April, I was encouraged by your statement
    that you understood our situation and were resolved to remedy it. That
    hope was reinforced when I read S. 8. I am very pleased to see that S.
    8 addresses many areas I was concerned about: municipal solid waste,
    small business defendants and co-disposal landfills. I believe you
    listened and responded. It means a great deal to learn that our voices
    were heard.
        I believe that you know how critical the wording of this bill is.
    The best example is that current and former Members of Congress have
    told me that they did not write CERCLA to force people like myself and
    my fellow third and fourth party Keystone defendants to pay cleanup
    costs for Superfund sites. Yet the law, or its interpretations by the
    courts, and the EPA now hold us liable.
        In the small business exemption section, should ``30 employees'' be
    amended to read ``30 employees or the full time equivalent of 30
    employees?'' I would emphasis the importance that the bill continue to
    read ``employees or'' NOT be changed to read ``employees and 3,000,000
    gross revenue.'' I would respectfully request that the manner of
    proving $3 million gross revenue be explained. Will the definition of
    Municipal Solid Waste begin more lawsuits? It appears plain to me that
    your intentions are to resolve the issues that have been used to allow
    litigation to take precedence over cleanup.
        But my concern is that others will not see it so clearly. I am
    concerned that there will always be a well-meaning EPA official who
    believes he knows better than you what you meant when the law was
    written or an attorney upset to see his potential life's work
    evaporating before his eyes. My fear is that these officials will
    challenge the authority and intentions of Congress and the President;
    that some judge somewhere will listen and rule that you did not write
    the law to say what you meant, and their course of action will continue
    indefinitely.
        I would also like to see work on public awareness and education. If
    we continue the same action, how will we ever get different results?
    What, if any, incentive is there to industry business, science,
    education and research to creatively reduce, eliminate or resolve the
    problem of pollution? I believe we have the creative minds and
    entrepreneurial spirit that could revolutionize the technology of clean
    air and water. The public and businesses need to be encouraged and
    educated, not penalized for obeying existing laws--as we are being
    penalized for operating legally.
        I have been told that I am too old to be naive enough to believe
    that the system works. If the nay sayers who tell me I am wasting my
    time are right, if one American citizen crying out against injustice
    cannot make a difference, if regulations are more important than rights
    and results, then sadly we do no longer live under a government of the
    people, by the people and for the people--and the thousands who have
    given their lives to protect this grand experiment of government truly
    died in vain.
        When Lincoln came to Gettysburg he expressed concern for our system
    of government . . . of the people, by the people, for the people shall
    not perish from the earth. My concern is that we are perilously close
    to losing the government Lincoln described, not because of outside
    enemies but because of an ever-growing, all-powerful bureaucracy.
        You are our hope. Thank you.

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     Prepared Statement of Karen O'Regan, Environmental Programs Manager,
                              City of Phoenix, AZ
        Chairman Smith and members of the Subcommittee, the International
    City/ County Management Association, the National Association of
    Counties, the National League of Cities, the National Association of
    Towns and Townships, the U.S. Conference of Mayors, the Municipal Waste
    Management Association, and the American Communities for Cleanup Equity
    respectfully submit this testimony on S. 8 and ask that it be made part
    of the hearing record.
        Collectively, our organizations represent thousands of cities,
    towns, and counties across the United States. Hazardous waste sites
    impact the health of our citizens and the environmental and economic
    viability of our communities. As a result, we are well qualified to
    provide the Subcommittee with a truly representative view of how local
    governments and their citizens have been affected by Superfund and to
    offer some suggestions as to how the program may be improved.
        My City is a member of the International City/County Management
    Association and has been substantially involved with formulating the
    ICMA and Phoenix's Federal and State Superfund policy. We are currently
    involved in reforming the State of Arizona's Superfund program and have
    faced many of the same challenges being addressed at the Federal level.
    Despite the competing interests of different Arizona stakeholders, we
    are developing a growing consensus on a fair and streamlined cleanup
    program.
        Like many other local governments, the city of Phoenix has many
    Superfund roles. At various sites, we are a generator of municipal
    solid waste and an owner and an operator of a co-disposal site; a water
    provider charged with protecting drinking water aquifers; expected to
    represent our citizens on local hazardous waste concerns; asked to
    offer up streets and rights-of-way for wells and remedies; and charged
    with revitalizing brownfields and blighted areas. We also experience
    economic and environmental impacts because there are four Federal
    Superfund sites and nearly a dozen state Superfund sites within or
    adjacent to the city of Phoenix. Many of those sites are large areas of
    regional groundwater contamination that have caused closure of drinking
    water wells.
        In our many roles, the city of Phoenix has, since passage of the
    original Superfund statute in 1980:
         paid approximately $20 million for response costs at
    Federal and state Superfund sites;
         been a plaintiff in Superfund cost recovery actions
    regarding two landfills; and
         commented on numerous proposed Superfund remedies onsites
    within our borders.
        While these experiences were not enjoyable, they did give us ideas
    of what the most pressing needs and concerns of local governments are
    with respect to Superfund and how to resolve them. We have reviewed S.
    8 and would like to offer suggestions, beginning with its proposed
    liability scheme.
                                liability relief
        Across America, unjustified litigation is saddling local
    governments with expensive legal cons and exposing us to millions of
    dollars of threatened liability simply because we owned or operated
    municipal landfills or sent garbage or sewage sludge to landfills that
    were also used by generators and transporters of hazardous wastes. This
    problem has severely affected hundreds of communities and school boards
    and their citizens. Many of us have seen our budgets for essential
    services threatened and reduced.
        Simply put, local governments are in a unique situation that
    justifies statutory relief. Local governments are required to provide
    waste collection and disposal services for public health purposes and
    as a service for our citizens.
        It is also undisputed that Municipal Solid Waste contains, at most,
    a de minimis amount of Superfund hazardous substances. Most local
    governments are drawn into Superfund because of the past co-disposal of
    municipal trash with more toxic industrial hazardous waste.
        There is a strong consensus in support of the position that local
    governments should be provided relief. We appreciate the attention that
    has been given to this issue by the Subcommittee and believe the
    municipal liability provisions outlined in S. 8 are a step in the right
    direction. After the date of enactment local government generators and
    transporters--as well as private parties--will be relieved of costs
    incurred attributable to all municipal solid waste and sewage sludge
    activities and any waste activities at co-disposal sites. In addition,
    local government owners and operators at co-disposal sites would
    receive a liability cap based on population.
        We appreciate the committee's efforts to address our concerns, and
    the proposals in the bill are positive steps. However, there are some
    shortcomings in the liability relief proposal that will leave some
    local governments exposed to significant liabilities and many others
    bearing significant transaction costs. The following are our overall
    comments:
         Limiting the application of the local government owner and
    operator and generator/transporter relief provisions to costs incurred
    after the date of enactment leaves local governments open to
    potentially large payments and transaction costs related to clean up
    expenses incurred prior to the date of enactment. For example, if a PRP
    incurred costs to clean up a site and is now suing local governments
    for recovery, the bill provides no relief from liability exposure. This
    means that the exposure of generators and transporters could be
    significant and in the case of owners and operators, much greater than
    20 percent. For instance, the city of Phoenix's estimated response
    costs already incurred at two co-disposal sites it owned or operated is
    at least $17 million. Although the city has recovered some of those
    costs through litigation, none of the costs incurred will be credited
    toward the 20 percent cap.
        Recommendation: For these reasons, any liability relief that is
    provided to local governments for activities related to municipal solid
    waste and sewage sludge should include relief for costs incurred prior
    to the date of enactment that have not yet been settled. We hope that
    any local government liability relief provisions will be structured to
    provide certainty and limits on the amount of liability. For example, a
    cap or some type of limit on local government generator and transporter
    liability for cleanup costs incurred prior to the date of enactment of
    the bill and crediting cleanup costs already incurred by local
    government owner and operators against the 20 percent cleanup cap,
    would go a long way to alleviate.transaction costs and provide
    effective relief for local governments. We will be happy to provide the
    Subcommittee with further information on these suggestions for possible
    options to achieve effective liability relief for local governments.
         The conditional nature of the relief for Subtitle D
    facilities is also troubling. S. 8 would make the Subtitle D liability
    cap at co-disposal sites unavailable to a facility that was not
    operated in ``substantial compliance'' with local laws and permits. Nor
    would a local government receive liability relief if it violated
    regulations related to vector control.
        Recommendation: We suggest that the language be crafted in a more
    specific manner to ensure that local governments are not penalized. The
    legislation should ensure that the cap will not be subject to minor
    infractions having no impact on public health and safety or the
    integrity of the environment.
         Under S. 8, local governments who were owners and
    operators of co-disposal sites would be asked to pay up to 20 percent
    of the cleanup costs, while private industries who generated hazardous
    waste that many times caused the contamination at these sites would be
    asked to pay nothing. Local governments, who often had to accept the
    hazardous waste at their landfills, do not believe that such a
    liability scheme is properly balanced.
        Recommendation: We suggest that you develop an allocation system,
    with a percentage for the private generators and transporters of
    hazardous waste at sites owned or operated by municipalities.
        We hope that the committee will ensure that whatever liability
    relief program is enacted into law is workable within the financial
    limits of the trust fund and the demands of the cleanup program. This
    will warrant that sites are cleaned up in an effective and timely
    manner.
        Finally, an area of importance to local governments not addressed
    in the legislation is the potential liability arising from municipal
    ownership and operation of public sewer systems and related treatment
    works. Citizens generally take for granted the existence of a
    functional, convenient sewer systems; indeed, most people believe they
    have a right to such systems. Accordingly, municipalities and other
    public bodies provide these facilities to protect the public health and
    welfare of the community.
        The operation of a sewer system can require a municipality to
    maintain and repair hundreds of miles of unseen, underground pipeline.
    Because the underground grid of pipes making up sewer systems can be so
    extensive and because it is essentially invisible, detection of leaks
    or releases from the system can be difficult. In addition, because a
    municipality cannot police every sewer drain connection, it has limited
    control over the type of materials illegally disposed into the system.
        Nevertheless, local governments became liable for releases of
    hazardous materials, which were improperly discharged to the receiving
    sewers in the first place or for discharges from POTWs in excess of
    permitted limits caused by improper industry discharges to the sewers.
    For instance, the Washington Suburban Sanitation Commission was found
    by a Maryland Federal court to be liable for leaks from its sewer pipes
    of hazardous substances that were improperly disposed of by a dry-
    cleaner. This finding of liability was made despite the fact that the
    disposal of the hazardous substances into the sewer was prohibited by
    the Sanitation Committee. These are recurring liability problems that
    need to be addressed by the legislation.
        Recommendation: We believe S. 8 should extend the same liability
    relief to owners and operators of publicly owned treatment works as it
    does to municipal owner and operators of co-disposal sites.
                                remedy selection
        The current system frequently discourages parties from implementing
    timely source control and containment because of the threat that
    impossible measures such as fill aquifer restoration will be required.
    By demanding the impossible, we frequently fail to get the reasonable.
        Cleanup standards should be site-specific, where appropriate, and
    based upon actual or reasonably foreseeable risk. Where more relaxed
    cleanup standards are used, permissible property uses should reflect
    the level of cleanup. Institutional standards should also be considered
    to supplement risk-based decisions.
        S. 8 endorses many of these concepts; however, we are concerned
    that the bill's focus upon treatment at the point of use does not
    adequately protect the groundwater resource. We urge the Subcommittee
    to require containment of contaminant plumes when drinking water is
    threatened. As growth continues, and water supplies become even more
    precious, we will need to rely upon aquifers with water of lesser
    quality. Allowing migration of contaminants into lesser quality
    aquifers will only increase local governments' treatment costs when
    that day arrives.
        In addition, the proposed Remedy Review Board appears to have broad
    powers, and without further information on its members and structure,
    we have reservations about the need for another regulatory body. We are
    concerned that this Board would overturn agreements reached after years
    of negotiations and undermine hard-fought remedy selection decisions
    made by stakeholders, including citizens and local governments. We
    propose instead that an Advisory Board be established to provide
    guidance on remedy selection and monitor the Superfund program on a
    national basis. We urge that local governments be a mandatory part of
    any advisory or Remedy Review Board.
                                  brownfields
        Revitalization of brownfields is a critical issue for local
    governments around the country. We applaud the efforts made in this
    bill regarding brownfields revitalization. Many urban centers contend
    with environmental, public health, and economic threats posed by
    abandoned and contaminated industrial and commercial properties.
        The grants proposed in the bill are critical to assisting local
    governments remediate and reuse brownfields sites, and enhance and
    promote redevelopment activities. However, grants are only a piece of
    the brownfields puzzle. Because many communities want to encourage
    private investment activities, other incentives, including Federal tax
    incentives, should be considered.
        We look forward to working with the community to further refine
    these proposals.
                            community participation
        Local government officials are the elected representatives of the
    communities directly accountable to citizens. Our role in the
    decisionmaking process should be commensurate with our representative
    status. S. 8 does not recognize local governments' authorities for the
    determination of reasonably anticipated uses of land and water
    resources.
        For example, S. 8 establishes the Community Response Organization
    (CRO) as the conduit of information between the community and the
    Federal and state regulators and PRPs. The CRO serves as the
    representative of the local community during the remedial action
    planning and implementation process. Yet, representatives of local
    governments are designated as only one of many groups included for
    membership on the CRO. Local governments do not oppose the CRO, but we
    are concerned that the bill establishes the CROs as the only formal
    mechanism for local governments to participate in the decisionmaking
    process.
        Recommendation: Local governments should have a separate and
    distinct route for input on decisions affecting their communities.
        S. 8 requires that the Administrator ``shall consult with the [CRO]
    in developing and implementing the remedial action plan.'' However,
    there is no language indicating that local governments represent the
    affected the community.
        Recommendation: S. 8 should be amended to require the Administrator
    to directly consult with the affected community as represented by the
    local government in developing and implementing the remedial action
    plan.
                                   conclusion
        In conclusion, the Superfund program must ensure that sites are
    cleaned up quickly and effectively without threatening the economic
    viability of our communities. To achieve those goals, the Superfund
    program must provide adequate funding for site remediation and
    establish cleanup standards that are protective of human health and the
    environment. This will ensure that sites are not continuing problems
    for communities in the future. Further, it will ensure that local
    governments will not be left with sites that are not remediated,
    contributing to an already overwhelming brownfields problem.
        We appreciate the opportunity to comment on the bill. We thank you
    for giving attention to local government liability relief. We hope that
    any reauthorization will include effective liability relief for local
    government activities related to municipal solid waste, sewage sludge
    and publicly owned treatment works incorporate the recommendations that
    we raised in our testimony.
        We again thank you for your attention to this matter and we look
    forward to working with you and your staff on this matter.
                                     ______

     Responses of Karen O'Regan to Additional Questions from Senator Smith
        Question 1. S. 8 includes a remedy review board with more power
    than that created by the EPA. In your statement, you say that you
    believe that local governments should have a role in this process. Do
    you support the use of remedy review boards that are included in S. 8?
        Response. As stated in my oral and written testimony, local
    governments have reservations about the broad authority apparently
    given to the proposed Remedy Review board in S. 8. Without additional
    information on its structure, members and scope, the local governments
    that I represent have reservations about the need for yet another
    regulatory body. Those local governments are also concerned that this
    Board could overturn agreements reached after years of negotiations,
    and undermine hard-fought remedy selection decisions made by
    stakeholders, including citizens and local governments. We propose
    instead that an Advisory Board be established to provide guidance on
    remedy selection and monitor the Superfund program on a national basis.
    We also urge that local governments be part of any Advisory or Remedy
    Review Board.

        Question 2. It is my understanding that there is legislation moving
    through the Arizona legislature to modify the State hazardous waste
    cleanup statute (hearings were held in February) which: (1) repeals
    joint and several liability; (2) limits small business and de minimis
    contributor liability; and (3) provides that any PRP who voluntarily
    accepts its cost allocation will have 25 percent of its cleanup cost
    paid for by the Water Quality Assurance Revolving Fund--a fund derives
    from taxes on hazardous waste disposal, industrial discharge fees,
    corporate taxes and landfill tipping fees.
        Do you agree that parties should only be held responsible for their
    own waste, not the pollution caused by someone else? (In other words,
    not subject to joint and several liability).
        Included in S. 8 is an allocation system that would similarly have
    the effect of eliminating joint and several liability. Do you agree
    that this should result in much less litigation than under the current
    system?
        Response. Senate Bill 1452 and related amendments, which reform
    Arizona's Water Quality Assurance Fund (WQARF), were developed through
    a long and arduous consensus-based process by a state-wide Groundwater
    Task Force and Legislative Study Committee. The legislature plans to
    adjourn by April 18 of this year and we expect additional revisions
    prior to final passage. Draft Senate Bill 1452 repeals joint liability
    in favor of allocated proportionate share liability; has special
    settlement provisions for ``qualified'' small businesses and those
    facing financial hardship; and, subject to certain criteria, provides a
    25 percent early settlement discount to Responsible Parties who accept
    their share of cleanup costs based upon the Arizona Department of
    Environmental Quality's allocation. I have attached a brief Fact Sheet
    prepared for Arizona legislators which provides an overview of the
    bill's major components, and would be pleased to provide the Committee
    with additional information on the bill.
        Currently, WQARF's primary revenue source is a statewide per gallon
    assessment on water purveyors, which includes municipalities and
    irrigation districts. This assessment is charged to our citizens on
    their water bills. The next major revenue sources for WQARF are the
    State's general fumd and cost recovery actions, followed by
    miscellaneous fees on pesticide /fertilizer/ landfill registrations,
    interest on the fund, hazardous waste fees, and several discharge
    permit fees. Currently, corporate taxes do not fund WQARF, although
    that funding source is proposed under Senate Bill 1452.
        Like Congress, Arizona stakeholders have debated whether parties
    should be subject to a proportionate or fair share liability scheme
    instead of joint and several liability. The fairness of joint liability
    was hotly contested both this year in the Task Force and during last
    year's legislative session. The removal of joint liability was only
    agreed upon by many of the participants if, and only if, adequate,
    dedicated funding for the WQARF program is concurrently provided for in
    the law. A municipal coalition representing cities in the Phoenix
    metropolitan area took the position that, if joint liability were to be
    removed, the WQARF program funding level would need to be greatly
    increased to provide funding for the resultant orphan shares (i.e.
    shares of responsibility attributable to unknown or non-viable
    responsible parties).
        As a result of the proposed WQARF reforms, including the
    elimination of joint liability, the current annual funding level for
    WQARF is proposed in Senate Bill 1452 to be raised from around $3
    million to an annual amount of about $18 million. Under the consensus
    version of the current WQARF bill, the additional funding will be
    provided by earmarking existing corporate income tax revenues, which
    are not currently a WQARF revenue source.
        With respect to a national local government position on the Federal
    Superfund liability scheme, local governments understand that joint
    liability can be criticized as not necessarily fair; however, it is an
    effective enforcement mechanism to ensure that remedial activities and
    orphan shares will be funded. We are concerned that if joint liability
    is eliminated, and adequate funding for orphan shares is not provided,
    cleanups may not be accomplished, further exacerbating environmental
    and public health problems associated with Superfund sites. Therefore,
    many cities would only support the removal of joint liability if
    adequate, dedicated funding for orphan shares is provided for in the
    Federal Superfund statute.
        The second part of your question asks if an allocation system will
    result in less litigation than the current system. As you know, the
    proposed Arizona WQARF reform bill proposes an allocation system with
    incentives for early settlement and disincentives for litigation. For
    example, parties that settle early with ADEQ based upon the agency's
    determination of their share are entitled to a 25 percent early
    settlement discount. Conversely, all parties, including the State, who
    choose to litigate rather then accept the allocation, can be held
    responsible for all attorneys' fees and litigation costs. While the
    proposed system has not been tested, the varied and numerous
    stakeholders hope that it will streamline and clarify what has been a
    contentious, slow, and undefined process.

        Question 3. It is my understanding that a committee of the Arizona
    Legislature that recently reviewed the State hazardous waste cleanup
    law recommended that all the revenues from the State Water Quality
    Assurance Revolving Fund be dedicated solely to the hazardous waste
    program. As you may know, even though Superfund is funded with
    corporate taxes, and although the Superfund trust fund has a surplus of
    $3 billion, the effect is that these moneys are being utilized to
    balance the Federal budget. Do you agree with the Arizona committee's
    recommendation that tax revenues collected for hazardous waste cleanup
    should actually be used for that purpose? If so, shouldn't we also do
    that in regards to Superfund?
        Response. The parties that have been reforming WQARF have generally
    agreed that the State Superfund program needs to have adequate funding
    which is dedicated to WQARF program activities, including
    administration of the program, site characterization activities, legal
    support, removals and remedial activities, and other WQARF-related
    activities. We believe that the Federal Superfund should also have
    adequate funding dedicated to performing all of the necessary Superfund
    activities.
                                     ______

                   Senate Bill 1452--WQARF Program Amendments
        Senate Bill 1452 is a comprehensive overhaul of the Arizona Water
    Quality Assurance Fund (``WQARF'') program, also known as the Arizona
    Superfund program. It is the product of the ongoing work of the
    Groundwater Cleanup Task Force (appointed by the Arizona Department of
    Environmental Quality ``ADEQ'' and the Arizona Department of Water
    Resources ``ADWR'') and the Joint Select Committee on WQARF (appointed
    by the Legislature pursuant to Chapter 290, 1996 Laws a/k/a HB 2114).
        SB 1452 represents significant headway toward a true consensus on
    WQARF reform; however, it must be viewed as a ``work in progress.''
    Some important issues are yet to be resolved. However, the SNRAE
    amendment embodies the following key elements of a developing
    agreement:
         Permanent elimination of joint liability for hazardous
    substance cleanup;
         Non-litigation procedures for determining the fair share
    of each responsible party, with incentives for quick settlement and
    disincentives to litigation;
         Relief for qualified, small businesses that cannot afford
    to pay even their fair share of cleanup costs;
         Dedicated funding ($18 million annually--$3 million from
    existing dedicated sources and $15 million from corporate income tax
    collections) for ADEQ site investigation, responsible party
    identification, remedy selection, and orphan shares;
         Limitation on the State's ability to bring lawsuits under
    Federal law, to the extent inconsistent with State law;
         Prioritization of sites with greater emphasis on risk to
    human health;
         Enhanced community involvement and public participation at
    all stages of the cleanup process;
         Flexibility and common sense in determining appropriate
    cleanup methods;
         Removal of regulatory & liability barriers to transport
    and use of remediated water;
         Inspection and remediation or abandonment of wells
    contributing to groundwater contamination;
         Ongoing review of the WQARF program by a new WQARF
    Advisory Board and periodic Program Authorization Review (``PAR'').
        The Groundwater Cleanup Task Force and the Joint Select Committee
    on WQARF believe that the revisions proposed SB 1452 will result in a
    more fair and effective WQARF program. The stakeholders will continue
    to work through the details to implement GCTF and Joint Select
    Committee recommendations. We urge your support of SB 1452.
                                     ______

     Prepared Statement of Terry D. Garcia, Acting Assistant Secretary for
     Oceans and Atmosphere, National Oceanic and Atmospheric Administration
        Good morning, Mr. Chairman and Members of the Committee. I am Terry
    Garcia, the acting Assistant Secretary for Oceans and Atmosphere for
    the National Oceanic and Atmospheric Administration (NOAA) of the
    Department of Commerce. I am here today representing the interests of
    the U.S. Department of Commerce, the U.S. Department of the Interior
    (DOI), the U.S. Department of Agriculture (USDA), the Department of
    Defense, and the Department of Energy in their role as natural resource
    trustees.
        I would like to reassert for the 105th Congress the Clinton
    Administration's steadfast commitment to protecting and restoring the
    Nation's valuable natural resources. My testimony begins by reviewing
    recent progress made by the trustees toward restoring natural resources
    under the existing laws and rules governing damage assessment
    activities. I will then highlight reforms to the natural resource
    damage (NRD) provisions of the Comprehensive Environmental Response,
    Compensation and Liability Act (CERCLA or Superfund) that this
    Administration proposes. The final portion of my testimony will focus
    on provisions in the Superfund Cleanup Acceleration Act of 1997 (S. 8)
    that would impede the efforts of State, tribal and Federal natural
    resource trustees to protect and restore the Nation's natural resource
    heritage.
        CERCLA was enacted to address the legacy of hazardous substance
    contamination created by over 100 years of harmful disposal practices
    in this country. The statute provides important authorities not only to
    protect human health, but also to protect and restore this Nation's
    natural resources. These natural resources represent a critical
    component of our Nation's commerce--and the foundation of our future.
    Harm to the public's natural resources from years of improper handling
    and disposal of hazardous substances at sites throughout the country
    persists to this day. Losses to society and the U.S. economy from the
    public's inability to use and enjoy natural resources are potentially
    enormous. Over 76 million Americans enjoy birdwatching, photography and
    other nonconsumptive uses of wildlife, contributing $18 billion a year
    to the economy. Annually, 50 million anglers contribute nearly $70
    billion to the Nation's economy. Moreover, these and other citizens
    gain an enjoyment, serenity, and sense of community and national pride
    from unspoiled natural resources that transcend such economic impacts.
    The original drafters of CERCLA made a commitment to the American
    people that waste sites would be cleaned up and natural resources
    restored.
        The natural resource damage provisions of CERCLA allow us to
    reclaim our environment and restore those natural resources that have
    been degraded or destroyed by years of harmful hazardous waste
    disposal. CERCLA provides that natural resources that have been lost as
    a result of the disposal of hazardous waste into the environment will
    be restored for the people of the United States. To curtail the ability
    of trustees to be fully effective in their efforts is to deprive the
    people of this Nation of the right to have their natural resources
    fully restored to health and productivity.
        Hazardous substances can be toxic to fish and wildlife at extremely
    low concentrations. Common effects of hazardous substances include
    death, cancer, impairment of reproduction, disruption of normal fetal
    development, impairment of growth, reduction of central nervous system
    functions, and impairment of normal behavior patterns essential for
    survival. Very low concentrations of dissolved zinc or copper in water
    are highly toxic to developing fish larvae. Some of the more serious
    contaminants in the environment are those that persist for long periods
    of time and buildup in the tissues of fish and birds. For example, the
    bioaccumulation of dioxins, PCBs, and DDT can disrupt delicate hormonal
    systems and prevent normal reproduction. Relatively low concentrations
    in soil or sediment can accumulate and increase in concentration up
    through the food chain, causing harm in higher level animals. Effects
    can extend far beyond individual organisms, resulting in the collapse
    of populations, food chains, or even entire ecosystems, as the
    substances are transferred from one level of a system to another over
    long periods of time. With these potential losses at stake, and knowing
    how strongly Americans feel about protection of their natural
    resources, CERCLA's NRD provisions should only be revised if the
    changes strengthen the trustees ability to ensure effective restoration
    of the public's natural resources.
        Significant progress has been and is being made by State, tribal,
    and Federal trustees toward restoring natural resources injured by
    hazardous substances. By working within the U.S. Environmental
    Protection Agency's (EPA) remedial process, trustees have reached
    agreements with responsible parties to restore habitat and injured
    resources at more than 25 hazardous waste sites as part of negotiated
    comprehensive government settlements. For these sites, trustees have
    been able to obtain small restoration projects that provide significant
    cumulative benefits for natural resources. Trustees have also obtained
    settlements and advanced restoration as a direct result of natural
    resource damage assessment activities. I'd like to highlight some of
    the restoration that has occurred since we last testified before this
    Committee:
         Baytown, Texas. Restoration is complete at the French
    Limited Superfund Site, where a sand pit was used to dispose of
    enormous quantities of sludge and sediment contaminated with
    polychlorinated biphenyls, polycyclic aromatic hydrocarbons and other
    organic compounds between 1966 and 1971. Chemical residues from the pit
    contaminated groundwater and subsoils near the site, injuring trust
    resources such as migratory birds and crabs. Working within the EPA
    cleanup process, Federal trustees reached a settlement with the
    responsible parties to restore a marsh that would provide for the
    replacement of natural resources that had been injured, destroyed or
    lost. To achieve this end, the responsible parties worked cooperatively
    with the city of Baytown, Texas, to create a 60-acre wetlands reserve,
    including: 40 acres of saline to brackish marsh; 10 acres of forest
    land containing freshwater pools; and 10 acres of stream channels.
    Natural resources that previously used the area for food and shelter
    are returning to the restored marshland and local residents can now use
    the restored area for nature walks and fishing.
         New Castle County, Delaware. A restoration plan has been
    completed for the Army Creek Superfund site, where a sand and gravel
    pit was used as a landfill for municipal and industrial wastes during
    the 1960's. Untreated groundwater was discharged into Army Creek, a
    tributary of the Delaware River, to prevent additional contamination of
    private drinking water wells. Working within EPA's remedial process,
    trustees protected natural resources during the cleanup and reached a
    settlement that provided for recovery of injured natural resources,
    including migratory birds, anadromous fish and their habitats. Two
    offsite habitat enhancement projects are proposed in the restoration
    plan: the first involves improving and restoring fish and wildlife
    habitat in Lower Army Creek through modification of an existing water
    control structure; and the second project involves the acquisition and
    rehabilitation of approximately 60 acres of marsh and upland habitat to
    compensate for the loss of similar upland acreage.
         Tacoma, Washington. Efforts continue to restore and
    enhance habitat for fish and wildlife injured by years of pollution in
    Commencement Bay. Two seasons of planting have been completed at the
    Middle Waterway Shore Restoration Project, converting 4.7 acres of
    industrial uplands to a mix of clean, replanted upland habitat,
    intertidal salt marsh and intertidal mud and sand habitats. The goals
    of this project were to create productive and diverse estuarine
    habitats for fish and wildlife and to provide a model for the use of
    volunteer assistance in carrying out coastal restoration. In October
    1995, volunteers planted over 600 native upland trees and shrubs as
    part of this effort. In October 1996, an additional 300 trees and
    shrubs were planted by natural resource trustees.
         New Bedford, Massachusetts. Cleanup is ongoing in New
    Bedford Harbor and the trustees are moving forward aggressively with
    restoration efforts. The trustees have issued a Restoration Plan/
    Environmental Impact Statement for restoration actions not directly
    dependent on the progress of the cleanup and have undertaken an
    extensive outreach effort to solicit public input. The plan was
    developed by the trustees in cooperation with local citizens,
    businesses, academic institutions, State and local governments and non-
    profit organizations. It identifies 12 preferred restoration actions to
    restore a broad range of natural resources and human uses throughout
    the New Bedford Harbor environment. The trustees are proposing
    restoration priorities that include marshes and wetlands, recreational
    areas, water quality, fish and shellfish, and endangered species, and
    expect project implementation to begin within the next 6 months.
         John Day River, Oregon. Restoration of the John Day River
    is ongoing in response to the February 1990 spill of 3,500 gallons of
    hydrochloric acid into this river in north central Oregon. A final
    restoration plan has been issued that identifies 12 potential
    restoration projects for improving spawning and rearing habitat for
    both resident and anadromous fish. In addition to the restoration
    funding provided under the settlement, the trustees have successfully
    solicited matching funds for habitat restoration from the Bonneville
    Power Administration, the Forest Service and the Nature Conservancy.
    Two projects currently underway will improve spawning and rearing
    habitat for salmonids by reducing erosion and the buildup of sediment
    in the river, increasing streamside vegetation and restoring the
    natural pond and riffle characteristics of the streams.
         Lake Charles, Louisiana. Natural resource trustees and
    Conoco are formalizing two agreements that will enhance habitats for
    fish and wildlife to compensate for natural resource injuries
    associated with a March 1994 release of ethylene dichloride into the
    Clooney Island Loop area of the Calcasieu Estuary. A cooperative effort
    between trustees and Conoco will result in the creation and long-term
    protection of more than 200 acres of habitat on former farmland in the
    Hippolyte Coulee-Black Bayou area. More than 60,000 1-year old native
    tree saplings have recently been planted to restore habitat that
    provides sanctuary to many wildlife and fish species. Conoco is also
    voluntarily funding a Louisiana State University study to evaluate the
    success of the restoration project.
         Salmon, Idaho. As part of a 1995 natural resource damage
    settlement for the Blackbird Mine case, responsible parties agreed to
    restore the water quality in Panther Creek to support all life stages
    of salmonids by the year 2002. Pending restoration of water quality
    onsite, the responsible party is pursuing offsite compensatory
    restoration under the provisions of the consent decree. Specific
    reaches of stream have been identified for habitat improvement through
    livestock exclusion. The responsible party is now negotiating with land
    owners to exclude cattle from seven miles of potentially excellent
    habitat for salmon and other fish in the Snake River basin. In
    addition, detailed plans for restocking and improving habitat in the
    Panther Creek watershed are under review for immediate implementation
    once water quality improvement is confirmed by monitoring.
         Central California Coast. Significant progress has been
    made to reestablish common murre colonies in the areas where colonies
    were extirpated or severely injured by the 1986 Apex Houston oil spill.
    Decoys and other attractants have been deployed at historic breeding
    sites: Murres have landed and have already bred at these sites. The
    common murres will be monitored to further refine and evaluate the
    recolonization effort. As part of this restoration effort, work began
    in 1995 to purchase old growth forest as nesting habitat near current
    populations of marbled murrelets. Trustees are in the process of
    negotiating a purchase with the property owner.
        To accelerate restoration, Federal trustees have adopted several
    administrative changes aimed at expediting the restoration of injured
    natural resources. These include new natural resource damage assessment
    regulations and proposed amendments to CERCLA's natural resource
    damages provisions. In 1994, the Department of the Interior finalized
    revisions to the CERCLA natural resource damage assessment regulations.
    The new regulations require trustees to focus their assessment work and
    base their claims on a publicly reviewed plan for restoring injured
    resources to their baseline condition (i.e., the condition that would
    have existed in the absence of the release). In January 1996, NOAA
    issued final natural resource damage assessment regulations under the
    Oil Pollution Act of 1990. The OPA rule extends the restoration-based
    approach of the 1994 CERCLA regulations. Before trustees present a
    claim for an oil spill under the OPA rule, they must develop a plan not
    only for restoring baseline, but also for restoring the services lost
    in the interim until baseline is re-established. The OPA rule specifies
    that for the vast majority of oil spills, the trustees will no longer
    assess monetary damages for interim losses based on economic values.
    Responsible parties then have the option of either implementing the
    plan or funding the trustee's implementation of the plan.
        This new paradigm is being used for the North Cape oil spill, where
    natural resource trustees and the responsible party continue to work
    cooperatively to assess the effects of the spill and to determine
    appropriate restoration actions for Rhode Island's coastal environment.
    Four teams of experts have examined impacts to salt pond communities
    (fish, shellfish and vegetation), marine communities (lobster and surf
    clams), birds, and human uses (charter boat fishing, tourism and
    recreation). The restoration planning efforts of these teams are
    nearing completion, and a draft restoration plan will be released for
    public review and comment in late spring of 1997.
        The Department of the Interior is working to further improve the
    assessment process during the ongoing biennial review of the CERCLA
    regulations. DOI is currently evaluating public comments and expects to
    issue a proposed rule by January 1998. The Department is examining how
    the mechanics of up-front restoration planning for interim losses can
    be adjusted at hazardous waste sites to minimize the cost of assessment
    work while at the same time ensuring that such work produces reliable
    results. The Department is also carefully reviewing the injury
    determination provisions of the regulations, which establish specific
    injury thresholds that must be met before trustees can pursue a claim.
    The Department is conducting an extensive technical review to determine
    how these provisions should be revised to reflect the current level of
    scientific knowledge.
        These developments demonstrate that State, tribal, and Federal
    trustees are making progress toward restoring natural resources harmed
    by releases of hazardous substances. As confirmed by the recent General
    Accounting Office (GAO) report ``Status of Selected Federal Natural
    Resource Damage Settlements,'' trustees across the Nation are using
    funds recovered from responsible parties for restoration. The GAO
    report also notes that restoration takes time and is often delayed by
    many factors beyond the control of the trustees. Nevertheless, the
    Federal trustees have been working hard to effect changes that
    accelerate the restoration of injured resources.
    the administration's proposal for natural resource damages under cercla
        Last October, the Administration forwarded to this Committee, and
    other committees with jurisdiction, a proposal for reforming the
    natural resource damage provisions of CERCLA (Administration proposal).
    Federal trustees carefully considered criticisms of NRD that had been
    raised during previous reauthorization efforts. Our proposal for reform
    is specifically designed to shift the emphasis away from spending money
    on litigation and toward restoring injured natural resources. The
    proposal also contained changes that are based on our practical
    experience with the natural resource damage assessment and restoration
    process. These reforms are designed to improve the NRD programs by
    providing greater clarity concerning restoration, by assuring more
    timely and more orderly presentation of claims and by discouraging
    premature litigation. NOAA and the other Federal trustees encourage you
    to consider this proposal as the foundation for reform of Superfund's
    NRD provisions during the 105th Congress.
        The Federal trustees believe that revision of CERCLA's NRD
    provisions should be based on the following principles:
         Restore injured resources to baseline; and
         Restore the losses that the public suffers from the
    impairment of natural resources from the time of injury until
    restoration is complete.
        The Administration proposal embodies these principles and was
    intended to achieve two critical goals: strengthen the focus on
    restoration; and reduce the costs associated with damage assessment
    claims by eliminating or reducing unnecessary litigation. Specific
    reforms include:
        Adopt the Restoration-based Approach Developed in The Natural
    Resource Damage Assessment Regulations: The Administration's proposal
    shifts the emphasis of CERCLA damage assessment efforts toward
    restoration and away from arguing over the value of, or method for,
    calculating economic damages. This fundamental shift will avoid
    litigation and expedite the restoration of injured resources. The
    proposal contains definitions for primary restoration (return to
    baseline) and compensatory restoration (replacement of resources and
    services lost pending return to baseline) that parallel the concepts
    used in the natural resource damage assessment regulations promulgated
    under the Oil Pollution Act of 1990. This approach should eliminate
    disagreements over the valuation of natural resources by refocusing on
    CERCLA's overriding goal of restoring injured natural resources and
    establishing the cost of restoration as the primary measure of
    damages--not the monetary value of the lost resource.
        Reduce Uncertainty and Ensure the Orderly Presentation of Claims:
    The current statute of limitations provisions have created a lack of
    certainty both for responsible parties and for natural resources
    trustees. To preserve claims, natural resource trustees have been
    forced to file natural resource damage claims before the completion of
    restoration planning or prior to effective coordination with EPA. To
    address this uncertainty, the Administration's proposal contains
    provisions that would require a claim for damages to be presented
    within 3 years from the date of completion of a damage assessment by a
    trustee in accordance with the regulations, or the completion of a
    restoration plan adopted after adequate public notice. In addition, it
    ensures that claims can be filed in an orderly sequence, by specifying
    that a natural resource claim may be brought after an initial action to
    recover response costs. These revisions would clarify the sequential
    claims issue to reduce premature filings, protect against claim
    splitting, and provide time for effective restoration planning, thus
    preserving important public trust rights.
        Require Fair and Cost-Effective Restoration: The trustees agree
    that restoration should not be gold plated and our proposal requires a
    cost-effectiveness test to maintain that priority. ``Cost-Effective''
    is defined as the least costly activity among two or more restoration
    measures that provide the same or comparable level of benefits. In
    addition, the Administration proposal constrains compensatory
    restoration to replacing only those services that were lost as a result
    of the release under consideration, thereby providing protection
    against open-ended liability for responsible parties. These changes
    mirror the definition of cost-effectiveness in the CERCLA and OPA
    regulations, and ensure that the American public is adequately
    compensated for their losses while responsible parties are protected
    from unreasonable demands for restoration.
        Provide for Judicial Review of Restoration Plans Based on an
    Administrative Record: The present standard for judicial review of
    natural resource damage assessments under CERCLA is unclear, providing
    an incentive for all parties to keep their information confidential. In
    the absence of clear guidance, trustees have generally assumed that
    their assessments will be used as evidence at trial and will not be
    afforded great deference. Consequently, the incentive is for trustees
    to keep their assessment studies confidential except to the limited
    extent that disclosure to parties is required in litigation discovery,
    and for private parties to delay providing information during
    litigation, rather than during the assessment process. This approach
    has generated more costly assessments, increased transaction costs, and
    inhibited the open review and debate that the trustees would like to
    foster.
        The Administration's proposal recommends the designation of a lead
    administrative trustee to establish a publicly available administrative
    record to guide the selection of a restoration plan. This is coupled
    with provisions to limit judicial review of the restoration plan to
    review of the administrative record with an ``arbitrary, capricious or
    contrary to law'' standard of review. The process would be facilitated
    by new regulations for public participation in the development of the
    administrative record. Providing for judicial review of an
    administrative record would enhance public participation; increase
    certainty, predictability and trustee coordination; support the focus
    on restoration-based claims; reduce litigation costs; and allow
    adequate time for proper assessment and restoration planning.
        Impose Requirements on the Performance of Damage Assessments: The
    Administration's proposal would require damage assessments to be
    performed, to the extent practicable, in accordance with regulations
    and generally accepted scientific and technical standards and
    methodologies. The proposal also recommends that injury determination,
    restoration planning, and quantification of restoration costs be based
    on facility-specific information to the extent practicable. These
    revisions codify the approach currently used by natural resource
    trustees to conduct damage assessments. This provision is designed to
    ensure the validity and reliability of assessment results.
        Other changes to CERCLA's NRD provisions recommended by the
    Administration are designed to facilitate the process for both trustees
    and responsible parties. These changes include: improved coordination
    between damage assessment and remedial activities; restrictions on the
    use of damage recoveries; and contribution protection.
        The Association of State and Territorial Solid Waste Management
    Officials, the National Governors' Association, and the National
    Association of Attorneys General have voiced support for revisions
    similar to those contained in the Administration's proposal for
    reforming CERCLA's natural resource damage provisions.
     natural resource damage reform and the superfund cleanup acceleration
                               act of 1997 (s. 8)
        The Federal natural resource trustees applaud the efforts of this
    Committee to move the Superfund reauthorization debate forward and
    appreciate the thought and hard work that went into drafting S. 8.
    While there are provisions in S. 8 that reflect the concerns of the
    natural resources trustees, the Administration believes that S. 8 does
    not present an acceptable basis for achieving bipartisan consensus on
    Superfund Reform. Several of S. 8's provisions would severely impede
    the efforts of the natural resource trustees to protect and restore the
    Nation's natural resource heritage. We strongly urge the Committee to
    substitute the Administration's proposal for the natural resource
    damage provisions contained in S. 8. Our specific concerns with S. 8
    are as follows----
        S. 8 Precludes Restoration of Non-Use Values. Non-use values are
    real, though difficult to measure. For example, non-use values are
    based on knowing that a river exists, that our children will be able to
    swim and fish in that river in the future, and that the river will
    continue to be an integral part of our natural environment. S. 8
    provides that there shall be no recovery for impairment of non-use
    values. This provision limits the ability of trustees to restore the
    full value of injured resources by prohibiting the consideration of the
    full range of values in determining restoration actions.
        The Administration sees no reason to exclude the non-use component
    of resource values. If CERCLA imposes a cost-reasonable standard for
    restoration recoveries, the Administration feels that all components of
    value should be represented in applying the cost-reasonable test. To
    exclude non-use values, as specified in S. 8, means that the public
    will not be fairly and fully compensated for loss of resources.
        Restrictions on The Recovery of Interim Loss: CERCLA currently
    prohibits recoveries for hazardous substance releases where the damage
    occurred wholly before December 11, 1980 (i.e., the injury occurred and
    the resource recovered before 1980). S. 8 appears to prevent the
    recovery of any interim loss at sites where injury first occurred prior
    to 1980, regardless of the magnitude of those losses or whether those
    injuries persist today. If interpreted in this way, S. 8 would
    dramatically restrict the recovery of interim losses at sites where the
    injury started prior to 1980 and continues to this day, benefiting
    responsible parties at some of the biggest sites of contamination, and
    blocking compensation for loss of public resources. The
    Administration's reform proposal contains a better approach to
    restricting the recovery of restoration costs for pre-1980 losses.
        Cost Effective Instead of Cost ``Reasonable'' Restoration. S. 8
    would only allow trustees to restore injured natural resources if the
    restoration project has a ``reasonable cost,'' and does not define
    ``reasonable.'' This provision apparently assumes that the existing
    protections against the use of excessively expensive restoration option
    are inadequate. However, the D.C. Circuit recently reached exactly the
    opposite conclusion in Kennecott Utah Copper Co. v. Department of the
    Interior, holding that the trustees' obligations under damage
    assessment regulations to evaluate a range of alternatives in a public
    process, and to consider cost-effectiveness, are enough to ensure that
    appropriate projects will be selected. Instead of introducing a new
    ``cost reasonableness'' requirement that will need to be defined
    through litigation, and that may prevent or delay needed restoration,
    the Administration urges the adoption of a cost-effectiveness standard
    for evaluating restoration alternatives.
        Installment Payments Based on Restoration Needs, Not on Duration of
    Injury. S. 8 requires that responsible parties be allowed to pay for
    natural resource restoration over time, based on ``the period of time
    over which the damages occurred.'' Trustees often agree to installment
    payments in negotiated settlements to reflect a responsible party's
    limited ability to pay or the time that will be needed for restoration.
    However, the amount of time over which the damage to resources occurred
    should not be considered in a payment schedule.
                                   conclusion
        The natural resource trustees are firmly committed to implementing
    CERCLA's directive to restore injured natural resources in a timely and
    efficient fashion. This Administration has been working diligently to
    implement administrative changes that would facilitate the process for
    responsible parties and trustees while advancing the mission of fully
    restoring natural resources for the use and benefit of the American
    public. The efforts of State, tribal and Federal trustees are starting
    to show real restoration results across the country. The
    Administration's proposal for reforming NRD addresses many concerns
    that were voiced during previous reauthorization discussions, as well
    as provisions that would clarify and expedite the natural resource
    damage assessment process. S. 8's natural resource damage provisions,
    by contrast, would severely impede the efforts of State, tribal and
    Federal natural resource trustees, and deprive communities of their
    right to full restoration of the natural resources that support their
    economies and their way of life.
        Thank you for providing me with the opportunity to present the
    Clinton Administration's position on reforming CERCLA's NRD provisions.
    The trustees look forward to working with this Committee to develop a
    proposal that truly will strengthen the natural resource damage
    assessment and restoration provisions of CERCLA so that all affected
    constituencies can support Superfund reform in the 105th Congress. I
    will be pleased to answer any questions that you might have.
                                     ______

    Responses of Terry D. Garcia to Additional Questions from Senator Smith
        Question 1. Last November, the GAO issued a report on selected
    Federal natural resource damage settlements. According to the report,
    as of July 1, 1996 of the $33.8 million awarded for NRD settlements at
    62 sites, only approximately 19 percent (about $5 million) has been
    spent on damage assessments, planning or restoration. Thus, most of the
    money was just sitting waiting for something to spend it on. Can you
    explain why these moneys have been lying dormant?
        Response. Under the Comprehensive Environmental Response,
    Compensation and Liability Act of 1980 (CERCLA), natural resource
    trustees are required to use recovered damages only to restore or
    replace injured resources or to acquire the equivalent. The GAO report
    ``Superfund: Status of Selected Federal Natural Resource Damage
    Settlements'' (November 1996) presented the following results: As of
    July 1,1996, in addition to the settlements for the five largest cases,
    settlements had been reached at 62 sites, resulting in $33.8 million in
    awards to Federal trustees. Of the $33.8 million awarded, about 80
    percent had been collected. Of the collected funds, about 19 percent
    had been allocated for performing damage assessments, planning, or
    restoration. One site had been restored, and seven were in various
    stages of restoration. The trustees' use of the remaining 81 percent of
    the collected funds was awaiting the completion of restoration plans or
    other activities, such as cleanups or settlements with other
    responsible parties at the same site.
        GAO's report objectively characterizes the time-consuming obstacles
    that trustees encounter when a restoration action is needed subsequent
    to clean up. As the report states, these time-consuming factors may
    include:
         waiting for final selection of a remedy;
         waiting for implementation of a cleanup before onsite
    restoration proceeds;
         the need to collect information for restoration planning
    that wasn't procured through the remedial process;
         the need to conduct separate public review and permitting
    processes for restoration activities;
         the need to plan and design restoration projects; and
         the actual collection of damages from responsible parties.
        Despite these obstacles, there are numerous examples of restoration
    projects that are proceeding. Here are two:
        New Bedford Harbor: The trustees have evaluated and solicited
    public review of offsite actions to restore lost human uses. This
    represents a small percentage of the total restoration effort that will
    be conducted, but onsite restoration must await implementation of the
    remedy at this NPL site.
        Blackbird Mine: While awaiting selection and implementation of the
    remedy at this NPL site, the Trustees are focusing on offsite projects
    that will benefit the endangered chinook salmon by removing livestock
    from 7 miles of prime salmon habitat in the Salmon River basin. This
    represents a small portion of the restoration package, but only
    planning can be done for the onsite work until the water quality in
    Panther Creek is restored.
        The GAO report clearly shows that the trustees are diligently
    pursuing meaningful restoration with funds recovered from those who
    injured the resources. Recovered moneys have not been used for any
    purposes other than those allowed: restoration, replacement or
    acquisition of the equivalent injured natural resources. Trustees are
    carefully managing the use of recovered funds to ensure that moneys are
    applied in a way that is consistent with the legislative intent to
    protect and restore natural resources for future generations of
    Americans.

        Question 2. I am concerned That NRD restoration may overturn
    remediation decisions. For example, natural attenuation and
    biodegradation are two promising techniques for dealing with
    groundwater contamination [for which currently there are no effective
    cleanup solutions. I can foresee a situation where The remediation and
    the restoration decisions could be contradictory. Is this an acceptable
    situation?
        Response. Trustees do not ``overturn'' EPA decisions. CERCLA's
    coordination requirement, which applies to both EPA and the trustees,
    was designed to provide safeguards against inconsistencies or conflicts
    between remedial and restoration decisionmaking. Memorandums of
    understanding are in place or are being negotiated to ensure effective
    coordination between EPA and the natural resource managers on remedial
    decisions. In most EPA regions, there are biological technical
    assistance groups (BTAGs) composed of scientists from resource
    management agencies which work closely with EPA when EPA conducts
    ecological risk assessments. For example, NOAA has placed a staff
    person in each one of the coastal EPA regional offices to work with
    Superfund project managers on a day-to-day basis, and biologists from
    the Department of the Interior have long been involved in the BTAGs
    advising EPA.
        However, restoration decisions and remediation decisions, while
    clearly related, are not necessarily identical. The goal of remediation
    is to protect the public and the environment from being harmed or
    threatened by releases or potential releases of hazardous substances.
    To reach this goal, remediation focuses on reducing the risks posed by
    hazardous substances releases. The goal of restoration, on the other
    hand, is to return natural resources that have already been harmed by
    hazardous substance releases to the State they would have been in if
    the release had not occurred. At sites such as NPL sites, where
    remediation is already focusing on the necessary measures to reduce
    risk, restoration focuses not on risks associated with exposure to
    hazardous substances but rather on the condition of natural resources.
        Close coordination between EPA and the natural resource managers
    helps ensure that the risks to both human health and ecological
    resources are evaluated thoroughly during remediation and that EPA
    designs a remedy that eliminates, reduces or controls risks to human
    health and the environment. The elimination, reduction or control of
    risks caused by contamination, however, while usually stopping
    additional natural resource injuries directly caused by hazardous
    substances, does not necessarily redress past injuries to natural
    resources. Additional actions, whether onsite or offsite, sometimes are
    necessary and appropriate for restoration. Generally, these additional
    actions not only serve a different goal but are also of a different
    type than remedial actions. For example, they may involve reseeding
    plant life or restocking fish. This type of restoration simply
    complements EPA's remedial actions.
        At sites where EPA is selecting a remedy under CERCLA and the NCP,
    trustees have no authority to second-guess EPA's decision on cleanup.
    However, as recognized by the Court of Appeals in the recent Kennecott
    decisions, trustees separate decisions on restoration may, in some
    circumstances, lead to actions to address contamination that the
    remedial action has left in place. See Kennecott Utah Copier v. DOI, 88
    F. 3d 1191, 1218-19 (D.C. Circuit 1996). Effective natural resource
    restoration requires that this authority be preserved for trustees.
    Nevertheless, it would be an unusual development for a trustee action
    to address contamination left in place by a remedial action because of
    existing constraints on trustee activities. For example, under the
    CERCLA natural resource damage assessment regulations, in selecting a
    restoration alternative trustees must consider a range of restoration
    alternatives, including natural recovery, and must justify their
    selected restoration plan after considering the respective cost,
    benefits, degree of consistency with response actions, and degree of
    technical feasibility posed by each alternative. If EPA were unable to
    justify taking certain actions to remove contaminants from the
    groundwater, it is unlikely that a trustee would be able to justify
    taking the same actions as restoration. The most likely result would be
    that the trustee would rely on natural recovery to restore the
    groundwater to its baseline condition and then seek compensation for
    the losses, if any, that the public incurs pending completion of
    natural recovery.

        Question 3. I am interested in understanding what happens in
    instances where a trustee and The EPA disagree over cleanup levels. If
    a party undertakes a cleanup satisfying EPA's standards, or settles
    with the EPA and has a convenant not to sue, the trustee could overide
    the EPA remedy and file an NRD claim? If EPA does a cleanup, or
    determines that no cleanup is necessary, The trustee cannot require
    additional cleanup for natural resources.
        Response. For reasons stated in our response to Question 2,
    coordination between EPA and the trustees to ensure that the remedy
    adequately addresses ecological risks makes it unlikely that EPA would
    choose a cleanup level that fails to satisfy the trustees concerns
    about residual contamination causing injuries to natural resources. If,
    despite full coordination and consultation, EPA and the trustees cannot
    agree on the appropriate cleanup level to eliminate, reduce or control
    unacceptable risk from hazardous substances, the EPA-selected cleanup
    level is implemented. It is EPA's job to pick protective cleanup
    levels, remedies that protect human health and the environment, and to
    ensure the reduction of risk to acceptable levels. Subsequent to the
    cleanup, the NRD claim focuses on actions necessary to restore or
    replace resources that were injured by contamination. CERCLA directs
    trustees to act on behalf of the public to restore, replace, or acquire
    the equivalent of injured natural resources. Trustees would be
    neglecting their fiduciary responsibilities if they did not pursue
    actions that would restore or replace the public's natural resources.
    If the continuing presence of contaminants after cleanup affects
    natural resources, in choosing a restoration plan the trustees could
    face the same constraints as EPA in selecting restoration actions,
    including technical feasibility and cost effectiveness.
                                     ______

       Prepared Statement of Larry L. Lockner, on Behalf of the American
                              Petroleum Institute
        The American Petroleum Institute (API) strongly supports reform of
    the Superfund program. Comprehensive reform of Superfund is important
    to accomplish during this Congress; a mere refunding of the program is
    insufficient. API members believe that S. 8, the ``Superfund Cleanup
    Acceleration Act of 1997,'' incorporates many important and necessary
    reforms to the program. It is an appropriate vehicle to continue the
    Superfund reform process.
        Petroleum companies--as community members, as potentially
    responsible parties (PRPs), and as taxpayers--will be greatly affected
    by the changes that Congress elects to make to the Superfund program.
    Moreover, the petroleum industry has a unique perspective with regard
    to Superfund. It is estimated that the petroleum industry is
    responsible for less than 10 percent of the contamination at Superfund
    sites; yet the industry has historically paid over 50 percent of the
    taxes that support the Trust Fund. This inequity is of paramount
    concern to API members and has caused the industry to focus on those
    elements that affect the costs of the program and the authorized uses
    of the Trust Fund.
        When Superfund was enacted in 1980, Congress envisioned a program
    that would cost $1.6 billion and be complete within 5 years. Almost 17
    years later, however, billions have been spent, but relatively few
    sites on the National Priorities List (NPL) have been cleaned up. The
    program appears to be without end.
        API members are pleased that the Senate bill would reduce the
    number of sites to be added to the NPL and commend the sponsors for
    taking this important step. Limiting new additions to the NPL ensures a
    more reasoned Federal program with reduced future funding requirements.
    Additionally, we support the bill's provisions that would delegate
    Superfund remedial authority to the States at non-Federal NPL sites. In
    general, the States have well established programs and have
    demonstrated capability at cleaning up sites. We urge subcommittee
    members to add provisions to the bill limiting the Federal program to
    emergency removal actions at newly discovered sites.
        The following sections of this testimony provide specific comments
    on liability/funding reform, remedy selection, natural resource damages
    as well as exploration and production wastes.
                            liability/funding reform
        API member companies support liability reform. Reform in this area
    will expedite cleanups and reduce transaction costs. Clearly, under
    current law, too much money is wasted on high legal costs. However, as
    an industry that has borne a highly disproportionate share of the taxes
    that support the Trust Fund, the petroleum industry is concerned about
    the impact that any liability changes would have on program costs.
        At this point, we do not know how much the liability reform
    outlined in S. 8 will cost. For example, under the liability provisions
    contained in S. 8, the Fund would pick up orphan-share costs as well as
    post-enactment response costs at co-disposal landfills for generators,
    transporters, and arrangers who contributed wastes prior to January 1,
    1997. Moreover, municipal owners' and operators' liability would be
    capped at such landfills. In addition, de micromis, de minimus parties
    and others would be exempt.
        We need to understand whether the cost savings associated with the
    remedy selection and the administrative-process provisions are
    sufficient to offset the additional costs arising from the shift in
    liability from PRPs to the Fund or, whether the program as envisioned
    under S. 8, would place increased demands on the Fund. As the largest
    group of taxpayers to the Fund--which is expected to cover most of the
    future costs of the Federal Superfund program--API members cannot
    conclude their evaluation of the legislation without fully
    understanding these cost ramifications.
        Without substantial reform of the underlying Superfund program and
    the tax system supporting the fund, API opposes authorization of any
    Superfund taxes. It is critical that Congress restructure the taxes
    that support the Fund. Superfund sites are a broad societal problem,
    and taxes raised to remediate these sites should be broadly based
    rather than focused on specific industries.
        EPA has found wastes from all types of businesses at most hazardous
    waste sites. As consumers, as residents of municipalities, and as
    residents and taxpayers of a nation, our entire economy benefited in
    the pre-1980 era from the lower cost of handling waste. To place
    responsibility for the additional costs resulting from retroactive
    CERCLA cleanup standards on the shoulders of a very few industries when
    previous economic benefits were widely shared is simply unfair.
        The additional costs to the Fund from exempting parties from
    liability must be offset by other reform measures including remedy
    selection reform. Thus, API offers the following comments on several
    additional reform provisions.
                            remedy selection reform
        API members have long advocated remediation standards that are
    site-specific and risk-based. The remediation process should provide
    protection of human health and the environment through methods that are
    practical and achievable in a cost-effective fashion. The remedy reform
    measures contained in the S. 8 largely reflect these attributes, and
    API members endorse many of the approaches taken in the bill.
    Specifically, API members support the provisions in S. 8 that would:
         Eliminate the preference for permanence and treatment (a
    major factor in delay of cleanups);
         Establish a protective risk range of 10-4 to
    10-6 for all remedies;
         Establish facility-specific risk evaluations;
         Allow PRPs to prepare facility evaluation work plans for
    sites;
         Establish the reasonableness of cost as a remedy selection
    criterion;
         Give consideration to future land and water use;
         Consider all remedial alternatives on an equal basis,
    including engineering and institutional controls; and
         Streamline the current remedy selection process.
        API also endorses the use of the remedy selection balancing
    criteria and is pleased to see that S. 8 would establish the
    reasonableness of cost as a remedy selection criterion. In selecting a
    remedy, the incremental benefits of the remedy should justify any
    additional costs. The balancing criteria are the keystone of the remedy
    selection process, and API thinks that all remedy selection procedures
    and applications should be subject to them.
        The bill would also allow the use of ``applicable'' Federal and
    State laws and State standards in selecting remedial alternatives. In
    our view, ``applicable'' laws should be subject to the balancing
    factors and technical practicalities; otherwise, there will be
    diminished savings, increased costs and little appreciable benefit to
    human health and the environment. Clearly, the Fund should pay for
    remediation only when applicable laws have been subject to the
    balancing criteria.
        Finally, the bill requires protection of uncontaminated groundwater
    and restoration of contaminated groundwater. It needs to be made clear
    that the requirement to protect or restore groundwater is subject to
    the balancing criteria and considers natural attenuation or
    biodegradation.
        API's detailed comments on the remedy selection provisions
    contained in S. 8 are outlined in an attachment to this testimony.
                         natural resource damages (nrd)
        API is an active member of the Coalition for Legislative NRD Reform
    and strongly supports the coalition's positions and testimony they may
    submit. API believes that legislation should confirm and clarify
    existing statutory limitations on liability for natural resource
    damages. API's five core principles with respect to NRD reform would:
         Reestablish the focus of the NRD program on restoring the
    functions of public natural resources in the most cost-effective
    manner;
         Eliminate liability for damages in excess of the
    reasonable costs of restoration (i.e., so-called ``lost use'' and
    ``non-use'' damages);
         Clarify NRD limitations adopted in 1980 to provide
             prospective application of NRD,
             a $50 million cap on recoveries,
             prohibition of double recovery;
         Repeal the rebuttable presumption by requiring the courts
    to treat NRD claims in the same manner as other damage claims; and
         Require consistency between the environmental component of
    remedy selection and the NRD program.
        API is pleased that many of these provisions are addressed in the
    bill. We are concerned, however, that the bill does not clarify the
    strict $50-million cap on recoveries that Congress intended when CERCLA
    was originally enacted.
                        exploration and production waste
        API believes that the exploration and production waste language in
    the law needs clarification. Some court opinions have misinterpreted
    congressional intent to exempt high volume, low-toxicity wastes, which
    EPA has determined do not need to be treated as hazardous wastes.
    Congress should clarify that these wastes are excluded under Superfund.
                                   conclusion
        In summary, API commends members of the Subcommittee for their
    efforts to craft and to advance meaningful Superfund reform. The cost
    constraining measures contained in S. 8 are fundamental, and any
    weakening of these provisions may jeopardize Superfund reauthorization.
    We believe it is important that the reauthorization process continue,
    and we look forward to working with subcommittee members to accomplish
    this goal. We would like to provide additional comments to staff as we
    continue our review of the bill
                                     ______

              Attachment: Comments on Remedy Selection Provisions
                           protection of human health
         The bill says that a remedial action shall be considered
    to protect human health if a residual risk from exposure to threshold
    carcinogenic and noncarcinogenic hazardous substances does not exceed a
    hazard index of 1. This is overly prescriptive. API recommends using
    the wording ``shows no appreciable risk of deleterious effects'' as
    opposed to a specific index number.
                           state applicable standards
         The bill allows for the application of more stringent
    State standards. States should have the flexibility to impose--where
    appropriate--less stringent State standards.
         States may apply more costly remedies at delegated NPL
    sites but should not be able to recover incremental costs from PRPs,
    other agencies, or the Fund.
         Waiver provisions are established where the Administrator
    determines that it is not appropriate for a remedial action to attain a
    Federal or State standard. Historically, waivers have been difficult to
    obtain. Rather than being established as conditions for a waiver, these
    provisions should be set out as conditions where Federal and State
    standards would not apply.
         New State laws that may create standards with general
    applicability should be subject to a rulemaking process.
                       land and water use considerations
         In determining reasonably anticipated future land use, the
    appropriate local authority should consult with the broadest spectrum
    of stakeholders including facility owners and operators as well as
    potentially responsible parties.
         Governmental units would determine the reasonably
    anticipated future use of water resources. A broad group of
    stakeholders including CROs and PRPs should be consulted in this
    process.
                                  groundwater
         The bill would require protection of uncontaminated
    groundwater that is suitable for use as drinking water by humans or
    livestock. The term livestock should be deleted because it would
    require regulation of extremely saline groundwater that could not be
    consumed by humans.
         The bill also needs to make clear that the requirement to
    protect uncontaminated groundwater or restore contaminated groundwater
    is subject to the balancing criteria and considers natural attenuation
    or biodegradation.
         The bill requires contaminated groundwater to be restored
    if technically practicable. Does technical practicability include cost
    considerations?
                                judicial review
         Provisions should be made that would allow pre-enforcement
    judicial review.
                                risk assessments
         The bill establishes requirements for facility-specific
    risk evaluations. Such requirements are supported by API members.
         The bill should also include language to clarify that
    facility-specific risk evaluations are tiered. A full risk assessment
    may be unnecessary at every site.
         Additionally, the bill should make clear that PRPs have
    the right to conduct risk assessments in States with comprehensive
    delegation authority.
                                 rod reopeners
         API supports the concept of reviewing proposed remedies
    and previously negotiated RODs as expressed in the bill. However,
    qualifications for members of the remedy review board and PRP
    participation must be clarified.
                          presumptive remedial actions
         A PRP should have the right to conduct a risk-based
    response action in lieu of a presumptive remedy.
                            future use of a facility
         The bill provides that a facility deemed suitable for
    unrestricted use would be subject to no further liability while a
    facility available for limited use would be reviewed every 5 years and
    potentially required to conduct additional remedial action. A facility
    available for reuse of any type should be subject to no further
    liability or review; otherwise the bill may have a negative impact on
    brownfield programs.
                                     ______

     Responses of the American Petroleum Institute to Additional Questions
                               from Senator Smith
        Question 1. One of the criticisms raised about S. 8 is that 180
    days is an insufficient amount of time for EPA to decide whether to
    approve or disapprove of a cleanup plan prepared by a PRP. Do you
    agree? Would a delay longer than this be an acceptable practice in
    private industry?
        Response. API believes that the 180-day provision for Agency review
    of a cleanup plan is reasonable. The focus of S. 8 is to streamline and
    to improve the efficiency of remediation. Limiting EPA's review of
    cleanup plans to 180-days helps achieve this goal. Since EPA is
    involved in reviewing each step of the remediation planning process
    (including the work plan and facility evaluation) prior to review of
    the remedial action plan, API believes that a 180-day review period is
    sufficient. Moreover, cleanups reviewed by the Remedy Review Board are
    subject to a 180-day (or longer) review period in addition to the EPA
    180-day review period. To extend the review any longer would unduly
    delay the remediation process.

        Question 2. You have stated that S. 8 should be modified to address
    the issues of exploration and production wastes. Could you expand on
    that position.
        Response. API members believe that the statutory language relating
    to exploration and production (E&P) waste should be clarified during
    Superfund reauthorization. E&P waste currently is exempt by reason of
    its exemption from RCRA subtitle C regulation. After an extensive
    study, EPA confirmed the exemption because generally such waste is high
    in volume but low in toxicity and poses little or no threat to human
    health and the environment when properly managed. The current
    regulation of E&P waste and waste sites under Federal and State
    authority is effective and efficient. State oil and gas regulators have
    developed programs to address abandoned E&P sites. Additionally, the
    Interstate Oil and Gas Compact Commission, working with EPA, has
    developed guidance for these State programs.
        The complexity of the manner in which the exemption is stated has
    raised litigation issues at a number of sites, and clarifying the law
    would help minimize such litigation. As a practical matter, without the
    E&P waste exclusion under CERCLA, existing regulatory agencies and
    emergency response authorities would be overwhelmed by the reporting of
    routine operations already controlled by State programs.
        We would be happy to meet with you to discuss the intricacies of
    this issue and API's position.

        Question 3. Do you believe that the allocation system in S. 8 will
    help to eliminate some of the unnecessary litigation at these sites?
        Response. The allocation system in S. 8 creates so many litigation
    disincentives that it would, as a practical matter, virtually eliminate
    PRP litigation challenging the allocation. While we believe that
    excessive litigation could impede the cleanup process, we do not agree
    that all litigation is unnecessary. The judicial system provides checks
    and balances to Agency action by ensuring that the allocation process
    is applied equitably. Penalties which have the practical effect of
    prohibiting PRPs from exercising their right to seek judicial review
    should be eliminated.

        Question 4. I would like to get your position on the ROD reopener
    provisions contained in S. 8. Do you think that these provisions are
    too expansive and will result, as some would suggest, in virtually
    every ROD being reopened?
        Response. APl believes that the ROD reopener provisions in S. 8 are
    already subject to numerous checks and balances. Rods can only be
    reopened if specified cost saving are achieved and the ROD satisfies
    the remedy selection criteria in S. 8. Moreover, State Governors can
    veto a ROD reopener if they think such an action will cause
    unreasonable delay and adversely affect human health and the
    environment or cause a disruption of planned future use of the site. In
    fact, in our opinion, there may be circumstances where the ROD reopener
    provisions need to be made more flexible.

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     Responses of Charles de Saillan to Additional Questions from Senator
                                     Smith
        Question 1. Does the Chief Executive of your State, Governor Gary
    Johnson (R-NM) agree with the positions articulated in your statement?
        Response. The positions articulated in our statement are fully
    consistent with the positions taken by New Mexico Governor Gary E.
    Johnson. In formulating our positions, we have consulted with the New
    Mexico Environment Department, and the New Mexico Office of the Natural
    Resources Trustee, both Executive agencies that report to the Governor
    and that are headed by Governor Johnson's appointees.
        While Governor Johnson has not reviewed the Superfund legislation
    with the same level of detail that we have in the Office of the
    Attorney General, he has taken very similar positions on most issues.
    His positions are stated in his February 29, 1996 letter to Senators
    Bob Dole and Thomas Daschle. A copy of the letter is enclosed herewith.
    Governor Johnson's appointee as Secretary of the New Mexico Environment
    Department, Mark Weidler, has also taken very similar positions.
    Secretary Weidler's positions are stated in his November 3, 1995 letter
    to Senator Pete V. Domenici. A copy of that letter is also enclosed.
        In addition, the positions articulated in our statement are
    consistent with the National Governors' Association Policy on
    Superfund. A copy of that Policy is also enclosed.

        Question 2. You raise concerns in your testimony about the
    technical impracticability sections of S. 8 as it relates to
    groundwater. Please explain to me what is wrong with using point of use
    treatment where it is technically impractical to clean up groundwater?
        Response. Point-of-use devices, such as activated carbon filters,
    are often ineffective in treating drinking water. Studies have
    demonstrated numerous problems with such devices. For example, chlorine
    or other organic chemicals in source water can result in undetected
    ``breakthrough'' of contaminants from the filter into drinking water.
    Filters may also provide a medium for the growth of disease-causing
    bacteria. Moreover, in order to work properly, the devices must receive
    regular maintenance such as replacement of the filter. Experience has
    shown that homeowners often do not properly maintain the filters. See
    generally, Benjamin W. Likens, Jr., Robert M. Clark & James A.
    Goodrich, Point-of-Use/Point-of-Entry for Drinking Water Treatment 173-
    195 (Lewis Publishers 1992)
        Part of our concern stems from the undue emphasis on point-of-use
    devices that the bill would create in the statute. Such devices should
    be used, if at all, only as a temporary measure or as a last resort
    when nothing else is possible--as is the case under current law. An
    express statutory reference to such devices as a technique for
    addressing contaminated groundwater makes their use much more
    acceptable, notwithstanding their limited effectiveness. The bill
    strongly implies that if groundwater remediation is technically
    impracticable--based on modelling or projections--then installation of
    point-of-use devices is all that is necessary. Implementing agencies
    will need to take this statutory provision into consideration, as will
    reviewing courts. The provision no doubt will be seized upon by
    attorneys for responsible parties seeking--as some do--the cheapest way
    out. It will be more difficult for EPA and State environmental agencies
    to require cleanup of contaminated groundwater or, where cleanup is
    impracticable, to require a more protective but more expensive
    alternative such as hooking residents up to a municipal water supply.
        Our concerns over the emphasis on point-of-use devices are
    heightened by other provisions in the bill that we fear would render
    containment of contaminated groundwater, rather than treatment, the
    norm. As stated in our testimony, the bill would eliminate any
    preference for treatment of contaminated groundwater; it would require
    containment remedies to be considered on an equal basis with treatment
    remedies; it would limit the goal for protection of groundwater to
    preventing or eliminating ``actual human ingestion'' of contaminated
    groundwater; it would eliminate MCLG's and even MCL's as groundwater
    cleanup standards; it would allow a determination that groundwater
    cleanup is technically impracticable based on modelling and
    projections, without any effort to remediate the groundwater or even to
    reduce contaminant levels; it would place unnecessary emphasis on
    natural attenuation, dilution, dispersion, and biodegradation.

        Question 3. When do we draw the line in natural resource cleanups
    and who makes that decision? Let me use an example: let's say you have
    a stream where sediments may have been deposited 20 years ago, but
    since that time there have not been any new releases, yet the natural
    resources have not fully recovered. One alternative to deal with the
    stream contamination is to dredge the stream which would kill
    everything there in the hope things would recover. Or do we let nature
    take its course and let the stream continue to naturally recover? Who
    makes that decision?
        Response. Under the Department of the Interior (DOI) natural
    resource damage assessment regulations, the trustee agency or agencies
    consider a range of alternatives for restoration of injured resources.
    43 C.F.R. Sec. 11.82(c). In the hypothetical situation you posit, these
    alternatives might include dredging the stream to eliminate all further
    releases; enhancement of the injured resources to speed up their
    natural recovery; acquisition of equivalent resources to compensate the
    public for the lost resources; no action; and various combinations of
    the foregoing.
        Under the DOI regulations, the trustees would consider, among other
    things, the technical feasibility of each alternative; the relationship
    of the expected costs and the expected benefits of each alternative;
    the cost-effectiveness of each alternative; the potential for
    additional injury resulting from the proposed alternative; the natural
    recovery period of the injured resources; and the ability of the
    natural resources to recover without any action. 43 C.F.R.
    Sec. 11.83(d). The trustees would seek public comment from interested
    persons, including the responsible parties, on the various
    alternatives. 43 C.F.R. Sec. 11.81(d) (2). Based on these
    considerations, and public comment, the trustees would select the most
    appropriate restoration alternative. 42 C.F.R. Sec. 11.82(a).

        Question 4. Apparently, out west there are high natural
    concentrations of elements such as arsenic, mercury and lead (I
    understand that the most productive uranium mining district in the
    country is in New Mexico) that can leach out when touched by water. Is
    this taken into consideration in determining water standards in your
    State? Have there been instances where remedies have mandated cleanup
    of groundwater to levels lower than background?
        Response. New Mexico has localized occurrences of relatively high
    levels of naturally occurring arsenic in some of its groundwater.
    Naturally occurring lead and mercury are less common. Lead and mercury
    are relatively insoluble in water at normal pH, and thus rarely create
    water quality problems.
        New Mexico does take background levels of contaminants into
    consideration in determining appropriate cleanup levels. The
    regulations issued under the New Mexico Water Quality Act set standards
    for contaminants in groundwater and surface water. The regulations
    provide that ``[i]f the background concentration of any water
    contaminant exceeds the standard . . . pollution shall be abated by the
    responsible person to the background concentration.'' New Mexico Water
    Quality Control Commission Regulations Sec. 4101 (B). There have been
    no instances in New Mexico of remedial actions that mandated cleanup to
    standards below background levels.
     Response of Charles de Saillan to an Additional Question from Senator
                                   Lautenberg
        Question. On behalf of NAAG, are you aware how many States have
    Superfund statutes, and of those that do, how many of these have
    liability schemes that are retroactive? How many are strict? How many
    are joint and several?
        Response. Because ``Superfund statute'' is not a precise term, it
    is not possible for us to provide a definitive number of States that
    have enacted such laws. By our count, at least 38 States have laws
    providing for the cleanup of hazardous substances similar to CERCLA.
    Several other States have features similar to CERCLA in their water
    quality or hazardous waste management statutes, which we have not
    included among the 38.
        Of those 38 States with Superfund-type cleanup laws, some 26 have
    laws that provide for strict, joint and several, and ``retro-active''
    liability similar to CERCLA. The laws of 36 States--all but Illinois
    and Michigan--provide strict liability. The laws of 36 States--all but
    California and Iowa--apply liability to preenactment disposal. The laws
    of 31 States provide for joint and several liability, either by statute
    or common law; the laws of Alabama, Arizona, Arkansas, California,
    Illinois, Tennessee, and Utah expressly preclude joint and several
    liability. The laws of several other States limit joint and several
    liability, most frequently by allowing proportionate liability if the
    responsible party can demonstrate a reasonable basis for apportionment,
    which is not unlike the current CERCLA scheme.
        In addition, many States with no State Superfund laws rely on water
    quality laws or hazardous waste management laws to require cleanup.
    Many of these laws include strict, joint and several, and
    ``retroactive'' liability. The New Mexico Water Quality Act, N.M. Stat.
    Ann. Sec. Sec. 74-6-1 to 74-6-17, is an example.
        Furthermore, several States that place limitations on liability
    under their own statute rely on the Federal CERCLA statute to obtain
    cleanup. For example, the California Hazardous Substance Account Act,
    Cal. Health & Safety Code Sec. Sec. 25300 et seq., does not provide for
    joint and several liability or liability for preenactment disposal.
    Consequently, California relies heavily on the liability provisions of
    CERCLA, and has brought numerous cost recovery actions under CERCLA.
        We base this information on an EPA study entitled, ``An Analysis of
    States Superfund Programs: 50-State Study 1993 Update,'' and on
    informal surveys conducted by State attorney general staff.
        We request that this letter, the enclosed letters from Governor
    Gary E. Johnson and from Secretary Mark Weidler, and the enclosed
    National Governors' Association Policy, be included as part of the
    hearing record.
        We appreciate the opportunity to provide this information to the
    Subcommittee. If you have any further questions, do not hesitate to
    contact our Office. I can be reached by telephone at (505) 827-6939 or
    by telefax at (505) 827-4440.

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       Prepared Statement of Rich Heig, Senior Vice President, Kennecott
                                  Corporation
        My name is Rich Heig, and I am Senior Vice President for
    Engineering and Environment of Kennecott Corporation.
        I appreciate having the opportunity to appear before this Committee
    on behalf of Kennecott, and express our views on S. 8, the ``Superfund
    Cleanup Acceleration Act of 1997''. There is a lot that we like about
    this bill. Kennecott supports a balanced reform of Superfund, designed
    to correct the program's many problems--problems that have led to
    little cleanup, and a tremendous amount of litigation. Superfund reform
    should have as its goal, expedient cleanup based upon good science, and
    should include natural resource damages (NRD) provisions that clearly
    focus on restoration of services. S. 8 is a positive step toward this
    goal.
        Kennecott Corporation is headquartered in Salt Lake City, Utah, and
    provides management services to various Kennecott affiliates. Kennecott
    companies include the third largest producer of copper metal, and the
    third largest producer of clean burning, low sulfur coal in the United
    States. The operations of Kennecott Utah Copper Corporation near Salt
    Lake City have produced more copper than any other mine in history, and
    are a significant supplier of gold, silver, and molybdenum, with
    employment for more than 2,300 Utah residents. Over the last 10 years,
    Kennecott Utah Copper has invested more than $ 2 billion in modernizing
    its mining and processing facilities. Our new smelter, when operating
    to full design capacity, will be the world standard for reducing
    SO2. In addition to Utah, Kennecott companies have base and
    precious metal operations in the States of Alaska, Nevada, South
    Carolina, and Wisconsin, and coal mines in Colorado, Montana, and
    Wyoming.
        Kennecott is very familiar with the inefficiencies of the existing
    Superfund law, and since 1990 has undertaken proactive cleanup measures
    at Kennecott Utah Copper's Bingham Canyon Mine. Mining in the Bingham
    Canyon area can be traced to the 1860's when a number of lead and
    silver mines and mills became active. In the 1920's, Kennecott
    consolidated various holdings and began the mining of copper. Early
    miners, along with the rest of society, did not have the benefit of
    modern technology and understanding of environmental values in their
    practices of waste management.
        We believe the results of Kennecott's proactive approach speak for
    themselves. Over the past 5 years, Kennecott has expended over $230
    million for remediation. Twenty-five (25) million tons of historic
    mining wastes have been properly disposed. Over 5,500 acres have been
    reclaimed for wildlife habitat and recreational uses. Significant
    progress has been made in containing and controlling affected
    groundwaters. This has all been accomplished to EPA and State of Utah
    specifications.
        These efforts have not been easy under the current Superfund law
    which lacks flexible mechanisms to accomplish proactive and voluntary
    cleanups. After years of attempting to negotiate a formal comprehensive
    consent decree to address the cleanup work, negotiations failed. In
    January 1994, Kennecott Utah Copper sites were proposed for Superfund
    listing, despite having spent over $85 million on cleanup at 14 source
    sites (with cleanup completed at seven of those sites). To avoid the
    negative ramifications of a Superfund listing, Kennecott mounted an
    extensive challenge to the proposed listing. All the while, Kennecott
    proceeded with cleanup activities and discussions with EPA to develop a
    non-traditional Superfund approach to address the numerous cleanup
    activities.
        A site visit by Environmental Protection Agency (EPA) Administrator
    Carol Browner and her staff, combined with recognition of Kennecott's
    successful cleanup efforts and ongoing commitment, resulted in a
    Memorandum of Understanding (MOU) established in September 1995. In the
    MOU, Kennecott, EPA, and the State of Utah agreed that the Superfund
    listing of the Kennecott sites would be deferred if Kennecott completed
    certain specified cleanup programs and studies--most of which were
    already underway.
        Kennecott's goals for its environmental cleanup program include
    expeditiously reducing real risks by characterizing the problems fully
    and efficiently, considering both proven and innovative solutions, and
    utilizing those technologies that are readily implementable and cost-
    effective. This has been done on a parallel track with regulatory and
    legal discussions, and, at the same time, continuing full and open
    communications with the affected communities. This approach has
    minimized transaction costs, and continues to avoid the negative
    effects of a Superfund listing on a viable operating facility and the
    adjoining communities.
        Kennecott continues to work with EPA and the State in completing
    these projects, including, a remedial investigation and a feasibility
    study for groundwater contamination, an ecological risk assessment, and
    completion of source control and elimination efforts. Kennecott
    appreciates the foresight, and we believe, good judgment exercised by
    Administrator Browner in adopting this approach to Kennecott's cleanup
    activities.
        The results achieved by Kennecott Utah Copper, acting as an
    environmentally pro-active company, are in sharp contrast to
    Kennecott's experience at other Superfund sites, such as the Ekotek NPL
    site located in North Salt Lake. Over $19 million has been spent since
    1989, approximately half of which went to EPA oversight costs and legal
    fees, and the final cleanup remedy is yet to be implemented, even
    though the potentially responsible parties (PRPs) are eager to proceed.
        Kennecott Utah Copper also has experience with the natural resource
    damages provisions of Superfund. In the midst of all the Superfund
    cleanup activity, the NRD Trustee for the State of Utah maintained a
    $129 million action for natural resource damages for contaminated
    groundwater. An initial settlement was rejected by the Federal court,
    and the parties entered a second round of negotiations. It was
    difficult to develop a settlement of the NRD Trustee's lawsuit prior to
    any remedial determination on the groundwater. Kennecott needed a
    resolution that would not require it to pay for a cleanup twice--once
    for NRD damages, and once for a Superfund cleanup remedy.
        Ultimately such a settlement was reached. The settlement required
    Kennecott to complete source control measures already begun as part of
    Kennecott's proactive cleanup and to pay $9 million in damages,
    primarily for increased costs of municipal water delivery and future
    lost use resulting from restoration activities. Additionally, Kennecott
    established a letter of credit currently valued at $35 million to be
    held in trust to restore municipal water services that would have been
    provided by the groundwater. If Kennecott develops a qualified program
    to provide municipal quality water, either as part of the Superfund
    remedy or as part of the NRD settlement, it can utilize the letter of
    credit to help fund that effort. How the final remedial action and NRD
    settlement will be coordinated has not yet been determined.
        Kennecott's Superfund experiences have led to the following
    conclusions:
         As currently structured, Superfund is slow, costly and
    cumbersome. It does not provide a simple mechanism, at either the
    Federal or State level, for voluntary cleanups, such as that undertaken
    at Kennecott Utah Copper.
         Trustees are authorized by Superfund to recover natural
    resource damages resulting from releases by PRPs without being limited
    to actual lost values, and without a reasonable cap on ultimate
    liability.
         The criteria for cleanup standards has often been based on
    overly conservative or unrealistic risk assessments, without regard for
    reasonably anticipated land or water uses.
         The remining of historic mining sites has been hindered by
    Superfund's retroactive, joint and several liability provisions.
        Kennecott is, therefore, pleased to see the efforts being made by
    the sponsors of S. 8 to amend and bring about the much-needed reform of
    Superfund. Toward that goal, we would respectfully ask the Committee to
    consider the following comments in their deliberations on this bill.
                      title i--brownfields revitalization
        This Title includes a provision to assist States to establish and
    expand voluntary response programs. Kennecott believes that provision
    should be made for voluntary cleanups as part of the Federal program.
    PRPs should be encouraged to undertake voluntary cleanups, whether or
    not a site is listed or proposed for listing as a Superfund site.
    Voluntary cleanups can significantly reduce the costs and delays of
    Superfund, and be completed in a manner acceptable to EPA or the
    States.
                    title iv--selection of remedial actions
        Kennecott supports the remedial action provisions of Title IV that
    require the selection of remedies that are cost-effective, that are
    based onsite-specific conditions and risk assessments, and that
    consider reasonably anticipated future uses of land and water.
    Kennecott also supports those provisions that allow for the
    consideration of natural attenuation and biodegradation in groundwater
    remediation, that recognize institutional and engineering controls, and
    that eliminate the preference for permanence and treatment.
                               title v--liability
        Kennecott supports the provisions in Title V to fairly allocate
    response costs at non-Federal sites, including the mixed funding for
    orphan shares.
        We recommend a provision be added that would allow remining of
    historic mining sites for the economic recovery of metals or minerals
    without the imposition of Superfund liability for past releases.
    Because of the size and nature of these sites, remining may be the only
    practicable approach to a cost-effective cleanup.
                      title vii--natural resource damages
        S. 8 recognizes the need to reform the cleanup and remedy
    provisions of Superfund. This includes the need to have a rational
    approach to determine how clean is clean. This approach should be based
    on reasonable risk assumptions in light of current and reasonably
    anticipated land and water use scenarios. In order for the remedy and
    liability reforms of Superfund to succeed, the objectives of the NRD
    program must work harmoniously with those provisions. The improvements
    to be gained in the cleanup provisions will be lost if NRD Trustees,
    under the guise of restoration, can still require payment for
    additional cleanup beyond that necessary to achieve protection of human
    health and the environment. While Kennecott and the State of Utah NRD
    Trustee were able to reach a compromise that so far allows Kennecott to
    avoid a double cleanup, this type of result could be formalized for all
    NRD claims, rather than left to an NRD Trustee's discretion.
        NRD should not be a secondary or substitute cleanup program.
    Superfund reform legislation should clarify the role of the NRD program
    by clearly limiting NRD damages to restoring the public uses provided
    by the natural resource that were lost or impaired by the release of
    hazardous substances. It also includes defining injury in terms of
    actual injury to measurable and ecologically significant functions
    provided by the resource that were committed or allocated to public use
    just prior to the time an injury occurred. Restoration programs should
    be cost effective and reasonable, based upon actual restoration needs,
    and damages should be spent on restoration. To be cost effective, the
    cost of restoration should not exceed the benefits of the restoration
    activity. Surplus or punitive recoveries of past lost use or non-use
    damages should be eliminated.
        The NRD Title of S. 8 is a good beginning from which to address
    these concerns. In particular, we concur in the elimination of non-use
    damages, and the elimination of assessment costs for studies using the
    contingent valuation method (CVM). However, we believe CVM should be
    eliminated altogether as a damage calculation methodology. We agree
    that regulations should be required to take into consideration the
    ability of a natural resource to recover naturally, as well as the
    availability of replacement or alternative resources. We also believe
    it would be appropriate to clarify that natural recovery should also be
    applied to reduce the amount of the overall recoverable damages.
        Kennecott offers the following suggestions to clarify the
    provisions of Title VII:
         The limitation on double-recovery now appears to be less
    protective than the existing prohibition. The proposed language seems
    to limit the existing prohibition on double recovery only with respect
    to the same person and to the same injury. This could allow two
    different Trustees to obtain damages for different injuries to the same
    natural resource caused by the same release of hazardous substances.
         The NRD program should continue to include a reasonable
    limitation on liability. The existing $50 million cap should be
    included in any Superfund reform, and should pertain to the entire area
    affected by the release of hazardous substances.
         The recovery of NRD damages should be clearly limited to
    releases occurring after 1980.
         Not only should EPA be required to take into account
    potential resource injury that could result from remedy selection,
    there also should be a bar to recovery of NRD damages resulting from
    the selected remedy.
         The NRD provisions limiting judicial de novo review of
    restoration plans should not eliminate de novo adjudication of damage
    claims.
         There should be a precise statute of limitations that runs
    from the time the Trustee knew, or should have known, of the injury.
         The authority of trustees to issue Section 106 orders
    should be clarified to ensure that trustees and EPA are not using
    different standards of what is necessary to protect the environment,
    and to ensure that trustees do not use Section 106 orders to bypass
    statutory provisions governing NRD claims.
        In conclusion, Kennecott believes that S. 8 offers several positive
    improvements to the Superfund program. We appreciate this opportunity
    to testify and offer our suggestions for additional improvements to
    Superfund.
                                     ______

       Responses of Rich Heig to Additional Questions from Senator Smith
        Question 1. Mr. Heig, you state in your testimony that it was
    because of your voluntary cleanup efforts that the Bingham Canyon
    project was successful. Are the voluntary cleanup provisions in S. 8
    that would provide for more State control and the ability to provide
    finality, an improvement to the current system?
        Response. Title I of S. 8 provides in Section 102 for ``qualifying
    State voluntary response programs,'' and defines the elements of such
    programs. Further, in Section 103, S. 8 provides finality to response
    actions completed under a State program, as well as requiring State
    concurrence with Federal Section 106 orders within 90 days after
    issuance. Kennecott supports these provisions, and believes they
    represent a significant improvement over the existing system in
    Superfund. Volunteer response programs would act to eliminate or
    minimize litigation, reduce costs, and result in quicker cleanups to
    the benefit of all. As noted in our testimony, Kennecott also
    recommends that the volunteer response provisions in S. 8 be extended
    to the Federal program. The benefits to be gained under a State program
    would be equally valuable to the Federal program, and would be
    complementary to other cooperative initiatives recently undertaken by
    EPA.

        Question 2. Your statement demonstrates that there is a strong need
    to coordinate remediation efforts and NRD claims. Do you believe that
    the changes made by S. 8 in this regard are an improvement?
        Response. Yes, a number of changes made by S. 8 improve
    coordination of the cleanup and NRD provisions of CERCLA. Specifically,
    S. 8 improvements to the NRD program include:
         Eliminating non-use damages;
         Elminating recovery of assessment costs for CVM studies;
         Requiring response actions and restoration measures to
    ``not be inconsistent'' with one another and to be implemented in a
    coordinated and integrated manner; and
         Requiring natural recovery of a resource to be considered
    in injury and restoration assessments.
        Nevertheless, for the remedial and NRD programs to be implemented
    as effectively as possible, further changes should be considered:
        (1) to avoid conflicting standards between remedial authorities and
    NRD trustees that essentially result in dual cleanups; and
        (2) to avoid duplicative damages and transaction costs.
    (1) Avoid Conflicting Standards Essentially Resulting in Dual Cleanups
        It is Kennecott's understanding that at a CEQ meeting on January
    27, 1997, to discuss the Section 106 Executive Order 13016,
    Administration officials asserted that trustees have cleanup
    responsibilities in addition to EPA's cleanup responsibilities. The
    example given was that EPA might require the cleanup of contaminated
    sediments to a level necessary to protect human health and the
    environment, but that trustees might decide additional cleanup is
    necessary. This results in what some proponents of NRD reform refer to
    as the ``Cleanup 1 and Cleanup 2'' scenario. Essentially, ``Cleanup 1''
    is EPA's required cleanup to a level protective of human health and the
    environment; ``Cleanup 2? is a trustee's required cleanup to a level
    beyond that necessary to protect human health and the environment and
    possibly beyond that necessary to restore the services provided by the
    resource in question. (See, ``Superfund's Natural Resource Damages
    Program Should Not Be a New Cleanup Program, ``Attachment 1.) Without
    coordination, problems addressed by S. 8 in the cleanup program
    ultimately may be shifted to the NRD program.
        There are a number of instances where uncoordinated application of
    conflicting standards will result in wasted resources. The attached
    document, entitled ``NRD Site Examples'' (Attachment 2), illustrates
    various cases where the differing remediation and NRD goals will result
    in potential double cleanup expenditures, the very issue Kennecott
    attempted to avoid in structuring its NRD settlement.
        The proposed S. 8 requirement for coordination of response and
    restoration measures is a good beginning to avoid these unfair results.
    However, this mandated coordination should not become a means for the
    NRD restoration to drive the remedy based upon cleanup goals that are
    inconsistent or more onerous than remediation goals. This is
    particularly important where NRD trustees seek restoration at
    ``cleanup'' levels beyond those required by EPA (or any similar to the
    proposed revisions contained in Title IV of S. 8). For example, EPA, as
    well as provisions of proposed Title IV, are working toward a
    sustainable ecosystem approach to remedy selection. Conversely, some
    NRD trustees are seeking restoration to address any contaminants
    causing a measurable adverse impact on the chemical, physical or
    biological environment (See, 43 C.F.R. Sec. Sec. 11.14(v) and 11.15; IS
    C.F.R. Sec. Sec. 990.30 and 990.51(c)), regardless whether contaminants
    left in place following remediation impair the ability to restore the
    services provided by the resource to the public. This issue could be
    addressed by including a restoration standard in S. 8 based on
    restoring the measurable and ecologically significant functions of the
    natural resources that provided services to the public.
    (2) Avoid Duplicative Damages and Transaction Costs
        Kennecott did not face an NRD issue involving multiple trustees at
    the Bingham Canyon site; however, this is not true for many sites. As
    Kennecott noted in its testimony, efforts at addressing this issue in
    S. 8 appear to unintentionally eliminate existing protections against
    double recovery. S. 8 includes a good addition designed to prevent a
    trustee from recovering damages not only under CERCLA, but also under
    other laws. However, the modification in S. 8 appears to apply only to
    the same ``person'' and could be misconstrued to allow a party that has
    first recovered damages under another law to proceed with recovery
    under CERCLA. Consequently, this provision should be clarified to
    preclude recovery of duplicate damages by more than one trustee for
    injuries to the same resource caused by the same release(s) of
    hazardous substances. It should also preclude recovery of the same
    damages under multiple laws, regardless if the claim is brought first
    under laws other than CERCLA.

        Question 3. Would you have progressed as far as you have at the
    Bingham Canyon site, if that facility had been placed on the NPL? Are
    the cleanup provisions in S. 8 and improvement to this problem?
        Response. Kennecott believes the cleanup efforts at the Bingham
    Canyon site have progressed further and more quickly than would have
    been possible had the site been listed on the NPL. As you are aware,
    the traditional Superfund process hinders the ability to quickly
    achieve cleanup. Under the approach utilized by Kennecott with the
    oversight of EPA and the State of Utah, of the 20 sites (source areas)
    initially identified, Kennecott has completed cleanup at 10, cleanup is
    in progress at 8 other sites, and 2 sites were determined not to
    require additional work. To date, the percentage of costs spent on
    actual cleanup at Kennecott sites is still over 90 percent and at times
    exceeds 95 percent. These percentages are likely to remain close to
    this level, particularly given EPA's recent policy that makes the
    Kennecott sites eligible for reduced oversight costs. Spending over 90
    percent of costs on actual cleanup is not likely to be achievable at an
    NPL site.
        Key to the success of the proactive approach utilized by Kennecott
    has been the ability to proceed quickly while utilizing community
    participation, and to focus efforts on removing potential sources of
    contamination through area by area removal actions. If Kennecott were
    required to conduct all of its cleanup activities under the process
    found in the cleanup provisions of S. 8 (Title IV), it is not clear
    that the results would be as efficient and effective as they have been
    to date.
        However, assuming that the provisions of Title IV do not eliminate
    the ability to address contamination through accelerated removal
    actions, some of the provisions appear to be beneficial. For example,
    Kennecott is conducting a remedial investigation and feasibility study
    (RRFS) relative to groundwater contamination (and is initiating a
    separate remedial investigation regarding a different area of
    groundwater contamination.) A number of changes proposed by S. 8 that
    could benefit the continued efficiency of achieving a cost-effective
    remedy include:
         Remedial actions based on the current, planned, or
    reasonably anticipated use of the surface water, groundwater, or land;
         Providing that a remedial action using institutional and
    engineering controls be considered on an equal basis with other
    remedial action alternatives;
         Requiring consideration of natural attenuation or
    biodegradation;
         Emphasis on allowing PRPs to develop work plans;
         Preference for using facility-specific data; and
         Comparison of risks posed by the facility to other risks
    commonly experienced by the local community.
        Additionally, the ``results-oriented approach'' contained in Title
    VIII, requiring procedures to minimize the time required to conduct
    response actions, expedite facility evaluations and risk assessments,
    limit engineering studies and require streamlined oversight, appears to
    be a constructive approach for timely response actions in comparison to
    the typical Superfund process. However, the ability to quickly and
    efficiently conduct a cleanup should not be encumbered with additional
    procedures unless existing procedures are eliminated. Again, these
    procedures, even if expediting, should not impede the ability to
    conduct timely removal actions to address the majority of the
    contamination at a site if appropriate.

        Question 4. As you know, President Clinton recently issued an
    executive order which would allow the Department of interior, or any
    other Department to issue orders under Section 106. You state in your
    testimony that this section should be clarified so that there is
    consistence among the Departments about what is necessary to protect
    the environment. How would you modify S. 8 to address these issues
    under Section 106?
        Response. The executive grant of Section 106 authority to Federal
    NRD trustees was unnecessary to fix any problems in CERCLA's cleanup
    program. Yet, with this new grant of Section 106 authority comes the
    concern that the problems of CERCLA's cleanup program will not only be
    magnified five times, but that the authority granted to Federal NRD
    trustees by Section 106 may encourage trustees to blur distinctions
    between cleanup and NRD. Consequently, the simplest means to address
    the concerns raised by Executive Order 13016 is to modify Section 106
    by limiting the delegation of Section 106 authority to those agencies
    that have had the authority for the last 16 years--the Environmental
    Protection Agency and the National Coast Guard.
        This approach would avoid potential problems that can result from
    the broad duplicitous delegation of Section 106 authority to five
    additional Federal agencies which are also NRD trustees. This approach
    also would alleviate the improper use of Section 106 authority as a
    pretense for Section 107 NRD purposes and the magnification of problems
    already identified in the implementation of Superfund. Even all of
    EPA's Administrative reforms will have little impact on other agencies
    not bound by those policies. At a minimum, if Federal NRD trustees are
    allowed to retain Section 106 authority, such authority should be
    clearly limited to emergency situations and be unavailable if the
    trustee is also a PRP at a site. These minimal limitations are
    discussed further below.
                                   discussion
        Giving trustees Section 106 authority raises many concerns about
    fairness, particularly where in many instances, the Federal trustee may
    also be a PRP at the site in question. The concerns that some trustees
    might use this new power improperly are not suspicious rhetoric. The
    Administration has made a number of alarming statements about the
    purpose of the Executive Order. For example, when the Administration
    issued the Executive Order, public statements indicated that the
    authority is directed at cleanup [Cleanup 2] of ``natural resources
    that support hunting, fishing, tourism and recreation in local
    economies.'' This is the objective of the Administration's stated NRD
    program of ``restoration'' for injured natural resources that support
    hunting, fishing, tourism and recreation in local economies.\1\ CEQ's
    Twenty-Fifth Anniversary Report furthers this notion when it states:
    ---------------------------------------------------------------------------
        \1\ See, Administration August 28, 1996, Press Release ``Protecting
    All Communities From Toxic Pollution;'' and June 20, 1995 Testimony of
    Asst. Sec. Oceans Atmosphere, National Oceanic and Atmospheric
    Administration, before the Subcommittee on Commerce, Trade, and
    Hazardous Materials, House Commerce Committee.

            ``Superfund moneys are not available, however, to fund natural
            resource restoration, and thus the natural resource damage
            programs have had more limited support than EPA's remedial
            program. To enhance the program authority of natural resource
            agencies that now lack access to the Superfund, Executive Order
            13016 provides these agencies with authority to issue
            administrative orders to compel responsible parties to perform
    ---------------------------------------------------------------------------
            response work.''

        Moreover, an EPA official indicated that the new authority will
    enable trustees to compel PRPs to conduct natural resource damages
    assessments.\2\ That is not what Section 106 authority is intended to
    address.
    ---------------------------------------------------------------------------
        \2\ Interview with Assistant Administrator for Solid Waste and
    Emergency Response, Superfund Report, October 2, 1996.
    ---------------------------------------------------------------------------
        If the authority granted by the Executive Order is improperly
    utilized for purposes of Section 107 NRD, the few procedural and
    substantive safeguards provided by Section 107 could be circumvented,
    including:
         Evasion of a PRP's rights to an Article III court hearing
    where the trustee must prove its case;
         Circumvention of the retroactive and monetary limitation
    on liability that currently exists under Section 107;
         Avoidance of statute of limitations and the prohibition on
    double recovery; and
         Bypassing the requirement that a trustee prove that the
    PRP's release was the cause of the actual injury.
        Furthermore, where a trustee improperly utilizes Section 106
    authority, the Superfund is at risk for recovery of response costs by
    those subject to improperly issued orders.
        Part of the concern for misuse of the authority lies in the minimal
    standard for issuing Section 106 orders. The current standard for
    exercising Section 106 authority is the existence of an ``imminent and
    substantial danger to public health and welfare or the environment''
    from the ``actual or threatened release of a hazardous substance.'' \3\
    While, to the average reader, this standard appears to apply only in
    emergency cases, it has been indulgently construed so the standard is
    more a catch phrase than a criteria for issuing 106 orders. For
    example, ``imminent'' endangerment exists if ``factors giving rise to
    it are present, even though harm may not be realized for years.''\4\
    Similarly, the definition of ``release'' has been applied broadly by
    some courts to include ongoing, passive ``releases'' from a source that
    was disposed of historically.
    ---------------------------------------------------------------------------
        \3\ Under Section 106 of CERCLA, 42 U.S.C. 9606, EPA's main avenues
    to compel PRPs to conduct removals, studies or remediation include
    issuing a Unilateral Order (UAO) or making a referral for a judicial
    enforcement action. A judicial referral under Section 106 could result
    in an order compelling compliance and exacting penalties. If the PRP
    refuses to conduct a response action pursuant to a UAO, EPA could
    conduct a fund-financed response action. The EPA could then recover its
    costs and may be able to recover punitive damages up to three times the
    amount of the cost of the cleanup as well as seek penalties up to
    $25,000 per day. 42 U.S.C. 9606 and 9607. Now those authorities appear
    to have been granted to five Federal trustees. Even if a Federal NRD
    trustee issued a UAO beyond the scope of authority granted by Section
    106, a PRP would be placed in an extremely difficult position to refuse
    the order at the rib of penalties and treble damages.
        \4\ See, United States v. Conservation Chemical Co. 619 F. Supp.
    162 (W.D. Mo. 1984). ``Substantial'' endangerment exists ``if there is
    reasonable cause for concern that someone or something may be exposed
    to risk of harm by release or threatened release of hazardous substance
    if remedial action is not taken, keeping in mind that protection of
    public health, welfare, and environment is of primary importance.'' Id.
    ---------------------------------------------------------------------------
        With such a flexible standard, Federal trustees should, at a
    minimum, be limited to utilizing Section 106 authority only in true
    emergency situations. Limiting the trustees' use of Section 106
    authority to emergency situations requires either (1) a clarification
    of the ``imminent and substantial endangerment'' standard applicable to
    all agencies with authority under Section 106 or (2) modification of
    the standard relative to NRD trustees' Section 106 authority. For
    example, to modify the Section 106 standard with respect to the
    authority of NRD trustees, the authority should be eliminated for
    historically contaminated sites. Those sites should already have been
    identified for CERCLA response if such was necessary. Emergency
    authority is more applicable to current or future incidents caused by
    current or future conduct.
        Furthermore, a trustee should be prohibited from exercising Section
    106 authority where the trustee is a potentially responsible party. In
    that situation, if an emergency response needs to be undertaken, the
    trustee can undertake the removal itself and seek to recover response
    costs from other parties if appropriate, or the trustee can rely upon
    EPA or the Coast Guard to exercise Section 106 authority.
        Kennecott respectfully requests that as part of its response to
    this question, Attachments 3 and 4 be incorporated and considered.
    Attachment 3 contains the comments of several companies, including
    Kennecott, concerning the Implementation of Executive Order 13016.
    Attachment 4 contains the comments prepared by the Chemical
    Manufacturing Association (CMA) that are referred to in Kennecott's
    comments contained in Attachment 3.

        Question 5. You state that at the Ekotek NPL site, you have spent
    $19 million on legal fees and oversight costs since 1989 (8 years), yet
    no cleanup remediation has been implemented. Do you believe that the
    changes proposed in S. 8 would have avoided this problem?
        Response. The Ekotek Site is a former used oil recycling center in
    Salt Lake City, Utah. In 1988, EPA took over the site and in 1989 the
    Ekotek Site Remediation Committee was formed to respond to EPA cleanup
    orders and conduct emergency removal. The site contained many leaking
    drums and tanks, oil sludge ponds and other materials left behind when
    the owner, Ekotek, Inc., abandoned the site and declared bankruptcy.
    Over the life of the Committee it has been made up of some 400 of 3,000
    potentially responsible parties at the site and is currently at 60 as a
    result of settlements. To clarify, although final remediation cleanup
    at the site has not occurred, approximately $10 million of the $19
    million was spent by the Committee on the emergency removal, including
    EPA's response and oversight costs.
        Several of the changes proposed in S. 8 may have resulted in
    benefits to the overall process and costs at the Ekotek site.
     Title I--Brownflelds
        In 1996, the Ekotek Site Remediation Committee (Committee),
    requested EPA to consider the Ekotek site as a candidate for the
    Brownfields Pilot Programs nationwide. The Committee believes the site
    would be a good candidate for Brownfields as a means of encouraging its
    redevelopment once remediation is completed. Although the Committee has
    not received a response regarding the Brownfields request, Kennecott
    would not want to see any future opportunity for Brownfields treatment
    eliminated because S. 8 excludes NPL sites. Even if the final
    remediation is conducted by responsible PRPs, the benefits to be gained
    under Brownfields that limit the liability of a prospective purchaser
    and encourage development of the property into a new viable commercial
    facility will be of great benefit to the neighboring community.
     Title IV--Remediation
        It appears that many of the concepts of the proposed remediation
    provisions of S. 8 potentially could have avoided some of the delays
    and expenses incurred at the Ekotek site. For example, EPA's proposed
    remedy at the site included a pump and treat requirement for
    groundwater contamination related primarily to hydrocarbons. The
    Committee expended considerable time, effort and money to establish a
    technical case showing that the proposed pump and treat remedy for
    groundwater at the site was not cost-effective, would pose more of a
    threat to uncontaminated groundwater and the groundwater could be
    effectively remediated through intrinsic bioremediation. These same
    concepts relative to groundwater are formally addressed within the
    remedial groundwater provisions of S. 8. If the remediation provisions
    had been in place at the time of the RI/FS and remedy selection process
    it is possible that the proposed pump and treat remedy would not have
    been selected by EPA as the initial proposed remedy and much of the
    time, effort and money expended on rebuffing that proposal would have
    been saved. The difference between EPA's initial proposed pump and
    treat remedy and the intrinsic bioremediation remedy is approximately
    $4-6 million based on the Committee's estimates.
        Although unknown at the time to the Committee, the proposed remedy
    for the Ekotek site was one of the remedies reviewed by the
    Administration's Remedy Review Board. Following the Board's review and
    consideration of comments received by interested parties, EPA Region
    VIII selected the alternative that included intrinsic bioremediation
    for the groundwater. Additionally, the second major component of the
    proposed remedy called for thermal desorption (incineration) of
    contaminated soils. The Committee sought a containment remedy for the
    contaminated soils, with removal of hot spots rather than the
    incineration remedy, as a cost-effective method of addressing the
    contamination and while remaining protective of human health and the
    environment. Ultimately, the selected remedy is the containment option.
    The overall cost difference between the two soils remedies is estimated
    by the Committee to be $10 million.
        The Committee was pleased that at the end of the day EPA chose the
    more cost-effective yet protective remedies urged by the Committee.
    There are, however, a number of contingencies tied to the
    implementation of the selected remedy that could result in increased
    remediation costs in the future, notwithstanding the efforts of the
    Remedy Review Board.
     Title V--Allocation
        The ability to fairly allocate liability at a site like Ekotek is
    important if the overall unfairness of Superfund with its strict joint
    and several liability is not otherwise addressed. The parties carrying
    the primary responsibility at the Ekotek site did not own or operate
    the site. Whether large or small, many of the PRPs sent only used motor
    oil to the site for recycling into useful products. It is possible the
    site would qualify as a ``mandatory allocation'' site under S. 8, and
    as such, allocation of the response costs could have been fairly
    allocated among the parties. However, any allocation process must
    necessarily take into consideration the toxicity of parties' wastes at
    a site. At Ekotek, some parties sent substances contaminated with PCBs.
    The cleanup costs associated with PCB contamination have the potential
    to increase the cleanup costs at the site by several million dollars.
        At some sites, including Ekotek, the 1 percent threshold for a
    liability exemption could result in large numbers of PRPs and waste
    volumes fiL1ling in the exempt category. At a mandatory allocation
    site, it appears that the exempt category would be covered by orphan
    share funding. However, it appears that at requested or permissive
    allocation sites, this exempt share would be unfairly distributed to
    the remaining PRPs. For example, the total volume of hazardous
    substances sent to the Ekotek site is estimated at between 30 and 50
    million gallons. One percent is 300,000 to 500,000 gallons, and it is
    estimated that all but a few dozen of the thousands of Ekotek PRPs
    would fall into the exempt category with at least 50-60 percent of
    total site gallonage exempted.
     Title VIII--Accelerated Remediation
        ``Results-Oriented Approach--The time for the completion of the RD/
    RA process for Ekotek (assuming only 60-day review period by EPA on
    submittals) has been projected to take another 3.3 years, making the
    total response time at the site approximately 13 years. Given the
    length of time lost between the removal action and the issuance of a
    final ROD and the final remediation, accelerating the time to complete
    the remedial planning process would help to reach the final cleanup
    more quickly and presumably avoid delays and additional costs.

        Queston 6. 1 would like to ask you about the issue of remining,
    which is not addressed in S. 8. Could you explain what remining
    consists of why it is prevented by Superjund's joint strict, several
    and retroactive liability system, and why it could be environmentally
    beneficial for former mining sites?
        Response. By the term ``remining'' we mean the recovery of mineral
    values from historic mining sites by extraction, beneficiation, or re-
    processing of the remaining in situ ore and/or residual materials.
    Early mining and mineral processing methods were not as efficient as
    those employed today, and, consequently, mineral values were not always
    fully recovered. In some instances operations closed prematurely
    because of downturns in the market or lack of adequate capital. With
    modern equipment and technology, it may now be technically and
    economically feasible to reenter some historic sites and recover those
    values left behind.
        Minesites by their nature are located at naturally occuring
    concentrations of minerals, often the metals identified as hazardous by
    Supcefund, and, as such, some historic sites have been candidates for
    the CERCLIS list. The CERCLA list contains a number of historic mining-
    related sites. Under the existing law, if a miner acquires a historic
    mining site, with contamination from historic operations (e.g.,
    groundwater contamination), the miner can become a PRP subject to the
    joint, several and strict liability provisions of Superfund. The added
    burden of litigation, oversight, and other Superfund costs would likely
    overwhelm the economic incentives to remine the site. If the miner
    could acquire or enter the site to reprocess waste materials and
    recover additional minerals without becoming strictly liable for
    contamination caused by historic operations, some of the contamination
    sources could be eliminated.
        Remining not only results in the recovery of valuable minerals or
    metals but also allows the residual materials to be managed with modern
    technology and practices that are protective of the environment.
    Remining would be conducted with the oversight and safeguards of
    current regulatory controls that act to protect air and water quality
    during operations, and require reclamation of the disturbed areas
    before final closure.

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       Statement of the Association of State and Territorial Solid Waste
                         Management Officials (ASTSWMO)
        The purpose of this statement for the record is to reflect the
    views of the Association of State and Territorial Solid Waste
    Management Officials (ASTSWMO) regarding the reauthorization of the
    Comprehensive Environmental Response, Compensation and Liability Act
    (commonly referred to as Superfund) during the 105th Congress.
    Specifically, we understand that the Senate Superfund, Waste Control
    and Risk Management Subcommittee held a hearing on March 5, 1997 on S.
    8. We respectfully request that this statement be included as a part of
    the record for that hearing.
        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 dialog. Since we share in Congress' and the public's desire to
    achieve effective and timely cleanup of our nation's contaminated sites
    and the restoration of injured resources, associated with these sites,
    ASTSWMO has marshaled the comprehensive experience of our membership to
    provide our unique perspective to the debate surrounding Superfund
    Reauthorization during this first session of the 105th Congress.
        We would like to begin by commending Senators Chafee and Smith on
    the many modifications made to S. 1285 in producing S. 8. It is evident
    that the Senators sought to introduce a bill which would reflect
    compromises from their own positions in an effort to produce a viable,
    workable starting point for the 105th congressional Superfund debate.
    We look forward to working with the Committee throughout the debate.
                           brownfields revitalization
        We are pleased that the Senators have chosen to recognize the clear
    importance of Brownfields by allowing it to occupy the first title of
    S. 8. Brownfields comprise the vast majority of sites which are
    currently being remediated by State agencies. The majority of sites
    classified as Brownfields will never be placed on the NPL. Currently,
    the biggest impediment to effectively remediating and redeveloping
    Brownfield sites is the inability of State agencies to provide for
    releases of liability from both State and Federal laws. While we
    support concepts such as providing Superfund liability protection to
    bona fide prospective purchasers, lenders, and fiduciaries, we believe
    the real key to solving our country's Brownfields problem is to allow
    the State Waste Agencies to grant releases of Federal liability once a
    site has been cleaned up to State standards under a State program. We
    can no longer afford to foster this illusion that State authorized
    cleanups may somehow not be adequate to satisfy Federal requirements.
    Over thirty States have enacted Voluntary Cleanup programs and 42
    States have adopted State Superfund programs. These programs have
    remediated over 3,000 sites and the number is growing. It is imperative
    that any Brownfields legislation clarify the State-Federal roles and
    potential liability consequences under the Federal Superfund program.
    We believe S. 8 has accomplished this task. We would recommend however,
    one modification to the provision as written. In situations which are
    deemed emergencies and where the State requests assistance, we believe
    the Federal Government should be able to address the site and if
    necessary hold the responsible party liable. Emergency actions should
    be the only exceptions to the releases from Federal liability.
        We are also pleased to see that S. 8 recognizes the importance of
    Voluntary Cleanup programs and enables States to receive Federal
    funding for both the establishment and maintenance of already highly
    successful programs. We would caution that the funding criteria should
    remain as flexible as possible in order not to unintentionally disrupt
    working programs. However, we are concerned that a number of States
    which are pursuing innovative approaches, such as privatization of
    cleanups, may not qualify. The funding criteria should encourage
    innovation not constrain it. We would also recommend that legislative
    history for this bill direct EPA to distribute grants for voluntary
    cleanup programs through their normal grant processes, i.e., through
    the EPA regions, and that EPA shall not be allowed to attach additional
    burdens onto State grant recipients in the guise of ``accountability''.
        Lastly, we believe the explicit provision requiring local
    governments to comply with State laws in order to receive Federal
    grants is a well-thought out provision and will serve to avoid much
    confusion in the long run. Ultimately, these sites are State sites and
    will have to be remediated under State auspices and according to State
    laws.
                                   state role
        Maximum flexibility is a necessity when dealing with fifty vastly
    different State programs. S. 8 appears to have accomplished this goal
    by allowing States to be both delegated and authorized the Federal
    Superfund program or to retain the status quo if the State so desires.
    Some States will desire delegation of all sites within their borders,
    others may only apply for one or two sites, and States in the early
    stages of development may seek delegation for only parts of the
    remediation process. The Committee did well to recognize the unique
    needs of State programs and to provide a wide array of options for
    assuming the lead at Federal Superfund sites. State programs have grown
    remarkably in sophistication and we are therefore pleased that S. 8 has
    chosen to streamline the Federal Superfund program by allowing States
    to utilize their own laws when implementing the Federal Superfund
    program. The only way to truly capitalize on the benefits of the State
    Superfund programs and to transfer the many innovations which have been
    adopted at the State level to the Federal Government is to allow States
    to be authorized to implement the Superfund program. Authorization will
    also provide the needed consistency which is currently lacking within
    States due to the implementation of two Superfund programs within State
    borders: the Federal program and the State program. States would like
    the opportunity to implement one program at all sites which fall within
    their State borders. That is why, while we are pleased with the
    authorization provision, we cannot support provisions which would
    require the State to pay the difference should their laws be more
    stringent than the Federal Superfund program. We can see no reason why
    Federal sites should be held to a lesser standard when all other sites
    within the State must meet State standards. As of today thirty States
    either have or are in the process of promulgating State cleanup
    standards. States have answered the question of ``how clean is clean''
    and this answer should apply to all sites within the State borders.
        Another cost saving technique which has been added to this title
    which we support is the ability of States to receive funding for
    conducting emergency and time-critical removals. State Waste Managers
    have long contended that they can perform these functions for less cost
    than EPA, essentially leveraging more ``bang for the buck''. Simply
    put, States are physically closer to the removals which occur within
    their own borders than either representatives from U.S. EPA regions or
    headquarters. This is a common sense change.
        We are also pleased that S. 8 streamlines the program by providing
    a fixed State cost share, namely 10 percent of remedial action costs
    and 10 percent of operation and maintenance costs. The current cost
    share system has served only to exacerbate the tension which exists
    between State Waste Agencies and the U.S. EPA. Under the status quo the
    financial incentives for EPA and the States are diametrically opposed
    when considering final remedies for a site (States desiring more
    capital intensive remedies and EPA seeking remedies with lower capital
    costs and higher operation and maintenance costs). State Waste
    Officials believe this is a fair and well-reasoned position. We
    strongly recommend that it should be explicitly stated in statute that
    States should not be required to cost share on removal actions in order
    to provide the needed direction to EPA in this area.
        We are concerned, however, that as we alleviate the current
    tensions between States and EPA on the issue of State cost share that
    we are merely redirecting these tension into a new area namely
    withdrawal of delegation/authorization. As written, S. 8 allows EPA to
    withdraw delegation/authorization on a site by site basis rather than
    on a programmatic basis. This essentially creates a site by site veto
    authority by EPA should EPA program managers disagree with a State
    selected remedy. We support the concept of withdrawing delegation/
    authorization from a State which is consistently failing to implement
    the provisions of the Superfund program in a sound manner, but to allow
    EPA field managers the ability to second guess State field managers on
    a site by site basis appears to be antithetical to the stated goals of
    S. 8.
                                remedy selection
        As we indicated earlier, over thirty States are either in the
    process or have promulgated cleanup standards/models. The States have
    not waited for the Federal Government to promulgate national cleanup
    standards, but instead have moved out ahead. We are pleased that S. 8
    recognizes the work which has occurred at the State level and maintains
    the provision for State applicable standards to be factored into the
    Federal remedy selection process. Where State goals and standards have
    been established, they should be applied consistently at all sites
    subject to CERCLA liability in that State regardless of the lead
    agency. This includes not only NPL sites but brownfield/voluntary
    cleanup sites and Federal facilities. A uniformly applicable cleanup
    process will eliminate the often paradoxical inconsistency found where
    similar sites in close proximity are cleaned up to different levels for
    reasons which have little to do with the actual risk posed. It provides
    an expectation of consistency to responsible parties, nearby residents
    and other stakeholders involved in the cleanup process. In States which
    have not developed goals and standards, EPA should continue to use the
    risk range established in the NCP.
        State Waste Managers do support the concept of eliminating RARs--
    relevant and appropriate requirements in favor of a process where
    States will promulgate all relevant standards, criteria and
    requirements in a separate rulemaking for use in the remedy selection
    process. We believe this will streamline the remedy selection process
    and provide a greater level of certainty to responsible parties and to
    the public.
        We also support the determination of future land use early in the
    remedy selection process prior to the calculation of site specific
    cleanup levels. This is a positive change which has been implemented by
    most State Superfund programs and should serve to promote the
    redevelopment of existing industrial areas rather than encouraging
    industrial development in currently non-industrial areas. We also agree
    with the elimination of the current preference for permanence in the
    CERCLA statute. Neither EPA nor the majority of States are implementing
    permanent remedies and it is time that the statute reflected reality.
    States are selecting remedies which are protective of human health and
    the environment, cost-effective and implementable. That said, ASTSWMO
    does recommend that institutional controls and other designated
    restrictions necessary to implement a particular remedy be made legally
    enforceable, run with the land, and be binding among all parties to
    implement the restrictions. Financial responsibility mechanisms should
    also be identified to provide for the perpetual maintenance of these
    sites in case the responsible parties are unable to do so. Last, we
    also agree with the six factors proposed to balance the remedy
    selection process, i.e, the reliability of the remedial action in
    achieving the protectiveness standard over the long term; any short
    term risk to the affected community; the acceptability of the remedial
    action to the affected community; the implementability and technical
    feasibility of the remedial action from an engineering perspective and
    the reasonableness of cost. We believe that when all the remedial
    alternatives have been evaluated, the remedies which meet all
    applicable standards, are protective of human health and the
    environment and which fall within the risk range should be considered
    and the least costly remedy selected. The cost of implementing the
    alternative, including long-term monitoring and operation and
    maintenance must be considered. ASTSWMO believes that assessments of
    costs should reflect as realistically as possible the costs of
    perpetual monitoring and maintenance. The application of the cost
    effectiveness test should be applied to all sites equally with no
    consideration given to whether it is a fund or responsible party lead
    site. When the cost of achieving the target risk cleanup level results
    in costs which are disproportionate to the risk reduction benefits an
    economic waiver should be available.
        While we support the above mentioned provisions as outlined in S.
    8, we ultimately believe the remedy selection process should be
    conducted by qualified States using State law and procedures. We
    believe this is the only true mechanism for providing citizens and
    responsible parties a measure of consistency. Consequently, we question
    the provision in Section 133(a)(I)(B) which appears to trump the
    authorization provisions outlined in Title II of this bill. We
    respectfully request clarification of this provision.
        We have three other questions/comments concerning the remedy
    selection procedures as outlined in S. 8. First, we question how the
    Committee plans to define a remedial action which is deemed protective
    if it protects an ecosystem from significant threats. What definition
    is the Committee using for ``significant threats'' and how will this
    definition relate to CERCLA natural resource damages provisions?
    Second, we question the construct of the remedy review boards as
    outlined in S. 8. Specifically, will these remedy review boards apply
    to sites which have been delegated/authorized to a State and in the
    case of authorization/delegation, who will be in charge of the review
    board the Governor or the Administrator? Also, who will pay for the
    States' time to participate on these review boards? Last, why did the
    Committee find it necessary to preempt State law by releasing NPL sites
    which are cleaned up to unrestricted use from both Federal and State
    liability. Does this assume the sites were cleaned up to State
    standards and who will make this determination will a State concurrence
    be required? More importantly, States are not part of the problem when
    it comes to returning sites to productive use. It is not State
    liability laws which are keeping sites from being redeveloped. This is
    a Federal statute and only Federal liability should be addressed in
    this statute. ASTSWMO opposes this provision.
                                   liability
        As State Waste Managers, our principal concern is ensuring the
    timely and effective cleanup of contaminated sites. The current
    liability scheme may not be entirely equitable to some responsible
    parties, but in the past it has provided a stable source of funding.
    Equity must also be extended to protect those Americans living near,
    and suffering the effects of, contaminated waste sites. Reforms are
    needed and we believe those outlined in title V of this bill will serve
    to address many of the statute's current inequities without disrupting
    the flow of cleanups. For example, in 1993 State Waste Managers
    developed and adopted a proposal advocating the carve out of municipal
    solid waste landfills from the Federal Superfund program. We do not
    view this as a ``compromise solution'', but rather a smart move from a
    practical implementation perspective. State Waste Managers have found
    these sites to be ill-suited for the current Federal Superfund
    liability program. Municipal Solid Waste Landfills are, for the most
    part, large sites which involve numerous responsible parties, served a
    broad societal function, and have a presumptive remedy associated with
    their remediation, i.e., capping. We support your decision to carve
    these sites out of the current Superfund liability program, however, we
    question the scope of the term ``co-disposal'' landfill as outlined in
    S. 8. We would be happy to work with you to develop an acceptable
    definition of co-disposal site. We also concur with your decision to
    more clearly define and more actively utilize the liability relief
    tools of de micromis and de minimus settlements. Ultimately, we caution
    that any final liability scheme which may be accepted by the Committee
    must ensure sufficient funding to adequately cleanup sites to a level
    which is protective of human health and the environment and ensure the
    continuation of the States' ability to enforce their own laws and to
    provide for no cost shifts to State governments. The nation's Governors
    have outlined a series of criteria for revision of the CERCLA liability
    scheme, and we recommend that the Committee evaluate these proposals by
    those criteria.
                               federal facilities
        Our overall comment regarding the Federal facilities section of S.
    8, is that Federal facilities should not be treated any differently
    than other Superfund sites. The Federal Government should be held to
    the same standards as other responsible parties and therefore, State
    applicable standards should not be waived at these sites. In addition,
    we believe States should be able to be both authorized and delegated to
    implement remedy selection at Federal facilities. Therefore, we
    recommend that States be allowed to self-certify for either delegation
    or authorization for Federal facilities sites as is specified for non-
    Federal sites There is no reason why the streamlining and cost savings
    of the Superfund program which has occurred at the State level should
    not be transferred to the Federal Government at Federal facility sites.
                            natural resource damages
        Of all the titles in S. 8, we believe this title is the most
    markedly improved from S. 1285 and we commend Senators Chafee and Smith
    for acknowledging the importance of restoring our country's injured
    natural resources. This title is extremely important to State Waste
    Programs as the majority of States currently utilize the Federal CERCLA
    Natural Resource Damages provision rather than State law at non-NPL
    sites. In general, while S. 8 places new restrictions on trustees, it
    will still enable trustees to continue to provide a level of primary
    restoration for injuries to natural resources caused by these sites.
    However, we question the Committee's desire to eliminate non-use
    damages and the intended definition of ``reasonable cost'' and request
    that the Committee consider adding the component of ``timeliness'' as a
    factor when evaluating restoration alternatives. While we recognize the
    Committee's desire to provide flexibility in the payment of damages, we
    are concerned that the trustees have sufficient funds available to
    initiate restoration work at the earliest possible time and to be able
    to complete the restoration of injured resources and the services they
    provide to the public.
        ASTSWMO has three primary recommendations for further improving the
    natural resource damages process. First, the issue of scheduling
    payment of damages as well as other issues raised by both industry and
    trustees could be addressed through one overarching revision to the
    title: a provision that requires the integration of NRD into the
    cleanup process. While S. 8 already reflects the Committee's desire to
    coordinate restoration and response, this movement toward integration
    could be carried further in order to ensure that NRD is routinely
    considered not only at the remedy selection stage, but during the
    investigative stage of the site cleanup process. Integration of NRD
    assessment into the remediation process reduces transaction costs and
    liability by enabling the collection of NRD information during the site
    investigation and identifying restoration options that can be made part
    of the remedial action. An integrated process will promote prompt
    resolution of NRD issues as part of the overall settlement at a site,
    facilitate timely and efficient restoration and address most of the
    industry and trustee concerns that have been raised throughout the
    Superfund debate. Second, we believe the statute of limitations should
    be clarified in order to significantly improve the program, prevent
    unnecessary litigation and provide certainty to both the trustees and
    responsible parties, and compensate the public in a timely manner. We
    understand the current tensions between responsible parties and
    regulators and the need to balance the interests of both. Responsible
    parties want assurances that the NRD assessment process will have an
    end point. However, the trustees need sufficient time to be able to
    perform thorough assessments in order to accumulate as much pertinent
    information as possible before filing a claim. One possible solution
    which could meet the goals of both interests is the following: upon the
    signing of a ROD, a trustee will have 3 years to begin a natural
    resource damage assessment and upon completion of the assessment, the
    trustee will have 3 years to file a claim. We believe this may serve to
    meet the needs of both parties as well as the public, and to streamline
    a highly ambiguous area of the law.
        Third, in order for trustees to meet the goals of achieving cost-
    effective restoration methods, it becomes even more crucial for
    trustees to have access to the fund for assessing these sites. If the
    prohibition of using the fund for assessments is lifted, trustees will
    have the resources readily available to accomplish these assessments in
    a more timely manner, ultimately benefiting the responsible parties,
    the public and the environment.
                                 miscellaneous
        ASTSWMO supports the requirement to obtain Governor concurrence in
    order to list a site on the NPL. This ensures that the NPL is used as a
    strategic tool for cleaning up sites. We are concerned, however, with
    the Committee's desire to limit the listing of NPL sites to a specific
    number per year. We do not believe this provision is necessary as the
    Governor's concurrence requirement will limit the number of sites
    placed on the NPL to those meriting such treatment (note: in 1996, 50
    percent of the sites EPA proposed for listing did not receive a
    Governors' concurrence). Also, EPA's internal listing process is very
    time-intensive. We believe with the Governor's concurrence provision
    and EPA's own listing backlog, a cap is not necessary and may serve to
    undermine State enforcement efforts.
                                   conclusion
        Again, we commend the Senators on a bill which incorporates many of
    the State Waste Managers' recommendations and we look forward to
    working with you as the Superfund debate continues.

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