[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
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               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\
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    \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.
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    \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].
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            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\
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    \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].
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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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