[Senate Hearing 105-315]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 105-315


 
                  SUPERFUND REFORM AND REAUTHORIZATION

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                                   on

                                  S. 8

SUPERFUND CLEANUP ACCELERATION ACT OF 1997, AS AMENDED BY THE PROPOSED 
  SUBSTITUTE AMENDMENT, DATED AUGUST 27, 1997, SPONSORED BY SENATORS 
                   CHAFEE AND SMITH OF NEW HAMPSHIRE

                               __________

                           SEPTEMBER 4, 1997

                               __________

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




                               



                    U.S. GOVERNMENT PRINTING OFFICE
 45-227 cc                WASHINGTON : 1998
_______________________________________________________________________
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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
                     Jimmie Powell, Staff Director
               J. Thomas Sliter, Minority Staff Director

                                  (ii)



                            C O N T E N T S

                              ----------                              
                                                                   Page

                           SEPTEMBER 4, 1997
                           OPENING STATEMENTS

Allard, Hon. Wayne, U.S. Senator from the State of Colorado......     9
Baucus, Hon. Max, U.S. Senator from the State of Montana.........    13
Bond, Hon. Christopher S., U.S. Senator from the State of 
  Missouri.......................................................     8
Boxer, Hon. Barbara, U.S. Senator from the State of California...    10
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     1
Graham, Hon. Bob, U.S. Senator from the State of Florida.........    18
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...    16
Kempthorne, Hon. Dirk, U.S. Senator from the State of Idaho......     4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................     6
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........    18
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama......    17
Smith, Hon. Robert, U.S. Senator from the State of New Hampshire.     3
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......     8
Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........    19

                               WITNESSES

Browner Hon. Carol, Administrator, Environmental Protection 
  Agency.........................................................    20
    Article, Love Canal Superfund at Work........................    44
    Fact sheet, Love Canal, New York State Department of Health..    48
    Letters, Superfund issues....................................    37
    Prepared statement...........................................    69
    Responses to additional questions from:
        Senator Allard...........................................
          37, 92.................................................
        Senator Boxer............................................    87
        Senator Graham...........................................    91
        Senator Moynihan.........................................
          42, 89.................................................
Burt, Robert N., chairman and chief executive officer, FMC 
  Corporation on behalf of the Business Roundtable...............   148
Eckerly, Susan, director for Federal Government relations, 
  National Federation of Independent Business....................   146
    Response to additional question from Senator Inhofe..........   148
Florini, Karen, senior attorney, Environmental Defense Fund; 
  accompanied by Jacqueline Hamilton, senior project attorney, 
  National Resources Defense Council.............................   153
Johnson, Gordon, J., Deputy Bureau Chief, Environmental 
  Protection Bureau, New York State Attorney General's Office, on 
  behalf of the National Association of Attorneys General........    61
    Article, Federal Sovereign Immunity and CERCLA, Journal of 
      Natural Resources and Environmental Law....................   134
    Letters:
        Responding to questions from Senator Moynihan............    68
        Re: Waiver of sovereign immunity by the Federal 
          Government on certain environmental laws, several State 
          Attorneys General......................................   128
    Prepared statement...........................................   116
    Resolution, National Association of Attorneys General, 
      adopted summer meeting, June 22-26, 1997, Jackson Hole, WY.   123
    Responses to additional questions from:
        Senator Moynihan.........................................   125
        Senator Wyden............................................   126
Mannina, George J., Jr., executive director, Coalition for NRD 
  Reform.........................................................   163
    Responses to additional questions from Senator Moynihan......   166
Nelson, E. Benjamin, Governor, State of Nebraska, on behalf of 
  the National Governors' Association............................    52
    Prepared statement...........................................   104
    Responses to additional questions from:
        Senator Chafee...........................................   108
        Senator Moynihan.........................................   108
        Senator Wyden............................................   107
Perron, James P., Mayor, Elkhart, IN., on behalf of the U.S. 
  Conference of Mayors...........................................    55
    Prepared statement...........................................   108
    Responses to additional questions from Senator Inhofe........   112
Subra, Wilma, president, Subra Company, New Iberia, LA...........    59
    Prepared statement...........................................   114

                          ADDITIONAL MATERIAL

Amendment to S. 8, draft substitute bill (Chairman's mark), 
  sponsored by Senators Chafee and Smith of New Hampshire, dated 
  August 27, 1997, Superfund Cleanup Acceleration Act of 1997....   232
Articles:
    Federal Sovereign Immunity and CERCLA, Journal of Natural 
      Resources and Environmental Law............................   134
    Hazardous Waste: Human Health Effects, Barry Johnson, 
      Toxicology and Industrial Health...........................   191
Letters:
    Advocates for Professional Judgment in Geoprofessional 
      Practice...................................................   228
    CSX Transportation...........................................    94
    State Attorneys General......................................   128
Report, Superfund: Summary of the Chairman's Mark of S. 8, 
  Amendment to the Superfund Cleanup Acceleration Act of 1997, 
  Congressional Research Service.................................   168
Statements:
    American Petroleum Institute.................................   180
    American Public Health Association and the National 
      Association of County and City Health Officials............   184
    American Water Works Association.............................   186
    Association of Metropolitan Water Agencies...................   188
    Hazardous Waste Coalition....................................   214
    National Association of Manufacturers........................   230
    National Oceanic and Atmospheric Administration, Department 
      of Commerce, submitted by Terry D. Garcia, Acting Assistant 
      Secretary for Oceans and Atmosphere,.......................    97



                  SUPERFUND REFORM AND REAUTHORIZATION

                              ----------                              


                      THURSDAY, SEPTEMBER 4, 1997

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2 p.m. in room 
406, Senate Dirksen Building, Hon. John H. Chafee (chairman of 
the committee) presiding.
    Present: Senators Chafee, Smith, Kempthorne, Bond, Thomas, 
Allard, Inhofe, Sessions, Baucus, Boxer, Lautenberg, Reid, 
Graham, Wyden, and Moynihan.

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

    Senator Chafee. I want to welcome everyone here this 
afternoon. This hearing before the full Committee on 
Environment and Public Works is to consider Superfund 
legislation.
    We are under somewhat of a time constraint today. There 
have been objections posed by the Democratic leader to our 
meeting beyond--I believe it's 4:30. So we have a host of 
excellent witnesses. I want to urge everybody to make their 
statements crisp and their questions to the point, and the 
answers, similarly.
    Now, Senator Baucus has to introduce a constituent of his 
State before the Foreign Relations Committee, and he will not 
be here for a few minutes. I know that Senator Lautenberg had a 
press conference over in the Cannon Building at 1:45, so he 
will be a few minutes late. So I will make a brief opening 
statement, and then ask Senator Smith if he chooses to make a 
statement, and Senator Kempthorne and others who might be here, 
and we'll go right to the witnesses.
    First I want to thank our witnesses, some of whom have come 
a considerable distance, and I appreciate that. I am delighted 
that each of you have lent your energies to these efforts. And, 
of course, we want to welcome the Administrator of EPA, 
Administrator Browner, here, once again.
    From the beginning of this Congress I have believed that 
the Senate could pass legislation to reauthorize Superfund this 
year. By ``this year,'' I mean this calendar year. I still 
believe it. Today is another important step toward fixing a 
program which every person in this room has found fault with at 
one time or another. Our goal is to keep the process moving.
    We will be hearing from witnesses today about the revisions 
to S. 8, which was the bill that Senator Smith and I introduced 
last January. The draft changes were released last week. These 
changes were made in response to testimony we received in 
hearings, and then we had a series of 11 stakeholder meetings, 
and subsequent to that negotiations have taken place. This has 
all occurred over the past 6 months, so it has been a very 
industrious effort.
    What we need to do now, it seems to me, is to keep at it. 
The President, Administrator Browner, the Senators here today 
from both sides of the aisle, and our counterparts in the House 
have all indicated support for reforming the program. Now the 
players in this, the Senate, the majority, the minority 
members, and the Administrator must join together to finish the 
task in the Senate. That's what I'm concentrating on, the 
Senate; what happens in the House is out of our jurisdiction, 
clearly, but we can provide leadership in the Senate.
    Substantial efforts have been made in past Congresses to do 
this. All of this work has led us to being, I believe, very 
close to a finished product.
    I would like to thank everyone who has participated in our 
process during the past 6 months--Senator Smith, who spent so 
much time on it; Senator Baucus; Senator Lautenberg; 
Administrator Browner. All your staffs have worked hard with 
one another and with me and my staff, likewise, so I thank you. 
I appreciate the time and energy of everyone who has 
participated in the stakeholder meetings. Those were very well-
attended and, I thought, fruitful.
    I want to talk briefly about the process we have been 
through. As I mentioned, since March we have had more than 220 
hours of discussion and negotiation that touched on every title 
of S. 8. After the stakeholder process, we began to negotiate 
changes to the bill. On some issues, the gaps were narrowed 
considerably. Those areas where the discussions were most 
productive are reflected by many of the changes in the new 
draft. On other sections, clearly, less progress was made.
    We still need to address many elements of the bill. I will 
continue to work toward a bill that most Senators in this 
committee can support. I will continue to work with Senators to 
find the best way to keep the process moving. I want to stress 
the need to keep going. The first session is nearly over, and 
although we've done a lot, we still have a long way to go to 
pass a bill.
    I want to note briefly some of the areas that, to my mind, 
underscore the progress that we've made.
    The remedy selection title of the bill now says more 
plainly what I believe was always intended, that remedies must 
always protect human health and the environment. There's no 
argument with that.
    It accounts for future land use in deciding ``how clean is 
clean'' and will result in faster cleanups.
    The bill has been made more flexible regarding the Federal-
State relationship. States can assume various degrees of 
responsibility for site cleanups, and the Federal Government 
can step in if the Governor asks for help, or if the remedies 
used by the State are not sufficiently protective.
    Each of these issues was raised in testimony and 
discussions about the bill. We have made a great effort to 
resolve them. It is in that cooperative and productive spirit 
that I ask my colleagues not to let the hard work of past 
months go to waste. It is time to finish the bill.
    I want to thank you.
    Senator Chafee. Now, Senator Smith.

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

    Senator Smith. Thank you very much, Mr. Chairman, and good 
afternoon, Administrator Browner. It's nice to see you here.
    Let me just make a couple of brief remarks and submit a 
statement for the record in the interest of time.
    This, I believe, is the tenth hearing we have had on this 
issue over the past 3 years, and hopefully this will be the 
final one before we finally get some action.
    Cleaning up toxic waste sites is not an issue for talk; it 
is one for action I think, as you can see by the interest in 
the audience here today, as well as those watching--there is a 
great amount of interest in getting this program fixed. The 
American people deserve no less.
    We've talked long enough. I sincerely hope that as a result 
of the hearing and discussions between now and the time that we 
go to markup, that we will be able to resolve our differences.
    There have been 200 hours of formally-scheduled discussions 
with the minority alone this year, either at the Member level 
of at the staff level, and that's just this year. We've been 
talking for the past three Congresses, and there is unanimous 
agreement, I believe, that at the minimum the program should be 
fixed, and certainly overhauled, and I don't think there's any 
better time to do it than now.
    One of the interesting numbers that we hear in the debate 
about Superfund is that one out of four Americans lives near 
one of these toxic waste sites. This is unacceptable. I think 
there isn't anyone who would disagree with that.
    The interesting thing, as far as I am concerned, is that 
not only is it unacceptable, it is unnecessary. There is no 
need to have this situation there. We have the technology and 
the resources to do one of two things: either clean it up, or 
contain it so that it is not a human health threat. We have the 
technology and the resources; let me repeat that. But what we 
have not done is prioritized those resources or applied that 
technology, for a vast array of reasons.
    We have to make sure that the valuable and somewhat limited 
resources that we have are not wasted on bureaucracy and 
lawyers and other items that really are not contributing to the 
cleanup. And that's been the focus of our program reform. It's 
been the focus of the discussions that we've had. I believe it 
is the focus of S. 8. We have spent over $50 billion on this 
program over the last 17 years. Some would argue about how many 
sites we've cleaned up, but at the most it's one-third, and 
that's not good enough. We can do better; we should do better; 
we must do better. And this bill, although not perfect, will 
make better, safer, and faster cleanups possible. We move the 
ball forward.
    You will find, as you find in many issues, that everyone is 
not going to get everything they want. But we have tried very 
hard--all the individuals that represent every aspect, pro and 
con, on this issue that I know of, we've had a dialog with. I 
want to thank those who have participated in that dialog, 
especially Ms. Browner, with whom we've had a great working 
relationship over the past 3 years. Even where we disagree, we 
do it respectfully of each other.
    Senator Chafee and I have tried very hard to incorporate a 
number of the concerns that you have raised, Administrator 
Browner, and others, into the bill. This, as you know, is not 
the original S. 8 as introduced; this is an amended S. 8. So 
we've tried to incorporate a lot of those reforms because we 
believe that's the way to get a bill and to improve the 
program.
    However, we also know that one of the positions that the 
Administration has taken, and specifically that Administrator 
Browner has taken, is that administratively they've made a lot 
of changes over there, and they have been positive. I have said 
that publicly and privately to Administrator Browner. We feel 
that many of the administrative changes that you've made have 
been positive. However, there is some dispute as to how 
effective some of these changes are, whether they are being 
executed or carried out in every community.
    But be that as it may, our goal here is to try to reach 
consensus on a bill that moves the ball down the field. Those 
of you who have followed the progress of the debate realize how 
far we've come. We've come a long way since the so-called 
``Earth Program'' of 3 years ago. This bill, where we are now, 
is the result of hundreds of hours of discussions among staff, 
stakeholders, and constituents. We have included the concerns 
of many; some, we have not been able to agree on. But I hope 
that perhaps between now and the time we mark up, Mr. Chairman, 
we will be able to reach some accommodation.
    Let me just close on this point. If we can't agree on every 
single specific item--whether it's liability or remedy--I would 
just make an appeal to my colleagues on the other side of the 
aisle to let the process work. Let the bill go to the Senate 
floor and let the Senate work its will. I think that is better 
and fairer than to kill a bill by not allowing it to go forward 
to the Senate floor. If it dies because the President vetoes it 
or because the Senate rejects it, so be it; but let's not let 
it die simply because we refused to bring it to the floor. 
We've all worked too hard and too long to see that happen.
    Thank you, Mr. Chairman.
    Senator Chafee. Thank you very much, Senator Smith.
    Senator Kempthorne.

 OPENING STATEMENT OF HON. DIRK KEMPTHORNE, U.S. SENATOR FROM 
                       THE STATE OF IDAHO

    Senator Kempthorne. Mr. Chairman, thank you very much. I 
want to commend you for holding this hearing. This is critical; 
it's time for the Nation to deal with Superfund. It is time for 
the Nation to have results with regard to the Superfund sites. 
I want to commend you, and I also want to commend Senator 
Smith. I don't know of a Senator who is more dedicated to 
getting this resolved than Senator Smith of New Hampshire, who 
has worked diligently to try to make this a reality.
    I also appreciate that Administrator Browner is here, and I 
look forward to her comments, as I also do.
    May I also acknowledge James Perron, who is the mayor of 
Elkhart, IN. James and I were mayors together; I appreciate 
seeing, you, Jim. And also Ben Nelson, who is the Governor of 
Nebraska, who is very helpful in our efforts to stop these 
unfunded Federal mandates. I believe he will be testifying 
today, also.
    Mr. Chairman, I would just note that I will be leaving 
shortly, unfortunately, because I will be chairing with the 
House--we have a conference going on in the Armed Services 
Committee on personnel matters, so I will be leaving. I hope to 
come back so that I can discuss the natural resource damages 
issue. I think that's a critical one that has a key role to 
play in this whole legislation.
    I am pleased that the bill generally recognizes the need to 
reform and improve the NRD program, but we need to get to the 
heart of the fundamental problems with the program. In my 
opinion, the problem with the current program is that it isn't 
being used to restore resources, as it was intended to, but 
instead has become more like a second cleanup program and a 
second litigation opportunity, and one that can be very 
expensive and very time-consuming. The State of Idaho now has 
the largest natural resource damages lawsuit in the country. 
Together, the Federal Government and the Coeur d'Alene Tribe 
are asking for over $2 billion. Only half of that is to 
actually restore natural resources. The rest is for so-called 
``compensation for nonuse or lost use'' damages. These 
compensatory damages have nothing to do with the actual 
restoration of the Coeur d'Alene Basin. Instead, they are used 
to inflate lawsuit claims, and ultimately drive up the cost of 
settling a lawsuit.
    Litigation on natural resource damages is just beginning, 
but if we don't do something now, we run the risk of merely 
shifting the costly litigation and delay from the cleanup 
program to the natural resource damages program. That's a risk 
that we simply cannot afford to make if we want to restore 
damaged natural resources in a timely manner, and that ought to 
be the goal. Let's restore the resources.
    For that reason I strongly support meaningful reform to the 
natural resource damages program. I want to work with the 
chairman and the committee to include that reform in this bill.
    Thank you, Mr. Chairman.
    Senator Chafee. Thank you.
    In order of arrival, while Senator Lautenberg is getting 
organized--he's the chairman of the subcommittee--do you want 
to go now, Frank?
    Senator Lautenberg. That's the nicest thing you've said to 
me.
    [Laughter.]
    Senator Lautenberg. You just made me chairman of the 
subcommittee----
    [Laughter.]
    Senator Chafee. All right. Don't get used to it.
    [Laughter.]
    Senator Lautenberg. I like it. I like it.
    [Laughter.]
    Senator Chafee. I'll try not to make it a habit.

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

    Senator Lautenberg. John is really bipartisan, I must say.
    Mr. Chairman, before the summer recess there was a new mood 
in Congress, one of cooperation. The best example of that 
spirit was our negotiation on the budget, on the bill where we 
had daily Member input, worked together in a way of consensus 
that showed respect for the views of all of our colleagues. By 
working cooperatively we forged an historic agreement that both 
balanced the budget and gave tax relief, and that's the way the 
American people wanted to see us work. That's the way we 
started this Superfund reauthorization process. Our 
negotiations during the first part of this year, I thought, 
yielded positive benefits. And I think we should continue down 
that same road, Senator Chafee, that you and I traveled 
together during the budget negotiations when we worked out a 
bipartisan bill.
    Today I offer my personal commitment to work hard and to 
cooperate with my Republican colleagues to reach a bipartisan 
Superfund reform. Unfortunately, with what I see here----
    Senator Chafee. We always have these nice statements, but 
then there follows ``but'' or the dropping of the other shoe. 
You do that so well.
    [Laughter.]
    Senator Lautenberg. One was a reflection of the past, and 
the other is a contemplation of the present. And I hope that 
the future will hold out more hope.
    Unfortunately, Mr. Chairman, with the partisan markup, it 
seems to me we're moving toward a different kind of atmosphere. 
I hope that that will not doom Superfund reform once again. We 
can't forget the importance of the legislation. Superfund is, 
first and foremost, a matter of public health. That issue at 
times seems to have gotten lost in the swirl of litigation and 
controversy that surrounds Superfund. For instance, data from 
the Agency for Toxic Substances and Disease Registry shows 
troubling trends in my home State of New Jersey. The data show 
that in all but one of 21 counties, cancer rates in areas 
around hazardous waste sites exceed the national average. 
Studies from other parts of the country--Idaho, Illinois, 
Kansas, Missouri, Pennsylvania, California--also suggest that 
those living near toxic waste sites, particularly children, 
suffer disproportionately from serious health problems, and the 
health of our families cannot be a partisan issue. I hope that 
we don't lose site of that.
    I oppose a quick hearing and markup. I reviewed the mark 
laid down before the committee last Thursday, and while I note 
that there are some changes and improvements over S. 8, overall 
I am still disappointed. The mark sets us back substantially. 
On cleanups, by codifying a cancer risk range without a point 
of departure, the mark would let Superfund cleanups satisfy the 
law but be 100 times weaker than they are today. By giving only 
lip service to a preference for treatment, the mark shifts this 
program from one where poisons are treated to one where poisons 
are merely fenced off.
    On liability, the so-called ``co-disposal carve-out'' 
really offer a bail-out for shady polluters, but soaks the 
taxpayer. Where is the fairness in a scheme that rewards 
Fortune 100 companies who poison the neighborhood landfill or, 
worse yet, own the landfill but leaves responsible corporate 
citizens--who paid more to send their waste to hazardous waste 
landfills--still on the hook?
    On States, I am entirely in favor of dividing the labor 
between EPA and qualified States, but the mark hands off 
Federal responsibility. It actually prevents the Feds from 
stepping in in a way that is unheard of in any other 
environmental statute in this country, and does not adequately 
protect the public.
    On natural resources damage, by precluding recovery of 
nonuse of damages, the mark deprives the public of complete 
compensation for natural resource damages. My colleagues from 
New York and California and Oregon out to be particularly 
outraged that the mark seems to undermine their years of 
litigation efforts.
    On small businesses and cities, the mark actually hurts 
small business and other sympathetic parties who can't survive 
the costs of Superfund litigation. By making relief prospective 
only, and only for NPL sites, the mark does nothing for the 
municipalities and small businesses who need help right now, 
those who have been sued by Fortune 100 companies.
    Mr. Chairman, all of these problems are solvable, I 
believe, if we reopen bipartisan negotiations on this crucial 
legislation. I want to do that; honestly, I do. The American 
people want us to work together, and it struck me as rather 
unusual that one of the things that they like best about the 
budget bill that we finally put to rest was that we worked 
together. Even some who didn't like the bill complimented us on 
the fact that we worked together to get something done.
    The health of our families is at stake. I don't have to 
remind everyone here that I think we're duty-bound to honor the 
wishes of the American people, and I hope we will be able to do 
that.
    [The prepared statement of Senator Lautenberg follows:]
Statement of Senator Frank Lautenberg, a U.S. Senator from the State of 
                               New Jersey
    As you all know, I was opposed to this quick hearing and markup 
because I thought we were making significant strides that would have 
lead to a bi-partisan bill.
    After reviewing the draft bill of Senators Chafee and Smith, I must 
say I am very disappointed. Provisions in this bill weaken our 
commitment to clean up some of these poisoned sites and put us in the 
business of warehousing toxic waste.
    This won't make sense to most Americans. What we're saying is that 
while we can't find money to help rebuild our Nation's schools, we will 
spend millions to create environmentally-dangerous museums to our 
polluting past.
    Other problems in the Chafee/Smith bill--. In 1993 and 1994, we 
agreed to give communities greater input in cleanup decisions and 
greater access to critical health information. This bill weakens those 
provisions.
    In addition, sites that took household garbage and toxic wastes are 
now Federal responsibilities. That lets corporate polluters off the 
hook and sticks the taxpayer with the bill. For instance, in a site in 
my home State of New Jersey, called Lipari Landfill, corporate 
polluters who would have been forced to pay millions of dollars in 
clean up costs because they mixed their cafeteria garbage with 
industrial wastes.
    Some will have argue that this change is fair because these sites 
were poisoned by so many entities--from large corporate polluters to 
single individuals--that it is impossible to assign blame and cost. 
This bill does give some needed relief to small business, municipal and 
county governments and certain small polluters.
    And I agree that we should give relief to some of the small fish 
who did the least of the damage. But ultimately the parties helped the 
most by this bill are the large polluters who caused the most damage. 
Why are we letting them off the hook?
    In fact, I think the relief for small business, for instance, in 
the bill seems very inadequate. Their relief is only for what they do 
in the future. They are still liable for past damages.
    Mr. Chairman, as the public tells us it wants greater environmental 
protection, what does S. 8 provide? It provides less. It provides for 
fewer cleanups. It makes it easier for polluters to saddle the taxpayer 
with the bill. It will leave pollution onsite and call the cleanup 
complete.
    If the goal is to draft a bill that will become law, I would urge 
the reopening of bipartisan negotiations that will lead to a signing 
ceremony in the Rose Garden and a victory for our environment. Let's 
fight for more. Not less.

    Senator Chafee. Thank you.
    I'm not sure I will agree with the characterization of any 
markup as being a ``partisan markup.'' Certainly no markup I've 
ever run around here has ever been a partisan markup.
    Senator Lautenberg. I don't know, Mr. Chairman, since 
you've mentioned it, whether there's been any real Democratic 
input on this.
    Senator Chafee. We haven't gotten to the markup yet.
    Senator Bond.
    Senator Smith. Incredible. Unbelievable.

  OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, U.S. SENATOR 
                   FROM THE STATE OF MISSOURI

    Senator Bond. Mr. Chairman, based on your request that we 
get on with the hearing and let people have comments from the 
witness table on the mark rather than arguing about something 
that hasn't even come up before a markup, let me just say that 
the current law is broken. I commend you and Senator Smith for 
putting forward a draft. I look forward to hearing the comments 
and criticisms and praises on it, and I am hopeful that 
consensus can be reached on a reauthorization that will result 
in real reform which will, No. 2, lead to more money for 
Superfund, and No. 3, provide speedier cleanups, lest costly 
approaches, incentives for redevelopment, and an eventual end 
to the program.
    Senator Chafee. Thank you, Senator. We appreciate the 
interest you have shown as a member of the Appropriations 
Committee in connection with this program.
    Senator Thomas.
    Senator Thomas. I got your note, Mr. Chairman.
    Senator Chafee. Thank you. Thank you very much.
    [Laughter.]

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

    Senator Thomas. I composed a little poem for you.
    ``There was a young man from the West/who tried to make his 
statement the best/but he failed at that sport/because his time 
was too short.''
    [Laughter.]
    Senator Chafee. You go to the head of the class.
    [Laughter.]
    Senator Chafee. Senator Allard, from the West.

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

    Senator Allard. Mr. Chairman, I want to thank you for 
holding today's hearing and I look forward to moving forward 
with the Superfund legislation. I want to see it move forward. 
I know that you and Senator Smith have both shown a lot of 
perseverance in trying to work with all the parties.
    You know, I happen to be of the feeling that we could move 
a lot further, a lot quicker, if we could make Federal agencies 
live under the same laws as local officials. We're going to 
have some local officials to hear from, as well as private 
entities. We've got some examples in the State of Colorado, for 
example, where the Environmental Protection Agency is actually 
a party to a Superfund site, along with a private entity, and 
yet the Environmental Protection Agency is held to a different 
standard than that private party. That's not only happened 
once; it has happened three other times, and I think it's 
important that we make sure that Federal agencies have to 
comply with the same rules as local governments and private 
parties.
    My colleague over there from New Jersey mentioned the 
``shady polluter.'' Well, if you look at a report from the 
National Governors' Association, as well as the State Attorneys 
General Association, that ``shady polluter'' is the Federal 
Government. They are characterized as the largest polluter in 
this country.
    So I think that we need to look very seriously, to make 
sure that if we really want to clean up the environment and we 
really want to make this a cleaner and better place for our 
children and grandchildren, we make the Federal Government an 
equal partner in resolving Superfund problems.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Allard follows:]
  Opening Statement of Senator Wayne Allard, a U.S. Senator from the 
                           State of Colorado
    Mr. Chairman, thank you for holding today's hearing to examine the 
latest Superfund reform legislation. I know this has been a long 
process for many and I admire Mr. Smith's and your perseverance. One of 
these days, perhaps, you will receive some cooperation from the 
executive branch and we can bring this saga to a close. However, as 
long as this Administration refuses to play by the same rules they 
enforce against private entities, I have no reason to believe they are 
serious about Superfund reform.
    Specifically, I am speaking about how they handle clean up of 
Federal facilities. In Colorado we have several examples of lengthy 
enforcement delay, inaction, or different cleanup standards for Federal 
agencies. Take for example, a Superfund site located in Leadville, CO. 
At the site the EPA is one PRP and a mining company another. There is 
no difference in the actions they are taking, but there is significant 
difference in the cost of cleanup. While the private party is forced to 
have a water treatment facility that is clearly overdesigned, the EPA's 
water treatment facility is built at much lower spec's despite the fact 
it is performing the same function. Judging by the different standards 
applied, I can only guess that the EPA forgot an important caveat when 
they were touting their philosophy of ``polluter pays''--``polluter 
pays unless it is the Federal Government'' is clearly what they meant. 
Obviously, one of two things need to happen, this Administration needs 
to hold themselves to the same standard they hold private parties, or 
they should show more common sense and flexibility in dealing with 
reform legislation.
    There are other examples that point out the difference in the 
executive branch's treatment of Federal entities and private entities. 
At the Federal Center in Colorado contamination caused by the Federal 
Highway Administration was migrating into a residential area. It took 
too long for cleanup to begin because the State had to negotiate with 
the Federal Government and the EPA simply didn't act. Had this been a 
private entity, no negotiation would have occurred, cleanup would have 
begun as soon as the problem was discovered. Judging by the 
Administration's Superfund reform principle that states, ``The 
Administration does not support legislative amendments specifically for 
Federal facilities'', they have no desire to fix this problem.
    In conclusion Mr. Chairman, this Administration either needs to 
determine they are going to live by the rules that everyone else has to 
live by, or they should recognize that the Superfund law they find too 
difficult to comply with causes the same problems for private parties. 
However, we should make clear that their philosophy of, ``do as I say 
not as I do'' is unacceptable. In order to achieve that end, I will be 
introducing legislation to ensure that if the Federal Government won't 
hold themselves environmentally accountable, other levels of government 
will.
    Thank you Mr. Chairman, I look forward to the rest of the hearing.

    Senator Chafee. Thank you, Senator.
    Senator Boxer.

 OPENING STATMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Boxer. Thank you, Mr. Chairman. I also received 
your note, and I can't top what Senator Thomas did and 
therefore I will not abide by what he did.
    [Laughter.]
    Senator Boxer. But I will only speak for about 3 minutes.
    We do have 97 Superfund sites in our State of California, 
the fourth highest after New York, New Jersey, and 
Pennsylvania, so we have major concerns. And because a lot of 
my concerns were not included in the bill, I think it is 
important that I lay them out.
    Having said that, I want to perhaps do the same type of 
``good news, bad news'' approach, but I do so enjoy working 
with the full committee chairman and very much with the 
subcommittee chair, and I really do hope I'll have that chance, 
more than I've had, because I think that the concerns that I 
will lay out here are important to the people of the country. 
So let me try to lay them out briefly.
    I ask unanimous consent that my full statement be made part 
of the record.
    I think there are three principles we must adhere to in any 
bill, whether it is a Democratic bill, a Republican bill, or, 
hopefully, a bipartisan bill.
    First, Superfund must include appropriate and carefully 
crafted guidelines that will guarantee that the public health 
is protected, now and in the future.
    Second, parties responsible for polluting a site must be 
held responsible for site cleanup and restoration.
    Third, Superfund must ensure expeditious and efficient 
cleanups.
    Mr. Chairman, there are key areas in the draft proposal 
before us today that do not meet these principles, in my view, 
and let me quickly explain some of these concerns.
    First, I am concerned with the fact that there is no 
explicit requirement in the bill that cleanup standards be set 
at levels that protect the health of children, the elderly, and 
other vulnerable subpopulations. Now, I am very proud to say 
that this committee, when we drafted the Safe Drinking Water 
Act and we worked so closely together, did accept an amendment 
that would set the standards to our most vulnerable 
populations. I think we should do no less. As a matter of fact, 
I think we should do that in all of our environmental laws. I 
have authored the Children's Environmental Protection Act, and 
I hope that we can incorporate that into this bill. We did it 
in Safe Drinking Water. I think it is very appropriate.
    If we're going to allow a lower cleanup standard, we should 
only do so if we can assure that it will protect children, and 
we haven't done it.
    Second, I am concerned with provisions in the draft bill 
concerning ``hot spots'' and how these provisions could short-
circuit ongoing ``hot spot'' cleanup efforts. For example, in 
the San Gabriel Valley in California, the San Gabriel Water 
Quality Authority, together with a few potentially responsible 
parties, are working on the treatment of three local ``hot 
spots.'' This bill, as it is drafted, could jeopardize ``hot 
spot'' treatment projects in the San Gabriel Valley because it 
removes the preference for treatment in favor of containment of 
contamination, and I think that this is another very important 
point.
    Mr. Chairman, 92 percent of the National Priority List 
sites in California involve groundwater contamination. Over 3.2 
million people get their drinking water from aquifers below 
which a site is located. Half-assurances are not adequate for 
my constituents.
    Third, I am concerned that the natural resource damages--
NRD--title in the bill, which provides for restoring natural 
resources that have been damaged by a polluter, is not strong 
enough. In southern California we have an NRD site called 
Montrose. The Montrose site involves the discharge of tons of 
DDT off the coast of Palos Verdes, near Los Angeles, which 
nearly decimated the area's bald eagles, peregrine falcons, 
brown pelicans, and other birds, and caused many species of 
fish to become unfit for human consumption. Strong NRD 
provisions will ensure the restoration of these resources for 
future generations.
    Fourth, I am concerned about provisions in the bill that 
would exempt hazardous waste generators and transporters from 
any liability at co-disposal sites. This would exempt every 
large polluter from liability at these sites, and clearly goes 
against the ``polluter pays'' principle.
    Mr. Chairman, I have other areas of concern, including the 
role that communities have in developing cleanup plans; the 
expanded role that States will have in administering cleanups 
at National Priority List sites; and the general limits of 
public participation in decisionmaking.
    Again, I just have to say I do enjoy working with my 
colleagues who are in charge of this whole venture of rewriting 
this law. Absolutely, we need to do better here, but I really 
believe that the points I have made are significantly 
disturbing because I think it goes against what we really need 
to do with Superfund, which is to make sure that we can restore 
these sites to protect the most vulnerable populations.
    Thank you very much.
    [The prepared statement of Senator Boxer follows:]
 Statement by Senator Barbara Boxer, a U.S. Senator from the State of 
                               California
    Mr. Chairman, as you know Superfund reauthorization is of critical 
importance to the people of California. My State has 97 Superfund 
sites--the fourth highest after New York, New Jersey and Pennsylvania. 
Superfund activities to clean our water, restore our soils, and 
eliminate potential exposure to hazardous materials affect the majority 
of the citizens of my State. Californian's want and deserve a strong 
Superfund.
    When considering reauthorization of Superfund, there are three 
principles that we must adhere to.
    First, Superfund must include appropriate and carefully crafted 
guidelines that will guarantee that the public health is protected now 
and in the future.
    Second, parties responsible for polluting a site must be held 
responsible for site cleanup and restoration.
    Third, Superfund must ensure expeditious and efficient cleanups.
    Mr. Chairman, there are key areas in the draft proposal before us 
today that do not meet these principles. Let me explain what some of my 
concerns are.
    First, I am concerned with the fact that there is no explicit 
requirement in the bill that cleanup standards be set at levels that 
protect the health of children, the elderly, and other vulnerable 
subpopulations. By lowering remediation standards from 10-6 
(Ten to the minus six) to a range of between 10-6 and 
10-4, this bill specifically endorses a lower standard which 
may not protect children. If we are going to allow a lower cleanup 
standard, we should only do so if we can ensure that it will protect 
children and other vulnerable subpopulations.
    Second, I am concerned with provisions in the draft bill concerning 
``hot spots,'' and how these provisions could short circuit ongoing 
``hot spot'' cleanup efforts.
    For example, in the San Gabriel Valley in California, the San 
Gabriel Water Quality Authority, together with a few Potentially 
Responsible Parties (PRP's) are working on the treatment of three local 
``hot spots.'' This bill could jeopardize ``hot spot'' treatment 
projects at South El Monte, because it removes the preference for 
treatment in favor of containment of contamination. It is not enough to 
say that treatment will be the preferred method of cleanup only when 
``contaminants cannot be reliably contained . . . and present 
substantial risk . . . because of high toxicity . . . and there is a 
reasonable probability of actual exposure . . .'' .
    Mr. Chairman, 92 percent of the National Priority List sites in 
California involve groundwater contamination. Over 3.2 million people 
get their drinking water from aquifers over which a site is located. 
Half assurances are not adequate for my constituents. We must ensure 
that highly toxic and mobile contaminated groundwater be treated to 
avoid migration and further groundwater contamination.
    Third, I am concerned that the Natural Resources Damages (NRD) 
Title in the bill, which provides for restoring natural resources that 
have been damaged by a polluter, is not strong enough.
    In southern California we have an NRD site called Montrose. The 
Montrose site involves the discharge of tons of DDT off the coast of 
Palos Verde near Los Angeles, which nearly decimated the area's bald 
eagles, peregrine falcons, brown pelicans, and other birds, and caused 
many species of fish to become unfit for human and wildlife 
consumption. Strong NRD provisions will ensure the restoration of these 
resources, for future generations.
    Fourth, I am concerned about provisions in the bill that would 
exempt hazardous waste generators and transporters from any liability 
at ``co-disposal'' sites (where hazardous waste was disposed together 
with municipal waste). This would exempt every large polluter from 
liability at these sites and clearly goes against the polluter pay 
principle.
    Mr. Chairman, I have other areas of concern including the role that 
communities have in developing cleanup plans, the expanded role that 
States will have in administering cleanup at National Priority List 
sites, and the general limits of public participation in 
decisionmaking.
    Mr. Chairman, because of the scope and importance of this bill, I 
hope that following this hearing we will work together to shape a bill 
all of us can support and that is worthy of the people we serve.

    Senator Chafee. Next will be the ranking member of the full 
committee. After that, I just have to restrict all statements 
to no more than 2 minutes. We have nine witnesses here; we're 
restricted to 4:30, and these witnesses have come a long way.
    So, Senator Baucus, you are on your own, but after that it 
will be 2 minutes.

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

    Senator Baucus. Thank you, Mr. Chairman. I also apologize 
for my delay. The President has nominated Mr. Peter Scher to a 
new position, to be Ambassador for Agriculture. It's a very 
important position. Chairman Helms is holding his confirmation 
hearing at this moment, and that's the reason for my delay. I 
might say that Mr. Scher is my former chief of staff.
    Senator Chafee. Is Will's name on that list?
    Senator Baucus. Mr. Scher is taking a different tack.
    [Laughter.]
    Senator Baucus. Mr. Chairman, I don't know about everybody 
else, but when I return to Washington, I always have trouble 
adjusting to remembering all those odd Superfund acronyms that 
were being tossed about so frequently before the August recess, 
like RODS and RAPS, ROARS and RACS and TAGS and CAGS--I mean, 
there's just no end to this stuff.
    But I do want to tell you what I did hear when I was on the 
recess break in Montana this last August, and that is that 
people want us to go on with the Nation's work. They are 
basically quite proud of us in putting together a bipartisan 
budget agreement; that makes a big difference to the vast bulk 
of the American people. And I think that's how they want us to 
approach our work. Essentially, do what's right: ``We sent you 
people back there to get the job done. Be fair. Don't stray too 
far off in one direction or the other, but just do the right 
thing and get it done.'' I think that's basically what the 
American people want. It's basic American common sense, that's 
what it is, not going too far to one extreme or the other.
    I think that the Superfund mark before us is a good step in 
that direction. It's not all the way there yet. I must say, Mr. 
Chairman, that I am very proud of the efforts that you and 
Senator Smith have made to help reach bipartisan agreement here 
because, in my judgment, there will be no Superfund 
reauthorization unless it is done on a bipartisan basis. That 
means both of us, Republicans and Democrats, have to think a 
little more deeply, a little more creatively; not dig in our 
heels quite so much, but rather work in the people's interest.
    I know that you, Mr. Chairman, very much want a bill. I can 
say for all of us on our side that we, too, very much want a 
bill to progress, and I compliment you for the efforts that you 
and Senator Smith have made. We are close.
    Let me give an example of some of the areas where I think 
we've made a lot of progress. One is that we're pretty close to 
an agreement in giving local citizens a greater role in 
Superfund cleanup decisions. We're getting there; we're close. 
We are also making progress in making it easier to return land 
to productive use as so-called ``brownfields.'' That's 
progress, and also to improve Superfund cleanup standards. 
That's the good news.
    But all the news is not good. From my perspective, Mr. 
Chairman, I still think there are some areas where we have to 
do some more work. Some provisions of the proposal would, 
regrettably, weaken the protection of public health and the 
environment rather than strengthening the protection of the 
public health and environment. Some would generate more 
litigation and delay, not less, and I think some provisions of 
the bill would let some responsible parties off the hook 
without good justification.
    Let me be a bit more specific. The first is whether we 
should prefer cleanup plans that treat hazardous waste rather 
than just covering it up and leaving it there. Current law 
requires treatment in some cases where it doesn't really make 
sense; I agree with that, and I think the Administrator would 
very much agree with that as well, so we ought to fix that. 
This bill attempts to move in that direction.
    In Superfund lingo, we should narrow the preference for 
treatment. But in some other cases, there are very good reasons 
to prefer treatment in order to protect public health fully. 
The mark before us contains a preference for treatment in 
certain situations; that is an improvement, but I am concerned 
that the preference is too narrow.
    Another case where the bill would weaken protection is 
natural resource damages. Again, the mark makes some 
improvements, but among other things there is still the 
questions of how to take the inherent or intrinsic value of a 
resource into account. It's a very important issue. If we 
preclude the consideration of what the bill calls ``nonuse 
value,'' you will undermine the whole point of Superfund's 
provision for restoring natural resources.
    Take a remote wilderness area that has been damaged by 
pollution for many years. It can be restored. We can remove the 
waste, revegetate hillsides, and replant streambanks. It takes 
time and money, but it can be done. However, if we are only 
allowed to consider the uses that the wilderness actually 
provides specifically to humans, we do much less. Maybe we've 
just put in some hiking trails near town, or expanded the 
parking lots near some fishing holes. After all, that would 
replace the lost human uses of hiking and the fishing base. But 
if we take that approach, we completely overlook the intrinsic 
value of a remote mountain wilderness area. The same would be 
true of a damaged river or of a seacoast, and the public, 
including future generations, will be badly shortchanged. After 
all, this is an ethics issue; it is a morality issue; we should 
leave this place in at least as good a condition as we--our 
generation--has found it and has used it.
    The third issue relates to the so-called ``co-disposal 
sites,'' the large landfills that handle both household garbage 
and industrial waste, and that may involve hundreds of 
potentially liable parties. We all agree that the pizza parlors 
and the Boy Scout troops and similar groups should be 
eliminated from the Superfund system. That's clear. But I am 
not convinced that, having done that, we also need to eliminate 
the liability of financially viable companies that generated 
large amounts of hazardous waste. I just don't understand why 
taxpayers should pick up their tab--or, alternatively, why we 
should shift money away from cleanups in order to provide 
relief for these companies.
    There are other issues, like reopening settled cleanup 
decisions, and how we create an appropriate State-Federal 
partnership. I hope we can address those issues at this 
hearing, Mr. Chairman. But let me say again, you've made a lot 
of progress; I compliment you for that, but we still have a way 
to go.
    My hope is that we can resume our bipartisan negotiations 
in order to resolve our remaining differences. I continue to 
believe that this approach is the one that is most likely to 
produce a bill that is good for the economy and good for the 
environment. That's what we did in the last Congress when we 
wrote a bipartisan bill reforming the Safe Drinking Water Act, 
and that bill passed the Senate by a vote of 99 to 0. I am very 
confident that under your leadership, Mr. Chairman, we can do 
that here.
    [The prepared statement of Senator Baucus follows:]
Statement by Senator Max Baucus, U.S. Senator from the State of Montana
    Thank you, Mr. Chairman. I don't know about everybody else. But I'm 
having a little trouble adjusting to Washington after the long recess. 
For one thing, I've been struggling to remember all of those odd 
Superfund acronyms.
    Believe it or not, when I was in Bozeman, and up at Flathead Lake, 
I didn't hear a single thing about RODs, RAPs, RARs, or RACS. Not even 
TAGs or CAGs.
    I'll tell you what I did here, again and again.
    People want us to get on with the Nation's work. To shift from 
confrontation to cooperation. To listen to each other's point of view, 
and strive for bipartisan agreements that reflect common-sense balance.
    The budget agreement is a great example.
    This committee can provide another great example, by writing a 
solid, bipartisan Superfund bill.
    The Democratic members of the committee want a Superfund reform 
bill.
    And we know that you, Mr. Chairman, and our subcommittee chairman 
want a bipartisan bill.
    We've made progress. The draft chairman's mark makes significant 
improvements, in part reflecting the bipartisan negotiations that 
occurred in June and July.
    We are pretty close to an agreement on several important sections 
of the bill, including provisions:
     to give local citizens a greater voice in Superfund 
cleanup decisions,
     to make it easier to return land to productive use at so-
called ``brownfields,''
     and to improve Superfund cleanup standards.
    That's good news.
    But the news is not all good. From my perspective, the chairman's 
mark still falls short, in several important respects.
    Some provisions of the proposal would weaken the protection of 
public health and the environment, generate more litigation and delay, 
and let some responsible parties off the hook without good 
justification.
    Let me be more specific, about a few important issues.
    The first is whether we should prefer cleanup plans that treat 
hazardous waste, rather than just covering it up and leaving it there.
    Current law requires treatment in some cases where it doesn't 
really make sense. We ought to fix that. In Superfund lingo, we should 
narrow the preference for treatment.
    But in some other cases, there are very good reasons to prefer 
treatment, in order to fully protect public health.
    The chairman's mark contains a preference for treatment in certain 
situations. That's an improvement. But I am concerned that the 
preference is too narrow.
    Another case where the bill would weaken protection is natural 
resource damages.
    Again, the chairman's mark makes some improvements.
    But, among other things, there is still the question of how to take 
the inherent, or intrinsic, value of a resource into account.
    It's an important issue. If we preclude the consideration what the 
bill calls ``non-use value,'' we will undermine the whole point of 
Superfund's provision for restoring natural resources.
    Take a remote wilderness area that's been damaged by pollution over 
many years. It can be restored. We can remove the waste, revegatate 
hillsides, and replant stream banks. It takes some time and money. But 
it can be done.
    However, if we're only allowed to consider the uses that the 
wilderness provided, to humans, we'd do much less. Maybe we'd just put 
in some hiking trails near town, or expand the parking lots near some 
fishing holes. After all, would replace the lost human uses--the hiking 
and fishing days.
    But if we take that approach, we completely overlook the intrinsic 
value of a remote mountain wilderness area. The same would be true of a 
damaged river or seacoast.
    And the public, including future generations, would be badly 
shortchanged.
    The third issue relates to the so-called ``codisposal'' sites, the 
large landfills that handled both household garbage and industrial 
hazardous waste and that may involve hundreds of potentially liable 
parties.
    We all agree that the pizza parlors, boy scout troops, and similar 
entities should be eliminated from the Superfund system.
    But I'm not convinced that, having done that, we also need to 
eliminate the liability of financially viable companies that generated 
large amounts of hazardous waste.
    I just don't understand why taxpayers should pick up their tab. Or, 
alternatively, why we should shift money away from cleanups in order to 
provide relief for these companies.
    There other issues, like reopening settled cleanup decisions, and 
how we create an appropriate State/Federal partnership.
    I hope we can address those issues in the hearing.
    Let me say again: we've made a lot of progress. But we still have a 
long way to go.
    My hope is that we can resume our bipartisan negotiations in order 
to resolve our remaining differences.
    I continue to believe that this approach is most likely to produce 
a bill that's good for the economy and good for the environment.
    That's what we did last Congress, when we wrote a bipartisan bill 
reforming the Safe Drinking Water Act that the Senate passed by a vote 
of 99-0.
    I remain confident that, under our chairman's leadership, we can do 
it again.

    Senator Chafee. Thank you very much.
    Senator Inhofe.

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

    Senator Inhofe. Thank you, Mr. Chairman. I will adhere to 
your time schedule and be very, very brief.
    I would only want to say one thing in regard to something 
that Senator Lautenberg said.
    I know through my staff, Senator Lautenberg, that Senator 
Smith has worked some 200 hours with your staff, with our 
staff--I would call in and get reports quite often; I wouldn't 
want anyone within listening range to think that he was being 
partisan during the development of the starting point that 
we're addressing here today.
    There are a lot of things in this bill that I was going to 
address in an opening statement. Instead of that, of course, I 
will submit my statement for the record. But I do believe that 
we've made some progress in joint and several liability; not, 
in retroactive liability, in my opinion. I agree with Senator 
Kempthorne in terms of the NRD. I believe that we have a lot 
more to do.
    But one thing that I would like to bring out that hasn't 
really been addressed is that we need to be considerate of the 
oil and gas industry during the course of these deliberations. 
Right now we are more than 50 percent dependent on foreign oil 
for our ability to fight a war. I serve on this committee, as 
well as the Intelligence Committee and the Armed Services 
Committee; I consider this to be something very, very serious. 
Right now, the oil and gas industry pays over 50 percent of the 
taxes that go into this, and I think this needs to be addressed 
during these discussions.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Inhofe follows:]
   Prepared Statement of Jim Inhofe, U.S. Senator from the State of 
                                Oklahoma
    Mr. Chairman, thank you for holding today's hearing on S. 8, the 
Superfund Bill. I would like to commend both you and Senator Smith for 
moving the Superfund process forward. You both deserve a lot of credit 
for getting us to the point we are today. This committee has been 
working through the Superfund mess for years, including the last 2\1/2\ 
years under your leadership. After months and even years of 
negotiations I am happy that we are finally moving forward.
    I know that members on the other side of the aisle are not happy 
with all parts of the chairman's draft, to them I would say that this 
is not what we will be voting on next week. There will be amendments 
from both sides and I hope when all is said and done we can come 
together and report out a bipartisan Superfund Bill.
    Personally I am disappointed with several areas of the Bill, and I 
hope to work with my colleagues over the next week to improve the 
legislation. I would like to outline a few of my concerns.
    First on the liability section, while the bill goes a long way in 
addressing the joint and several liability problem innocent parties are 
still responsible for unattributable waste, which would best be left to 
the orphan share.
    In addition, last Congress I raised several specific cases during 
the Superfund hearings, I would like to remind my colleagues of two of 
those. The first involved the auto dealers in Oklahoma City who sent 
their used oil to a registered dealer and were held liable even though 
they did nothing wrong. The second case involved the Mill Creek Lumber 
Company who sent their used crank case oil to a licensed recycling and 
disposal center. In both of these cases we have innocent parties who 
did nothing wrong, the problems occurred later in the process. 
Unfortunately under the liability provisions of the Bill they would 
still be liable. They don't fall under the small business exclusion or 
the recyclers provision.
    I think both provisions need to be amended. The small business 
provision needs to use the same definitions of other Federal programs 
and the recycling provision should include the generation and 
transportation of oil and solvents.
    Under Natural Resource Damages, the bill makes many improvements 
over current law but I believe some areas need to be clarified and 
amended. We have to be sure that non-use and lost-use damages are not 
collected, no matter what they might be called. In addition, we need to 
be careful how we treat record review. We must ensure that all 
important information will be considered in a judicial hearing.
    Finally, I am concerned how the oil and gas industry are affected 
by Superfund. Our country now imports more oil than we produce. This is 
a national security issue. As a subcommittee chairman on Armed Services 
and a member of the Intelligence Committee, I know first hand how 
important our oil supply is to our national defense and our Nation's 
economy. I want to make sure we are not creating problems in this 
committee that will need to be solved in my other committees.
    Every time the Federal Government imposes more regulations on the 
oil industry, we start importing more oil and producing less. Superfund 
already hits the oil industry the hardest through the taxes. They pay 
over 50 percent of the Superfund taxes. This Bill does not address 
their recycling or waste issues, even though their wastes have low 
toxicity. I hope to join my colleagues in addressing these concerns.
    I thank the chairman for calling today's hearing and I look forward 
to the witnesses' testimony.

    Senator Chafee. Thank you very much, Senator.
    Senator Sessions.

OPENING STATEMENT OF HON. JEFF SESSIONS, U.S. SENATOR FROM THE 
                        STATE OF ALABAMA

    Senator Sessions. Mr. Chairman, I would just say that I 
recall that at the first hearing we had, Senator Baucus said 
that he could think of no other area in which we could do more 
for cleanup and save money at the same time than maybe 
reforming the Superfund laws. I have a lot of complaints about 
it. I think we have already reached bipartisan agreement that a 
number of things need to be changed. The brownfields changes 
are important. We need to continue to work on the liability 
provisions and the remedy requirements.
    I think we are making progress, but I feel very strongly 
that it is our duty, our responsibility, to see that we get the 
most cleanup for the taxpayers' dollar and the citizens' 
dollar, and I think we need to make sure that our legislation 
further cleanup rather than excessive and unnecessary costs.
    Senator Chafee. Thank you, Senator.
    Senator Reid.

  OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR FROM THE 
                        STATE OF NEVADA

    Senator Reid. Mr. Chairman, when I first got here there was 
a lot of talk about a note going around. I never got one. 
Finally when I got one, it was unsigned.
    [Laughter.]
    Senator Reid. So I figured----
    Senator Chafee. It was from me.
    Senator Reid. Oh, I see.
    Mr. Chairman, I have worked with Senator Smith on the 
Ethics Committee. He and I are the two ranking, Democrat and 
Republican, on that committee, and I have worked well with him. 
But I also want to say a word for my friend from New Jersey.
    Senator Lautenberg is one of the reasons we were able to 
get a bipartisan budget bill. But for his ability to cross 
party lines and work with both Democrats and Republicans, we 
would not have gotten a budget bill. We looked to Senator 
Lautenberg for leadership in that.
    I have to say, Mr. Chairman, I am looking to Senator 
Lautenberg for leadership in this issue, also. He has had a lot 
of experience in working with Superfund. He has spent his 
entire life in the Senate working on that one issue. We need to 
have him as a player in this legislation, and I am confident 
and hopeful that that would come to be.
    I would also say that I have worked with a lot of people on 
the Federal level over the years, but I have found no one who 
has worked better with me and has been any better for the 
country than Administrator Browner. She is always available. 
She works with the most difficult issues, and Superfund is an 
example. If there is a bad law, you can't take care of it 
through administrative reform. We all acknowledge that 
Superfund has some problems, and she and her office are getting 
a lot of the complaints that aren't her fault. It's simply that 
she is following the law as best she can. She has tried 
administratively on a number of occasions to do things, but you 
can only carry the administrative aspect of the law so far, and 
I think she's done a good job on that.
    I look forward to this hearing. I look forward to our 
coming up with a bill. I hope we can do that. It's not going to 
be easy.
    Senator Chafee. Thank you.
    Senator Graham.

  OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE 
                        STATE OF FLORIDA

    Senator Graham. Thank you, Mr. Chairman.
    Mr. Chairman, I wish to echo the comments that have just 
been made by my friend and colleague, Senator Reid, about both 
Senator Lautenberg and about my fellow Floridian, Carol 
Browner. They both bring a great deal of commitment and 
experience to this issue, and I know they will be extremely 
helpful to each of us individually and collectively on this 
committee in analyzing the proposal that is before us, and 
hopefully moving us toward the bipartisan consensus that, as 
Senator Baucus has said, will be critical in order to actually 
accomplish reform of this program--a program which, in my 
opinion, very much needs that reform in order to achieve its 
intended public purpose.
    Senator Chafee. Thank you, Senator.
    Senator Wyden.

  OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE 
                        STATE OF OREGON

    Senator Wyden. Thank you, Mr. Chairman. I, too, will be 
very brief.
    I think it is possible to have real reform of the Superfund 
program and real cleanup of Superfund sites. I don't think it 
has to be one or the other.
    There are two areas that I am especially interested in 
tackling on a bipartisan basis. The first is ensuring the 
protection of all beneficial uses of water. This should include 
drinking water, agricultural uses, industrial uses. My sense is 
that we are going to have water shortages all across this 
country. I am very much looking forward to working with my 
colleagues on a bipartisan basis to addressing the water issue 
in this debate.
    The second area that I hope we will focus on is the issue 
of preventing innocent parties from becoming ensnared in the 
Superfund net, without letting responsible parties off scot-
free. I know a number of my colleagues have mentioned that, as 
well. I think we are making some progress in this regard. We 
have a ways to go.
    Finally, Mr. Chairman, my home State of Oregon offers a 
possible roadmap for bipartisan reform. In 1995, a Republican-
controlled legislature passed an important bill, signed by a 
Democratic Governor, which contains a number of the principles 
that I think this committee is looking at. So I think that not 
only is it important to have bipartisan reform, but my home 
State shows that it can be done and it can be done 
expeditiously.
    I yield back, Mr. Chairman.
    Senator Chafee. Thank you, Senator.
    Now, I think, Administrator Browner, let me just say that 
the interest in this subject shown by 18 members of this 
committee--14 have been here today--so we are all very, very 
concerned about this program. You have heard the statements 
from both sides. We're very glad you came here today, and we 
want to welcome you, Administrator Browner, so if you would 
proceed, we would appreciate it.
    Thank you.

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

    Administrator Browner. Thank you, Mr. Chairman, for the 
opportunity to appear here today.
    I think this is the second time this year that I have 
testified before the Environment and Public Works Committee on 
Superfund reform legislation, and I will say to you, Mr. 
Chairman, and all the members of this committee, I will gladly 
come back here a third, fourth, fifth time, whatever it takes 
to get a Superfund bill that we all can agree on, a bill that 
will build on the progress that the Clinton Administration has 
made through a series of administrative reforms to make the 
Superfund program work faster, fairer, and more efficiently.
    Mr. Chairman, I want to be very, very clear about the 
Clinton Administration's position. We are strongly committed to 
working with this committee, with other Members of Congress, to 
enact responsible Superfund reform legislation this year. And 
as you said, by ``this year,'' we would hope that that is this 
calendar year.
    Mr. Chairman, I have to say that the recent trade press 
reports notwithstanding, I think you and I both know that we 
have made progress toward common ground, that we have actually 
narrowed some of the gaps that have existed, that we can 
continue to narrow those gaps. In the end, I believe we will 
deliver on our shared responsibility to protect public health 
and the environment by ridding America's neighborhoods of toxic 
waste dumps.
    I am optimistic that, working together, we can achieve our 
common goal of a Superfund program that cleans up more toxic 
waste sites faster, protects the health of our citizens, and 
returns land to communities for productive use. At the same 
time, we must be careful not to undermine the significant 
progress we have already achieved in changing and improving the 
program. We undertook a series of administrative reforms over 
the last 5 years that have resulted in a program that today 
provides significantly faster cleanups at a lower cost than it 
did several years ago. 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 achieving our goal of saving even 
more time.
    We are making historic progress on a major goal of this 
Administration and this committee: reducing litigation and 
transaction costs; working more cooperatively with responsible 
parties; increasing the fairness of the liability system; 
getting the little guys out of the litigation web that 
surrounds many hazardous waste sites. The Clinton 
Administration has acted to remove more than 9,000--9,000--
small parties from Superfund litigation over the past 4 years. 
That is within the context of a law that we all agree needs to 
be rewritten. We are doing it administratively, and we are 
expanding that effort.
    Thanks to our administrative reforms, the Superfund program 
is faster, fairer, and more efficient than it used to be. We 
have completed construction of a total of 292 Superfund 
cleanups over the past 4 years, more than in the previous 12 
years combined. More than 80 percent of all Superfund sites are 
construction either complete or are in the midst of cleanup 
construction. Eighty percent were either done or we're in the 
process of completing the cleanup.
    We recognize that resources are an important part of how we 
go about giving these communities back these sites. The 
President has committed to doubling the current pace of cleanup 
by cleaning up 900 toxic waste sites through the year 2000. 
This was a subject of discussion during the budget 
negotiations, and obviously we all need to work together to 
ensure that the funds are supplied so that we can meet this 
goal of 900 sites by the year 2000.
    We have been achieving all of this progress while keeping 
faith with the original promise of the Superfund law: 
protecting public health and the environment first, and 
ensuring that wherever and whenever possible, those responsible 
for polluting a site--and not the taxpayers--are held 
responsible for the cost of cleaning up that site. We believe 
that Superfund reform legislation can and should build on this 
progress.
    Mr. Chairman, the bill that is now before us does show 
considerable improvements over earlier drafts. It would require 
cleanups to meet certain Federal and State standards. It would 
provide increased opportunity for the public to participate in 
the cleanup of toxic waste sites. It would require that 
groundwater around Superfund sites be cleaned up under the same 
standards used for drinking water. And it would provide a 
settlement process for those parties that contribute small 
amounts of hazardous waste to Superfund sites. These are some 
of the improvements. This is real progress. It is real progress 
toward consensus.
    Provisions in the bill about which we continue to have 
significant concerns include, for example, failure to provide 
for adequate treatment of highly toxic or highly mobile 
hazardous waste. We are concerned that the bill would not 
ensure the containment and reduction of these sources of 
groundwater contamination. It would relieve large polluters 
from liability at landfills, even where they are a major 
contributor of hazardous waste. It would allow States to assume 
complex cleanup responsibilities without guarantees of public 
review or public comment, and without ensuring adequate legal 
authority to protect public health and the environment. And it 
would fail to ensure that public natural resources are restored 
as part of the Superfund process.
    Mr. Chairman, I think what has happened is that in those 
areas where our staffs have engaged in lengthy discussion--
perhaps discussions that we would all hope could go more 
quickly--we have, in fact, made progress. We have narrowed our 
differences; in some instances we have found common ground.
    In the areas where we have not had that kind of opportunity 
for dialog, for in-depth discussion, we need to. We have 
differences; they may not be insurmountable, but until we begin 
the task, until we direct our staffs, until we take the time to 
talk through those differences, it will be hard to find the 
kind of consensus we all are striving for.
    Mr. Chairman, in closing, I want to be very clear. This 
Administration wants to see Superfund reform passed into law. 
We want to see the program further strengthened along the 
principles we have previously submitted to this committee: 
protect human health and the environment; promote cost-
effectiveness; foster the return of contaminated sites to 
productive use by their communities; hold polluters 
responsible, while at the same time allowing parties to resolve 
their liability as efficiently and as fairly as possible; 
encourage and support citizens in their efforts to participate 
in the cleanup decisions that affect their lives; and support a 
continued working relationship among all levels of Government 
in cleaning up the toxic waste sites.
    The bottom line, Mr. Chairman, is that we want to fulfill 
our 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. We know that is your 
goal, too. Can we work together on this? Can we get back to the 
table and hammer out a bill that all of us can support? Can we 
do what is necessary to make Superfund reform happen in this 
Congress? I believe we can; I hope that we will.
    Senator Chafee. Well, Madam Administrator, I want to thank 
you for that statement. That was a very fine statement, and 
there is little in it that I can disagree with in what you 
said. As you said, we have narrowed our differences. There is 
an opportunity there for further discussion, and we would 
invite you to--and we certainly will be present at such a 
gathering as soon as we can set it up.
    I know Senator Smith feels that way. I do; I'm sure that 
you heard Senator Baucus' statements, and Senator Lautenberg's, 
likewise.
    Obviously, to have this succeed, all of us have to give 
some ground. I'm not saying that what we've submitted here in 
the revisions is in concrete, but we certainly hope those on 
the other side come to the table recognizing that they have to 
make some concessions, likewise.
    One of the problems that we always get into here--and you 
and I discussed this the last time you were here--is, who gets 
excused? As you know, we all agree that the de minimis 
contributors should indeed be excused. But then, pretty soon 
the rhetoric comes up that what we're proposing, or what 
somebody is proposing, is letting polluters off the hook. And 
that, of course, is an expression that could be used for 
anybody, the de minimis contributors.
    As you know, in our bill we made special provisions for co-
disposal sites where, at the time that the disposal was made in 
that site, it was legal. It was not illegal. I know that you 
are opposed to that provision. I wonder if you could say a few 
words on that?
    Administrator Browner. Mr. Chairman, I think we have long 
articulated----
    Senator Chafee. If I might add one thing, the objective 
being to get on with it. The belief that, yes, we could bicker 
over these things, but there comes a point where it's really 
worthwhile to just get it done with. And maybe somebody on the 
sidelines can harp that we're letting a polluter off the hook; 
obviously that's not our intention, but the principal objective 
is to get the thing done with.
    Administrator Browner. First of all, we don't disagree with 
the need to get the thing done with. We also don't disagree 
with the need and the appropriateness of taking certain parties 
out of the liability net. I think all of us would agree that 
when Superfund was originally passed, no one who voted for it 
and no one who sought to develop the rules implementing it ever 
believed these small parties would find themselves trapped in 
the way in which they have.
    Where we have, I think, had some disagreement is how to 
best do that. And what we have continually said is, let's do it 
by party, not by site type. Let's make a public policy decision 
that if a party fits a particular definition--there have been 
various definitions offered over the last several years in 
terms of small business--we are more than happy to have that 
discussion. I think we have tremendous flexibility on what that 
definition should be. But let's do it by party, not by site.
    We thought it might be helpful, Mr. Chairman, to just show 
you one of these co-disposal sites where we think discussions 
could take place, and where lines might appropriately be drawn. 
We're not saying we're wedded to this; we're saying it's 
something that needs to be discussed.
    Oh, we're not allowed to put up the chart? I apologize.
    Senator Chafee. Sure. Go ahead.
    Administrator Browner. We do have handouts.
    Senator Chafee. What's the problem?
    Administrator Browner. I thought we had cleared it.
    Senator Chafee. Well, how many do you have here?
    Administrator Browner. We do have handouts for all of the 
members. We only want to put up one chart.
    Senator Chafee. That's all right. Put your chart up.
    We haven't received these in advance, so I'm not sure we 
can respond to them very well, but if it's part of your 
presentation, go ahead.
    Administrator Browner. Well, it is an example of a co-
disposal site. It's one that has received some amount of 
attention, the Keystone site. And I think it's helpful to 
understand the three groupings of parties at these sites.
    First are the large owner-operators, major industrial 
generators. Those are the ones that EPA went to and asked for 
them to contribute to the cleanup costs. There were 11 at this 
site. Those 11, unfortunately, did turn around and seek 
contribution for cleanup costs from 168 other parties; those 
other 168 turned around and sought contribution from 589. EPA 
did not do this; we want to be very clear about this, EPA 
sought contribution for the cleanup costs from the 11 parties 
where we had documentation that the lion's share of the 
hazardous waste at this site had come. And I think within this 
chart you see here, deciding which parties are in and out makes 
absolute sense, and we will be more than happy to work with you 
on where to draw those lines. Our only objection is saying that 
all sites of this nature are automatically out of the 
requirement that any of the parties to that site pay their fair 
share. That is our only objection.
    Beyond that, we are more than happy to talk to you about 
how to divide out the parties and how to define the parties so 
that everyone knows up front that you may be part of an 
allocation system, you may have a responsibility, or you 
absolutely have no responsibility.
    Senator Chafee. OK. My time is up, but there will be 
further discussion, perhaps, on this same subject.
    Senator Baucus.
    Senator Baucus. Yes. That's a good point, Mr. Chairman. 
Let's stay on this subject for a while because I think it's one 
of the key points of this bill--that is, co-disposal.
    I wonder, Administrator Browner, if I might echo the points 
that other Senators have made. I also know how hard you have 
worked, and particularly what progress you have made in 
administratively coming up with reforms to Superfund despite a 
statute which in some ways is very helpful, but in other ways 
very much gets in the way.
    Could you just briefly State your concerns about the co-
disposal provisions in the mark, and then give us some 
suggestions on how we might resolve some of that? Some of the 
concerns that I have, frankly, are that it's not fair to those 
companies that did not use municipal landfills, for example, 
but there are other thoughts that I'm sure you are going to 
have, too.
    Can you just tell me the Administration's concerns, and 
then list some suggested solutions as to how we might bridge 
this gap?
    Senator Chafee. What does this apply to, though? What are 
we----
    Senator Baucus. The co-disposal provisions of the bill, the 
municipal landfills which received a lot of hazardous waste 
from PRPs.
    Senator Chafee. The assumption being that all this took 
place--it was not done illegally?
    Senator Baucus. Well, your concerns about that, Madam 
Administrator, as well as your suggestions.
    Administrator Browner. Just for background information, 
there are approximately 250 of these type sites of which we are 
currently aware. There may be more. They are generally referred 
to as landfills; you had a lot of different things going there. 
In the case of this one, you had 11 companies sending a very 
large amount of hazardous and toxic waste, and you had others 
sending garbage, municipal solid waste.
    Senator Baucus, our concerns are, No. 1, the cost to the 
fund. If you take this site as an example and say, ``Nobody 
pays anything to cover the cleanup costs, nobody pays their 
fair share, including the very large contributors of hazardous 
waste, and that cost comes to the taxpayers,'' it is quite 
significant. It could shift approximately $200 million to $300 
million in cleanup costs annually to the fund. These are costs 
that are currently being covered by the responsible parties. If 
you carve all of these sites out rather than saying that 
certain parties are taken out and other parties remain in, 
responsible for their fair share, then you have a large cost to 
the program.
    Senator Baucus. We're talking about parties that deposited 
hazardous and toxic wastes----
    Administrator Browner. Yes.
    Senator Baucus [continuing]. At municipal landfills, is 
what we're talking about here?
    Administrator Browner. Yes. I don't think any of us 
disagree that someone who sent their garbage should just be 
clearly taken out of the program. I don't think any of us 
disagree that small businesses that sent relatively small 
amounts should be taken out, should not be subject to any of 
this. But for parties sending large amounts----
    Senator Baucus. So one concern is the cost.
    Administrator Browner. The second concern would be 
increased litigation. Everybody is going to want to get their 
site called a co-disposal site because it means they don't have 
any responsibility, so we would envision increased litigation 
over which sites are co-disposal and which sites are not, which 
sites are covered by the carve-out and which----
    Senator Baucus. Is that a legitimate concern?
    Administrator Browner. Yes.
    Senator Baucus. Because that's not easily determined.
    Administrator Browner. We actually spent a lot of time over 
the last couple of years trying to understand how you might 
craft a definition, and have been unable to our----
    Senator Baucus. So litigation is the second concern. My 
time is running out.
    Administrator Browner. OK. The third one is the one that 
you raised, and it is a fairness issue. It is an issue of, ``So 
if I sent my waste to one type of site, I am responsible for 
cleanup costs, but if I was fortunate to have chosen another 
type of site''--same waste, identical waste--``I am not 
responsible for costs.''
    Senator Baucus. So if I am a big company, say, and I 
deposit my hazardous waste at my own site, then I'm not off the 
hook----
    Administrator Browner. Right.
    Senator Baucus [continuing]. But if I am another company 
and I put it in a municipal landfill, then I am off the hook?
    Administrator Browner. Exactly. One of the companies in the 
11 here is CSX, a very large operation. They were sending large 
volumes of hazardous waste to this landfill. They would be off 
the hook, as you say, for any cleanup costs at this landfill 
under a carve-out disposal. If they had sent it to their own 
site, if they had kept it on their property and that had 
created a Superfund site, they would be responsible for the 
cleanup cost.
    Senator Baucus. Well, my time has expired. We haven't 
gotten to solutions yet, although you've certainly touched on a 
few.
    Mr. Chairman, we'll get that on the next round, I guess.
    Senator Chafee. All right.
    Senator Smith will give us the solution.
    [Laughter.]
    Senator Smith. Don't I wish.
    Thank you, Mr. Chairman.
    Ms. Browner, I felt that your comments as stated here were 
much more amicable in terms of reaching out here, trying to 
reach an accord, than perhaps your written statement was, so I 
appreciate that.
    I just want to say that I think that based on the 
negotiations that we've had over the past several months and 
years, frankly, as I look down the nine titles of the bill, I 
don't think it's insurmountable. Without getting into a lot of 
detail in the short amount of time that I have, I think that if 
you look at five sections of the bill--community participation, 
State role, brownfields, Federal facilities, and funding, a 
part which we agree with, and then there is a miscellaneous 
thing in there on NPL caps--I think that even though we don't 
have 100 percent agreement on those areas, I don't think 
there's any reason why we can't reach accommodation on those 
areas. However, the other three, and they are a big three--NRD, 
liability allocation, and remedy are big, and Senator Baucus 
just got into it.
    Let me propose, Mr. Chairman, and it's your decision since 
you're the chairman, but I would be willing, if you feel in the 
interest of getting some type of agreement that it would be 
reasonable, to have a series of meetings, postpone the markup 
for another week, and sit down with you and Senator Baucus and 
Senator Lautenberg and myself and Administrator Browner in a 
series of meetings, however many we need to have at whatever 
time you want to have them, and try to work out an agreement. 
So I would certainly put that on the table for the chairman's 
consideration.
    Senator Chafee. Well, I think that's an excellent idea, and 
I'm certainly willing to do it and spend the time on it. We've 
got a lot going on here with ISTEA, but I think we can work it 
in, if it is agreeable with the Administrator and Senator 
Baucus.
    Senator Baucus. Mr. Chairman, I would echo your thoughts. I 
think if we're going to get a bill, we're going to have to work 
on a bipartisan basis, and I very much appreciate that.
    Senator Chafee. Thank you.
    Senator Smith. Well, I don't want to argue the ``more 
bipartisan basis.'' I feel that we've worked on a bipartisan 
basis, but I'm not going to argue it because I don't want to 
take the time to do it. I don't know what more we could do.
    Let me just pick up on what Senator Baucus was just 
questioning you on, on this issue of liability. What is wrong 
with keeping private owners liable for cleanup, but at the same 
time giving them a clearly-defined statutory share? You don't 
have that problem for public owners and operators; why do you 
have the problem with private owners and operators? You're 
willing to exempt municipalities and not hold them to that 
standard, and I support that. But I'm now trying to reach to 
the second level, which is the private owners and operators, in 
the sense that--you keep saying, well, we'll have this party 
aspect to it, and you say that litigation is going to increase, 
and so forth. The litigation that is going to take place here 
is when you try to allocate, which is what the last proposal 
you sent to us on this proposed; I know this is the first time 
we've been talking publicly about what we proposed, and I 
apologize for that. But in essence your position is, as you 
present that you present this material, these parties should be 
responsible for--well, let me go back.
    I'm trying to synthesize this down. Your position is that 
the statutory share for a public owner and operator is OK, but 
it's not OK for the private individual. Now, if you look at the 
private individual, when you say to that private individual, 
``OK, 3 percent of this is nontoxic, and 97 percent is solid 
waste,'' or vice-versa, how are you going to make that 
determination? Are we going to be going through all that 
garbage? You talk about lawsuits, those are huge lawsuits--or 
certainly, if not lawsuits, some attempt at allocation. And I 
just don't see how you would do it. I mean, if it's a fairness 
issue, the fairness issue is that it wasn't against the law to 
do what they did. And we're not talking about people who 
deliberately polluted beyond what was legal at the time.
    I'm trying to understand your position. I have been trying 
to understand it for months here, to try to get to some 
accommodation. I don't know how you do it.
    Administrator Browner. Well, let me make a distinction 
within the co-disposal universe, the 250 landfill sites. Some 
of them were owned and operated by municipalities, and others 
were owned and operated by private companies who were making 
money off of picking up and disposing of garbage, sometimes 
hazardous waste----
    Senator Smith. But it was legal.
    Administrator Browner. I'm not getting into the question of 
what was legal or not legal here. I'm just making a distinction 
between a municipality that might have owned a landfill, and a 
private company seeking to make a profit.
    I would just submit to the committee that that is a 
reasonable distinction to say, for a municipality who had to 
provide a service to the businesses, who had to provide a 
service to their constituents of picking up garbage, capping 
their liability is not unreasonable public policy. For the 
private company who was making profit on picking up garbage and 
disposing of it--and well-informed on what they were doing--
asking them to cover the fair share cost of cleanup, as does 
any other company who was engaged in the production of 
hazardous waste, that strikes me as a reasonable place to make 
a distinction. It is a public policy call, without a doubt, and 
we frequently say in our laws to cities of certain sizes, to 
municipalities who perform certain services, ``We're going to 
treat you a little bit differently than, perhaps, the for-
profit company out there doing the same thing,'' and that's all 
we've proposed, is to recognize that a municipality may not 
have had a choice, and therefore to treat them somewhat 
differently.
    But then to say to the private company--Fortune 500, in 
some instances--``Because you had what was called a landfill as 
opposed to a hazardous waste disposal site, you now get treated 
differently than your competitor, who ran a hazardous waste 
disposal site,'' that is troubling for us.
    Senator Smith. Mr. Chairman, I know my time is probably up, 
but could I just take 30 seconds for a response? I apologize.
    We do, though. I mean, owners and operators, we have a 10 
percent cap of 100,000--in the municipalities, 10 percent on 
less than 100,000. We have a 20 percent cap on over 100,000, 
and for private owners and operators, we have a 40 percent cap. 
So we do, and I don't know how you identify--maybe you could 
explain to us what criteria you are going to use for this so-
called ``party'' that you are defining. What is the criteria? 
They have millions of dollars? They have no money? I don't know 
what the criteria is.
    Administrator Browner. One that we have suggested 
previously--and we would be more than happy to talk about it, 
and there may be changes to this, something that we can all 
agree on--is a small business definition: 20 or fewer 
employees; $2 million in revenues; 30 or fewer employees--I 
mean, I don't know what the right definition is of a party, but 
I can tell you, if you give us a definition, if we can all 
agree in a bipartisan manner on a definition, we can take a 
site like this--do you know what's happening at this site 
today? EPA did not go after the 168. We did not go after the 
589. But they are caught in this, and we are doing our level 
best to settle the matter, of a dollar a person. It is time-
consuming. They are unhappy; we are unhappy; you are unhappy; 
everyone is unhappy.
    Why not look at this? This is one where we can give you the 
information on 250, if you want, and say, ``OK, fine. The 11, 
we think they should pay their fair share. Of the 168, draw the 
line here. The 589, draw the line there.'' We can come to an 
agreement on that and we can be done with these sites in a 
responsible and fair manner.
    Senator Chafee. All right, fine. Thank you.
    Now, Senator Kempthorne, Senator Bond, Senator Thomas, 
Senator Allard.
    Senator Allard.
    Senator Allard. Do you believe that the Federal Government 
has contributed any to the problems as far as some Superfund 
sites are concerned?
    Administrator Browner. The Federal Government? Absolutely. 
I mean, as you well know, in your own State----
    Senator Allard. Well, we agree on that.
    Administrator Browner. We agree.
    Senator Allard. But yet I can point to situations in my own 
State where the Federal agency is treated differently than the 
local government or the private parties. For example, in a 
community we call Leadville, actually, EPA is a responsible 
party, as is the local government. It is agreed that they are a 
responsible party. They both are required to put in treatment 
plants, and they're doing that; but the treatment plant that is 
required of the local government is much, much more expensive 
than the Environmental Protection Agency right in your own back 
yard is doing. It seems to me that there needs to be some 
fairness. I don't think you should judge liability based on 
whether they made a profit or not; I mean, some of these guys 
may be bankrupt, as far as I know. But I think we have to look 
at who is responsible, and I think the Federal Government is a 
major partner.
    Would you agree with the National Governors' Association 
assessment, as well as the State Attorneys General Association 
assessment, that the Federal Government is a major polluter, if 
not the largest polluter in this country?
    Administrator Browner. I am not familiar with either of 
those assessments. As I said before, I certainly agree--and 
your State is, unfortunately, an example, of where Federal 
agencies, not EPA at the larger sites, but certainly other 
Federal agencies are the principal parties responsible for some 
very, very large sites.
    Senator Allard. And do you feel they should be held equally 
responsible for that?
    Administrator Browner. In terms of the cleanups?
    Senator Allard. Yes.
    Administrator Browner. We have always maintained that the 
Federal facilities should be responsible for the problems they 
have caused.
    Senator Allard. So you would agree that everybody else 
would be a responsible party----
    Administrator Browner. I'm not familiar, if you're asking 
me just about the Leadville site. I don't think we're a PRP at 
that site. I don't think EPA is named a potentially responsible 
party. But I am more than happy to look at that.
    Senator Allard. Well, let me bring up an example of where 
you are named a potentially responsible party. It's at the 
School of Mines in Golden, and this is State land that was 
managed by a research institute through the School of Mines. 
There was the Department of Defense, the Environmental 
Protection Agency, the Department of Energy and the Bureau of 
Mines that all had research facilities on this piece of land, 
as well as some private companies, as well as the State of 
Colorado through the School of Mines with some of their 
programs.
    Everybody is forced to clean that up, except for the 
Federal agencies, which is the Department of Defense and the 
Department of Energy and your own agency, the Environmental 
Protection Agency, and the Bureau of Mines. In fact, the State 
of Colorado and the private parties are the only ones that have 
put up any money at all, and the Environmental Protection 
Agency refuses to do that.
    It seems to me that in these situations where we have a 
hazardous waste problem, that the Federal agencies ought to be 
willing to do their fair share. Now, you can stand up here and 
say, ``Well, let's take care of the children,'' and you are 
nodding your head, and ``Let's take care of all the vulnerable 
people out here,'' but yet in your own back yard you have a 
problem and you're not doing your job.
    Administrator Browner. Well, if we are a responsible party, 
and we have been a responsible party at sites--in fact, at the 
Leadville site we are not a responsible party, but we are 
paying some money. We run labs, we do generate waste, and we 
have been involved in some of these sites, and we agree with 
you that we have a responsibility, as does any other party to 
those sites, to address the problem that we created. And we are 
doing that. If there is a particular problem at this site, I am 
more than happy to work with you on it to resolve it.
    Senator Allard. I have been informed by my staff that you 
just refused to admit that you are a responsible party at the 
School of Mines, even though there was research and lab 
equipment that was done there. We all know that in 
laboratories, there is a lot of hazardous material involved 
with a laboratory.
    But it seems to me that at least the Federal agencies ought 
to be doing their fair share to clean this up, and I really do 
believe that the Federal Government is a major polluter in this 
country. You have directed all your comments just to one sector 
of our economy, and I think that we all have to take equal 
responsibility if we really want to see the environment cleaned 
up. I want to see a better environment for my kids and my 
grandchildren; I don't want to see my State polluted, and 
consequently I think the Federal Government ought to do its 
fair share, including your department, your agency.
    Administrator Browner. We don't disagree with the fact that 
we are responsible parties----
    Senator Chafee. We've got to move on to the next 
questioner. Thank you.
    Senator Kempthorne.
    Senator Kempthorne. Mr. Chairman, thank you very much.
    Madam Administrator, I recognize that EPA is not a trustee 
under the NRD program, but I would like to ask you about the 
relationship between the remediation program and the NRD 
program.
    Would you agree that the NRD program should not duplicate 
the cleanup side of the program?
    Administrator Browner. I apologize, Mr. Chairman, I meant 
to ask for your leave at the beginning, if there were questions 
of the trustees, since EPA is not a trustee, if we could have 
the trustees--we do have a representative here from the 
trustees to answer questions relevant to the trustees. We are 
not trustees; that is the way the law is structured, and we do 
have the Acting Deputy Director of NOAA, Terry Garcia, here 
with us to answer any trustee questions.
    Senator Kempthorne. I appreciate that. That's why I led off 
by saying that I recognize that EPA is not a trustee.
    Administrator Browner. Right.
    Senator Kempthorne. So EPA is not a trustee. So because of 
my respect for you and the role that you're going to play in 
this, I'd like to ask you the question, and let me repeat it.
    I'd like to ask you about the relationship, Madam 
Administrator, between the remediation program and the NRD 
program. Wouldn't you agree that the NRD program should not 
duplicate the cleanup side of the program?
    Administrator Browner. They have to work together, yes. We 
would agree to that, they have to work together.
    Senator Kempthorne. All right, so you agree with that.
    Wouldn't you agree that a company shouldn't be told that it 
must do additional cleanup from a site under an NRD claim after 
EPA has signed off on a cleanup action that protects human 
health and the environment?
    Administrator Browner. That is not a yes-or-no question. 
The reason is that if you do the right kind of work on the 
front end in terms of both the cleanup and the NRD concerns--
and the trustees are part of the process on the front end--then 
you shouldn't have any problems on the back end. I think, 
unfortunately, there have been sites where that has not 
occurred, and there are also sites where the NRD problem may be 
different than the traditional cleanup problem which is the 
focus of EPA. So to simply say you shouldn't be able to come in 
``after the fact,'' after a cleanup plan has been agreed to on 
NRD, I don't think is something we can agree with you on. I 
think there is a way the process has to be structured, and in 
some instances the two are really quite separate and you have 
to allow for that.
    Senator Kempthorne. When you reference a process, do you 
fell that that's right, to say to a company, ``These are now 
the requirements to clean up this site,'' that company now 
cleans up that site, and the EPA signs off, ``You've done a 
good job,'' you've stated that 80 percent of the sites are 
cleaned up, should they now be subject to go another round of 
cleaning up the site based on NRD requirements?
    Administrator Browner. The cleanup is focused on the 
hazardous materials. It is focused on ensuring that the problem 
doesn't get worse. Natural Resource Damages are focused on the 
restoration of the natural resources, the lost use, and it may 
well be--and we can certainly find out for you examples of 
where companies have felt like they first just wanted to get 
out and deal with their cleanup responsibilities; for a variety 
of reasons that made sense to them, and they wanted to delay 
agreement and whatever discussions needed to take place on 
their NRD responsibilities. But it is not always going to be 
the case that by simply cleaning up the hazardous wastes, you 
have spoken to the NRD concerns. They may be two separate 
issues.
    So there is a second round; in some instances, that may be 
what the parties choose. In other instances, you may be able to 
do them together.
    I think what you want to avoid, and this is something that 
I think is true throughout Superfund, is sort of a ``one-size-
fits-all'' type approach. It's similar to what we talked about 
a lot on drinking water. None of these things are going to be 
identical, and you need to allow for some flexibility to take 
into account the differences.
    Senator Kempthorne. All right. My time has expired. Thank 
you very much.
    Senator Chafee. Thank you.
    Senator Bond, Senator Thomas, Senator Boxer, Senator 
Inhofe, Senator Sessions--Senator Inhofe.
    Senator Inhofe. Thank you.
    Madam Administrator, I'm going to try to be kind of 
specific in my questions because of the severe time limitations 
under which we're operating.
    In your testimony you criticize the chairman's draft 
regarding brownfields, and at the same time you say that you 
want to encourage economic redevelopment of abandoned and 
contaminated properties. I recognize that since I am chairman 
of the Clean Air Subcommittee and we're going through this 
ambient air thing, that I don't want to drag that subject into 
it, but we can't really operate in a vacuum. What we do in 
Superfund is going to have an effect on what we do with ambient 
air standard changes that are totally separate issues.
    We had testimony from the chairman of the Black Chamber of 
Commerce and the Mayor of Benton Harbor, MI, who testified that 
the new air regulations would stop any new industrial 
development. They specifically cited brownfields, saying that 
they would never be able to attract new businesses to 
brownfields areas because of the air regulations.
    What would be your response to that?
    Administrator Browner. We are extremely proud of our 
brownfields work. We think it has been a tremendous success in 
addressing the lightly contaminated, frequently urban sites, 
and in no way do we think that providing public health 
protections under the Clean Air Act will interfere with our 
brownfields program. We are working--in fact, I spoke yesterday 
to a mayor at the U.S. Conference of Mayors about how to ensure 
that the mayors have the kind of information that they think 
would be helpful to answering those kinds of questions, but we 
don't see a problem between public health protections promised 
under the Clean Air Act and the redevelopment of brownfields.
    Senator Inhofe. Well, Madam Administrator, you may have 
talked to one of the mayors, but the U.S. Conference of Mayors 
is on record on what they feel the results are going to be, and 
you did say in your testimony that you wanted to encourage 
economic redevelopment of abandoned and contaminated 
properties.
    Again, I would say that in light of what they said very 
specifically in their testimony, would you say that they are 
wrong?
    Administrator Browner. That somehow or another----
    Senator Inhofe. They specifically cited brownfields, saying 
that they will never be able to attract new business to 
brownfields areas because of the air regulations. Are they 
wrong?
    Administrator Browner. We absolutely disagree with that.
    Senator Inhofe. So are you going to issue waivers?
    Administrator Browner. They're not necessary. There is a 
way to have both redevelopment and cleaner air, and we are more 
than happy to work with the committee to make sure that the 
members understand that.
    I will say, within S. 8, the brownfields provision included 
in S. 8 is something that we think is a demonstration of how 
the gaps can be closed and how consensus-based progress can be 
made. I think there were some technical changes we would like, 
but we think it is an example of what happens when we all work 
together to talk through how best to solve a problem. We think 
the provisions are good.
    Senator Inhofe. OK.
    In your testimony you criticize this bill--and I'm going to 
read--for offering a ``confusing array of opportunities for 
States to implement the Superfund program, including 
authorization delegation and limited delegation.'' Governor 
Nelson, who is here today and will be testifying before us in a 
few minutes, is going to say, according to his written 
testimony, ``We appreciate the inclusion of options for 
expedited authorization delegation and limited delegation.''
    It seems as though we've made the Governors happy and the 
EPA unhappy. Is that so? Who is right and who is wrong in this 
case?
    Administrator Browner. We have no disagreement. In fact, we 
worked very closely with virtually every State in terms of 
their accepting responsibility on a site-by-site basis, on a 
variety of sites. I mean, I think it's been very successful in 
terms of saying who can best address a particular problem.
    We also have instances where a State that is quite 
sophisticated has come to us--New Jersey is one example--and 
said, ``We can't handle this particular site. Will EPA''----
    Senator Inhofe. Is Oklahoma sophisticated?
    Administrator Browner. We've had some very positive working 
relationships with Oklahoma in terms of----
    Senator Inhofe. Who is not sophisticated, then?
    Administrator Browner. You have some States that don't have 
legislation. You have some States that have not provided 
funding for programs, and that is our concern. We have no 
disagreement with States doing everything they possibly can. 
Our disagreement with S. 8 as currently written, No. 1, is the 
fact that a State can apply to EPA to take over even the most 
complex sites within their State, with no public comment, with 
no public review. We think that's a real problem. We think the 
people of a State should have the right to participate in their 
State's decision to take control of sites that perhaps we had 
been managing.
    Senator Inhofe. But your statement said, again, ``the 
confusing array.'' You specifically said that we're not really 
addressing this properly in terms of how we are allowing the 
States to handle some of these problems, while the witness that 
will be testifying on behalf of all the Governors says that 
they think it's done a pretty good job.
    So one of you is right and one of you is wrong, and I'm 
just saying, who is wrong?
    Administrator Browner. I don't think it's a question of who 
is right or wrong. What we would suggest in terms of States is 
that we be allowed and they be allowed the flexibility to 
determine, on a State-by-State basis, and in some instances on 
a site-by-site basis, who can best do the job of managing a 
cleanup. There will be times when New Jersey wants us to take a 
site. There will be times when Oklahoma asks us to take a site, 
as there have been. There will be other times when, quite 
frankly, they are far better suited to deal with it than we 
are. Allow us the flexibility to resolve that.
    Senator Chafee. Thank you very much.
    Senator Lautenberg.
    Senator Lautenberg. Thanks very much, Mr. Chairman.
    First I want to clarify something that apparently was 
misunderstood. I don't retract the principle of what I said, 
but our colleague from Oklahoma asserted that Senator Smith and 
Senator Chafee had done a lot of work, and there is no question 
about that. I wasn't impugning their schedules or their 
interests or otherwise. My statement was really relevant to the 
fact that we were suddenly going to see a markup upon which 
there was no agreement that included Democrats, and to me that 
suggests that it's partisan.
    But, listen, I work very closely with Bob Smith and with 
Senator Chafee and I consider them friends. We share an 
agreement once in a while; that's how close we are.
    [Laughter.]
    Senator Lautenberg. So I meant no impugning of character, 
interest, or effort, I assure you.
    In terms of the brownfields development, I can tell you of 
some smashing successes, one in New Jersey that was turned into 
retail space where people are employed. This field lay fallow 
for such a long time in the middle of a community that really 
needs developing. It now has a very significant retail 
establishment with about 400 people working there in 
Hackensack, NJ. Thousands of customers weekly come there. They 
bring income into the community. They have uplifted the life 
around there. I think it's a very positive program, and I 
believe there may be some misunderstanding about definitions, 
and I respect what the Senator from Oklahoma said about a 
disagreement. But there is no right and no wrong.
    So I think we have to take it on kind of a case-by-case 
basis. I know that the work I have done on brownfields has been 
one of the more satisfying aspects of my focus on environmental 
issues, and has had a lot of development, a lot of support.
    I would ask you this, Ms. Browner. One of the things that I 
think we disagreed with is carve-outs. What do we do if there 
is co-disposal? There was an allocation discussion and 
resolution at Old Southington in Connecticut; are you familiar 
with that? My understanding is that it worked very well, and in 
very short order the parties settled the liability and moved on 
with their lives; indeed, the settlement was fair to the 
municipalities and the homeowners.
    So wouldn't it seem that S. 8's exemption for sites like 
this is kind of an overkill? We can use the process, and that 
is what we wanted to do together, and that is to provide 
another method for resolving these disputes. Has it worked well 
at other places?
    Administrator Browner. We certainly agree that an 
allocation system is an important tool. Under the existing law 
we have piloted about a dozen allocation efforts to see what 
might make sense.
    The one short piece of information I would leave you with 
is that at some sites it works well, and at other sites the 
parties want to do it themselves. Just make sure that if you do 
anything on allocation in legislation, to allow for 
flexibility. I think we would be concerned that we are mandated 
at every single site. There are just times, as you can well 
imagine, getting four people in a room and being done with it 
in an afternoon is how it can go, and there are other times 
where you have to bring in an outside party and wade through a 
couple of months.
    So our experience on allocation is that it's a great tool; 
it should be part of Superfund. We are piloting it, but let's 
not turn around and say that every single site should have an 
allocator, because that may create its own problems.
    Senator Lautenberg. Thanks.
    Thanks, Mr. Chairman.
    Senator Chafee. Thank you.
    Senator Reid.
    Senator Reid. Mr. Chairman, we continually hear all the bad 
stories about Superfund. We in Nevada have had a great 
experience with Superfund involving a thing called the Helms 
Pit, which was a big gravel pit that started collecting water. 
I'm not going to go into a lot of detail, but there was an 
emergency Superfund site declared in Sparks, and it led to the 
resolvement of issues very quickly. And had the EPA not come in 
there with the expedited powers that they have under the act, 
it could have destroyed the entire water supply of Reno and 
everything downstream including Fallon and Fernley and the 
Indian reservation at Pyramid Lake.
    So there are examples that could be cited, if we would take 
the time, where this law--as bad as it is--has worked quite 
well. That pit now is going to be used as a recreational site. 
At one time there was an estimated 14 million gallons of fuel 
in the ground at Sparks; it's determined that it's probably 
only about 2 million gallons, but it still is very volatile and 
very dangerous.
    I would like to go back to what Senator Baucus talked 
about, and maybe one of the other members here. How do we 
handle these large landfills, as an example, where people year 
after year put stuff in that, and it wasn't illegal at the 
time? How do we handle a situation like that?
    Administrator Browner. What we would like to do is have a 
discussion with members about which parties to those sites 
should be automatically taken out in the statute. A homeowner 
who sent municipal waste is an obvious example of someone who I 
think we would all agree----
    Senator Reid. But, Madam Administrator, let's talk about 
businesses. Businesses who in good faith go out and dump their 
stuff in a landfill--there was nothing illegal about it. People 
watched them do it. They thought they were doing the right 
thing. And now, 15 years later, they come back and because of 
the legal costs alone, businesses are destroyed.
    Administrator Browner. Regardless of where you draw the 
line in terms of parties, you should certainly use--if the 
parties agree--an allocator to get you away from all the legal 
costs, to get you away from all the delays. We would absolutely 
agree with that, and these are the kinds of sites, I think 
quite frankly, where an allocator is going to be more helpful 
than not. We would absolutely agree with the need to try to 
expedite resolution of who is responsible for what share.
    We also agree, and there has been much discussion about 
this, that there should be an orphan share fund that we should 
be able to put on the table, dollars from the fund to cover 
that part of the cleanup cost for which there is--perhaps we 
are exempting some parties, perhaps some parties have gone 
bankrupt. But that's an appropriate use of the fund because it 
contributes to an expedited settlement in terms of who pays 
what, and in ultimately getting the cleanup done.
    Senator Reid. Mr. Chairman, let me just close by saying 
that I think that the suggestion that Senator Smith had during 
his time of questioning is very appropriate. We have had, I 
think, a good discussion here today. There is going to be more 
before the day is out, and I think it would be extremely 
appropriate for the whole committee if there could be a little 
more work done on this so that the next time we get together, 
maybe there is more input, as Senator Smith has suggested.
    Senator Chafee. Thank you very much. I agree with you.
    Senator Sessions.
    Senator Sessions. Mr. Chairman, I yield my time.
    Thank you, Ms. Browner, for being here and for your 
testimony.
    Administrator Browner. Thank you.
    Senator Sessions. I yield my time.
    Senator Chafee. Aren't you nice? And Senator Moynihan will 
be very pleased.
    Senator Moynihan.
    Senator Moynihan. Just to start at the beginning, if I may, 
Ms. Browner, it was just 18 years ago that news came over the 
wire, as it were, about the Love Canal situation in the Niagara 
County, NY landfill, and a great alarm, such that the Congress 
enacted the Superfund bill in a post-election session. And it 
is two decades. The site is still not cleaned up, and I was 
wondering if the EPA has ever been interested enough to find 
out, what is the evidence of any health problems arising from 
the Love Canal? Are there any epidemiological studies?
    Administrator Browner. There were ATSDR studies on the Love 
Canal. Yes, there are studies done by the Agency for Toxics and 
Disease Registry--I may have that backwards--and we would be 
more than happy to provide them to you and for the record.
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    Senator Moynihan. What's the agency?
    Administrator Browner. ATSDR, Agency for Toxic Substances 
Disease Registry. They are the people who are responsible at 
sites for evaluating the health consequences----
    Senator Moynihan. What have they found? You've got a lot of 
people behind you that you can ask.
    [Laughter.]
    Administrator Browner. At Love Canal there were studies 
that monitored birth weights after cleanup, and we'd be more 
than happy to provide those to you. I think there were other 
studies.
    Senator Moynihan. What have they found?
    Administrator Browner. I think they did find--I'm doing 
this from memory now----
    Senator Moynihan. What about all those fellows back there?
    Administrator Browner. Well, I don't know that any of them 
are Love Canal experts, or ATSDR--maybe there is someone here 
from ATSDR and I'm not aware. I don't think there is.
    Senator Moynihan. Might I suggest, quite seriously, that 
from the outset there has been an appalling absence of 
controlled inquiry. If ever you had a natural experiment in 
toxic waste, it was the Love Canal, built on a grid, in which 
you have persons who lived 100 yards away, 200 yards away, 300 
yards away, for 40 years, and 30 years, and 50 years, and all 
that. And to my knowledge, Mr. Chairman, we have not learned a 
thing.
    Administrator Browner. With all due respect, Senator, I 
think there are studies that showed that there were low-birth 
weights----
    Senator Moynihan. You think there were?
    Administrator Browner. We would be more than happy to 
provide them to you. I do know that the State of New York--
there are studies on low-birth weights. The State of New York 
has also been involved, and we would be more than happy to get 
this for you, in conducting a long-term study of the health 
effects and following the children who are now adults, in many 
instances, the people who lived at this site, in terms of the 
long-term health consequences.
    Senator Moynihan. Could I suggest that it would be no harm 
for the EPA to know this subject? This is where this 
legislation begins.
    Administrator Browner. Well, we are very familiar with the 
health effects associated with exposure. You had asked about a 
particular site and I wanted to make sure that I had spoken to 
the types of scientific studies that may have been done at that 
site. When you look at toxic waste sites across the country and 
you look at the studies--and there are many, many, many studies 
that have been done--unfortunately, what the studies show is 
that there have been very real health effects for people in 
those communities, very real----
    Senator Moynihan. Is it unfortunate to have learned that?
    Administrator Browner. I wasn't suggesting that it was 
unfortunate to learn that. I was suggesting that it was 
unfortunate for the people in the communities.
    Senator Moynihan. You have another note by your left hand.
    [Laughter.]
    Administrator Browner. I've already given you this. I knew 
this.
    [Laughter.]
    Senator Moynihan. All right. Let's hear from you, if we 
may.
    Administrator Browner. Yes, certainly, and we will also 
contact the State of New York about their long-term study.
    Senator Moynihan. Fine. Thank you.
    Senator Baucus. Mr. Chairman, quickly, if I might, I do 
join my colleague from New York in urging EPA to look into it, 
as discussed. But maybe even with all the good work that the 
EPA has done in my State of Montana, this is the ``Golf 
Journal,'' a major golf magazine, and this is a golf course. 
Montana is the largest Superfund----
    Senator Moynihan. If that's a golf course, where's the 
President?
    [Laughter.]
    Senator Baucus. Senator, I must say that that's a very fair 
question, because this golf course is--actually, it sits on top 
of a former Superfund site in Montana, and I want to thank 
Administrator Browner for working very creatively to figure out 
a way to allow this course. It was designed by Jack Nicklaus, 
and I asked the President to come out to play when Jack 
Nicklaus, and I might say it's one of the finer courses in the 
country, a former Superfund site. The President did not accept 
my invitation to play.
    [Laughter.]
    Administrator Browner. A mining site, I might add, which is 
one of the most difficult.
    Senator Chafee. All right.
    Madam Administrator, we thank you very much and we 
appreciate your coming.
    Now I'm going to do something totally arbitrary. If 
Governor Nelson and Mayor Perron would please come up, we would 
have both of those witnesses.
    I would ask Ms. Wilma Subra, who is here from Louisiana, if 
she also would come up. And Mr. Gordon Johnson from New York.
    Now, it may well be--it is my belief that the rest of the 
witnesses are here locally, and if we can, we'll schedule 
another hearing, but it just does not appear that we will be 
able to get everybody on. I see Ms. Florini here, and I think 
you are available, are you not? And Ms. Eckerly.
    Now, we have to take seats quickly, please, because we are 
operating under a deadline.
    Is Ms. Subra here? If you would sit down. You have come 
from Louisiana, right?
    Ms. Subra. Yes, sir.
    Senator Chafee. Well, we're going to give you a hearing.
    Ms. Subra. Thank you.
    Senator Chafee. And Mr. Johnson from New York.
    Now, am I correct? Mr. Fields, have you come from Chicago?
    [Voice, ``He left the room.'']
    Senator Chafee. All right. We lost him. All right.
    Now we are going to proceed with Governor Nelson.
    Governor, if you could keep your statement--what we are 
really interested in is what you propose, what your suggestions 
are for us, what you think we ought to do. And we appreciate 
your coming, and I know there's some back-and-forth and you 
made particular arrangements to come here, so we appreciate it.

   STATEMENT OF HON. E. BENJAMIN NELSON, GOVERNOR, STATE OF 
   NEBRASKA, ON BEHALF OF THE NATIONAL GOVERNORS' ASSOCIATION

    Governor Nelson. Thank you very much, Mr. Chairman, members 
of the committee. As Senator Chafee mentioned, my name is Ben 
Nelson and I am Governor of the State of Nebraska and chair of 
the National Governors' Association's Committee on Natural 
Resources. I have submitted to you a lengthier statement for 
the record, and I will try to summarize my remarks as briefly 
as I can.
    It is important to point out that my testimony is presented 
on behalf of the National Governors' Association. It has also 
been developed in close consultation with the Environmental 
Council of States and the Association of State and Territorial 
Solid Waste Management Officials, which represents State 
officials who manage the Superfund program on a daily basis.
    The States have a strong interest in this Superfund reform, 
and I believe that a variety of changes are needed to improve 
the Superfund program's ability to clean up the Nation's worst 
hazardous waste sites quickly and efficiently. So we commend 
Environmental Protection Agency Administrator Carol Browner for 
many of the administrative reforms that she has developed for 
this program. But we still believe that legislation is 
required, and if I leave you with one message today, let it be 
our hope that the agreement to work together in a bipartisan 
basis will continue and that you have the support of the 
Governors on a bipartisan basis to commit to do everything that 
we can to assist in this effort so that we can continue to work 
cooperatively, both with the majority and the minority parties, 
to develop a final bill that enjoys both bipartisan support and 
Presidential signature.
    I want to commend you for developing a very good starting 
point for the kind of bipartisan negotiations that are going to 
be required here. I know that there are some important 
differences that remain, but we hope that the chairman's mark 
is a significant step toward resolving those concerns. Given 
the discussion and the statement by Administrator Browner, I 
remain confident that we will be able to work through these 
differences.
    The overall assessment by the National Governors' 
Association really just suggests a few areas where we think 
that some improvements could be made.
    As you know, one of our major concerns has to do with the 
cleanup of the so-called brownfields sites. The Governors 
believe that brownfields revitalization is critical to the 
successful redevelopment of many contaminated former industrial 
properties, and if we could all be as successful as Senator 
Baucus in Montana has been in conjunction with that golf 
course, we would all be very, very happy. We commend the 
committee for including brownfields language in the bill.
    We cannot overemphasize the importance of State voluntary 
cleanup programs in contributing to the Nation's hazardous 
waste cleanup goals. States are responsible for cleanup at the 
tens of thousands of sites that are not listed on the National 
Priority List. In order to address these sites, many States 
have already developed highly successful voluntary cleanup 
programs that have enabled sites to be remediated quickly, and 
with minimal Government involvement. It is important that the 
legislation support and encourage these successful programs by 
providing clear incentives and the much talked-about 
flexibility.
    Frankly, we feel an increased need for congressional 
direction because the guidance on State voluntary programs that 
EPA is about to finalize doesn't seem to afford us the 
necessary and appropriate flexibility. We intend to talk to 
Administrator Browner further on this to see if there is an 
area where we can come to agreement.
    We also strongly support the provisions in your mark that 
encourage potentially responsible parties and prospective 
purchasers to voluntarily clean up sites and to reuse and 
redevelop contaminated properties. Among the most important 
incentives is a release from Federal liability at a site that 
has been addressed by the State. Your chairman's mark takes an 
important step in that direction. I would note, however, that 
while the draft would preclude Federal enforcement for sites in 
a State voluntary cleanup program, it does not provide a 
release from Federal liability. We believe that this would 
leave the PRPs, the potentially responsible parties, vulnerable 
to third-party suits, and we ask that, to the extent possible, 
you clearly waive Federal liability for a site addressed under 
a State program.
    And with respect to the State role title, the Governors 
strongly support the efforts to provide us with options to 
enhance the role of States in this program. We appreciate the 
inclusion of options for authorization, expedited 
authorization, delegation, and limited delegation by agreement 
in the draft. We feel that this allows for maximum flexibility 
to meet State needs and objectives.
    We especially support the authorization provisions that 
allow States to operate their own programs in lieu of the 
Federal program. Where States are authorized to operate 
programs in lieu of the Federal programs, States should receive 
adequate Federal financial support at no less than EPA would be 
supported for those efforts.
    But the States cannot support provisions allowing the EPA 
to withdraw delegation on a site-by-site basis. EPA should 
periodically review State performance instead of involving 
itself in site-by-site oversight. In other words, evaluate the 
program being adopted and the overall performance by a State 
with respect to all the sites rather than picking and choosing 
on a site-by-site basis for oversight.
    With respect to the selection of remedy, we support changes 
that result in what we think will be more cost-effective 
cleanups, a simpler, more streamlined process for selecting 
remedies and a more results-oriented approach. The bill moves 
significantly in this direction.
    Many of these reforms seem to us to be codifications and 
improvements of EPA's previous administrative reforms, and we 
applaud that.
    One of the most important issues in selecting a cleanup 
remedy is allowing State-applicable standards to apply at 
Federal cleanups, as they do at State sites. We greatly 
appreciate and strongly support the provisions of the bill that 
allow State-applicable standards and promulgated, relevant, and 
appropriate requirements to apply to all site cleanups, Federal 
and private as well.
    Another important remedy selection issue concerns the 
importance of considering different types of land uses when 
determining cleanup standards, so we applaud the inclusion of 
provisions in your bill that provide for State and local 
control in making determinations on foreseeable land uses.
    In addition, we would like to ensure that land use 
decisions are not second-guessed by EPA.
    I can't talk about remedy selection without mentioning 
groundwater, because in Nebraska groundwater provides the great 
majority of our drinking water supplies, about 90 percent, and 
we are blessed with very clean groundwater resources. We want 
to keep it that way, so we believe that groundwater is a 
critical resource that needs to 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 do need to ensure that any groundwater provision are 
appropriately workable and flexible. Therefore, more State 
involvement is important.
    And finally, as you know, liability reform is one of the 
most difficult issues in the bill. The Governors recognize that 
the current liability system does some things very well and 
provides some important benefits, but it also carries some 
unfairness and contributes to unacceptably high transaction 
costs. In general, we support the elimination of liability for 
de minimis and de micromus parties, and believe the liability 
of municipalities also needs to be addressed. But 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 
will provide adequate assurance in funding so that sites will 
continue to be cleaned up and so that there will be no cost 
shifts to the States. The downloading of that cost onto the 
States is not going to be an adequate remedy, and we would 
certainly oppose that.
    We also oppose the apparent preemption of State liability 
laws when a facility has been released from Federal liability. 
Preemption of State liability laws at the NPL sites effectively 
creates an inequitable situation in States because it creates 
an inconsistency in an application of State law at sites 
throughout the States. We want to avoid creating a scenario 
where there is a demand by potentially responsible parties to 
be added to the NPL, the Priority List, because the Federal 
liability scheme is more favorable. We can see that that could 
happen.
    With respect to Federal facilities, the Governors urge and 
support that the legislation will ensure a strong State role in 
the oversight of Federal facility cleanups. The States 
appreciate the provisions in the chairman's mark allowing EPA 
to transfer responsibility for federally-owned facilities to 
States, and we question why this is more limited than the 
authority that States can exercise at private sites. We urge 
you to include a clear waiver of sovereign immunity for Federal 
Superfund sites, to ensure that State applicable standards 
apply to Federal sites, and that a double standard doesn't 
exist for Federal facilities, at a standard that could be 
substantially lower.
    We have enough concerns that have been raised about the 
States having a race to the bottom when it comes to dealing 
with these issues. We don't want to meet the Federal Government 
on the way to the bottom.
    [Laughter.]
    Governor Nelson. As you know, the natural resource damage 
provisions of Superfund are also controversial. Although some 
reform is warranted, the program's integrity needs to be 
maintained, and I want to thank the committee for including the 
provision that protects existing claims and lawsuits. I know 
it's extremely important to my colleague and the vice chair of 
our committee, Governor Marc Racicot of Montana, who serves as 
vice chair of our committee.
    I also want to mention how strongly we support the 
provision to require the concurrence of the Governor of the 
State in which a site is located before it may be added to the 
NPL. We fought long and hard to have this vitally important 
provision included in legislative proposals. We are also 
worried about the placing of an arbitrary cap on the number of 
sites that can be added to the NPL. We think that will not be 
an appropriate limitation that could be placed on new listings.
    Well, in conclusion let me say that I really appreciate 
this opportunity to be here, and I thank you for your hard work 
on this. I know, Mr. Chairman, that it is a difficult area on 
which to bring together general agreement, but I commend you 
for your efforts and offer to continue in any way we can to 
support your efforts to bridge the gap and to bring parties 
together in any way that we possibly can.
    Senator Chafee. Well, Governor, I want to thank you very 
much because you've been very specific in your recommendations 
here. You get into a lot of matters that are of concern to us. 
For instance, something that is not a burning issue, the so-
called Record of Decisions, the RODs, you touch on that 
provision. Your statement has been very helpful.
    I didn't get a chance to apologize enough to those 
witnesses who came from, I believe, around in the Washington 
area that we weren't able to reach, and I want to thank you 
all. We're going to try to get all of you whom we missed back 
here again. Mr. Fields, I know that you very kindly suggested 
that you could come back from Philadelphia, if needed.
    Now we will hear from Mayor Perron from Elkhart, IN. We 
welcome you on behalf of the U.S. Conference of Mayors.

  STATEMENT OF HON. JAMES P. PERRON, MAYOR, ELKHART, IN., ON 
            BEHALF OF THE U.S. CONFERENCE OF MAYORS

    Mayor Perron. Good afternoon, Mr. Chairman and members of 
the committee. I am Jim Perron, the mayor of Elkhart, IN. I am 
pleased to be here this afternoon, and thank you for your 
leadership in the development of S. 8 and in moving the 
legislative process forward with this hearing.
    Today I am testifying on behalf of the U.S. Conference of 
Mayors, which represents over 1,100 cities with populations of 
30,000 or more.
    Being Mayor of Elkhart for nearly 15 years has allowed me 
the opportunity to deal directly with a variety of Superfund 
issues, ranging from brownfield redevelopment to remediation of 
a Superfund site that essentially covered our entire drinking 
water system.
    Mr. Chairman, the Nation's mayors believe that Superfund 
has been successful in meeting three national policy 
objectives: a dramatic reduction in the use of hazardous 
materials by industry; the ability of our Nation to respond to 
emergency spills and contamination; and the creation of a much 
safer national hazardous waste management system. These are 
major accomplishments of the Superfund program, and we want to 
acknowledge them from the outset. That's the best of Superfund.
    Alongside these tremendous public benefits are the 
unintended negative consequences of the Superfund program, the 
fact that the private sector will not invest in hundreds of 
thousands of non-NPL contaminated sites for fear of being 
caught in the Superfund liability web. These so-called 
brownfields were not caused by local governments or the 
citizens who now must live with the consequences of lost jobs 
and an eroded tax base in abandoned or underutilized properties 
that denigrate communities.
    In a Conference of Mayors survey, we found in only 39 
cities, the loss of local tax revenues from local brownfields 
ranged from $121 million to $386 million annually.
    Finally, brownfields lead to additional negative 
environmental effects by encouraging urban sprawl in eating up 
prime farmland, forest, and open spaces.
    I would like to mention here, Mr. Chairman, that the State 
of Indiana has moved forward through a legislative committee--a 
task force to which I was just recently appointed by Governor 
O'Bannon--which is an Indiana Farmlands Preservation Task 
Force, to try to address this issue, and I do believe the 
brownfields issue is one area that we will be discussing.
    I should say that in addition, the Superfund program has 
made the cleanup of National Priority List sites expensive, 
bureaucratic, time-consuming, and litigious. We want to commend 
the Administrator and the agency for the administrative reforms 
to improve the Superfund program, but we believe these will not 
be enough to structurally reform the program and put it on a 
sound footing for the future.
    Turning specifically to the proposals that we were asked to 
address for today's hearing, I would like to start by saying 
that it is extremely important for Title I on brownfields to 
provide local governments the greatest flexibility possible in 
the use of brownfield site assessment, characterization, and 
cleanup funds.
    The definition of brownfields should not require the site 
to currently have an abandoned, idle, or underused facility. 
Many former industrial and commercial sites have been razed, 
but still contain contamination that should qualify this site 
as a brownfield.
    Likewise, the list of exclusions in the definition of 
brownfields should be significantly eliminated so that local 
governments have the flexibility to submit brownfield sites 
that are local priorities. For example, the current list of 
exclusions would disqualify sites where an emergency response 
action has been taken. Many emergency response actions remove 
the immediate emergency but do not leave the property in a 
condition that would allow the private sector to invest in it. 
Local governments should have the flexibility to include them. 
A similar rationale holds for other exclusions.
    On the issue of funding, we believe that the Superfund 
program which helped to create brownfields should devote at 
least 10 percent of its funding annually to the brownfield 
cleanup program. We ask the committee to include annual 
authorization levels in S. 8 to reflect such a level. We have 
outlined in our written remarks why this funding level is 
justified.
    We are also extremely pleased that, with the 
Administration's support, the House and Senate have devoted 
increased funding for fiscal year 1998 to EPA's brownfields 
program. We want to thank Senator Bond for his leadership in 
that arena.
    Mr. Chairman, the policy which the mayors adopted in San 
Francisco at our annual meeting this year calls for Superfund 
reauthorization to include provisions that expedite the cleanup 
of co-disposal landfill sites by providing liability 
protections for generators, transporters, and arrangers of 
municipal solid waste. The provisions of S. 8 clearly begin 
that process and go a long way toward that end. We are 
concerned, however, that the bill does not provide generators 
and transporters of municipal solid waste protection from 
third-party contribution lawsuits, for cleanup costs incurred 
prior to date of enactment at co-disposal sites. Because we 
believe that Congress never intended municipal solid waste and 
sewage sludge to be considered hazardous under CERCLA, we 
believe that some form of liability relief should also be 
extended to pre-enactment costs.
    We want to remind the committee that numerous studies have 
indicated that municipal solid waste contains less than \1/2\ 
of 1 percent of toxic materials.
    Mr. Chairman, we also want to acknowledge and commend the 
Administrator and the agency for the recent announcement of 
administrative reforms governing municipal liability for co-
disposal sites. The most important principle set forth in EPA's 
policy is that municipal solid waste has virtually never been 
the cause of listing co-disposal sites under this proposal.
    Finally, we agree with the chairman's mark, which reflects 
the view that the toxicity of municipal solid waste is so low 
that the transaction costs of collecting funds for response 
costs incurred after the date of enactment warrant a transfer 
of liability from individual parties to orphan share.
    Mr. Chairman, I am also very pleased to note that on 
Tuesday of this week President Clinton nominated one of our 
colleagues, Mayor Cardell Cooper of East Orange, NJ, to be the 
Assistant Administrator of EPA for Solid Waste and Emergency 
Response. I am aware that this committee has the formal 
responsibility to advise and consent on this nomination, as 
does the full Senate. Mayor Cooper has been one of the great 
leaders among the mayors in this country on a very broad range 
of issues, including those concerning Superfund, brownfields, 
and environmental cleanup. He will do an outstanding job in 
moving these programs forward and in strengthening the 
partnership among the cities, the Congress, the Administration, 
and the private sector, to bring about the achievement that we 
need in these areas. I hope that you will give swift approval 
to this nomination at the appropriate time.
    Mr. Chairman, it is almost impossible to talk about 
brownfields and Superfund reform in 5 minutes. Our written 
comments cover many other points.
    Let me add that Mayor Helmke of Fort Wayne--he is the 
president of the U.S. Conference of Mayors--is meeting as we 
speak in Rhode Island with the co-chairs of our Brownfields 
Task Force, and will undoubtedly have further input into our 
comments on S. 8.
    We encourage the Senate to move forward with Superfund 
reform and reach a bipartisan agreement on a bill. We believe 
that S. 8 is a good starting point for those discussions, and 
we stand ready to be of any assistance.
    I would be pleased to answer any questions that you may 
have at the appropriate time.
    Senator Chafee. Mayor, thank you very much.
    It has come to my attention that some here don't understand 
why we are under the gun at having to stop at 4:30. That's not 
something the committee wishes to do. I would stay here and 
hear every witness. This came about because the Democratic 
leadership is invoking the Senate rules which permit them to 
say that no committee can meet after 2 o'clock when the Senate 
is in session. The majority leader, in order to give us time 
here to get on with what we could, put the Senate into recess 
from, I presume, 2 o'clock until 4:30, but when 4:30 comes, it 
will then be obviously after 2 o'clock, and so this committee 
cannot remain in session.
    So again I want to apologize. We will take all the 
statements of those whom we were not able to reach, and any of 
the witnesses who had something further to add can submit 
further statements for the record, and we will keep the record 
open for 1 week.
    Senator Baucus. Mr. Chairman, if I might add, it is 
regrettable that we cannot continue to meet, but I think it 
would be unfair to characterize it as the Democrats that are 
holding us up. The fact of the matter is that this is an 
internal Senate matter having to do with still another matter 
which we have to resolve, and this is regrettable, but that's 
why we are not able to meet longer. It's a bipartisan problem 
that has caused this delay.
    [Laughter.]
    Senator Chafee. No one will argue with my bipartisan 
credentials----
    [Laughter.]
    Senator Chafee [continuing]. But this is not a bipartisan 
issue. The committee is not able to meet because the Democratic 
leader invoked the rules.
    Senator Baucus. Well, we all know why he invoked them.
    Senator Chafee. Well, that's a separate subject.
    [Laughter.]
    Senator Chafee. Let's not explore that any more.
    Now, we are delighted to have Ms. Subra here, who has come 
from New Iberia, LA. We are delighted to have you here, and if 
you could present your statement in some 5 minutes, then we 
will have Mr. Johnson, who is here from New York on behalf of 
the National Association of Attorneys General, and then we'll 
have questions of the entire panel.
    Can you stay, Governor?
    Governor Nelson. Yes.
    Senator Chafee. OK.
    Ms. Subra.

STATEMENT OF WILMA SUBRA, PRESIDENT, SUBRA COMPANY, NEW IBERIA, LA

    Ms. Subra. Thank you. I would like to thank the committee 
for giving us this opportunity to testify.
    I have been involved in Superfund issues since Superfund 
began, working with citizens who live around these hazardous 
waste sites. I have also served as the technical advisor on the 
National Commission on Superfund, and I provide technical 
assistance to citizens' groups at eight Superfund sites through 
the TAG process.
    Karen Florini will present a lot of the issues that we have 
concerns about. We didn't want to duplicate, so I just want to 
say that I am in support of the issues that she will present to 
you at a later time.
    I would like to tell you why I have a problem with State 
delegation and give you an example. The transfer of authority 
to States in order to perform Superfund programs may be 
appropriate for a few States, but the wholesale transfer of 
Superfund programs to a large number of States will have a 
negative impact on the overall program. An example of a State 
that should not be granted Superfund authority is the State of 
Louisiana. The State lacks the financial resources, personnel, 
and political will to even implement their own State program. 
The majority of the NPL sites in the State of Louisiana were 
submitted by citizens' groups, not by the State. The State 
didn't want the stigma of having hazardous waste sites being on 
the Federal list. In 1995, the State Legislature removed almost 
all the funding and personnel from the State program.
    The current State program only has sufficient financial 
resources to, No. 1, perform small emergency removal actions 
when a midnight dumper drops barrels along the side of the 
road, and No. 2, to provide oversight at the 14 Superfund sites 
in the State. There are little or no resources to evaluate the 
more than 500 potential sites, or to perform remedial 
activities at confirmed sites. During the past 2 fiscal years, 
57 confirmed hazardous waste sites sit waiting for cleanup when 
and if resources become available. When sites pose an imminent 
and substantial threat, the EPA has to step in to perform 
financial and emergency removal actions for the State.
    The most recent example of the need for Federal resources 
and manpower was the Broussard Chemical Company site in 
Vermilion Parish. The EPA has spent more than $2.5 million in 
investigating, removing, and disposing at six separate 
locations operated by Broussard Chemical. A number of 
additional sites operated by the same person are currently 
being investigated further by EPA because of lack of resources 
on the part of the State.
    If it were not for the EPA and the financial resources of 
the potentially responsible parties, little progress would be 
made in the State of Louisiana in addressing hazardous waste 
issues.
    At PRP-funded sites, the State is still responsible for 
oversight. The lack of personnel resources has a major impact 
on that process. In Louisiana, the lack of sufficient technical 
resources has resulted in the State missing critical technical 
issues on the Shell-Bayou Trepagnier site. One of the issues 
missed involved the diluting of the contaminant levels by the 
PRP by including the control samples in both the site samples 
and the control samples, thus lower contaminant concentrations 
were evaluated for that site.
    The State of Louisiana and many other States that lack 
financial and personnel resources should not even be given the 
opportunity to request State delegation or feel pushed by 
Congress into having to accept the delegation of the Superfund 
program.
    In the treatment of hot spots, the preference for 
permanence in Superfund remedies has been modified to only 
treatment of hot spots. Attempts are made to justify the 
appropriateness of only treating these hot spots by including 
containment for the other hazardous substances. Reliance on 
containment is not a permanent remedy and merely puts off 
addressing the hazardous contamination until a future date. 
During that period when containment fails, public health and 
the environment will be impacted. The community members in the 
area of the site will once again be exposed to the hazardous 
substances and bear the burden of health impacts. The 
preference for permanence should be expanded to include a 
larger portion of the hazardous contaminants than just the hot 
spots.
    A containment remedy is being proposed for the Agriculture 
Street Landfill Superfund site in New Orleans. The landfill was 
operated by the city of New Orleans from 1909 to 1965. The city 
then developed 47 acres of the 95-acre site on top of the 
landfill----
    Senator Chafee. Ms. Subra, I tell you, this is kind of a 
specific thing which we have in our record. Maybe you could 
move on to your next principal point. I want to make sure we 
can reach Mr. Johnson.
    Ms. Subra. OK.
    On the delisting, you are doing it too early. The 
initiation of a delisting process after construction 
completion, rather than after remedy implementation, is totally 
inappropriate. We have a site in Vermilion Parish where the 
remedy is being implemented. It was solidification after 
biotreatment. As it turned out, the Portland cement was 
contaminated with chromium, and when they solidified the waste, 
the chromium leached, and now you have a larger expanse. There 
are needs to go back in and look at the remedy. If you have 
delisted the site, you have cut the public out of the process, 
you have removed the TAG grant. After construction is much too 
early in the process.
    In the State concurrence, in the State of Louisiana the 
Governor has only concurred at one site. That site was going to 
be an add-on to one that already had an incinerator, already 
had local contractors. He did the concurrence because he wanted 
the contractors to keep working. At the other sites, in fact, 
contamination of the fish and the organisms that live in the 
estuaries resulted because he did not concur and nothing is 
happening at those sites.
    The limit on new sites will merely put the burden back on 
the States, which don't have enough money to address the sites. 
The limit on the number of new sites has to be increased 
dramatically or removed entirely.
    We would be happy to continue this process of talking and 
dialoging about the things that we have a problem with.
    I would like to thank you for the opportunity to provide 
this input.
    Senator Chafee. Well, thank you very much, and again we 
want to thank you for coming all the way. I am curious as to 
what Governor Nelson will have to say when we get to the 
questions.
    Mr. Johnson from the State of New York. If you will go 
through it, and if you could summarize your statement, we have 
your regular statement for the record because we want to be 
able to get in a few questions.

     STATEMENT OF GORDON J. JOHNSON, DEPUTY BUREAU CHIEF, 
   ENVIRONMENTAL PROTECTION BUREAU, NEW YORK STATE ATTORNEY 
  GENERAL'S OFFICE, ON BEHALF OF THE NATIONAL ASSOCIATION OF 
                       ATTORNEYS GENERAL

    Mr. Johnson. Thank you very much, Senator Chafee. I am the 
Deputy Bureau Chief of the Environmental Protection Bureau in 
the office of New York Attorney General Dennis Vacco. I very 
much appreciate the opportunity to appear before the committee, 
and I thank you, Senator Chafee and Senator Baucus, as well as 
Senator Moynihan from New York, for giving me time to present 
comments with respect to the natural resource damage provisions 
of the bill.
    I am appearing today on behalf of my office and on behalf 
of the National Association of Attorneys General, NAAG. My 
office has handled or is now counsel in more than 25 major 
natural resource damage cases arising from the release of 
hazardous substances or petroleum products.
    At its summer meeting in late June of this year, the sole 
resolution adopted by NAAG addressed Superfund reauthorization. 
A copy is attached to my written testimony. The resolution also 
addresses directly the natural resource damage issues which are 
the subject of this panel. My Attorney General Vacco was among 
the group of bipartisan sponsors of that resolution.
    The resolution arose from the recognition by the State 
Attorneys General of the critical importance of the Superfund 
program in ensuring protection of public health and the 
environment from releases of hazardous substances at thousands 
of sites across the country. They also know firsthand the 
problems with the statutory scheme, and the need to limit 
transaction costs and streamline certain processes required by 
Superfund today. In particular, the Attorneys General want to 
make the task of assessing natural resource damages and 
restoring injured or destroyed resources less complicated, and 
reduce the amount of litigation that may result when trying to 
accomplish those goals. In my brief oral remarks today I will 
address some of the more significant issues.
    First, judicial review. NAAG urges Congress to clarify that 
in any legal proceeding, the restoration decisions of a trustee 
should be reviewed on the administrative record, and be upheld 
unless arbitrary and capricious. S. 8, as introduced, contained 
provisions in section 702 regarding the administrative record 
that appeared to accomplish that goal. The chairman's mark 
retained the provision regarding the establishment of the 
administrative record, but removed language in the public 
participation section providing that judicial review of the 
trustee's restoration plan would be on the record. S. 8 also 
removed the rebuttable presumption provided in current law to a 
trustee who adheres to the regulations.
    The deletion of the judicial review provision is 
unfortunate and unwise, and likely will lead to greater 
litigation, increased expense, and secretive and duplicative 
assessments. Unless the selection of a plan and the assessment 
which led to that selection is entitled to the usual 
administrative presumption of correctness, no trustee could 
afford to conduct an assessment and select a plan on an open 
record with full public input, knowing that responsible parties 
would not be bound in any fashion by that determination.
    Senator Chafee. Then you have some suggestions of language 
there. Why don't you move to your statute of limitations now, 
could you?
    Mr. Johnson. Fine.
    The Attorneys General also ask that CERCLA be amended to 
provide that claims for natural resource damages be brought 
within 3 years of the completion of a damage assessment. 
Currently, CERCLA has a very complicated, two-prong statute of 
limitations. These provisions often put often put a trustee in 
a difficult position and result in much unnecessary litigation. 
The trustee may have to bring suit before he or she has 
sufficient information to determine the scope of the injury or 
to quantify damages, often even before an RI/FS is completed. 
We urge Congress to adopt a statute similar to that governing 
cases arising from the release of petroleum products under the 
Oil Pollution Act of 1990.
    The third issue I would address is the availability of 
Superfund moneys for assessment. When CERCLA was amended in 
1986, Congress provided that the trust fund could be used by 
State and Federal trustees to conduct damage assessments, 
recognizing in particular that many State trustees lacked the 
funds to pay for the assessments themselves. In conference, 
that language was effectively removed through amendments to the 
IRS Code. NAAG has long asked that the conflict between the IRS 
Code and CERCLA be eliminated so that State trustees can draw 
on the fund to conduct assessments, which they presently can do 
to conduct RI/FSs. This will also promote the integration of 
the NRD program with the cleanup program and lead to greater 
efficiencies and better cleanups.
    Use of reliable assessment methodologies is another aspect 
addressed in the resolution. Just as Congress does not direct 
EPA to use only certain scientific methodologies in the 
changing and developing area of remedial science, NAAG believes 
that Congress should retain the ability of trustees to recover 
damages based on any reliable methodology. S. 8, however, 
provides that assessments may be conducted only in accordance 
with regulations not yet promulgated by the President, and 
forbids the use of one methodology, the admittedly 
controversial ``contingent valuation'' methodology, in the 
assessment process.
    Senator Chafee. Why don't you move to the liability cap and 
the recovery of costs?
    Mr. Johnson. We are pleased with respect to the liability 
cap----
    Senator Chafee. That's what I wanted you to hear.
    [Laughter.]
    Senator Chafee. That's very good. Now go to the next one.
    [Laughter.]
    Mr. Johnson. Recovery of enforcement and oversight costs, 
to summarize that, S. 8 is silent on whether enforcement costs 
and oversight costs by State trustees can be collected from 
responsible parties as part of the process of conducting an 
assessment and implementing it. We believe they should.
    The NAAG resolution is consistent with the general and 
uncontroversial policy that persons responsible for the release 
of hazardous substances have an obligation to make the public 
whole in the event there is an injury to our natural resources. 
Well over 100 years ago, in cases on the abatement of nuisances 
and the public trust doctrine, the courts made clear several 
bedrock principles. The States and the Federal Government are 
trustees for the people, and their trust corpus includes this 
Nation's glorious natural resources.
    Senator Chafee. OK. Let's see what else we have here.
    All right. I would be interested in your ``injury before 
1980,'' how you handle that one.
    Mr. Johnson. The language of S. 8, as originally 
introduced, substituted language in current CERCLA law, 
substituting the word ``injury'' for the word ``damages.'' 
Under current law, if damages continued after 1980 and the 
public was harmed after 1980, a natural resource damage case 
may be brought.
    S. 8 substituted for that word ``damage,'' ``injury,'' and 
a number of courts have held that the injury occurs at the 
moment of release. This would mean, under the revisions 
provided for under S. 8, that if a release of hazardous 
substance occurred before 1980, there could no longer be a 
natural resource damage case about that, even though there are 
damages being incurred now, and the public was suffering as a 
result of that release back before 1980. We don't believe that 
that is appropriate and we ask that the committee return to the 
original language of the statute.
    Senator Chafee. All right, thank you very much. I would 
commend the non-use values to our members here, to read that 
portion over, and I am sorry to cut you off a little bit.
    We're going to have a few questions before the witching 
hour comes.
    Governor Nelson, what do you say about what Ms. Subra had 
to say? I thought that she had some pretty good points.
    Governor Nelson. Well, I wouldn't discount her points, but 
I would say that----
    Senator Chafee. I mean, what do we do if a State won't step 
up to the mark?
    Governor Nelson. First of all, if they're going to step up 
to the mark and have either a delegation or an authorization, 
they're going to have to have a plan that passes the test of 
competence and demonstrate their ability to perform to the EPA 
in order to get it. If they don't demonstrate it, then they 
don't get it. That's why we said that they shouldn't be on a 
site-by-site basis; it ought to be on their overall performance 
in dealing with the sites.
    The second thing is that I don't think Federal legislation 
ought to solve every local problem that can be solved at the 
local level. If the State of Louisiana, in the minds of its 
people, is not doing an adequate job in dealing with the non-
Priority List sites, then that ought to be a determination 
made, if there is a majority of the people in Louisiana who 
feel that way, they can make their wishes known. That's what 
the elective process is about.
    Senator Moynihan. Governor, that's why we're having to stop 
at 4:30. Would you kind of avoid that subject?
    [Laughter.]
    Governor Nelson. I think I understand, Senator. Fewer 
elections create fewer problems.
    Senator Chafee. All right.
    Senator Baucus.
    Ms. Subra. Could I respond to his concerns briefly?
    Senator Chafee. Yes, but I've cut the leave time for 
everybody. Thirty seconds.
    Ms. Subra. OK.
    One of the things is the default provision in the mark 
bill, and it says that if you don't do an action from EPA on a 
State delegation, it is automatically delegated. So if EPA gets 
overburdened and States apply, whether or not they are 
adequate, whether they have the rules, whether they have the 
finances, under default they are going to get the program.
    Senator Chafee. I see.
    All right, Senator Baucus.
    Senator Baucus. Thank you, Mr. Chairman.
    Ms. Subra, your views on the remedy selection provisions in 
S. 8?
    Ms. Subra. They don't go far enough.
    Senator Baucus. Why?
    Ms. Subra. They are not protective of human health and the 
environment. There is too much emphasis on the hot spots, too 
much on containment. You are leaving the waste there to future 
impact the citizens. In locations where we have tried 
containment, the containment has started to fail, especially in 
Louisiana where we get 60 inches of rainfall.
    Senator Baucus. Would you agree that in the current law 
there is too much of a preference for treatment?
    Ms. Subra. I think there may be too much preferential 
treatment at some locations, not all of them. But what we're 
doing is moving toward treating the part that exceeds the 
criteria, and not treating the other part. In fact, that's what 
we were doing at the one site, and in fact we found out that we 
were contaminating it more when we solidified with the Portland 
cement.
    Senator Baucus. But you do say that the current 
provisions--in S. 8, anyway--are too lenient with respect to 
the treatment?
    Ms. Subra. Yes.
    Senator Baucus. Mr. Johnson, with respect to non-use 
values, there has been a lot of debate to what degree we should 
address natural resource damage claims; do we address inherent 
value, intrinsic value, etc.? Do you think we should?
    Mr. Johnson. Yes, I believe that we should.
    Senator Baucus. Why?
    Mr. Johnson. There are several reasons for that. Natural 
resources have values much beyond their value as simply being 
used for certain things, and there are numerous natural 
resources that have no use value whatsoever. The piping plover 
and endangered species--they have no real uses, but we as a 
society spend a considerable amount of money to protect those 
species from harm because we value them, because they just are.
    If we are to eliminate non-use values from the calculus of 
determining when to restore natural resources, when to seek 
damages, when to replace them of that, we will be ignoring all 
of those values and we will be ignoring those resources.
    Senator Baucus. OK. I appreciate that. I see my yellow 
light is about to turn red.
    Governor, I understand that the Governors also support 
including recovery of resources at intrinsic value.
    Governor Nelson. That's correct. I should say that our goal 
would be toward restoration, but we do support that.
    Senator Baucus. OK.
    Mr. Chairman, I might say that there is some suggestion 
that the western position is in favor of dramatically limiting 
natural resource damages. I would like to include in the record 
a letter from the western Attorneys General who say expressly, 
``We write to express our continuing concern about the 
potential impact of S. 8's natural resource damage positions, 
especially on western States.'' I would like that included in 
the record, please.
    Senator Chafee. Senator Smith.
    Senator Smith. Thank you, Mr. Chairman.
    I just want to say, in the very brief period of time that 
we have, to thank you, Governor Nelson and Mayor Perron, 
especially for coming today and your cooperation on behalf of 
your respective organizations for the input that you have 
provided us over the months--years, I guess--as we have tried 
to put this legislation together. You've been very helpful.
    I would just say in response to what the Governor said in 
response to his questions, and what Ms. Subra said, we make 
four very clear points in the legislation regarding the State 
role. In order for the State to receive this, it has to have 
adequate legal authority, financial and personnel resources; 
the State cleanup program must be protective of human health 
and the environment; and the State has procedures to ensure 
public notice and, as appropriate, an opportunity for comment 
on remedial action plans. And the State must agree to exercise 
its enforcement authority to require that persons that are 
potentially liable should, wherever practical, pay for the 
response action.
    So it's not a case where a State would have this dumped on 
it without the resources. So if there is a State, as was 
indicated by you, Governor, that is not capable, then they're 
not going to get the program. So I think it's important to 
clarify that, because that's been misrepresented.
    Thank you, Mr. Chairman.
    Senator Chafee. Thank you.
    Senator Moynihan.
    Senator Moynihan. I believe Mr. Sessions is next.
    Senator Chafee. All right, Senator Sessions.
    Senator Sessions. Well, I won't take but a minute. Maybe 
I'll just----
    Senator Chafee. You can take 2 minutes, and Senator 
Moynihan is going to have his time, and even if we all go to 
jail, we're going to get the time that we need.
    [Laughter.]
    Senator Sessions. OK. Senator Moynihan can talk to the 
Democratic leader, maybe, about that.
    Let me say this. I will just ask briefly--you have the 
Mayors represented, and the Governors, and the Attorneys 
General. Is it the consensus of you three governmental 
officials that the Superfund bill as now written is in severe 
need of reform? Do you all agree to that?
    Governor Nelson. Yes.
    Mayor Perron. Yes.
    Senator Sessions. Do you think there is any minority 
opinion about that among your associations, or is that pretty 
universal among your membership?
    Mayor Perron. Bipartisanly.
    Governor Nelson. A bipartisan decision that needs to be 
reformed.
    Mr. Johnson. I think the Attorneys General's position is 
that the present statute needs to be sharpened and streamlined, 
but its basic, fundamental principles need to be preserved.
    Senator Sessions. Governor, you are talking about a Federal 
release from liability. What you are saying is that once a site 
has been completed, that land or property can be almost 
valueless unless someone will certify that they are not going 
to be subject to additional liability claims?
    Governor Nelson. That's exactly right, Senator. I think the 
State can be in a position to bring about a change for the use 
of the land and get a restoration of the land for an 
appropriate use, but if there is a question about second-
guessing and/or continuing Federal liability, it's going to be 
very difficult to do some of these projects that I think you 
could do otherwise.
    Senator Sessions. Could be available for industrial 
development, but could not be done because of that?
    Governor Nelson. That's right.
    Senator Sessions. Well, I think that's all.
    Senator Moynihan, I'll defer to you, or to you, Mr. 
Chairman. I yield my time, what little I have left.
    Senator Chafee. Senator Moynihan.
    Senator Moynihan. Yes, sir. I would simply want to thank 
the witnesses, especially Governor Nelson and Mayor Perron.
    I think there is a problem you were speaking of, Mr. 
Johnson; if you served a long time on this committee, you would 
become aware of it.
    In 1978, sir, it was discovered that the General Electric 
Company had dumped a very large amount of PCBs into the Hudson 
River at Fort Edward--the Last of the Mohicans, Fort Edward. 
This committee enacted legislation which appropriated money, 
$20 million, to clean up those PCBs. And, sir, they are still 
there. Twenty years have gone by, and your department has done 
nothing; the Department of Environmental Conservation--I'm 
sorry, the Department of Environmental Conversation----
    [Laughter.]
    Senator Moynihan [continuing]. Has done nothing. And yet it 
doesn't seem to trouble people. You around, putting into place 
extraordinary proposals. I have a friend in Columbia County who 
happened to have a lake that was a millpond at one point; he 
wanted to restore the lake, and the department said, ``Well, 
you could do it for about a million and a half dollars.''
    This litigation pattern has become entropic and it defeats 
its purposes. Would you go back and ask the Attorney General 
whatever happened to that money that this committee provided to 
get rid of those PCBs?
    Mr. Johnson. I would be happy to go back.
    Just for clarification, I am with the Attorney General's 
Office. The Department of Environmental Conservation is a 
separate State agency.
    Senator Moynihan. We have more than a few State agencies, I 
assure you. We invented them.
    [Laughter.]
    Mr. Johnson. I can tell you that the Department of 
Environmental Conservation and the New York State Attorney 
General's Office have, in the past 5 years, issued a number of 
violations to the General Electric Company with respect to the 
discharge and the failure to clean up aspects of PCB 
contamination. As a result of those actions, GE has spent in 
excess of $50 million in the last several years to address that 
contamination.
    Senator Moynihan. As a result of those actions, GE is 
leaving New York State. I'm quite serious. From the beginning 
of the Love Canal to the PCB leaks, there is a lot of entropy 
in this system.
    Mr. Chairman, we congratulate you on your statute.
    Ms. Subra, I thank you, too.
    Senator Chafee. Does anybody have a question for these fine 
witnesses who have come so far?
    [No response.]
    Senator Chafee. Well, we want to thank all of you very much 
for coming. I know that each of you came a long distance and--
--
    Senator Baucus. Mr. Chairman, if I might--I'm sorry to 
interrupt you.
    Senator Chafee [continuing]. We have your testimony, and it 
was very constructive and helpful. We are going to go ahead as 
Senator Smith has suggested. We will be meeting with 
Administrator Browner as soon as reasonably possible, Senator 
Baucus, Senator Lautenberg, and myself. Your testimony has been 
very constructive.
    Senator Moynihan. Can we submit questions?
    Senator Chafee. Certainly, you can. Well, why don't you ask 
it now?
    Senator Moynihan. No, sir, they are questions that I think 
the Governor would like to have some time for.
    Senator Chafee. All right.
    [The questions and the answers thereto follow:]

                            Office of the Attorney General,
                                   New York, NY, September 9, 1997.
Hon. John H. Chafee,
Chairman, Committee on Environment and Public Works,
U.S. Senate Washington, DC.
re: Committee Hearing of September 4, 1997.
    Dear Chairman Chafee: At the September 4, 1997, hearing on your 
revised version of S. 8, Senator Moynihan asked me the fate of 
$20,000,000 that had been appropriated for the use of the New York 
State Department of Environmental Conservation (``NYSDEC'') for a 
Hudson River demonstration project addressing PCB contamination. I 
request that this letter responding to that question be included in the 
hearing record.
    In Public Law 96-483, Sec. 10 (October 21, 1980), Congress provided 
that up to $20,000,000 may be obligated by the United States 
Environmental Protection Agency (``EPA'') Administrator for a Hudson 
River PCB Reclamation Demonstration Project. The funds would be 
available to the extent that, as determined by the EPA Administrator, 
there were not other funds available from ``a comprehensive hazardous 
substance response and clean up fund.'' Federal Water Pollution Control 
Act, Sec. 116(b), 42 U.S.C. Sec. 1266.
    In early 1981, EPA granted New York $1.72 million of the Section 
116 funds to begin preparation of the project. By October 1982, NYSDEC 
had completed and EPA had reviewed the necessary scientific studies and 
environmental reviews to select a location known as Site 10 in 
Washington County, NY, as the site for an encapsulation facility, a 
secure landfill, to hold sediments to be dredged from the Hudson River. 
However, on December 30, 1982, former EPA Administrator Ann Gorsuch 
issued a decision denying release of the remaining Section 116 funds on 
the ground that Superfund monies were available.
    The State of New York, together with a number of environmental 
organizations and others, filed suit against EPA in 1983 regarding 
Administrator Gorsuch's determination. In May 1984, after a decision by 
then EPA Administrator William Ruckelshaus to reconsider the 
availability of Section 116 funds, the lawsuit was settled. EPA agreed 
to grant New York the remainder of the Section 116 funds, approximately 
$18.2 million, provided that additional scientific work was performed 
and that New York identify an appropriate encapsulation site for the 
dredged sediments and obtain the necessary permits to allow use of the 
site by 1988.
    However, local opposition to the use of Site 10 resulted in a 
decision in March 1985 by the New York Court of Appeals invalidating 
the site's selection on the ground that the State did not have the 
authority to overrule local zoning provisions that would prohibit such 
facilities. Washington County CEASE, Inc. v. Persico, 64 N.Y.2d 923 
(1985). NYSDEC resumed efforts to identify an appropriate disposal site 
for the dredged materials that met legal requirements, but was unable 
to do so before the expiration in 1989 of the funding authority. 
Consequently, the remainder of the Section 116 funds was utilized for 
publicly-owned treatment plant construction as permitted by the 
statute. That same year, EPA began its Superfund reassessment remedial 
investigation and feasibility study of the Hudson River to determine 
whether additional remedial measures should be taken to address the 
continuing PCB contamination of the river. EPA is scheduled to reach a 
decision by December 1999.
    While measures have been taken to reduce the flow of PCBs to the 
Hudson River, the river remains contaminated by large quantities of 
contaminated sediments that have affected river biota and its uses, 
both ecological and human, and have reduced the value of this natural 
resource. The changes proposed to CERCLA's natural resource damage 
provisions in S. 8 would radically alter the State's ability to insure 
restoration of the river and its environs. We urge that substantial 
modifications be made to S. 8 to preserve a central principle of 
Superfund for our children: making the public whole when chemical 
contamination degrades our resources.
    In closing, I again thank you and the committee for the opportunity 
to testify.
            Yours truly,
                                         Gordon J. Johnson,
                                               Deputy Bureau Chief.

    Senator Chafee. We also have the testimony that has been 
submitted by the other witnesses, which we will review if we 
don't get a chance to get back to those witnesses.
    Senator Chafee. Senator Baucus.
    Senator Baucus. Mr. Chairman, I want to compliment you for 
the way you have conducted this hearing, and also compliment 
very much the witnesses, who I think have given very good 
testimony. It will help us in the deliberation and help us to 
follow up on your suggestion as well, which originally came 
from Senator Smith, that we get back on track, sit down and 
work this out so that we come up with a resolution.
    Senator Chafee. Thank you.
    Thank you all again.
    [Whereupon, at 4:35 p.m., the committee was adjourned, to 
reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
 Prepared Statement of Carol M. Browner, Administrator, Environmental 
                           Protection Agency
                              introduction
    Good afternoon, Mr. Chairman, and members of the committee. I am 
pleased to have this opportunity to appear before you to discuss the 
Superfund program and the progress of legislative reform of Superfund 
in the 105th Congress.
    With all the attention on how to fix Superfund, it is easy to 
forget what Superfund is all about. 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. Superfund site impacts are real. ATSDR 
studies show a variety of health effects that are associated with some 
Superfund 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), infertility, and increases 
in chronic lymphocytic leukemia. 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. Earlier this year, in March, I gave you 
my commitment to participate in a bipartisan process to build consensus 
on Superfund legislation. While original expectations for consensus 
reform were high, I am disappointed that our shared goal of enacting 
responsible Superfund reform legislation this year may not be realized. 
I am afraid that the markup of the chairman's mark of S. 8 scheduled 
for next week will not produce a bill that enjoys the support of the 
Administration, Senate Democrats, or a broad range of Superfund 
stakeholders. Without this consensus, a Superfund bill cannot become 
law.
    In order to enact such a consensus bill, we must reflect the 
current, fundamentally different Superfund program. In March, I 
stressed the need to evaluate statutory reform from the perspective of 
the Superfund program of today, not on the basis of out of date 
problems now resolved. As implementation of the Administrative Reforms 
progresses, we continue to appreciate the advantageous flexibility this 
administrative approach affords us to make adjustments as experience is 
gained, and juggle our workload. A good example is the Remedy Update 
Administrative Reform, which focuses on adjusting remedies to changing 
science and technology. Because of administrative flexibility, in our 
implementation of this reform we have seized opportunities to make 
other remedy improvements, and have been able to pace our updates, so 
as not to slow down overall cleanup progress.
    Building on the progress of the Administrative Reforms, on May 7, 
1997, the Clinton Administration provided you with its Superfund 
Legislative Reform Principles. These Principles reflect the 
Administration's vision for the future of Superfund--a future that 
builds upon our progress over the past 4 years. In that time, we have 
worked to make Superfund a fundamentally different program, and these 
Principles reflect this change. The current Superfund program is 
faster, fairer and more efficient in protecting the nearly 70 million 
Americans, including 10 million children, who live within four miles of 
a toxic waste site. These Principles were shared so that you and the 
many stakeholders affected by these cleanups can understand our vision 
for the future and for the legislative reforms that will help shape 
that future.
    The Administration's goals for Superfund reauthorization continue 
to be to: protect human health and the environment; maximize 
participation by responsible parties in the performance of cleanups; 
ensure effective State, Tribal and community involvement in 
decisionmaking; and promote economic redevelopment or other beneficial 
reuse of sites. The Administration further believes that all of these 
goals should be undertaken in a manner that: increases the pace of 
cleanups; improves program efficiency and decreases litigation and 
transaction costs; and does not disrupt or delay ongoing progress.
    I am encouraged to see some changes to S. 8 have been negotiated 
since I last testified. Unfortunately, the majority of the bill's 
provisions do not reflect the current state of the program and the 
Administration's Principles, and are still troubling. The 
Administration began this process ready to work with you to craft 
Superfund reform legislation that could attract broad consensus 
support. We continue to support a consensus based legislative process, 
and if such a process can be reinstated, we believe we can craft a 
proposal that meets our goals and delivers on our commitment to achieve 
Superfund reform in the 105th Congress.
    My purpose today is threefold: (1) to update you on the continued 
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 the Administration's 
Superfund Legislative Reform Principles, which are based on the current 
accomplishments of the Superfund program; and (3) to discuss our 
concerns with the chairman's mark of S. 8, which continues to fail to 
meet our Administration's Principles for responsible legislative 
reform.
    Finally, the Administration remains concerned over the expiration 
of the authority to replenish the Superfund Trust Fund. It has been 2 
years since the tax expired, leaving industry with a windfall while the 
Trust Fund diminishes. The Congressional Budget Office has projected 
that the Trust Fund will, at the end of the next fiscal year, have less 
remaining than will be needed to keep the program operating, to keep 
site cleanups underway, in the following fiscal year.
    In addition to the expiration of the tax, we are disappointed with 
the recent denial of-the President's request for additional 
appropriated funds to address the backlog of Superfund sites that are 
currently awaiting cleanup. Without the availability of these 
additional funds, many communities will simply have to wait for 
cleanups in their neighborhoods, even though the studies are done, and 
the only thing preventing us from starting cleanup is a lack of funds.
                a fundamentally better superfund program
    Before discussing Superfund legislation, I'd like to provide an 
update to my testimony given in March on the current status of the 
Superfund program. To reiterate, proof of a faster, fairer, more 
efficient Superfund program can be found in several simple indicators. 
We have completed cleanup at 447 sites on the National Priorities List, 
and 500 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 would have allowed us to double our 
cleanup goals over the next few years and have 900 sites completed by 
the end of the year 2000. Our most recent analysis make us optimistic 
that we can continue to accelerate the pace of cleanups and achieve our 
goal of a 20 percent reduction, or 2 years, in the total cleanup 
process time. Additionally, responsible parties are performing or 
funding approximately 70 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, 66 percent of these in the last 
4 years. We offered orphan share compensation of over $57 million last 
year to responsible parties willing to negotiate long-term cleanup 
settlements, and continued the process this year at every eligible 
site. Finally, 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 to defining objectives and methods for 
groundwater cleanups; and EPA's 15-plus years of implementing the 
program providing greater efficiencies and lower costs when selecting 
cleanup options.
    Through the commitment of EPA, State, and Tribal site managers, and 
other Federal agencies, EPA has achieved real results protecting public 
health and the environment while experimenting with and instituting 
changes to our cleanup process through its Administrative Reforms. EPA 
is committed to further administrative and regulatory improvements in 
the Superfund program in the years ahead. Our objectives for 
administrative reform 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 December 1996 report, the Superfund Settlements Project (SSP), a 
private organization comprised of industry representatives, 
acknowledged 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.''
    Since the March hearing, the Administrative Reforms have continued 
to be evaluated by parties outside the Agency, such as the Chemical 
Manufacturer's Association (CMA) and the United Stated General 
Accounting Office (GAO). In their April 1997 report, CMA, a non-profit 
trade association whose member companies account for more than 90 
percent of the productive capacity for basic industrial chemicals in 
the United States, stated that ``at sites where the reforms have been 
fully applied so far, EPA's reforms have produced benefits that 
otherwise would not have occurred.''
    GAO, the investigative arm of Congress charged with examining all 
matters related to the receipt and disbursement of public funds, found 
that ``while EPA has not evaluated the overall effects of the reforms, 
the Agency has reported quantifiable accomplishments resulting from the 
implementation of 6 of the 45 reforms.'' The GAO report, however, did 
not attempt to measure the innumerable unquantifiable benefits of the 
Administrative Reforms, such as the experience and knowledge gained 
from pilot projects, or even the lawsuits not filed as a result of 
liability reforms for small parties.
    For a detailed discussion of the Administrative Reforms, please 
refer to my testimony before this committee in March. Before discussing 
the Administration's Legislative Reform Principles, however, I'd like 
to provide you with an update on some of the many successes we have 
achieved since my last appearance before this body.
Providing Protective Cleanups at Lower Costs
    EPA is continuing a number of administrative reforms which promote 
cleanups that are technologically and scientifically sound, cost-
effective and appropriately consistent nationally. These reforms will 
lower cleanup costs, while assuring long-term protection of human 
health and the environment.
    EPA's National Remedy Review Board is continuing its targeted 
review of complex and high-cost cleanup plans, prior to final remedy 
selection without delaying the overall pace of cleanup. Since the 
Board's inception in October 1995, it has reviewed 19 cleanup decisions 
at 18 sites, resulting in estimated cost savings of approximately $23-
$38 million. In addition, EPA has achieved great success in updating 
cleanup decisions made in the early years of the Superfund program. 
After 2 years of implementation, more than $500 million in future cost 
reductions are predicted as a result of the Agency's review and update 
of remedies at more than 90 sites. It is important to stress, however, 
that these future cost reductions can be achieved while still 
preserving appropriate levels of protection, and the current pace of 
the program.
Increasing the Pace of Cleanups
    The completion of 447 Superfund toxic waste site cleanups (as of 
August 29, 1997) is a significant measure of the improved pace of 
cleanups. Currently, over 85 percent of the sites on the National 
Priorities List (almost 1,200 of 1,347) are either undergoing cleanup 
construction (remedial or removal), or have been completed. EPA is 
continuing the use of its Superfund Accelerated Cleanup Model (SACM) to 
spark early cleanup action, and standardized or ``presumptive'' 
remedies, as well as other reforms, to maintain and increase this pace.
Promoting Fairness in Enforcement
    EPA's ``Enforcement First'' strategy has resulted in responsible 
parties performing 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. Through 
Administrative Reforms, EPA has addressed the concerns of stakeholders 
regarding the fairness of the liability system. EPA has continued 
implementation of its 1996 ``orphan share compensation'' policy, under 
which 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 has 
encouraged settlement, rather than litigation, and enhances the 
fairness and equity of settlements. Last year, the Agency offered over 
$57 million in orphan share compensation to potential settling parties 
across the United States, and continued that practice this year at 
every eligible negotiation.
    In addition, EPA continues to use its settlement authority to 
remove small volume waste contributors from the liability system, 
responding to the burden third-party litigation can place on parties 
that made a very limited contribution to the pollution at a site. To 
date, the Federal Government has completed settlements with over 14,000 
small volume contributors at hundreds of Superfund sites, protecting 
these parties from expensive private contribution suits. In addition, 
EPA continues to step 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. 
The real success of this approach is to be measured by the untold 
number of potential lawsuits that we have discouraged.
    Finally, EPA is continuing the successful use of site-specific 
special accounts to direct settlement funds toward cleanups (over $220 
million in principal, and $35 million interest generated from more than 
70 accounts), and is continuing implementation of its many pilot 
projects, such as the allocation pilot project, as well as other 
reforms to the liability system.
Involving Communities and States in Decision Making
    The Agency supports the principle that communities must be offered 
opportunities for involvement in the cleanup process as early as 
possible and continue to be involved to the time the site is cleaned 
up. Our ``consensus-based'' approach to the remedy selection process 
continues 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. In addition, our Regional Ombudsmen continue to serve as 
a direct point of contact for stakeholders to address their concerns at 
Superfund sites, and our electronic lines of communication and our 
Internet pages continue to provide information to our varied 
stakeholders on issues related to both cleanup and enforcement.
    Additionally, EPA continues to acknowledge the successes that 
States are achieving conducting thousands of hazardous waste site 
cleanups under State and Federal Superfund programs. Most of these 
sites are short-term, relatively inexpensive actions that address 
immediate hazards, and a growing number are conducted pursuant to State 
voluntary cleanup programs, as discussed below. EPA is continuing to 
increase the number of sites where States and Tribes are taking a lead 
role in assessment and cleanup using the appropriate mechanisms under 
the current law. Agreements such as those with the State of Minnesota 
and the State of Washington are excellent examples of these efforts, 
which build upon a foundation of demonstrated State readiness, and 
provide clear State decisionmaking authority with support from, but 
minimal overlap with EPA.
    States are developing voluntary cleanup programs to speed up the 
cleanup non-NPL sites, which, generally speaking, pose a lower risk 
than those sites listed the NPL. These voluntary cleanup programs pose 
an alternative to the conventions CERCLA or State Superfund-like 
enforcement approach to cleaning up contaminate sites. Through State 
voluntary cleanup programs, site owners and developers identify and 
cleanup sites by using less extensive administrative procedures. The 
site owners and developers may then obtain some relief from future 
State liability for past contamination. This approach encourages 
cleanup of sites, such as Brownfields, that might otherwise not be 
cleaned up because of limited Federal and State resources.
    In addition, financial and real estate sectors are sometimes 
reluctant to support the redevelopment of brownfields and lower risk 
sites because they are concerned about potential Superfund liability. 
Some developers have also expressed concern the uncertainty arising 
from potentially overlapping Federal/State cleanup authority can become 
a disincentive to clean up and redevelopment of these sites. EPA is 
addressing this concern by clarifying EPA and State roles and 
responsibilities, which helps reduce such uncertainty and promotes the 
cleanup and redevelopment of lower risk sites, such as Brownfields.
    To encourage partnerships with States and Tribes, EPA recently 
announced issuance of draft guidance that promotes State voluntary 
cleanup programs, and encourages States to create such programs. The 
draft guidance sets out baseline criteria that EPA will use to evaluate 
State voluntary cleanup programs. This evaluation will be part of the 
negotiation of a Memorandum of Agreement (MOA), or planning document 
providing roles and responsibilities between EPA and the State the 
cleanup of lower risk sites. For those sites included within the scope 
of the MOA, EPA will not exercise cost recovery authority and does not 
generally anticipate taking CERCLA removal or remedial actions at sites 
except under limited circumstances.
    In addition, this draft guidance includes a draft site designation 
or screening process and proposes that this new process be used in 
conjunction with the guidance to designate sites as either Tier II 
(lower risk sites that are eligible for inclusion with the scope of an 
MOA concerning a State voluntary cleanup program) or Tier I (high risk 
sites of the type that historically have been listed on the National 
Priorities List Tier I sites are not eligible for inclusion within the 
scope of an MOA concerning a State voluntary cleanup program. The 
Agency believes this is a unique and valuable feature of the guidance 
because it will enable developers and other parties to use the process 
outlined to make Tier I and Tier II designations. Understanding the 
potential for Superfund involvement enables stakeholders to make more 
informed property cleanup, transfer and redevelopment decisions.
    The guidance has been published in the Federal Register for review 
and comment. In conjunction with the Brownfields Initiative, EPA also 
authorized financial assistance to such voluntary cleanup programs. EPA 
is providing $10 million, earmarked in fiscal year 1997 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.
Promoting Economic Redevelopment
    EPA is continuing to promote redevelopment of abandoned and 
contaminated properties across the country that were once used for 
industrial and commercial purposes (``brownfields''). Brownfields sites 
exist in this country, affecting virtually every community in the 
Nation. The Administration believes strongly that environmental 
protection, public health, and economic progress are inextricably 
linked. Rather than separate the challenges facing these communities, 
our brownfields initiative seeks to bring all parties to the table--and 
to provide a framework for them to seek common ground on the whole 
range of challenges: environmental, economic, legal and financial. The 
EPA brownfields pilot grants are forming the basis for new and more 
effective partnerships. In many cases, city government environmental 
specialists are sitting down together with the city's economic 
development experts for the first time. Others are joining in--
businesses, local residents, community activists.
    EPA's 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 is 
designed to further identify, strengthen, and improve the commitments 
EPA and its colleagues can make to brownfields.
    The Brownfields Assessment Pilots form a major component of the 
Brownfields Action Agenda. EPA has committed to fund 115 assessment 
pilots to date at up to $200,000 each. We are also preparing to award a 
second stage of brownfields pilots this year: The Brownfields Revolving 
Loan Fund (BRLF) Pilots are designed to enable eligible States, cities, 
towns and counties, Territories, and Indian Tribes to capitalize 
revolving loan funds to safely cleanup and sustainably reuse 
brownfields. EPA's goal is to select BRLF pilots that will serve as 
models for other communities across the Nation. In the 1997 fiscal 
year, EPA's budget for brownfields includes $10 million to capitalize 
BRLFs. Only entities that have been awarded National or Regional 
Brownfields Assessment Demonstration Pilots by September 30, 1995, will 
be eligible to apply to EPA's BRLF pilot program. Therefore, up to 29 
BRLF pilots may be awarded in fiscal year 1997. Fiscal year 1997 BRLF 
pilots will be funded at up to $350,000. The BRLF will be awarded 
through an evaluation process. Eligible entities will be required to 
demonstrate evidence of a need for cleanup funds, ability to manage a 
revolving loan fund, ability to ensure adequate cleanups, and a 
commitment to creative leveraging of EPA funds with public-private 
partnerships and matching funds/in-kind services.
    Another facet of the Brownfields initiative is also scheduled for 
implementation this year. The Brownfields Showcase Communities project 
is an attempt to focus Federal Government attention on selected 
communities across the United States. Those communities selected 
through an application process will receive special technical, 
financial and targeted Federal assistance to address issues of 
contaminated urban and rural properties.
    EPA and 15 other Federal agencies are sponsoring the Brownfields 
Showcase Communities project. Through a multi-agency panel, 
applications will be reviewed and 10 Showcase Communities will be 
selected in 1997. These communities will be models for Federal 
coordination and cooperation.
    Finally, our recent work-together to enact the Brownfields Tax 
Incentive fully demonstrates our shared commitment to responsible 
legislation on these issues. This is a 3-year tax incentive plan that 
will reduce the cost of cleaning up thousands of contaminated, 
abandoned sites in economically distressed areas. It is anticipated 
that this $1.5 billion tax incentive will leverage more than $6 billion 
in private funded cleanups at an estimated 14,000 brownfields.
                superfund legislative reform principles
    The Agency continues to implement 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 based its goals for Superfund legislative reform on the 
status of the current, reformed program.
    Legislative reform must build upon the successes of the current 
Superfund program and the lessons learned through three rounds of 
Administrative Reform. We believe legislative reform must be targeted 
to address critical issues in need of a legislative solution. Our goals 
for legislative reform continue to be to: protect human health and the 
environment; maximize participation by responsible parties in the 
performance of cleanups; ensure effective State, Tribal and community 
involvement in decisionmaking; and promote economic redevelopment or 
other beneficial reuse of sites, all in a manner that increases the 
pace of cleanups, improves program efficiency and decreases litigation 
and transaction costs, and which does not disrupt or delay ongoing 
progress.
Protection of Human Health, Welfare and the Environment
    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, 
and restore groundwater to beneficial uses, wherever practicable.
    In order to facilitate these goals, the Administration supports 
treatment for those wastes that are highly toxic 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. The Administration 
supports modifying the current mandate for permanence to emphasize 
long-term protection and reliability.
    The Agency continues to believe that treatment of highly toxic or 
highly mobile waste offers advantages over containment or other 
measures. As a result, we are currently striving to implement these 
goals today, using treatment where necessary, at. such sites as the 
Bayou Bonfuoca Site in Louisiana. At this site, EPA determined that 
incineration was necessary to treat creosote waste, including 
Benzo(a)pyrene, that had leaked into a bayou. The creosote mixture was 
so potent, that divers received second degree chemical burns from 
contact with the contaminated sediments. The contamination appeared to 
have killed all life in the bayou. Treatment was necessary at this site 
to permanently eliminate the threat from these materials.
    Additionally, legislation should not alter our goal of restoring 
groundwater to beneficial uses, wherever practicable. Over half of this 
nation's population relies on groundwater at 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. As a result, we 
believe that Maximum Contaminant Levels under the Safe Drinking Water 
Act or more stringent applicable State standards should be established 
as the cleanup standards for groundwater whose beneficial use is, or is 
anticipated, to be a drinking water source, unless technically 
impracticable.
    Under the current program, EPA is using ``smart'' groundwater 
remediation to provide appropriate levels of protection at lower cost. 
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. This flexibility 
conserves resources and should be retained in any future legislation.
    Another important principle supported by the Administration 
requires the continued consideration of reasonably anticipated future 
land uses, based on consultation with the affected community, site 
owners, and others, in the process of selecting cleanup options. By 
involving the community in this manner, we can structure cleanups that 
not only protect human health and the environment, but also meet the 
needs of the local community.
    Additionally, the Administration believes that cleanups should 
comply with the applicable substantive requirements of other Federal 
environmental laws and State environmental or facility siting laws 
applicable to clean up activities. It is important to continue to 
protect theme strong State and Federal interests, especially where 
these requirements directly relate to the cleanup activities being 
considered. However, the Administration does support some flexibility 
regarding requirements that have been traditionally referred to as 
``relevant and appropriate.'' As a result, the Administration supports 
removing the statutory requirement to comply with these requirements.
    Finally, there are many components of Superfund cleanup provisions 
proposed by various parties that the Administration would strongly 
oppose. Chiefly among them are provisions that would mandate reopening 
of cleanup decisions; provisions that would fail to discourage 
contamination of currently uncontaminated land, groundwater, or natural 
resources; provisions which would require prescriptive cost or risk 
assessment requirements; and most importantly, provisions which would 
delay cleanups or result in cleanups that are inadequately protective 
of human health, welfare, and environmental and natural resources.
Fairness and Reduced Transaction Costs
    In discussing any proposed legislative changes to the Superfund 
liability scheme, it is imperative to retain the fundamental principle 
that those responsible for the contamination must pay 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.
    Within this bedrock principle, however, the Administration supports 
clearly defined exemptions or limitations on liability which reflect 
EPA's experience with Administrative Reforms. As a result, the 
Administration would support liability reform for certain generators or 
transporters of municipal solid waste, and for parties who sent less 
than 110 gallons or 200 pounds 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.
    EPA has continued its Administrative Reform policy of offering 
compensation for the ``orphan share'' (the contribution for 
responsibility attributable to insolvent and defunct parties) 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 
supports legislation creating a separate mandatory spending account for 
orphan share, consistent with the President's Fiscal Year 1998 budget 
request, so that funds for orphan share do not compete with cleanup 
dollars or reduce the funding available for response actions.
    One of the major benefits of our Administrative Reforms was the 
ability to experiment administratively with provisions of proposed 
Superfund laws through ``pilots.'' Specifically, the consensus bill in 
the 103d Congress provided for an allocation process used to assess 
liability and distribute orphan share funding. While the Administration 
originally supported these provisions, and continues to support a 
process to help resolve issues related to settling liability, EPA's 
experience with several allocation pilot projects has informed our 
position and demonstrated some of the serious drawbacks with a rigid 
and prescriptive process. As a result, the Administration currently 
supports the use of a flexible, non-prescriptive process that makes 
effective use of available orphan share funding to reduce transaction 
costs by promoting settlements and encouraging allocation of costs 
among settling parties.
    We also support statutorily addressing the liability of generators 
and transporters of municipal solid waste. EPA and the Justice 
Department recently issued a new municipal liability policy. 
Preliminary comments are extremely favorable toward the policy, which 
provides the opportunity for expedited final settlements for municipal 
owners, and generators and transporters of municipal solid waste. The 
Administration would support statutory changes which are consistent 
with this new policy. In addition, we believe that we should address 
the issue of bona fide 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 900 additional cleanups 
through 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 exactly alike. In some communities, 
citizens are disinterested in some large-scale NPL cleanups, and in 
other communities, citizens are keenly interested at some smaller scale 
cleanups. As a result, the Administration supports continued efforts to 
enhance community involvement and development and provision of 
information to communities, including the opportunity for formally 
established community advisory groups at Superfund sites.
    Consistent with our experience, we support making Technical 
Assistance Grants (TAGs) available to citizens at non-NPL sites, in 
addition to NPL sites. Additionally, the Administration would like to 
continue to ensure direct input from citizens into the development of 
assumptions regarding reasonably anticipated land uses upon which 
cleanups 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.
    Given the importance of public health information, we also support 
the continued protection of the health of people in communities 
impacted by Superfund sites through efforts of public health 
assessments, health effects studies, and other public health activities 
prescribed by law. In addition, the Administration also supports 
ensuring that communities have access to information about releases of 
hazardous substances and other toxics.
    Finally, the Administration is strongly opposed to any provisions 
in a new law that would impair meaningful community input and 
involvement, or would disrupt existing citizen advisory groups or use 
inappropriate, prescriptive membership requirements for such groups.
Enhanced State and Tribal Efforts
    In addition to the many changes and accomplishments of 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; they have greatly expanded the number of hazardous waste 
sites cleaned up to protect human health and the environment. We fully 
support better coordination between Federal agencies and the States and 
Tribes.
    As a result, the Administration supports Superfund legislation that 
provides greater opportunities for States and Tribes to address a full 
range of hazardous waste sites for which they have the necessary 
response capacity. EPA will provide the financial and technical support 
needed to further improve existing programs. In order to do this, we 
support the use of flexible ``partnership agreements'' between EPA and 
States and Tribes, based upon demonstrated resources and capabilities, 
to enable all parties to work together to determine which sites should 
proceed under what authorities, and under whose lead, so that 
governmental resources are complementary, not duplicative.
    Over the last 4 years, States, Tribes, and EPA have been 
implementing this process at many sites, and the results are 
encouraging. 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 on the CERCLIS 
inventory. However, the more interesting story here is the tremendous 
variety of arrangements EPA and States and Tribes have worked out to 
address waste sites.
    Because of the widely divergent status of Superfund programs at the 
State level, flexibility, as opposed to a ``one-size-fits-all'' 
approach, is crucial. We have seen the success of partnership 
agreements with such States as Minnesota and Washington, which have 
entered into Superfund program partnerships with EPA's Regional 
offices. As stated previously, these partnerships build upon a 
foundation of demonstrated State readiness, and provide clear State 
decisionmaking authority with, support, but minimal redundancy, from 
the Regions. Similar successes have been achieved in agreements with 
Federal Facilities, such as the agreement between EPA, the Department 
of Energy, and the State of Colorado at the Rocky Flats Superfund site.
    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 how we are 
succeeding today in our efforts to organize our collective resources to 
achieve more protective cleanups. Within this context, we must 
recognize that the 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, for example, 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.
    Within the context of the flexible partnership, there are, however, 
several State-related concepts that the Administration strongly 
opposes, including: limitations on the Federal ability to provide 
response or to enforce a response; preemption of State and Tribal 
cleanup standards; State and Tribal waivers of Federal authority; a 
transfer of responsibilities to States or Tribes in a manner that would 
disrupt or delay cleanups or that would result in less protective 
cleanups; or default approvals of State or Tribal programs.
    Finally, the Administration strongly opposes limitations on EPA's 
authority to list sites on the National Priorities List, including a 
cap on further listings on the NPL or premature or ``default'' deletion 
of sites from the NPL.
Economic Redevelopment
    The Brownfields Economic Redevelopment Initiative has continued to 
achieve much success. The continuing value of the Brownfields 
Initiative is its evolution and promise for the future. To build upon 
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 represents the Administration's 
position regarding issues facing the current Superfund program. These 
Principles highlight some of the major elements we believe should be 
addressed in order to achieve consensus based, responsible Superfund 
legislative reform. Other issues addressed in the Administration's 
Legislative Reform Principles include Natural Resource Damages issues 
and Federal Facility Issues. I hope that we will once again work 
together toward crafting a Superfund bill that embraces these 
principles so that we might give the American people a Superfund law 
that is fully protective and delivers on our commitment to achieve 
Superfund reform in the 105th Congress.
             the superfund cleanup acceleration act of 1997
    The Administration has evaluated the chairman's mark of S. 8, the 
Superfund Cleanup Acceleration Act of 1997, against the same criteria 
which have guided the Administration's Superfund Legislative Reform 
Principles.
    I was pleased to see that since the early introduction of S. 8, 
several changes have been made which fall within our Principles. 
However, the Clinton Administration strongly opposes the chairman's 
mark of S. 8 in its current form. Given the short amount of time we 
have had to review the most recent draft, I have tried to identify the 
most important concerns below.
    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, the chairman's 
mark of S. 8 does not embody the Administration's Superfund Legislative 
Reform Principles, nor does it fully reflect the current status of the 
Superfund program.
Inadequate Protection
    Remedies under the chairman's mark of S. 8 would not assure 
protection of human health and the environment over the long term 
because highly toxic, highly mobile waste would probably not be 
treated, sources of groundwater contamination would not be required to 
be contained and reduced, and levels necessary for protection might be 
waived on the basis of cost.
            No Effective Treatment to Ensure Long-Term Reliability
    While the chairman's mark reflects bipartisan agreements with 
respect to a number of issues, and significant movement on others, the 
bill still lacks, what we believe to be, the provisions necessary to 
ensure that remedies will result in long-term protection of human 
health and the environment. While the chairman's mark contains a new 
preference for treatment, a substantial burden of proof must be met 
before the preference can even be applied: a site-specific analysis 
must demonstrate that the material (1) cannot be reliably contained, 
and (2) is highly toxic, and (3) is highly mobile, and (4) that there 
is a reasonable probability that actual exposure will occur. In 
addition, the bill exempts landfills and mining sites from the 
preference.
    While bills in the 103d Congress contained similar provisions, they 
were exceptions to a requirement to treat hot spots. As reflected in 
the chairman's mark, treatment would probably never even be considered 
for many sites, that present a multitude of problems, some of which are 
amenable to treatment. Finally, the preference is neutralized by a 
conflicting provision, which states that institutional controls and 
engineering controls are to be considered on an equal basis to all 
other remedial actions, regardless of the hazard of the material in 
question.
    As you know, the Administration's legislative reform principles 
support the idea of eliminating the mandate to utilize permanent 
solutions and treatment to the maximum extent practicable, in exchange 
for a new emphasis on long-term reliability, and retention of the 
preference for treatment of highly toxic or highly mobile waste. We 
believe such changes would eliminate the potential for ``treatment for 
treatment's sake,'' but retain an appropriate presumption that 
materials posing the ``principal threats'' at sites due to the 
intrinsic hazards poked by their toxicity or mobility should be 
treated, unless impracticable.
    Treatment of highly toxic or 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. 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.
            Groundwater Not Adequately Protected
    The groundwater provisions of the chairman's mark reflects 
substantial movement from S. 8 as proposed. I am pleased to see that 
restoration of contaminated groundwater to beneficial uses, unless 
technically impracticable, has been embraced, as called for by the 
Administration's principles. I am concerned, however, that two critical 
provisions necessary to ensure protection in the case where complete 
restoration is technically impracticable are notably missing--a 
requirement to contain and reduce sources of pollution that cannot be 
eliminated entirely and may continue to release pollutants to ground or 
surface water, and a requirement to contain the dissolved plume.
    One issue on which there a high degree of consensus is that 
restoration of an aquifer or part of an aquifer cannot occur unless new 
contamination is prevented from entering the groundwater. Given that a 
five-gallon bucket of the commonly used solvent trichloroethylene (TCE) 
can contaminate 800 million gallons of water at levels above drinking 
water standards, leading to enormous cleanup costs, it is imperative to 
control and minimize such sources. That is why the groundwater policies 
the Agency has issued under its Administrative Reform efforts have 
called for early control of both surface and subsurface-sources as 
critical to successful groundwater remediation efforts. Surface sources 
include lagoons or landfills which may be leaching contaminants into 
groundwater. Effective control of such sources is one of the components 
critical to making monitored natural attenuation a viable cleanup 
option for some groundwaters.
    Dense and light non-aqueous phases liquids, (DNAPLs and LNAPLs) are 
good examples of subsurface sources which can pose a greater threat to 
groundwater over time because of the potential for the contaminants to 
migrate and accumulate in less accessible zones. The diverse panel of 
experts the National Research Council drew together to write 
``Alternatives for Groundwater Cleanup'' in 1994 advocated that 
``measures to remove contaminants from zones where the release occurred 
and to contain contaminants that cannot be.removed should be-taken as 
soon as possible after the contamination occurs.'' Requirements for 
such measures have appeared in numerous bills in the past. The absence 
of a minimum requirement in the chairman's mark to control and reduce 
sources in cases where full restoration is technically impracticable, 
and to contain the plume, removes an assurance citizens have come to 
expect and will cause needless debate over what should be codified as a 
best practice.
            Waiver from Protection?
    Of continuing concern are conflicting provisions in the chairman's 
mark which seem to expand the ``technical impracticability'' waiver 
from current law to permit not only applicable requirements of other 
laws to be waived on the basis of cost, among other factors, but also 
cleanup levels established as necessary-to protect human health and the 
environment at a site where applicable requirements are not This 
standards are waived, the President shall select a ``technically 
practicable'' remedial action that ``protects human health'' and most 
closely achieves the protectiveness goals. The conflict in the language 
is confusing. We cannot afford any confusion over the fact that 
protection of human health and the environment is a fundamental mandate 
that must be met in all cases without exception.
    In addition, by prescribing numeric risk goals, the bill would lock 
the Agency into current methods of expressing and measuring risk, which 
are in transition as the science is changing. Under the Agency's new 
cancer guidelines, there will be decreasing reliance on linear models 
which underlie the ``risk range'' Superfund currently uses for managing 
risks, and new units of measures, including ``margin of exposure'' will 
begin to be used. Protectiveness goals are best dealt with 
qualitatively, or left.to the Agency to address in regulations or 
guidance.
    The bill unnecessarily codifies current practice regarding how 
determinations of protectiveness are made, and leaves out the ``point 
of departure'' used to establish ``safe'' levels of carcinogens risks 
within the risk range of 10-6 and 10-4, by not explicitly addressing 
sensitive sub-populations, and by inappropriately linking the hazard 
index to threshold carcinogens, which we only use for noncarcinogens.

                The Chairman's Mark Would Delay Cleanup

    One issue upon which I think we would all agree is that the pace of 
cleanups should not be derailed. We are currently showing tremendous 
progress in addressing the current sites on the NPL, and strongly 
oppose any provisions that could negatively affect that progress.
            Mandated ROD Reviews
    I appreciate that the chairman's mark attempts to capture the 
``spirit'' and features of the Agency's ``Remedy Update'' 
Administrative Reform, than did the extremely onerous remedy review 
provisions in the original S. 8. Under current law, remedy updates have 
yielded impressive results, however I remain concerned that the 
regimented mandate the chairman's mark contains will still result in 
delays and disruptions to the program that are at odds with the 
Administration's commitment to speed the pace of cleanup. The 
artificial deadlines on petition submission and Agency review, the 
mandated role of the remedy review board, and the implied comment 
process all promise to transform the current administrative process 
that is yielding $340 million in cost savings in fiscal year 1996 and 
another $280 million estimated to date for fiscal year 1997 into a 
resource-intensive diversion from cleanup.
    While the remedy review provisions initially appear to provide 
discretion to the Agency in its reviews, this language is illusory. The 
chairman's mark requires the Agency to prioritize petitions, which in 
turn requires an evaluation of each petition against eight factors. As 
a result, the discretion provided in one portion of the provisions is 
effectively negated in another.
    Based on our experience with the Remedy Update Reform and the 
National Remedy Review Board, our preliminary analysis indicates that 
the task of implementing the 180 day petition review and prioritization 
process could consume approximately 70 percent of our workforce of 
remedial project managers and policy experts for over a year, diverting 
attention from moving projects to completion. Keep in mind that remedy 
changes can precipitate changes in consent decrees and interagency 
agreements, which will also take time and divert attention away from 
cleanup--increasing, not reducing, transaction costs. I agree that 
appropriate remedy changes should be made, but I urge retention of the 
flexibility the current administrative process affords the Agency to 
balance ``rework'' of old decisions with forward progress at sites.
            Prescriptive Remedy Review Board
    The Remedy Review Board would certainly have a dramatically 
expanded workload under the chairman's mark. In addition to its role in 
reviewing past decisions, the Board would continue its efforts begun 
under the Administrative Reforms to review proposed remedial action 
decisions. Again, I am pleased with the endorsement of the Remedy 
Review Board reflected in its codification in the chairman's mark, but-
am concerned that some unhelpful prescription has been picked up in the 
translation. Specifically, The chairman's mark requires that fully one-
third of all draft decisions the Board should be reviewed in any given 
year, a dramatic increase in workload from the approximately 10 percent 
of decisions the Board plans to review under its current criteria. The 
chairman's mark also adds a notice and comment process relating to the 
Board's recommendations to the opportunity to comment on the official 
Proposed Plan the public already has under current law, adding 
significant delay.
            Overly Prescriptive Risk Assessments
    The chairman's mark retains some troublesome features of S. 8's 
risk assessment provisions. Most notably, the over broad requirement 
for site-specific chemical data simply makes no sense. Toxicity, the 
primary type of chemical-specific information used in risk assessment, 
does not generally change from site to site. In addition, toxicity 
studies cost hundreds of thousands of dollars, and several years to 
conduct. Peer-reviewed Agency toxicity criteria should be used along 
with site-specific exposure information. Also, the requirement for 
``central. upper-bound and lower bound estimates'' of risk for each 
facility are inappropriate for site-specific risk assessments, but 
rather apply to chemical-specific risk assessments like those found in 
IRIS or to be performed under the Safe Drinking Water Act.
    Site-specific risk assessment in Superfund use Agency toxicity 
criteria along with site-specific measures of exposure. Superfund 
relies on a high-end estimate of exposure (between a central and upper-
bound estimate) that neither minimizes nor exaggerates risks posed by 
contaminants at the site. This estimate, along with consideration of 
sensitive sub-populations, forms the basis.for making cleanup decisions 
that will ensure protection of human health. Finally, the requirement 
for risk assessment to specify ``each uncertainty identified in the 
process . . . and research that would assist in resolving the 
uncertainty'' would lead to paralysis by analysis. Only significant 
uncertainties need to be identified to better inform the risk 
management decision.

           The Chairman's Mark has Broad Liability Exemptions

    While we are encouraged by the limited focus on parties whose 
liability we believe should be addressed, such as generators of 
municipal solid waste, de micromis generators, recyclers, and municipal 
owners of co-disposal landfills, the Administration continues to have 
several major concerns regarding many of the liability provisions of 
the chairman's mark of S. 8.
    The revised legislation continues to exempt or limit the liability 
of parties that are viable and liable and should remain responsible for 
cleanup of their sites. As an example, the chairman's mark 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, the chairman's mark 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.
    The chairman's mark also continues to limit the liability of 
private owners and operators of ``co-disposal'' sites--a position EPA 
has never endorsed. Under the terms of the chairman's mark, 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 
the revised S. 8's orphan share funding provisions. In fact, as the 
chairman's mark 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 the 
chairman's mark, a ``co-disposal'' landfill is one which contains 
``predominantly'' municipal solid waste. The term ``predominantly'' 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 small business exemption found in the chairman's mark 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 these 
contributors. Instead of blanketly exempting these parties, without 
regard to their contribution or company-specific circumstances, we 
support the use of other tools to address the liability of these 
parties, including a litigation moratorium on small businesses with an 
ability-to-pay problem; and exemption for small businesses who are 
generators or transporters of municipal solid waste; and penalties to 
discourage frivolous lawsuits against small businesses.
    Further troubling aspects of the liability exemptions and 
limitations in the chairman's mark include the problem that they apply 
prospectively--effectively eliminating the incentive for sound waste 
management practices. Also, the liability provisions apply only to 
sites on the NPL, ignoring certain parties such as residential 
homeowners and small volume contributors at non-NPL sites that would 
still be liable for their wastes. Finally, the liability provisions do 
not eliminate contribution litigation against the parties most in need 
of such protection, such as the residential homeowners and small volume 
contributors described above. This violates the Administration's 
Principles, which seek to reduce litigation and transaction costs.
    In addition, the liability exemptions and limitations in the 
chairman's mark, 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, the chairman's mark 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.
    The chairman's mark 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
    The chairman's mark 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 would be impossible at 
most sites, because the bill's language requires court action at the 
time of the activity.
            The Allocation Process is Too Broad and Prescriptive
    Though the chairman's mark simplified the allocations procedures 
and made clear that EPA can require a potentially responsible party to 
perform work at a site, the Administration continues to have a number 
of concerns with the 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.
    The chairman's mark requires formal and prescriptive allocations at 
all multi-party sites on the NPL where post-enactment costs are 
outstanding (over 1,200 sites), even where the parties are exempt from 
liability under the revised S. 8. In addition, under the chairman's 
mark, 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 protecting small volume 
contributors or parties with an inability to pay, and thus from 
protecting them from the transaction costs associated with an 
allocation. Finally, the revised 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 who 
is responsible for 5 percent of the costs 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, we believe that legislation should reduce 
transaction costs by promoting settlements and encouraging contribution 
allocation of costs among settling parties through a flexible, 
nonprescriptive process that makes effective use of available ``orphan 
share'' funding.
            Other Liability Concerns
    The chairman's mark of S. 8 precludes Federal or administrative 
enforcement action at any facility that is subject to a State remedial 
action plan. The revised 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 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.
    Finally, we remain concerned with the very broad exemptions, and 
few limitations, placed on the liability of cleanup contractors.

      The Chairman's Mark Provides General Support for Communities

    The Administration supports many of the changes made to the 
Community Participation Title of the chairman's mark of S. 8, which 
generally improves public participation in the Superfund decisionmaking 
process. However, the Administration is concerned with several 
omissions from the Title.
            Lack of Public Health Support
    The chairman's mark of S. 8 fails to provide adequate support for 
public health concerns. The Administration supports the continued 
protection of human health of communities effected by Superfund sites 
through efforts of public health assessments, health effects studies, 
and other public health activities prescribed by law. Prior legislative 
proposals have provided transparency to the public regarding many of 
the Agency for Toxic Substances and Diseases Registry's (ATSDR's) 
responsibilities at Superfund sites.

 The Chairman's Mark Provides Incomplete Support for States and Tribes

    One area in which we seem to agree is our desire to provide greater 
involvement for States and Tribes in the Superfund program. While we 
support enhanced flexibility in accomplishing this goal, the previsions 
in the chairman's mark fail to ensure that authorities are transferred 
in a responsible manner. We do, however support the new provisions 
which allow States to request removal of sites from the NPL, with an 
appropriate role for EPA in responding to such a request.
            Problematic State Delegation and Authorization Processes
    The chairman's mark of S. 8 provides a confusing array of 
opportunities for States to implement the Superfund program, including 
authorization, expedited authorization, delegation, and limited 
delegation. The chairman's mark may also make all of these 
opportunities unnecessary, because of provisions in the voluntary 
cleanup portion of the bill that seem to circumvent most requirements 
at Superfund sites, as discussed below. We believe that any transfer of 
responsibility should be accomplished in a responsible manner, taking 
into account individual State program characteristics, and should 
provide appropriate reviewable criteria as part of the transfer 
process. While the Administrator may review appropriate criteria as a 
part of the authorization process, we are extremely troubled by the 
criteria relating to expedited authorization.
    Instead of relying on criteria which relate to the capability of a 
State to undertake Superfund cleanups, the limited criteria for 
expedited cleanups provide for self-certification and relate primarily 
to cosmetic aspects of State programs, such as whether the total number 
of employees in the State program exceeds 100, whether the length of 
time the State program has been in effect exceeds 10 years, or whether 
the number of response actions taken by the State program exceeds 200.
    While these criteria may provide some insight into the State 
program, they do not justify the conclusive presumption of capability 
in the chairman's mark. For example, these facts provide no information 
about the capabilities of the State to conduct large scale Superfund 
site cleanups, the types of cleanups that have been performed, or even 
whether those cleanups were successful and to what degree. Given the 
ease of meeting the criteria required to receive expedited 
authorization, it is unlikely that a State would ever pursue more 
meaningful delegation or full authorization agreements with EPA.
    We continue to believe, consistent with our Principles, that the 
best manner in which to transfer responsibility to the States is 
through a process which identifies a workable division of labor between 
States and EPA. Through this process, we can ensure protective cleanups 
for all Americans by allowing State and Federal programs to utilize 
their strengths where needed, without resorting to a hasty transfer of 
responsibilities or a cookie-cutter, one-size-fits-all approach.
            Transfer of Responsibility is Approved by Default and 
                    Limits Citizen Access
    Additionally, we remain concerned with the default approval process 
set out in the chairman's mark. With regard to delegations, the 
chairman's mark provides automatic approval of a State application if 
the Administrator does not approve or disapprove the application in a 
specified timeframe. Similar short timeframes also apply to 
applications for expedited authorization, resulting in permanent 
approvals without regard to ability, and with little accountability 
after the decision or lack of a decision. As a result, the 
Administrator, and any other person, lose all opportunity to challenge 
the certification in a judicial or administrative proceeding.
    Even with the limited exceptions or extensions, 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.
    Finally, the chairman's mark provides for no public notice or 
comment on a proposed approval or disapproval of a State application to 
take over the program. In the case of the chairman's mark, 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. 
The public is also barred from taking civil action against any person 
for any matter that has been transferred.
            Limiting Ability to Respond to Emergency Removals
    The chairman's mark requires EPA to give a State 48 hours notice 
before EPA can take action to perform emergency removal actions at non-
Federal listed facilities, unless EPA determines that a public health 
or environmental emergency exists, or EPA determines that the State has 
failed to act within a reasonable period of time. Without regard to the 
vague terminology of the exceptions, even in situations that arguably 
might not meet the definitions of public health or environmental 
emergencies, 48 hours in the life of an emergency removal action can 
sometimes be an eternity. Within that timeframe, contamination can 
easily spread, causing increased cleanup costs and durations. Though 
the provisions allow EPA to act in circumstances where EPA determines 
that the State has unreasonably delayed its response, any such delay 
can result in disrupted cleanups. These provisions, in concert with 
unrealistic delegation timeframes, could severely limit the emergency 
response system which has been so successful in responding to chemical 
spills, fires, and other emergencies.
            Other State Issues
    Besides the issues listed above, there are other potential problems 
with the provisions of the chairman's mark. For example, the new State 
cost share requirements appear to add significant costs to the Trust 
Fund by Limiting a State's responsibility for operation and maintenance 
costs to, at most, 10 percent. Finally, the chairman's mark provides 
overly generous incentives for State-managed cost recoveries, which may 
not adequately recognize the need to utilize recovered moneys to 
replenish the Superfund Trust Fund.

 The Chairman's Mark 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 the inclusion of 
Brownfields provisions, as well as voluntary cleanup program 
provisions, within the chairman's mark. However, in reviewing the 
revisions to these provisions, concerns remain.
            Brownfields Grants are Limited
    Although the chairman's mark would establish grant programs for 
both brownfields site characterization and assessment and to capitalize 
revolving loan funds for brownfields site response actions, the funding 
authorization levels do not reflect the President's Fiscal Year 1998 
budget request. As such, these new grant programs will be substantially 
under funded and fail to provide the opportunity for many communities 
to benefit from brownfields assessment and cleanup. Among the other 
elements of the draft which work against communities, is the limitation 
on funding per year. This provision will restrict and inhibit grant 
recipients from efficiently managing and benefiting from the grant 
itself.
    The revised bill also retains onerous criteria for grant approval 
and grant application ranking that will prove difficult, in not 
impossible, to implement. These requirements will also work to the 
detriment of communities. In many cases, the information requested as 
part of the application process may not be available until after the 
brownfields processes of site investigation and assessment are 
completed? Similarly, ranking criteria requests call for information 
that simply cannot be forecast until cleanup at a brownfield site is 
completed. In addition, the bill excludes States from the list of 
eligible recipients for brownfields characterization grants. EPA's 
experience with the Brownfields Pilot Program has taught us that in the 
case of smaller communities, it may make more sense and be more 
efficient to provide the grants directly to States.
            Voluntary Cleanup Program Concerns
    The Administration is opposed to provisions in the chairman's mark 
regarding voluntary cleanup. Title I of the bill clearly undermines the 
need for States to pursue program authorization or delegation under 
Title II. The voluntary cleanup program is not designed to be, nor 
should it become; the primary vehicle for hazardous waste site cleanup 
in the United States. Under the Title I provisions, the elements of a 
qualifying State voluntary response program are only required if 
assistance is being sought. The bill should make clear that the Agency 
determines the adequacy of a State voluntary cleanup program.
    A State voluntary cleanup program, as envisioned by the Agency, is 
one that serves as an alternative to conventional CERCLA or State 
Superfund-like enforcement approaches for cleaning up those sites which 
generally pose lower risk. It should not include higher risk sites of 
the type that historically have been listed on the NPL. The chairman's 
mark explicitly includes such sites as eligible for cleanup under 
voluntary programs and provides those and other sites a shield against 
Federal enforcement and many other current statutory requirements.
    Title I allows States to use ``remedial action plans'' as a shield 
against Federal and citizen enforcement. There is no link between a 
``remedial action plan'' and a ``qualifying'' State voluntary cleanup 
program.
    It should be clear that progress toward the development and 
enhancement of State voluntary programs is a condition of funding under 
this program. Without such a requirement, the 5-year authorization for 
voluntary programs, which under the revised S. 8, allows States to 
receive over one million dollars during this period, may be treated as 
an entitlement program by States.
    The Administration remains opposed to the provisions in the 
chairman's mark that would severely limit EPA authority to exercise 
enforcement where there is a release of hazardous substances, whenever 
a State remedial action plan has been prepared, whether under a 
voluntary response program, or any other State program. Under the 
chairman's mark, the mere existence of such a cleanup plan eliminates 
any Federal enforcement authority--even where there may be an-imminent 
and substantial endangerment to human health and the environment. This 
compromise of public protection is alarming. Moreover, the new 
notification requirements with 48-hour time limitations seriously 
compromise EPA's ability to protect public health, welfare and the 
environment. These notification requirements will require the Agency to 
focus time and resources on administrative determinations, rather than 
on protecting public health and the environment in emergency 
situations. While EPA is burdened with these administrative 
requirements, the public may be unnecessarily exposed to substantial 
threats.
    Finally, the level of community involvement provided by the 
chairman's mark is inadequate. The revised bill limits site specific 
community involvement to an ``adequate opportunity.'' Unlike the 
current practices of EPA, DOD, DOE, and some States, this does not 
guarantee participation in all levels of the cleanup process, nor does 
it guarantee participation in determinations regarding end uses of the 
property. Coupled with the preclusion of citizen suits at all sites 
subject to a State remedial action plan, this limitation could result 
in shutting out citizens from decisions that affect their health and 
environment.
Other Concerns
    The problems discussed above are not a complete list of problems in 
the chairman's mark of S. 8. The revised bill significantly restricts 
restoration of natural resources injured as a result of hazardous waste 
contamination. Further, the revised 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.
                               conclusion
    In light of the aforementioned concerns, the Clinton Administration 
strongly opposes the chairman's mark of S. 8 in its current form.
    However, we look forward to returning to a bipartisan process of 
legislative negotiations in which to resolve the Administration's 
concerns as quickly as possible so that responsible Superfund reform 
legislation can be enacted in the 105th Congress.
    Mr. Chairman, thank you for this opportunity to address the 
committee. Now will be happy to answer any questions you or the other 
members may have.

[GRAPHIC] [TIFF OMITTED] T6587.014

       Responses of Carol Browner to Questions from Senator Boxer
    Question 1. I am concerned about the lack of an explicit 
requirement that cleanup standards be protective of children, the 
elderly, and other vulnerable subpopulations. What are your views on 
this and how do you think the bill's lowering of remediation standards 
will affect the protections given our children?
    Response. EPA believes that sensitive subpopulations need to be 
explicitly protected in the statute. This protection will address those 
individuals who are particularly sensitive to the toxic effects of 
certain chemicals, or experience much higher exposures than the general 
population, such as children. Sensitive subpopulations are not limited, 
however, to children. Other examples of sensitive subpopulations could 
include subsistence fishermen, exposed to large amounts of contaminated 
fish, such as Vietnamese fishermen at the Lavaca Bay Superfund site in 
Texas; or individuals exposed to multiple sources of contamination. 
Because the chairman's mark of S. 8 does not specifically address 
sensitive subpopulations, it does not ensure the more stringent 
protective measures needed for these at-risk individuals.

    Question 2. I am concerned that the ``hot spot'' language in this 
bill favoring the containment of hazardous contamination over the 
treatment and cleanup of contamination will jeopardize treatment 
efforts at sites in California. Do you agree?
    Response. EPA believes that the chairman's mark of S. 8 will 
jeopardize treatment efforts at all Superfund sites, including those in 
California. EPA supports a statutory preference for treatment at all 
sites where the waste is highly toxic or highly mobile. Treatment of 
highly toxic or highly mobile waste offers advantages over containment 
or other measures; it helps ensure that any materials managed on-site 
over the long-term would not pose a serious threat to human health and 
the environment. And obviously, the more contaminated material that 
remains on-site and the higher the potential risks it poses, the less 
likely that productive reuse of that property, or significant portions 
of that property, will occur.
    As a result, we are currently striving to implement these goals 
today, using treatment where necessary, at such sites as the Bayou 
Bonfuooca Site in Louisiana. At this site, EPA determined that 
incineration was necessary to treat creosote waste, including 
Benzo(a)pyrene, that had leaked into a bayou. The creosote mixture was 
so potent, that divers received second degree chemical burns from 
contact with the contaminated sediments. The contamination appeared to 
have killed all life in the bayou. Treatment was necessary at this site 
to permanently eliminate the threat from these materials.
    While the chairman's mark of S. 8 does include a limited preference 
for treatment, it is so restrictive as to provide virtually no 
preference. Specifically, a substantial burden of proof must be met 
before the preference can even be applied: a site-specific analysis 
must demonstrate that the material (1) cannot be reliably contained, 
and, (2) is highly toxic, and (3) is highly mobile, and, (4) that there 
is a reasonable probability that actual exposure will occur. In 
addition, the bill exempts landfills and mining sites from the 
preference.
    While bills in the 103d Congress contained similar provisions, they 
were exceptions to a requirement to treat hot spots. As reflected in 
the chairman's mark, treatment would probably never even be considered 
for many sites that present a multitude of problems, some of which are 
amenable to treatment. Finally, the preference is neutralized by a 
conflicting provision, which states that institutional controls and 
engineering controls are to be considered on an equal basis to all 
other remedial actions, regardless of the hazard of the material in 
question.
    The Administration's legislative reform principles support the idea 
of eliminating the mandate to utilize permanent solutions and treatment 
to the maximum extent practicable, in exchange for a new emphasis on 
long-term reliability, and retention of the preference for treatment of 
highly toxic or highly mobile waste. We believe such changes would 
eliminate the potential for ``treatment for treatment's sake,'' but 
retain an appropriate presumption that materials posing the ``principal 
threats'' at sites due to the intrinsic hazards posed by their toxicity 
or mobility should be treated, unless impracticable.

    Question 3. I am concerned about the groundwater cleanup provisions 
in this bill because they do not include an affirmative requirement 
that we treat the source of the groundwater contamination. Could you 
please express your specific concerns and explain why this requirement 
is important?
    Response. EPA shares your concerns about the lack of an affirmative 
requirement to contain and reduce sources of pollution that cannot be 
eliminated entirely and may continue to release pollutants to ground or 
surface water. We also believe that the statute should contain a 
further requirement to contain the dissolved plume.
    One issue on which there is a high degree of consensus is that 
restoration of an aquifer or part of an aquifer cannot occur unless new 
contamination is prevented from entering the groundwater. Given that a 
five-gallon bucket of the commonly used solvent trichloroethylene (TCE) 
can contaminate 800 million gallons of water at levels above drinking 
water standards, leading to enormous cleanup costs, it is imperative to 
control and minimize such sources. That is why the groundwater policies 
the Agency has issued under its Administrative Reform efforts have 
called for early control of both surface and subsurface sources as 
critical to successful groundwater remediation efforts. Surface sources 
include lagoons or landfills which may be leaching contaminants into 
groundwater. Effective control of such sources is one of the components 
critical to making monitored natural attenuation a viable cleanup 
option for some groundwaters.
    Dense and light non-aqueous phases liquids, (DNAPLs and LNAPLs) are 
good examples of subsurface sources which can pose a greater threat to 
groundwater over time because of the potential for the contaminants to 
migrate and accumulate in less accessible zones. The diverse panel of 
experts the National Research Council drew together to write 
``Alternatives for Groundwater Cleanup'' in 1994 advocated that 
``measures to remove contaminants from zones where the release occurred 
and to contain contaminants that cannot be removed should be taken as 
soon as possible after the contamination occurs.'' Requirements for 
such measures have appeared in numerous bills in the past. The absence 
of a minimum requirement in the chairman's mark of S. 8 to control and 
reduce sources in cases where full restoration is technically 
impracticable, and to contain the plume, removes an assurance citizens 
have come to expect and will cause needless debate over what should be 
codified as a best practice.

    Question 4. I am concerned about the lack of flexibility in the 
bill regarding the delegation and authorization of States. EPA is not 
given the option of partial de-delegation or de-authorization. What are 
your thoughts on this?
    Response. Many aspects of the State role as established in Titles I 
and II in the chairman's mark of S. 8 are of concern to me. The 
legislation requires EPA to approve or disapprove a State's application 
without the ability to set conditions related to that approval. If, at 
any time, EPA finds that a State does not meet certain criteria, the 
Agency may withdraw the program after meeting certain mandatory 
requirements, including, providing written notice, a 90-day period for 
the State to correct deficiencies and public notice and comment. This 
process, which we believe would minimally take 6 months, provides the 
only way for EPA to take independent action, except to address an 
emergency situation.
    To repeat, except to address emergencies or to take enforcement 
action after making a finding that the State is unwilling or unable to 
act and obtaining a declaratory judgment, the Agency must formally 
withdraw a State's authority before taking action. These provisions 
establish a very confrontational procedure for dealing with 
disagreements. They also establish an ``all or nothing at all'' 
atmosphere that may work contrary to the interests of efficient site 
cleanups.
    EPA believes that the State role in Superfund should be enhanced, 
and that this should occur in a manner that meets each State's interest 
and capabilities. A partnership agreement should clearly define who is 
in the lead at which sites and what statutory authorities will be used. 
Periodic program reviews should be conducted so that the partnership 
agreement can be adjusted quickly based on any changed budgets, 
statutes, expertise and site problems that need to be addressed.
    The provisions of the chairman's mark of S. 8 would allow States, 
even those without EPA approved programs to use the existence of 
``remedial action plans'' as a shield against Federal enforcement. 
Title I (Brownfields Revitalization) preempts CERCLA government 
judicial and administrative enforcement actions, as well as private 
cost recovery actions at sites (including NPL sites) subject to ``State 
plans'' or ``State remedial action plans.'' Moreover, the revised S. 8 
does not define ``remedial action plans.'' In addition, it precludes 
EPA from taking enforcement action unless specified circumstances are 
met. In Title II (State Role) specifically, a State must request EPA 
assistance, or EPA must make ``a determination that the State is 
unwilling or unable to take action at a facility at which there is an 
imminent threat of actual exposure'' and EPA ``obtains a declaratory 
judgment in U.S. district court that the State has failed to make 
reasonable . . . progress at the facility.''
    In addition, citizen suit actions are precluded at sites subject to 
State remedial action plan (Title I) or for which there has been a 
transfer of responsibility to the State (Title II). For releases at 
facilities not subject to a State plan, EPA must provide notice to the 
State 48 hours after issuing 106 orders. If the State fails to concur, 
the order will automatically cease to have force 90 days after 
issuance.
    These provisions remove the safety net that the Federal Government 
provides at these toxic waste sites, and when coupled with other 
authorization/delegation provisions, unnecessarily establishes 
confrontation that could jeopardize human health and the environment 
and progress in cleaning up uncontrolled hazardous waste sites.

    Question 5. I am concerned that the elimination of relevant and 
appropriate requirements or ``RARs'' could seriously hamper a State's 
ability to clean up contaminated aquifers. More specifically, in 
California, we have a quickly developing issue in perchlorate 
contamination of groundwater aquifers. No national standard exists for 
perchlorate, nor is there enough information to confidently determine 
risk. Without the current use of RAR's it is possible this 
contamination would go unaddressed. What effect would elimination of 
RAR's have upon the EPA and States ability to protect public health?
    Response. Under current law, EPA can establish protective cleanup 
levels where there are no standards (i.e., applicable or relevant and 
appropriate requirements) for a chemical, where the Agency determines 
that levels more stringent than available ARARs are necessary to 
protect human health and the environment. We envision this authority to 
continue under a revised statute.
    Practically speaking, elimination of relevant and appropriate 
requirements will put more emphasis on scientific, risk based 
approaches to support taking action at Superfund sites. However, there 
are mechanisms that can assist us in this approach. EPA has the ability 
to develop interim reference doses (i.e., evaluation of toxicity) for 
specific chemicals that may pose a problem at a site. These interim 
reference doses can then be used to provide a risk basis for taking an 
action. It is not necessary for EPA or the State to develop a RAR on 
which to base an action needed to protect human health and the 
environment.
    The perchlorate situation in California is an example of this. EPA 
initially developed a provisional reference dose in 1992. In 1995 EPA 
revised the reference dose based on new information. The State of 
California took EPA's toxicity assessment, among other pieces of 
information, and developed an interim action level for perchlorate in 
drinking water. This action level is not a cleanup level, per se, for 
Superfund, although it does give further regulatory support for cleanup 
based on the toxicity information and site-specific exposure 
information. However, the determination to clean up a site and to what 
level can be supported by the need to protect human health and the 
environment, independent of relevant and appropriate requirements.
                                 ______
                                 
     Responses of Carol Browner to Questions from Senator Moynihan
    Question 1. Many people believe that the agency is using 
unreasonable assumptions in its risk assessments at Superfund sites. 
What have you done to ensure that the very best science is brought to 
bear in Superfund risk assessments? What is the role of peer review in 
the risk assessment process for Superfund?
    Response. Superfund has been criticized for ``compounding 
conservative assumptions'' in its risk assessments, when in fact, the 
assessments are based on average exposure concentrations and a mix of 
average and more conservative exposure values that target the ``high-
end'' of the exposure distribution. Superfund risk assessments focus on 
``high-end'' exposure estimates to ensure that the majority of the 
population on or near a site will be represented. Many critics would 
prefer that the Agency use ``best'' or ``central tendency'' estimates 
that address exposures to only half of the population, however, the 
Agency believes we should protect ``most'' individuals, and not just 
those with ``average'' exposures or less.
    In addition, the Agency seeks to protect ``sensitive 
subpopulations.'' The term ``sensitive subpopulation'' refers to a 
segment of the general population that is at greater risk, because the 
individuals are either particularly sensitive to the toxic effects of 
certain chemicals, or they experience higher exposures than the general 
population. Lead is an example where the Superfund program uses the 
Integrated Exposure Uptake Biokinetic Model (IEUBK model) to address 
both increased sensitivity and increased exposure among children.
    EPA supports the development of realistic risk assessments that 
address the exposure and risk to all segments of the community, not 
just the ``average'' individual. The focus should be on collecting the 
right site-specific data to tailor the risk assessment appropriately. 
After all, the true test of whether an assessment is ``realistic'' or 
not is the extent to which it addresses site-specific conditions and 
the concerns of the surrounding community. To that end, local 
communities are playing an ever increasing role in determining the 
future land use at sites, and shaping the exposure scenarios that are 
addressed in site-specific risk assessments.
    The Agency is also interested in using the best science available 
in developing the toxicity information used in our Superfund risk 
assessments. For this reason, EPA maintains the Integrated Risk 
Information System (IRIS), which provides the Agency's most current 
toxicity evaluations for hundreds of chemicals. To ensure IRIS remains 
of high quality, EPA is engaging in a systemic reevaluation of 
chemicals in the system. This reevaluation includes a widespread 
request for new data and internal and external peer review.
    Peer review is an important tool used in scientific disciplines to 
ensure that the best, most current thinking and information is used. 
However, it is not necessary, efficient, or appropriate to conduct peer 
review on every risk assessment at every Superfund site. A more 
efficient and appropriate use of peer review would be to review the 
guidance and practices of risk assessment for Superfund. It is for this 
reason that the current Superfund risk assessment guidance was 
submitted to the Science Advisory Board for review before it became 
final. The Soil Screening Guidance, developed for Superfund program 
use, was submitted to peer review as well as to the Scientific Advisory 
Board. These reviews resulted in useful changes to the guidance. EPA is 
also engaging a wide variety of stakeholders in the revision of the 
risk assessment guidances for Superfund. EPA has also made its revised 
cancer guidelines available for public comment, which gives scientific 
peers the opportunity to comment. All of these activities serve to 
ensure that the best science available will be used for Superfund risk 
assessments.

    Question 2. What changes, if any, are needed to improve the 
existing natural resource damage provisions?
    Response. The Administration strongly supports the NRD program 
administered by Federal, State, and Tribal trustees under CERCLA. Our 
experience with the program indicates that the public and its resources 
would benefit from a shift to a restoration-based approach which 
focuses the NRD program on restoration planning rather than litigation 
over monetized damage claims. To that end, the Administration believes 
there are two provisions that are essential to any responsible NRD 
legislation:
    (1) Clarification of the statute of limitations for bringing an NRD 
claim. As the Administration has stated in its proposal, the existing 
statute of limitations for non-NPL facilities should be changed to 3 
years from the date of completion of an assessment in accordance with 
the damage assessment regulation or the completion of a restoration 
plan adopted after adequate public notice. The existing statute of 
limitations for non-NPL facilities is 3 years after the later of the 
date of the discovery of the loss and its connection with the release, 
or the date on which the natural resource damage assessment regulations 
are promulgated. This provision has engendered a great deal of 
confusion and litigation. In some cases, trustees have felt compelled 
to file premature claims, before the scope of the needed restoration is 
even known, in order to guard against the most extreme and unfavorable 
interpretation of the current limitations period. When claims are filed 
prematurely, the NRD decision becomes focused on monetized damage 
claims, which is inconsistent with a restoration-based approach.
    (2) An express provision for review of trustee restoration 
decisions on the basis of an administrative record. The Administration 
supports an open assessment process in which scientific and resources 
management decisions are made on the basis of the best information from 
all interested parties, including PRPs and the general public. Record 
review discourages tactical withholding of information by PRPs and 
dilatory litigation, and promotes the public's right to know. It should 
be made explicit that judicial review of assessments will be limited to 
the administrative record and that court's will uphold trustees 
selection of a restoration action unless it is arbitrary or capricious.

    Question 3. In your view, how would the chairman's mark affect 
ongoing natural resource damage restoration efforts, such as the Hudson 
River?
    Response. The chairman's mark would weaken the NRD program and make 
it difficult or impossible to protect and restore natural resources 
like the Hudson River. It would restrict damages for losses that occur 
from the time a hazardous substance release causes injury until the 
resource is restored. It would also eliminate consideration of nonuse 
values when determining restoration projects that compensate the public 
for the loss of natural resources. Failure to consider the total value 
of natural resources, not just their human use value, could result in 
the selection of restoration projects that significantly 
undercompensate the public, thus creating a perverse incentive for PRPs 
to take fewer precautions to prevent future spills in pristine areas, 
where direct human use is low, than in already degraded areas, where 
direct human use is higher. Finally, the chairman's mark would insure 
endless litigation over the scientific and resources management 
decisions of trustees.
                                 ______
                                 
      Responses of Carol Browner to Questions from Senator Graham
    Question 1. A major concern about the Superfund program is the 
unfairness of imposing liability on municipalities, small businesses, 
individuals and companies for lawful waste disposal activity which 
occurred prior to the enactment of Superfund in November 1980. A 
related problem is requiring those entities which are viable today to 
pay for the large orphan share arising from PRPs which disposed of 
waste decades ago but are no longer in business or cannot be located. 
In light of these inequities, my general question is: Wouldn't we make 
Superfund fairer if we substantially reduced PRP liability for lawful 
disposal activities occurring prior to 1981, particularly if there is 
an acceptable funding mechanism to pay for this reform?
    Response. One of the core principles I believe we must adhere to in 
Superfund reform is that the parties who contributed to the 
contamination, not the taxpayer, should contribute to the cleanup. The 
proposal you suggest does not adhere to this principle.
    You suggest by your question that fairness would be improved by 
considering the legality of the behavior that resulted in 
contamination. I disagree. Under this construct, parties that undertook 
egregious behavior--that resulted in contamination serious enough to 
require a Superfund cleanup could escape Superfund liability and 
responsibility for cleanup. Proof of illegal or culpable behavior may 
be impossible at most sites. Since Superfund addresses the results of 
acts that frequently took place many decades ago, documentary evidence 
is typically scarce or non-existent. Witnesses are often unavailable or 
have poor recollection of the behavior that lead to the contamination. 
In most cases, it may not be clear what law would apply. Congress 
created Superfund in large part because existing laws were inadequate 
to address abandoned hazardous waste sites. In many cases, Superfund 
sites were created by poor waste management practices that were 
``lawful'' at the time because of the lack of any laws governing 
hazardous waste disposal. Superfund liability is based upon 
responsibility. Parties are held responsible for contributing to the 
creation of hazardous waste sites that pose threats to human health and 
the environment.
    You also suggest that liability for activities occurring prior to 
1981 could be treated differently than that liability associated with 
activities which occurred after that date. Nearly 70 percent of the 
activity that resulted in the contamination at Superfund sites occurred 
prior to 1981. A ``cutoff '' date of 1981, would result in substantial 
unfairness to parties that have accepted cleanup responsibility and 
reached settlement in good faith, by conferring a financial benefit to 
many parties that have avoided their cleanup responsibility through 
litigation.
    I share your concern about the potential impact of a large orphan 
share on settling responsible parties. To address that concern, absent 
reauthorizing legislation with sufficient orphan share funding, EPA has 
instituted an orphan share policy to compensate settling parties. Under 
our policy, in all remedial design/remedial action settlement 
negotiations, we offer to compensate settling parties by forgiving past 
costs and future oversight costs up to 25 percent of the orphan share. 
Although this is the extent to which we believe we can compensate 
parties without additional appropriations, we realize that this 
temporary measure does not go far enough. For this reason, we have 
proposed that legislation provide for a separate, mandatory spending 
account to fund the orphan share, i.e., the liability attributed to 
insolvent and defunct parties, and to fund the difference between the 
share of liability attributed to parties with an inability to pay their 
full share, and the amount these parties actually pay.

    Question 2. To achieve affordable liability reform, has any thought 
been given to a compromise solution where 50 percent of future PRP 
liability for lawful pre-1981 disposal is assigned to an ``orphan 
share'' which is paid for by the Superfund or other credible funding 
mechanism?
    Response. As discussed in question 1, we do not consider a proposal 
that eliminates or reduces liability based exclusively on a date, or 
the legality of disposal, to be fair or responsible. Such an approach 
would potentially result in an abandonment of the principle that the 
parties responsible for the contamination should be responsible for the 
cleanup.

    Question 3. To pay for liability reform, we have discussed a number 
of proposals in the past, including a modest supplemental insurance 
fund. One way of creating a ``win-win'' situation for PRPs and their 
insurers would be for PRPs, in exchange for obtaining a 50-percent 
reduction in pre-1981 liability at particular sites, to give up their 
insurance claims at those sites. Wouldn't this kind of proposal be 
worth exploring as a basis for creating a limited insurance fund to 
help achieve fair Superfund reform?
    Response. In the past, EPA has supported an insurance settlement 
fund to resolve the insurance coverage litigation that arose from the 
disposal of hazardous wastes prior to 1986. This proposal had been 
accepted by segments of the insurance industry. Although the idea has 
not been revisited since the 103d Congress, I would certainly not 
foreclose the discussion of such a fund. However, as I have indicated, 
I have serious concerns regarding the use of any ``cutoff'' date for 
the determination of Superfund liability.
                                 ______
                                 
      Responses of Carol Browner to Questions from Senator Allard
    Question 1. What is the Administration's position on H.R. 1195, 
legislation which would explicitly waive the Federal Government's 
sovereign immunity under CERCLA and ensure that Federal facilities 
comply with State cleanup standards?
    Response. This response is undergoing OMB clearance.

    Question 2. Let me give you a situation in Colorado that highlights 
the need for Federal facility legislation. Several years ago the EPA 
issued an Emergency Removal Order for a 22,000 cubic feet of 
contamination material from a site on the Colorado School of Mines 
Campus where EPA, DoD, DOE, and Bureau of Mines had conducted research.
    Despite the fact that EPA, DoD and DOE contributed to the 
contamination of the material, their involvement was never investigated 
by EPA.
    Don't you think it's inappropriate for EPA to be the judge of 
whether they (the EPA) should be held financially responsible for 
cleanup of areas they contaminated? Isn't that why we should pass 
legislation similar to H.R. 1195?
    Response. EPA is aggressive in ensuring that Federal PRPs fully 
participate in all response actions and settlement discussions. It is 
EPA's policy to issue notice letters and administrative orders where 
appropriate to Federal agencies. (See, e.g., EPA's Interim CERCLA 
Settlement Policy, 50 Fed. Reg. At 5044, February 5, 1985.) This policy 
has been reiterated on several occasions, most recently in EPA's August 
2, 1996 memorandum establishing procedures for the Superfund Reform 
designed to ensure equitable issuance of CERCLA 106 cleanup orders. In 
the case of the Colorado School of Mines Site, EPA sent notice letters 
to the Federal PRPs who may have contributed significantly to site 
conditions and worked with them on an almost daily basis to negotiate 
an administrative order on consent. For a variety of reasons, these 
negotiations failed and EPA issued unilateral administrative orders to 
the other parties. Under the applicable Executive Order signed by 
President Reagan that delegated CERCLA order authority, EPA must go 
through additional procedures when issuing non-consensual orders to 
Federal parties.
    Specifically, the Department of Justice must concur with any EPA 
proposal for the issuance of such orders. (See, e.g., ``Procedures and 
Criteria for Department of Justice Concurrence in EPA Administrative 
Orders to Federal Agencies,'' December 22, 1988.) In the School of 
Mines case, EPA staff spoke with DOJ concerning this procedure and the 
involvement of Federal PRPs at the site. EPA believed that the now-
defunct Bureau of Mines (BOM) was the one non-de minimis Federal PRP 
that should receive a unilateral administrative order. DOJ indicated 
that rather than the issuance of an order, it would ensure that BOM 
would work closely with the private PRPs and fully participate in 
settlement negotiations.
    I believe you have not been given an accurate explanation of EPA's 
involvement in the settlement of this case. In cases where EPA finds no 
documented evidence of liability, EPA eliminates the party in question 
from further consideration as a PRP. Where EPA has evidence that a 
party sent hazardous substances to a site, but the amount could not be 
determined, EPA assigns a standard amount (50 pounds) to that waste 
shipment. In this case, EPA has received no special treatment as a PRP. 
In fact, assuming the School of Mines information did rise to the level 
of documentation considered adequate by EPA, which it frankly does not, 
EPA would be eligible for a de minimis settlement. In an attempt to 
resolve this matter expeditiously, EPA is shouldering a much greater 
proportion of liability than can reasonably be established by the 
available documentary evidence. EPA's settlement offer will benefit all 
PRPs, including the School of Mines and the State. While EPA is not 
privy to the details of the PRP settlement, it stands to reason that 
EPA's agreement to forego $185,000 of its response costs associated 
with site cleanup will reduce the total costs that are to be divided 
among all the PRPs.

    Question 3. In the situation, above the Bureau of Mines admitted 
responsibility for contamination of the 22,000 cubic feet. Yet when the 
emergency removal order went out it only went to 12 private parties, 
the State, and the School of Mines. Can you give any possible reason 
why EPA wouldn't serve another Federal agency?
    Response. EPA engaged in significant fact finding efforts to 
identify Federal and private PRPs at the site. EPA followed our 
standard procedure when investigating PRPs. This procedure required 
that EPA: (1) request all existing documentation relating to the Site 
from the owner/operator of the Site; (2) follow up on the information 
received from the Site by sending information requests to specific 
parties mentioned in that documentation who appear to have some 
liability; and (3) gather outside information relating to the Site or 
specific PRPs where available.
    It is not uncommon, when dealing with activities which occurred 10 
to 15 years prior to the initiation of EPA's cleanup activities, to 
encounter difficulties in locating documentation in support of a case 
against a party. For the School of Mines case, only a small percentage 
of the non-Federal parties contacted by EPA were able to provide 
documentation regarding hazardous substances they sent to the site. 
Like the private PRPs, many of the Federal agencies had difficulty 
identifying any connection to the site. EPA and other Federal agencies 
have record retention requirements and procedures which provide for the 
destruction of certain documents, such as bid and grant proposals, 
after specified periods of time. Congress authorized the promulgation 
of these procedures in 44 U.S.C. Sec. 3303. Other documents which are 
considered permanent are eventually transferred to the Federal Records 
Center and then to the National Archives. Where EPA had specific 
information about projects performed by Federal agencies, the agencies 
were largely successful in locating additional records.

    Question 4. Isn't this an example that illustrates the Federal 
Government doesn't enforce against themselves, isn't it true that no 
matter how responsible another Federal agency is, EPA would not force 
them to comply with laws the private sector should comply with?
    Response. This response is undergoing OMB clearance.

    [GRAPHIC] [TIFF OMITTED] T6587.015
    
    [GRAPHIC] [TIFF OMITTED] T6587.016
    
    [GRAPHIC] [TIFF OMITTED] T6587.017
    
 Prepared Statement of Terry D. Garcia, Acting Assistant Secretary for 
Oceans and Atmosphere, National Oceanic and Atmospheric Administration, 
                         Department of Commerce
    Mr. Chairman and members of the committee, I appreciate the 
opportunity to submit testimony for the record on behalf of the Federal 
natural resource trustees concerning the proposal recently circulated 
by the committee Staff (draft chairman's mark dated August 28, 1997) 
for reforming the natural resource damages (NRD) provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA or Superfund). I am Terry D. Garcia, Acting Assistant Secretary 
for Oceans and Atmosphere in the Department of Commerce, with 
responsibility for the National Oceanic and Atmospheric Administration 
(NOAA). I am presenting this testimony on behalf of the Federal 
agencies that act as trustees for natural resources under CERCLA. Carol 
M. Browner, Administrator of the Environmental Protection Agency (EPA), 
will present testimony on other aspects of the committee's proposal.
                        introduction and summary
    At the outset, I and my Administration colleagues would like to 
express our gratitude to the chairman and to the committee for the 
constituent outreach process and the bipartisan process of negotiation 
that the Majority has undertaken with the Minority and the 
Administration to achieve a Superfund reform bill that has broad 
bipartisan support. We are disappointed that this process has been 
suspended, and we would urge that the committee resume that process at 
the earliest possible date following these proceedings. I am confident 
that the dialog that the committee has established with the Federal 
natural resource trustees will result in broadly supported, responsible 
provisions addressing NRD, and the Administration is committed to 
working with the committee and affected stakeholders to that end.
    The Administration would also like to commend the committee for the 
many improvements in this draft NRD title when compared to S. 8, the 
Superfund bill previously before the committee. The changes reflected 
in the current draft reflect a concerted effort by the committee to 
respond to some of the strong objections that the Administration and 
stakeholders have expressed concerning S. 8. For example, this draft 
includes much-improved provisions concerning consistency between 
natural resource restoration and response. Significant changes to the 
``phased payment'' proposal make this provision compatible with current 
enforcement practice. The provision for a ``lead administrative 
trustee,'' in lieu of a lead decisionmaking trustee, responds to 
concerns raised by Federal, State, and Tribal trustees concerning 
recognition of their respective trust responsibilities. Most notably, 
this draft adopts the well-established ``cost-effective'' criterion in 
place of the vague, ill-considered, and onerous ``cost-reasonable'' 
criterion that S. 8 imposed on restoration decisions, which threatened 
to mire NRD cases in greater monetization of damages, at the expense of 
the Administration's restoration-based approach to NRD.
    We also have been heartened by the committee's continued effort to 
develop two provisions that are essential to any responsible NRD 
legislation: an appropriate clarification of the statute of 
limitations; and express provision for review of trustee restoration 
decisions (as distinct from issues of liability) on the basis of an 
administrative record. However, for reasons stated below, we believe 
that these two aspects of the current proposal remain seriously flawed. 
Indeed, one of the most salutary aspects of S. 8, the critical 
provision stating that judicial review of trustee decisions will be on 
the basis of the administrative record, has, quite inexplicably, been 
deleted. If this deletion was purposeful, it is one of the areas where 
this draft NRD title is moving decidedly in the wrong direction. 
Nonetheless, assuming that this deletion does not import a change in 
policy, we remain hopeful that our differences may center on issues of 
technical detail and implementation rather than on fundamental policy 
disagreements, and that we might readily reach consensus if 
negotiations resume.
    Despite the substantial progress that the proposal reflects, 
however, the Administration would have to oppose this proposal strongly 
if it were to be considered for mark-up in its current form, primarily 
for two reasons. First, this bill continues to include S. 8's most 
odious feature: unwarranted restrictions on the range of values that 
trustees may consider in deciding the appropriate steps to achieve full 
restoration of the losses that communities suffer when natural 
resources are injured, lost, or destroyed by a release of hazardous 
substances. Second, the failure to address clearly the Administration's 
concerns with respect to the statute of limitations and record review 
issues would defeat the Administration's effort to reform its NRD 
programs in a manner that focuses these programs on restoration, 
because it creates new incentives to use litigation as a means of 
delaying or avoiding restoration obligations.
    We would also note that the Administration was given an incredibly 
short space of time to review the draft; therefore, we have not had 
adequate time to consider its full implications. We are also concerned 
that the committee is not soliciting the views of Tribes. The 
Administration continues to advocate the adoption of the NRD 
legislative reform proposal transmitted to the committee on October 7, 
1996. The Administration stands ready to resume discussions to develop 
legislation that builds on the progress reflected in the current 
committee draft and more frilly incorporates the essential features of 
the Administration's proposal.
                         programmatic overview
    At this point, the committee is aware of the important role that 
NOAA and other natural resource trustees serve in restoring natural 
resources that have been injured or lost as a result of a release of 
hazardous substances. For convenience, I would refer the committee to 
my testimony for the record at the committee's previous hearing, which 
focused on S. 8 (testimony dated March 5, 1997, by Terry D. Garcia, on 
behalf of the Department of Commerce, the Department of the Interior, 
The Department of Agriculture, the Department of Energy, and the 
Department of Defense).
    The goal of the NRD program under CERCLA is to ensure that the 
nation's valuable public trust inheritance is passed on for the use and 
benefit of future generations. Under the statute, natural resource 
trustees include not only Federal agencies like NOAA, but also the 
States and Indian Tribes, all of whom act as stewards of natural 
resources on behalf of the public. In fulfilling their trust 
responsibilities to affected communities, the trustees typically seek 
both ``primary restoration'' (to return natural resources to the 
condition that would have existed but for the release of hazardous 
substances), and ``compensatory restoration'' (to restore the natural 
resource services and amenities that communities lose from the time of 
the release until the completion of primary restoration).
    CERCLA's provision for both primary and compensatory restoration 
reflects the significant role that natural resources play in many 
communities affected by releases of hazardous substances. Natural 
resources are essential to the hunting and fishing that sustain the 
economic life of many communities, and the quality of life in many 
others. Consequently, the NRD provisions of CERCLA are important to the 
future of many communities and particular industries. Commercial 
fishermen are depending on NOAA's restoration of sediment in the 
Montrose open-water DDT site off southern California, and fish habitat 
in Panther Creek at the Blackbird mine site in Idaho. Small businesses 
like charter boat operators in Tacoma, Washington, are depending on the 
Department of the Interior, the Department of Commerce, and the State 
of Washington to revitalize the commercial and recreational fishing 
industry in Commencement Bay. To date, only 5 percent of all sites 
listed on the National Priorities List (NPL) have required restoration 
in addition to remediation. However, in some cases, the future of 
entire regions may depend on the effectiveness of CERCLA's NRD 
provisions: Anaconda, Montana, whose State government is pursuing 
natural resource damage claims to restore natural resources in the 
Clark Fork River Basin, anxiously awaits restoration of natural 
resources that are essential to the future of its angling and tourist 
trades, knowing that their economic future hangs in the balance.
    Accordingly, the Administration strongly supports the NRD programs 
administered by Federal, State, and Tribal trustees under CERCLA. The 
Administration has strongly opposed proposals, like those seen in S. 8, 
that would undermine the trustees' efforts to replace or restore 
injured natural resources. Nonetheless, we agree that certain 
legislative reforms may be appropriate to strengthen the program. We 
have been pleased to participate in the committee's process of 
discussing the concerns of a range of stakeholders, and look forward to 
developing a bipartisan proposal on NRD that has broad support. We also 
believe that many of our administrative efforts to reform the NRD 
program can provide an appropriate template and point of reference for 
legislative change.
    For example, our shift to a ``restoration-based'' approach, in 
which the focus of the NRD program is on restoration planning rather 
than litigation over monetized damage claims, is reflected in both the 
Administration's proposal and, to some extent, in the committee's draft 
NRD title. The Administration is currently embarking on a broad effort 
to ensure greater coordination between trustees and response agencies, 
such as the EPA and the Coast Guard, so that response actions and 
natural resource restoration are frilly coordinated. In these and other 
efforts, we are seeking to incorporate the views of the committee as 
well as those of affected constituencies, including States and Tribes, 
environmental and community groups, and industry. We believe that our 
administrative reform efforts have advanced the legislative reform 
dialog, and we look forward to working with the committee as our 
administrative reform efforts continue.
           specific objections to the current draft nrd title
1. Restrictions on Interim Loss Compensation
    The inclusion in the current committee draft of numerous 
restrictions on the values that may be considered by trustees in 
determining the appropriate level of primary and compensatory 
restoration of natural resources plainly violates the Administration's 
principles for legislative reform of CERCLA, which were provided to 
this committee by Administrator Browner on May 7, 1997. As articulated 
in those principles, the Administration strongly opposes ``repeal of 
all or part of the current liability standards'' as well as any 
``limitation on the type of values that may be considered in 
determining the scope or scale of restoration or damages.''
    Under existing law, natural resource trustees are authorized to 
recover frill compensation for the public's interim loss of resource 
services from the date that a natural resource is injured by a 
hazardous substance release until the date the resource has frilly 
recovered. These recoveries compensate the public for real, and often 
significant, losses that are not addressed by restoring injured 
resources to baseline many years after the injury first occurred. A 
community that has lost its opportunity to fish a stream, hike a trail, 
or enjoy a spectacular and pristine vista because of a hazardous 
substance release is not made whole by the promise of primary 
restoration that may only occur years--or even decades--in the future. 
For example, at Lavaca Bay, Texas, a ban on harvesting crab, oyster, 
and finfish has been in place since 1988 due to mercury contamination. 
It is unacceptable to deny the affected community compensation--in the 
form of restoration, replacement, or acquisition of equivalent 
resources--for the loss of nearly a decade of fishery closure. Such 
long periods of interim loss can be devastating to local economies that 
depend on revenues generated by their natural resource base.
    Further, the longer it takes before baseline is restored, the 
greater the interim loss is for the affected community. The absence of 
frill compensation for this loss creates an incentive for potentially 
responsible parties (PRPs) to delay restoration and engage in tactical 
litigation to defer its restoration obligations, because the affected 
community is asked to bear the entire cost of the delay. Providing 
frill compensation for interim loss, by contrast, gives PRPs an 
effective incentive for initiating, implementing, and completing 
restoration measures in a timely manner.
    Restrictions on compensatory restoration also tend to distort the 
decisionmaking process for trustees in selecting primary restoration 
alternatives that satisfy their trust responsibilities. For example, 
there are many cases where the most appropriate primary restoration 
approach is to rely on natural recovery, due to the high cost and 
technical difficulty presented by other alternatives. This is the case 
with respect to the New Bedford harbor restoration, following extensive 
contamination of the harbor by PCBs. Reliance on natural recovery may 
indeed be the preferable alternative in such cases, but only if the 
trustees have authority to take appropriate steps to compensate for 
interim loss. In the absence of such authority, trustees may be 
discouraged from relying on natural recovery, because trustees cannot 
satisfy their trust responsibilities through the adoption of a natural 
recovery option that results in more protracted interim losses that 
cannot be frilly compensated. I would note that affected communities 
are unlikely to accept natural recovery options where provisions for 
interim loss compensation are inadequate.
    There are two provisions in the draft NRD title that could 
eliminate recovery for interim losses altogether. The title limits the 
measure of natural resource damages to ``the cost of restoration, 
replacement, or acquisition of the equivalent of a natural resource 
that suffers injury, destruction, or loss caused by a release'' (p. 
230, lines 9-17). The title also states that ``[t]he goal of any 
restoration shall be to restore an injured, destroyed, or lost natural 
resource to the condition that the natural resource would have been in 
but for the release of a hazardous substance'' (p. 238, lines 21-25). 
These two provisions taken together could be construed as eliminating 
compensatory restoration, because such restoration is not intended to 
return injured resources to their baseline (but-for-the-release) 
condition. Instead, compensatory restoration is designed to provide 
affected communities with the natural resource services and amenities 
they would have enjoyed but for the release.
2. Provision for ``Temporary Replacement''
    The draft title does make allowance for some interim loss 
compensation by authorizing recovery of the costs of ``temporary 
replacement of the services provided by the injured, destroyed, or lost 
natural resource'' (p. 230, lines 17-20, also p. 240, lines 13-17). 
However, if this provision is intended to provide redress for the 
interim losses that members of the public incur when their natural 
resources are despoiled, it is woefully inadequate, for at least three 
reasons.
    First, limiting compensatory restoration to temporary replacement 
of the services lost could be read as restricting trustees to 
addressing only those interim losses that can be offset prospectively. 
Such a reading would unfairly and arbitrarily bar the public due 
compensation for losses that accrued before trustees were able to 
determine whether particular natural resource injuries had in fact been 
caused by a particular release from a specific facility and to select 
appropriate restoration projects.
    Second, the draft title's reference to ``replacement of the lost 
services'' could eliminate needed flexibility to undertake compensatory 
restoration that provides services different than those lost. In some 
cases, trustees cannot replace the same services as those lost (e.g., a 
unique park has been closed). In others, it would not make sense for 
the trustees to do so (e.g., a fishing stream is closed, but enhancing 
access on a substitute stream would threaten populations in the other 
stream). In such cases, trustees should retain the ability to consider 
projects that enhance the level of resource services available to the 
public but do not replace the same services as those lost.
    Third, the draft title's reference to ``temporary'' replacement may 
prohibit trustees from considering worthwhile projects that are 
appropriately scaled and discounted to provide the same total quantity 
of services as those lost in the interim, yet result in a permanent 
improvement in resource services. For example, if 50 acres of wetland 
are lost for 10 years, trustees should not be restricted to the 
unrealistic option of acquiring or constructing 50 replacement acres 
for only 10 years. Instead trustees should have the flexibility to 
consider permanent acquisition of additional wetlands of less than 50 
acres that provide services comparable to those that the 50 acres would 
have provided during that 10-year period.
    Reliable and valid methods exist for determining the appropriate 
scale of such projects, and trustees should be allowed to continue 
using them.
3. Ban on Consideration of Nonuse Values
    The draft title states that ``[t]here shall be no recovery under 
this Act for any impairment of nonuse values'' (p. 231, lines 1-3). 
This ban on compensation for nonuse losses is an unacceptable 
limitation on the type of values that may be considered in determining 
the scale of restoration. This provision could prevent adequate 
compensation for injuries to the unique or pristine natural resources 
we treasure the most.
    There is no debate over whether people derive value from natural 
resources beyond their utility for immediate and direct human use. This 
fact is demonstrated whenever individuals make charitable donations or 
support government regulation and spending for the protection of 
species and places they themselves do not see or visit. Some natural 
resources, such as Katmai Wilderness Area in Alaska, are valued by the 
public specifically because they have escaped human use. Other 
resources are heavily used but that use represents only a fraction of 
the benefits the public derives from them. Units of the National Park 
System, such as Yellowstone National Park, and State parks, such as 
Anza Borrego Desert in California, were established in explicit 
recognition of the value we receive from ensuring that our 
grandchildren and our grandchildren's children will be able to enjoy 
the same experience we do when we visit these special areas. We derive 
value from simply knowing that our public natural resources exist 
unimpaired, for the sake of future generations and the integrity of the 
global ecosystem.
    This fact was vividly illustrated following the EXXON VALDEZ oil 
spill in Prince William Sound, Alaska. Prince William Sound, with its 
pristine natural beauty, is a national treasure, but few would contend 
that its value (and the losses to the public) could be adequately 
measured by quantifying direct human use of the sound for recreation or 
commerce. The public response to that spill, and the insistence by the 
trustees and the public that there be frill compensatory restoration, 
reflects the public's very strong sense of values beyond those measured 
by actual human use of a resource.
    Whenever natural resources are injured by contamination, the public 
may experience a reduction in nonuse value. These reductions can be 
very significant when a unique resource has been injured, or when 
restoration is slow or will never return the resource to baseline. 
Under existing law, trustees may consider nonuse values when 
determining restoration projects that compensate for interim losses. 
Retention of this authority is crucial to ensuring that the public is 
made whole after a hazardous substance release.
    As mentioned above, the Administration supports codifying a 
restoration-based approach to compensating for interim loss. Under such 
an approach, if a trustee can provide the same services as those lost, 
the trustee need not explicitly determine whether and how much use or 
nonuse value was lost. The trustee simply selects a project that 
generates the same quantity of services as those lost over time and 
asserts a claim based on the cost of implementing the project. However, 
as also discussed above, sometimes trustees cannot create the same 
services as those lost. This situation arises whenever a unique 
resource is injured, which is also one of the situations in which 
nonuse losses are likely to be most significant. In these cases, 
trustees should be allowed to undertake compensatory restoration 
projects that improve the level of other resource services available to 
the public, but only if such improvements are commensurate with the 
losses resulting from the release. To ensure that such projects are 
appropriately scaled, trustees need to compare quantities of services 
lost to quantities of services gained, and economic valuation may, in 
some cases, be the best-method for making this comparison. In such 
cases, failure to consider the total value of the natural resources 
(use value plus nonuse value) could result in the selection of projects 
that significantly undercompensate the public, thus creating an 
incentive for PRPs to take fewer precautions to prevent future spills 
in pristine areas, where direct human use is low, than in already 
degraded areas, where direct human use is higher.
    The draft title's restriction on nonuse values may also prevent 
trustees from selecting appropriate primary restoration actions. While 
the Administration agrees that imposition of a rigid, quantitative 
cost-benefit test on restoration selection is inappropriate, trustees 
often need to make some evaluation of benefits for purposes of 
determining the cost-effectiveness of different alternatives. Barring 
any consideration of nonuse values in that evaluation may unfairly bias 
the restoration selection process away from active restoration, even if 
natural recovery takes decades and notwithstanding the very real and 
significant human and ecological losses incurred in the interim.
    Furthermore, the draft title may impose an unwarranted burden on 
trustees even when they are not attempting to explicitly address lost 
nonuse values. The ban on compensation for impairment of nonuse values 
could be read as requiring trustees to demonstrate that a restoration 
project compensates only for impairment of use values.
    Restoration projects designed to restore use values may 
incidentally restore some of the lost nonuse values. Therefore, it may 
be difficult to demonstrate that a restoration project only addresses 
lost use, particularly where the project is restoring services, such as 
habitat, that are not directly used by humans but are used by other 
resources.
4. Statute of Limitations
    As stated above, an essential component of any responsible NRD 
reform bill is an appropriate clarification of the statute of 
limitations. The existing statute of limitations for NRD claims at 
sites other than Federal facilities, facilities listed on the NPL, and 
facilities at which a remedial action is otherwise scheduled, is 3 
years after the later of: (1) the date of the discovery of the loss and 
its connection with the release; or (2) the date on which the natural 
resource damage assessment regulations are promulgated. This provision 
has engendered a great deal of confusion and litigation. In some cases, 
trustees have felt compelled to file premature claims, before the scope 
of needed restoration is even known, in order to guard against the most 
extreme and unfavorable interpretation of the current limitations 
period. When claims are filed prematurely, the NRD action becomes 
focused on monetized damage claims, which is inconsistent with the 
restoration-based approach advocated by the Administration and 
reflected, in several respects, in the draft title.
    The draft title would revise the current statute of limitations 
``[w]ith respect to a facility for which the trustees and the 
potentially responsible parties, after the date of enactment of the 
[Act] have entered into a cooperative agreement governing the conduct 
and scope of a natural resource damage assessment and allocating the 
costs of the assessment.'' The deadline for filing such claims would be 
the ``earlier of 6 years after the date of signing of the cooperative 
agreement, or 3 years after the completion of the damage assessment'' 
(p. 241, lines 9-25).
    Unfortunately, this revision to the statute of limitations does not 
appropriately address existing problems and could cause more. The draft 
title does not provide any clarification of the existing deadline. 
Instead, the draft provision would only apply where trustees and PRPs 
have entered a cooperative agreement; where there were no such 
agreements, the existing problematic deadline would still apply. 
Further, the draft provision creates a disincentive for PRPs to work 
cooperatively with trustees whenever one or more PRPs might benefit 
from the uncertainty associated with the current statute of 
limitations.
    As the Administration has stated in its proposal, the existing 
statute of limitations for non-NPL facilities should be changed to 3 
years from the date of completion of an assessment in accordance with 
the damage assessment regulations or the completion of a restoration 
plan adopted after adequate public notice.
5. Record Review
    The draft title includes provisions authorizing trustees to 
establish an administrative record for an assessment (p. 235, lines 6-
20). However, the draft eliminates the language included in S. 8 that 
specified that judicial review was to be based on the administrative 
record. The Administration supports an open assessment process in which 
scientific and resource management decisions are made on the basis of 
the best information from all interested parties, including the PRPs 
and the general public. By authorizing creation of a record but failing 
to restrict judicial review to the material in that record, the draft 
title provides no incentive for PRPs to provide their data to the 
trustees while the record is being compiled and restoration decisions 
are being made. In fact, the provision will likely encourage tactical 
withholding of information by PRPs, promotes dilatory litigation, and 
contravenes public right-to-know. The draft should be modified to make 
explicit that judicial review of assessments will be limited to the 
administrative record and that the court will uphold trustees' 
selection of a restoration action unless it was arbitrary and 
capricious.
6. Limitation on Assessment Costs
    In addition, the draft title arbitrarily bars recovery of certain 
assessment costs. The draft title prohibits recovery of the cost of 
``conducting any type of study relying on the use of contingent 
valuation methodology'' (p. 236, lines 14-17). Trustees should have the 
flexibility to use and recover the cost of any assessment procedure, so 
long as the procedure is valid and can be performed at a reasonable 
cost. The draft title already requires trustees to conduct assessments 
``in accordance with . . . scientifically valid principles'' (p. 233, 
lines 15-18). The CERCLA natural resource damage assessment regulations 
contain a detailed definition of reasonable assessment costs that 
requires, among other things, that the cost of an assessment be less 
than the amount of damages being assessed (43 CFR 11. 14(ee)). The 
Administration believes these provisions adequately protect against 
unwarranted assessment costs. Furthermore, contingent valuation (CV) is 
a reliable and valid methodology when appropriately applied. CV has 
been used for years by industry for market research, and by governments 
for cost-benefit analyses of regulations and public works projects. CV 
is the only tool currently available for explicitly measuring lost 
nonuse values. It is also an important tool for measuring use values of 
natural resources.
7. Other Concerns
    The draft title contains several other problematic provisions and 
fails to include several important and beneficial amendments.
            A. Barring Restoration and Recovery Upon Return to 
                    Baseline.
    The draft title includes a provision that would bar recovery of all 
restoration costs ``if the natural resource returned to the baseline 
condition before the earlier of . . . the filing of a claim for natural 
resource damages; or . . . the incurrence of assessment or restoration 
costs by a trustee'' (p. 232, lines 10-24). The Administration has 
actively considered such a proposal while exploring ideas that might 
respond to concerns raised by the committee and by industry 
representatives. The Administration is concerned, however, about the 
possibility that such a provision could unfairly eliminate all public 
compensation where resources recovered naturally before trustees began 
their assessment work, notwithstanding the fact that the public may 
have incurred substantial interim losses. This could be especially 
problematic, particularly for State and Tribal trustees, where a 
trustee is proceeding as expeditiously as possible to assess the 
effects of known hazardous substance releases, but staff and funding 
constraints delay assessment and restoration. It may not be appropriate 
for the public to bear the cost of interim loss of resources in cases 
where trustees are simply unable to begin assessment work for this 
reason. In other cases, the public may have experienced clear losses, 
yet trustees may have had no reason to suspect that the losses were a 
result of a hazardous substance release until after natural recovery 
occurs. This provision also might create a disincentive for PRPs to 
provide timely notification of releases, since by delaying or failing 
to provide such notification, they might avoid liability for the 
public's loss altogether. For these reasons, the Administration 
believes that this particular provision warrants further discussion and 
consideration by Federal trustees and by potentially affected 
stakeholders.
            B. Modification of the ``Double Recovery'' Provision
    The draft title modifies the bar on double recoveries by providing 
that any ``person'' that recovers ``damages, response costs, assessment 
costs, or any other costs under this Act for the costs of restoring an 
injury to . . . a natural resource'' shall not be entitled to recovery 
under any law for the same injury (p. 233, lines 4-13). Throughout our 
discussion with committee staffs there has been no policy reason 
articulated for changing the existing double recovery provision. 
Furthermore, as drafted, this provision could be interpreted to 
preclude a recovery by the United States for natural resource damages 
(including interim losses) if the United States has previously 
recovered for ``any'' costs of a response action that in some respect 
affected, but did not frilly address, a natural resource injury, such 
as by enhancing recovery of an injured resource. Because CERCLA defines 
``person'' to include the United States, rather than ``agencies of the 
United States,'' a response cost claim brought by EPA could be read to 
bar a subsequent NRD claim brought by a trustee.
            C. Encouragement of Trustee Conflicts
    The draft title requires that the natural resource damage 
assessment regulations include procedures under which ``all pending and 
potential trustees identify the injured natural resources within their 
respective trust responsibilities, and the authority under which such 
responsibilities are established, as soon as practicable after the date 
on which an assessment begins'' (p. 243, lines 16-22). The 
Administration agrees that it is appropriate to ensure that trustees 
pursue claims only for those resources that fall under their 
trusteeship and, thus, are public resources. However, this draft 
provision could be interpreted as requiring not only that trustees 
determine which resources are public but also that they delineate the 
overlapping jurisdictions of all the different trustees. If all 
trustees are working together resolving such inter-trustee 
jurisdictional issues is unnecessary. On the other hand, requiring 
trustees, as one of the first steps in the damage assessment, to 
address such potentially contentious issues could create conflicts 
where none currently exist and undermine the goals of inter-trustee 
coordination.
            D. Transition Rule
    The draft (MU) title includes a transition rule that selects among 
sites for application of the bill's provisions. The Administration has 
not had an opportunity to understand the particular rationale by which 
the committee developed this rule, but we are concerned that this 
transition rule may operate arbitrarily and unfairly in its selection 
of the sites to which the new provisions apply.
            E. Omissions
    There are numerous other aspects of the proposal that are of 
concern to the Administration. We are identifying a limited number of 
omissions for your consideration now, with the expectation that more 
technical issues can be resolved if staff negotiations resume.
     The draft title fails to authorize the recovery of 
enforcement costs, thus preventing the public from being made whole for 
the costs of the release.
     The draft title omits the clarification in the 
Administration's proposal that the government may split response claims 
and natural resource damage claims, and that natural resource damage 
claims are not compulsory counterclaims to claims against the 
government for recovery of response costs or performance of response 
action.
     The draft title fails to include provisions identified in 
the Administration's proposal explicitly requiring consultation with 
trustees before selection of a remedial action, and calling for new 
regulations governing coordination with trustees regarding listing of 
sites on the NPL, investigations of releases, and selection of response 
actions.
     The draft title fails to include provisions identified in 
the Administration's proposal adding references to notification of 
tribal trustees by response agencies.
                               conclusion
    The Administration appreciates the opportunity to provide testimony 
on this draft proposal. In spite of the committee's concerted effort to 
modify or eliminate many of the most objectionable provisions of S. 8, 
the Administration strongly opposes this draft title in its current 
form and urges the committee instead to adopt the Administration's 
proposal or to incorporate more frilly the elements of that proposal in 
the committee's draft. NOAA and all of the other Federal natural 
resource trustees stand ready to resume negotiations with the committee 
so that, together, we can develop a broadly supported, bipartisan 
proposal on NRD that can move forward in this session of Congress.
    Thank you, Mr. Chairman. This concludes my statement.
                                 ______
                                 
  Prepared Statement of the Honorable E. Benjamin Nelson, Governor of 
                                Nebraska
                              introduction
    Good morning Mr. Chairman and members of the committee. My name is 
E. Benjamin Nelson. I am Governor of the State of Nebraska and chair of 
the National Governors' Association (NGA) Committee on Natural 
Resources. This testimony is presented on behalf of the National 
Governors' Association, but has been developed in close consultation 
with the Environmental Council of States (ECOS) and the Association of 
State and Territorial Solid Waste Management Officials (ASTSWMO), which 
represent State officials who manage the Superfund program on a daily 
basis.
    The States have a strong interest in Superfund reform and believe 
that a variety of changes are needed to improve the Superfund program's 
ability to clean up the nation's worst hazardous waste sites quickly 
and efficiently. We commend U.S. Environmental Protection Agency (EPA) 
Administrator Carol Browner for many of the administrative reforms she 
has developed for this program. However, we still believe that 
legislation is required. If I leave you with one message today, let it 
be our hope that Senators on both sides of the aisle will continue to 
work in a bipartisan fashion to craft a Superfund reform package that 
can be signed into law. The Governors are committed to doing everything 
within our power to assist in that effort and hope to continue working 
cooperatively with both the majority and the minority to develop a 
final bill that enjoys broad bipartisan support and can be signed by 
the President.
    Mr. Chairman, Senator Smith, I want to commend you for developing a 
very good starting point for the kind of bipartisan negotiations that 
are required to develop a bill the President can sign. I know that 
there remain important differences between Republicans and Democrats 
and between States and the Administration, but we see the chairman's 
mark as a significant step toward resolving the concerns that were 
expressed by both EPA and the States concerning the underlying bill. 
Important compromises have been made in the development of this 
legislation, and we hope the spirit of compromise will continue on a 
bipartisan basis.
    The States appreciate the opportunity to review and comment on the 
draft chairman's mark dated August 28, 1997. 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. States are responsible for cleanup at the tens of 
thousands of sites that are not on the National Priorities List (NPL). 
In order to address these sites, many States have developed highly 
successful voluntary cleanup programs that have enabled sites to be 
remediated quickly and with minimal governmental involvement. It is 
important that legislation support and encourage these successful 
programs by providing clear incentives and flexibility. Frankly, we 
feel an increased need for congressional direction because the guidance 
on State voluntary cleanup programs that EPA is about to finalize does 
not afford us the necessary and appropriate flexibility. It is the view 
of States that voluntary cleanup programs and brownfields redevelopment 
are currently hindered by the pervasive fear of Federal liability under 
the Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) of 1980. We strongly support the provisions in the 
chairman's mark that encourage potentially responsible parties and 
prospective purchasers to voluntarily cleanup sites and reuse and 
redevelop contaminated property. The draft 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, NGA does support EPA's use of its emergency removal 
authority. We also believe that an important provision has been 
included that clarifies EPA's authority to take action at a site if a 
State requests the President to do so. Any assignment of liability, 
however, must be consistent with liability assigned under State cleanup 
laws.
    Finally, we would like to make the distinction that while the draft 
would preclude Federal enforcement for sites in a State voluntary 
cleanup program, you have not provided a release from Federal 
liability. We believe that this would leave potentially responsible 
parties vulnerable to third party suits and would effectively take much 
of the incentive out of entering a State voluntary cleanup program. We 
would like to work with the committee to address this provision.
                               state role
    The impacts of hazardous waste sites are felt primarily at the 
State and local levels, so each State should have the option to take 
over and administer as much of the program as they can. The Governors 
support the efforts of Senators Chafee and Smith to provide us with 
options to enhance the role of States in this program. We appreciate 
the inclusion of options for authorization, expedited authorization, 
delegation, and limited delegation by agreement in the draft and feel 
that this allows for maximum flexibility to meet State needs and 
objectives. We especially support the authorization provisions that 
allow States to operate their programs in lieu of the Federal program. 
Where a State is authorized to operate a program in lieu of the Federal 
program, States should receive adequate Federal financial support.
    The creation of an expedited process to delist from the NPL a site 
for which a State has assumed responsibility will help provide a 
necessary finality to the Superfund process and will help prioritize 
time and money on remaining problems.
    However, the States cannot support allowing EPA to withdraw 
delegation on a site-by-site basis. EPA should periodically review 
State performance instead of involving itself in site-by-site 
oversight. If program deficiencies are found, a State should have an 
opportunity to resolve them before EPA proceeds to withdraw 
authorization or delegation. Withdrawal of delegation should be 
consistent with the criteria for approval or rejection of a State's 
application for delegation.
    The Governors strongly support a 10 percent State cost-share for 
both remedial actions and operations and maintenance and appreciate the 
retention of this provision in the chairman's mark. The Governors would 
like to ensure that the provision for States to petition the Office of 
Management and Budget (OMB) is a workable mechanism to deal with any 
cost-shifts resulting from changes in liability, and that reform does 
not result in a higher cost-share than States currently pay.
                     selection of remedial actions
    Because of the complexity and importance of the title on 
``Selection of Remedial Actions,'' I would like to respectfully request 
more time to provide detailed comments and have them included in the 
record after we have had time for more adequate review. Although we 
will undoubtedly have some comments with this title, there are several 
key improvements that I would like to touch on today.
    The Governors believe that changes in remedy selection should 
result in more cost-effective cleanups; a simpler, more streamlined 
process for selecting remedies; and a more results-oriented approach. 
We believe the bill moves significantly in this direction. Many of 
these reforms seem to us to be codifications and improvements of EPA's 
administrative reforms.
    As you know, allowing State-applicable standards to apply at both 
NPL and State sites is of great importance to the Governors. We greatly 
appreciate and strongly support measures to allow State applicable 
standards and promulgated relevant and appropriate requirements 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 the bill that 
provide 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. While we believe that groundwater needs to be 
protected, we need to ensure that these provisions are workable and 
flexible.
    The Governors recognize that there are some records of decision 
(RODs) that should be reopened because of cost considerations or 
technical impracticability. However, we have been concerned about a 
flood of petitions to reopen, and we believe the Governor should have 
the final decision on whether to approve a petition to reopen a ROD in 
his or her State. We particularly appreciate the efforts of the 
committee to improve the draft by removing the provision in S. 8 that 
would allow a remedy review board to override a Governor's veto of a 
petition to reopen a ROD. NGA believes that this is a very important 
addition.
    We would also like to commend you on removing the provision in S. 8 
that would preempt State liability laws at sites where EPA has released 
a potentially responsible party from Federal liability because the site 
has been cleaned up for unrestricted use. As you know, the Governors do 
not support preemptions of State law and are grateful to you for 
incorporating our recommendations in your draft.
                               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 some 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 provide adequate assurance and funding 
so that sites will continue to be cleaned up and so that there will be 
no cost shifts to the States.
    Although it is clear that much effort has been focused on finding 
compromises and creating a more equitable system, the Governors are 
still concerned that the changes to the Federal liability scheme are 
not complementary to State liability programs. We are particularly 
opposed to the apparent preemption of all State liability laws when a 
facility has been released from Federal liability. Preemption of State 
liability laws at NPL sites effectively creates an inequitable 
situation in States because it creates an inconsistency in application 
of State law at sites throughout the State. We want to avoid creating a 
scenario where there is a demand by potentially responsible parties to 
be added to the NPL because the Federal liability scheme is more 
favorable.
    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. Much emphasis has been placed on modifying the language on 
liability, and we do not want to discount the obvious efforts at 
compromise that can be seen in this draft. However, we would like more 
time to review the provisions of this title and would like to work with 
the committee to create a system that has fewer adverse impacts on 
State programs.
                           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 standard of compliance as private 
parties. We would like to make sure that the intent of language in the 
draft allows State-applicable standards to be applied at Federal 
facility sites in the same manner that they apply at nonFederal 
facility sites.
    The States would like to commend the committee for including 
provisions in the chairman's mark allowing EPA to transfer 
responsibility for Federal facilities to States. However, we are 
unclear why the process is different and the provisions much more 
restrictive than the provisions in Title II for nonFederal sites on the 
NPL. One interpretation is that responsibility for Federal facilities 
may be transferred to States, but that States must at all times use the 
Federal remedy selection process. We do not understand the 
justification behind this language and would be greatly concerned if 
this precludes States from applying State applicable standards to 
Federal facilities if they are more stringent than the Federal 
standards.
    In addition, in virtually every other environmental statute, 
Congress has waived sovereign immunity and allowed States to enforce 
State environmental laws at Federal facilities. A clearer, more 
comprehensive sovereign immunity waiver should be developed that 
includes formerly used defense sites.
                        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. We 
commend the committee for emphasizing restoration as the primary goal 
of this program, extending the statute of limitations to 3 years from 
completion of a damage assessment, and creating an effective date to 
protect claims and lawsuits already filed. Protection of existing 
claims and lawsuits is a very important provision for all Governors, 
particularly Governor Marc Racicot of Montana who serves as vice chair 
of NGA's Committee on Natural Resources. We also suggest that the 
committee consider removing from the trust fund the prohibition on 
funding natural resource damage assessments and giving State trustees 
the right of first refusal to be lead decisionmaker at NPL sites with 
natural resource damages. We also support retention of nonuse damages.
                             miscellaneous
    The States would like to applaud the inclusion in this draft of a 
provision to require the concurrence of the Governor of a State in 
which a site is located before a site may be added to the NPL. NGA has 
fought long and hard to have this vitally important provision included 
in legislative proposals.
    We have concerns about an annual ``cap'' or limit on NPL listings. 
We believe that by requiring a Governor's concurrence on any new 
listings, a sufficient and appropriate limitation is placed on new 
listings. Further limitations are unnecessary. Because of differences 
in capacities among States, the complexities and costs of some 
cleanups, the availability of responsible parties, enforcement 
considerations, and other factors, limitations on new listings could 
result in some sites not being cleaned up. We believe there should be a 
continuing Federal commitment to clean up sites under such 
circumstances, regardless of whether an arbitrary cap has been exceeded 
in any given year. The States are interested in working with the 
committee to resolve our concern.
                               conclusion
    Mr. Chairman, I would like to thank you for your hard work on this 
important reform legislation and for providing me with the opportunity 
to communicate the views of State government on Superfund reform. 
Again, NGA, ECOS, and ASTSWMO are very encouraged by the direction you 
have taken with this legislation and are pleased that this draft 
reflects many important compromises that should enjoy bipartisan 
support. We hope that members of both parties will roll up their 
sleeves to pass Superfund reform legislation. I look forward to working 
with both the majority and minority to bridge any differences and craft 
legislation that can be signed into law.
                                 ______
                                 
  Responses by Governor E. Benjamin Nelson to Questions from Senator 
                                 Wyden
    Question 1. Isn't it true that private parties have to comply with 
all applicable environmental laws, both State and Federal, when they're 
conducting cleanups at Superfund sites and are subject to enforcement 
action if they fail to comply? Is it good public policy to allow a 
double standard for private versus Federal cleanups when it comes to 
complying with these laws?
    Response. It is true that private parties must comply with all 
applicable State and Federal laws during the course of remediation 
under the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) of 1980. The requirements of State environmental 
laws and Federal laws, such as the Clean Water Act, the Clean Air Act, 
and the Resource Conservation and Recovery Act, are binding on 
remediating parties under all circumstances.
    As I stated in my testimony, the Governors believe that failure to 
hold the Federal Government to the same standards it imposes on private 
parties creates a double standard and allows it to elude its civic 
responsibilities. This double standard erodes the public's faith in all 
levels of government, precludes States from consistently enforcing the 
environmental standards that they have adopted as protective of human 
health and the environment, and shifts the costs of remediating Federal 
sites to State governments.
    The Governors strongly recommend that Congress include in CERCLA a 
clear requirement that Federal agencies comply with all procedural and 
substantive requirements of State and Federal environmental law.

    Question 2. Does the National Governors' Association support adding 
language to Superfund reform legislation to make it clear that Federal 
agencies must comply with applicable environmental laws during the 
course of Superfund cleanups at Federal facilities and/or clarify the 
authority of States to enforce these laws?
    Response. The Governors recommend that Congress include a clear 
waiver of sovereign immunity under CERCLA as it has under virtually 
every other Federal environmental statute. A waiver of sovereign 
immunity would hold the Federal Government to the same standards it has 
set for private parties and allow States to enforce environmental 
requirements against Federal facilities in the same manner and to the 
same extent they are enforced against private parties.
                                 ______
                                 
  Response by Governor E. Benjamin Nelson to a Question from Senator 
                                Moynihan
    Question 1. The chairman's mark asks for a cap on the number of new 
NPL sites. How will this cap affect the ``cleanup'' of sites not yet on 
the NPL?
    Response. As I testified, NGA opposes an arbitrary limitation or 
``cap'' on the National Priorities List (NPL) because it could preclude 
the Federal Government from addressing a contaminated site if the cap 
had been reached in a given year. The Governors recognize that sites 
may be discovered in the future that may require Federal attention and 
believe that the Federal Government should continue their commitment to 
cleaning up the most contaminated sites.
    We believe that requiring a Governor's concurrence on all NPL 
listings places a reasonable and appropriate limitation on new NPL 
listings while ensuring that the Federal Government maintains its 
necessary role.
                                 ______
                                 
  Response by Governor E. Benjamin Nelson to a Question from Senator 
                                 Chafee
    Response. Mr. Chairman, I would like to take this opportunity to 
respond more thoroughly to a question you asked me on September 4. You 
asked my opinion of a comment made by Ms. Wilma Subra, the community 
participation representative on my panel. She opposed a substantial 
State role in the Superfund program because of her lack of faith in her 
State government to protect the people.
    I believe very strongly in the concept of federalism and the role 
of State governments in the lives of people every day. Governors take 
pride in their jobs and take environmental protection very seriously. A 
substantial State role in this program is entirely appropriate and 
necessary and all Governors take offense at Ms. Subra's assertion that 
people need the Federal Government to protect them from their State 
government. The answer to this concern should continue to be the 
election process, not the administrator of the U.S. Environmental 
Protection Agency.
    The Governors commend you for including in your mark flexible 
opportunities for States to administer the Federal Superfund program 
and a provision that requires a Governor's concurrence for all new NPL 
listings. These provisions strike an appropriate balance between the 
roles of State and Federal Governments.
    I again thank you for the opportunity to testify and for the chance 
to respond to additional questions for the record. If I, or any of the 
Nation's Governors, can be of any assistance as you continue to develop 
a bipartisan Superfund reform package, please contact me directly. I 
look forward to working with you on these very important issues.
                                 ______
                                 
Prepared Statement of Mayor James P. Perron, Elkhart, IN, on behalf of 
                     The U.S. Conference of Mayors
    Good morning, Mr. Chairman and members of the committee. I am James 
Perron, Mayor of Elkhart, IN. I am pleased to be here this morning and 
thank you for your leadership in development of S. 8 and in moving the 
legislative process forward with this hearing. Today I am testifying on 
behalf of the United States Conference of Mayors, which represents over 
1100 cities with populations of 30,000 or more.
    As Mayor of Elkhart for almost 15 years, I have dealt head-on with 
virtually every environmental problem and opportunity available to a 
modern city today, including: Superfund, groundwater contamination, 
recycling, closing a polluted landfill, riverfront redemption and many 
others. Our Environmental Center--built on the site of the old city 
dump--and our EnviroCorps program, funded by AmeriCorps--are award 
winning. We have an ongoing relationship with Notre Dame University 
aimed at environmental management innovations. I know that working 
together we can bring new success to Superfund and Brownfield 
initiatives.
    Mr. Chairman, I should note for the record that my experience with 
the Superfund program goes back almost to its beginning as well as the 
start of my mayoralty. Soon after taking office in 1984, we learned 
that our municipal drinking water supply was essentially a Superfund 
site. In the years that followed, working closely with EPA, our 
community worked its way out of this dilemma. Our water supply is now 
clean, and we have a Sole Source Aquifer Designation.
    Our experience with brownfields is very real and hands-on. Elkhart 
is one of the most densely industrialized cities in the country. We are 
among the Nation's leaders in per capita manufacturing jobs. Many 
projects have been slowed and others even brought to a halt by problems 
associated with brownfields. The framework provided by S. 8, along with 
a willingness on the part of a city to work creatively with the private 
sector, will go a long way toward accelerated brownfield recycling.
    The Nation's mayors are uniquely interested in Superfund reform, 
because we have been directly affected by the best and the worst of 
Superfund. We believe that the Superfund program has been successful in 
meeting three national policy objectives: (1) the dramatic reduction in 
use of hazardous materials by industry and commerce, (2) the ability 
for our nation to respond to emergency spills and contamination that 
pose an immediate health and environmental threat, and (3) creation of 
a much safer, national hazardous waste management and disposal system.
    No one doubts that industry and businesses have significantly 
reduced their use of hazardous substances because of the threat of 
CERCLA liability. When CERCLA was passed in 1980, many companies 
entered the hazardous materials business in expectation that the need 
for hazardous materials management would result in handsome profits. 
But many of their projections did not materialize. Instead, industry 
changed how it did business and used less hazardous materials.
    The emergency response program within CERCLA is a similar success 
story. EPA has been able to immediately respond to hundreds of 
emergencies across the Nation that represented immediate endangerment 
to the public's health. The program gets high marks for its efficiency 
and should continue. Similarly, we are disposing today of our hazardous 
waste in a dramatically safer manner than we did prior to CERCLA's 
enactment.
    That's the best of Superfund. But along side these tremendous 
public benefits is a horrible, unintended consequence of the Superfund 
program--the fact that the private sector will not invest in hundreds 
of thousands of non-NPL, contaminated properties because of the fear of 
being caught in the Superfund liability web. The liability structure of 
Superfund has had a chilling effect on developers and local governments 
who want to redevelop these so-called ``brownfields''--sites that have 
been contaminated or ``might be'' contaminated because of their past 
industrial or commercial use.
    Furthermore, the Superfund program has made the cleanup of National 
Priority List sites expensive, bureaucratic, time-consuming and 
litigious. Everyone agrees that the Superfund program as it relates to 
NPL sites needs reforming. Local governments, non-profits and small 
businesses are acutely aware of this because liability associated with 
the normal disposal of municipal solid waste has resulted in endless 
litigation. While allocating costs to the polluter of an industrial 
facility that has undergone few changes in ownership makes sense, 
sorting out through the courts who disposed of municipal solid waste 
over an extended period in a co-disposal site is a nightmare and has 
accounted for some of Superfund's most egregious horror stories. Your 
decision to move forward with a mark up of S. 8 to reform and expedite 
how we deal with Superfund site cleanups is extremely important and the 
nation's mayors want to support your efforts. We hope that this process 
will coalesce in bi-partisan support for a Superfund reform bill in 
this Congress.
                              brownfields
    Mr. Chairman, the contamination of now abandoned industrial and 
commercial property, which today we call brownfields, was not caused by 
local governments or the citizens who now must live with the 
consequences of lost jobs, an eroded tax base and abandoned or 
underutilized properties that denigrate communities. The unintended, 
negative consequence of our Federal Superfund policies has been the 
price for achieving the Superfund program's national benefits. This 
unfortunate situation simply must be addressed in an aggressive way as 
you begin the reauthorization process. We must undo the unintended harm 
that Superfund has imposed upon our communities.
    Last year The U.S. Conference of Mayors released at its Winter 
Meeting a 39-City Survey on the Impact of Brownfields on U.S. Cities. 
Of the cities surveyed, 33 cities with brownfield sites said that more 
than $121 million is lost each year in local tax revenues--using 
conservative estimates. More than $386 million is lost each year, using 
more optimistic estimates, suggesting that the more than 20,000 cities 
and other municipalities nationwide could be losing billions of dollars 
each year in local tax receipts due to the existence of brownfields. I 
am pleased to provide a copy of the survey to the committee for the 
record.
    Mr. Chairman, we also believe that the existence of brownfields and 
the inability to ``recycle'' our previously contaminated land has 
additional negative environmental effects. Urban sprawl has a direct 
negative impact on air and water quality, in addition to destroying 
farmland, forests, and open spaces. We believe that between 1982 and 
1992, prime farmland equivalent in area to the States of Rhode Island 
and Connecticut was lost to urban sprawl. If we do not develop an 
aggressive farmland and forest preservation program that allows us to 
turn our development energies to brownfields, this alarming trend will 
only continue.
    The President of the U.S. Conference of Mayors, Fort Wayne Mayor 
Paul Helmke, has made brownfields redevelopment the top priority for 
the nation's mayors in the coming year, as did Mayor Richard Daley of 
Chicago during his presidency of the Conference. Your willingness to 
place brownfields as Title I of the Superfund reform bill is, itself, 
an indication that this committee understands the importance of 
addressing the Brownfields issue. As we speak, Mayor Helmke is meeting 
with the Co-chairs of our Brownfields Task force in Rhode Island to 
further evaluate S. 8 and its brownfield proposals. We would be pleased 
to forward our more detailed comments on S. 8 and the results of our 
deliberations to the committee in the coming days. We would also like 
to submit for the record the Conference of Mayors brownfields and 
Superfund reform policies unanimously adopted in San Francisco at our 
annual meeting in June of this year.
    Turning specifically to the proposals that we were asked to address 
for today's hearing, I would like to start by saying that it is 
important for Title I on Brownfields to provide local governments the 
greatest flexibility possible in the use of brownfields site 
assessment, characterization, and cleanup funds.
    The definition of brownfields should not require the site to 
currently have an ``abandoned, idled, or underused facility.'' Many 
former industrial and commercial sites have been razed, but still 
contain contamination that should qualify the site as a brownfield.
    Likewise, the list of exclusions in the definition of brownfields 
should be significantly narrowed or eliminated, so that local 
governments have the flexibility to submit brownfield sites that are 
local priorities. For example, the current list of exclusions within 
the brownfields definition would disqualify sites that should be 
addressed as brownfields, such as those that have been subject to 
emergency response actions. Many emergency response actions remove the 
immediate ``emergency'' but do not leave the property in a condition 
that would allow the private sector to invest in it. These abandoned 
industrial sites may have both removal and remediation needs which 
require action to address immediate threats and a less urgent remedial 
process to restore the property to a useful purpose. The current 
language would not provide the flexibility needed to include these 
sites as a part of a local government brownfields program, the 
principal purpose of which is to clean these sites and return them to 
tax generating properties.
    Similarly, under the current language, a facility that was subject 
to corrective action would be disqualified as a brownfield. But the 
corrective action may apply only to the ``waste disposal unit'' on the 
site. In these instances, the entire site should not be disqualified 
from the brownfield program.
    Furthermore, many sites have multiple contaminants that may be 
subject to various statutory authorities. Local governments need the 
equivalent of a ``one-stop'' shop at EPA where the sole objective 
should be to clean up the site as soon as possible and to return it to 
productive reuse in the community. The presence of a particular type of 
contaminant should not disqualify the site, particularly if the local 
government has determined that it is in the best interest of the 
community to qualify the site as a brownfield. The brownfields program 
offers us a unique opportunity to create that ``one-stop shopping'' 
approach.
    The bottom line is that local governments want to serve as a 
catalyst to attract the private sector to invest in these sites. Our 
goal should be results oriented: clean them up and return them to 
productive economic reuse, as opposed to disqualifying them.
    On the issue of funding, we believe that the Superfund program, 
which helped to create hundreds of thousands of brownfields, should 
devote at least 10 percent of its funding annually to the brownfield 
cleanup program. We are extremely pleased that both House and Senate 
Appropriations Committees have provided $85 and $88 million 
respectively in fiscal year 98 for the EPA brownfields program. We want 
to thank Senator Bond for his leadership in that arena.
    We believe this funding can be justified on the grounds that the 
Superfund program has served as a tremendous disincentive for the 
cleanup and reinvestment of these properties. But it can also be 
justified on public health grounds. While brownfield sites may be less 
contaminated than NPL sites, in many instances they are more accessible 
to the public. An abandoned industrial facility is an invitation to the 
public, particularly children. Anyone who says that such facilities can 
be adequately secured over long periods of time in an urban or rural 
environment is not realistic. Furthermore, the inability to redevelop 
these sites has resulted in the denigration of many communities, loss 
of jobs and therefore a general decline in the health of a community. 
We believe these reasons are more than adequate to justify significant 
funding for brownfields cleanup and redevelopment.
    We believe that the limitations on funding per site in the current 
draft are overly restrictive. Certain large brownfield sites may well 
need more assessment and cleanup funds than are allowed for in the 
current draft. Similarly, the limitations on the size of capitalization 
grants for local revolving loan funds are also overly restrictive, 
especially when one considers communities that have been, or are, 
heavily industrial, or smaller communities that may have a single, but 
very large brownfield site. In addition to capitalization grants, 
language should clarify that grant funds can also be used directly to 
clean up sites, particularly those sites held by local governments or 
those located in distressed communities.
    We want to commend the committee for providing liability provisions 
which protect certain third party purchasers of brownfield properties. 
We want to make sure that local governments are afforded equal 
liability protections if they acquire property for brownfield 
redevelopment or have acquired the property as a result of tax 
foreclosure. It is also extremely important that the legislation 
include strong provisions for ``finality'' of sites cleaned up through 
State voluntary cleanup programs, with well defined, limited parameters 
as to when EPA may reintervene. Additional comments on these 
provisions, which we consider of critical importance, will be submitted 
for the record in the coming days.
    Mr. Chairman, we consider Title I of the revised draft of S. 8 to 
be an excellent starting point for further consideration and we look 
forward to working with you to further improve it.
                          superfund provisions
    Mr. Chairman, the policy which mayors adopted in San Francisco 
calls for Superfund reauthorization to include provisions that expedite 
the cleanup of co-disposal landfill sites by providing liability 
protections for generators, transporters, and arrangers of municipal 
solid waste and capping liability for local government owners and 
operators of such landfills. The provisions of S. 8 clearly begin that 
process and go a long way toward that end. We are concerned, however, 
that the bill does not provide generators and transporters of MSW 
protection from third party contribution lawsuits for cleanup costs 
incurred prior to date of enactment at codisposal sites. Because we 
believe Congress never intended municipal solid waste and sewage sludge 
to be considered hazardous under CERCLA, we believe that some form of 
liability relief should also be extended to pre-enactment costs for 
generators and transporter of MSW, particularly those related to third 
party contribution suits that have not yet been settled. Numerous 
studies have indicated that MSW contains less than one-half of 1 
percent (.5 percent) toxic materials. In almost every instance, NPL 
landfill sites are co-disposal sites contaminated principally by 
hazardous waste, not municipal solid waste. We also encourage the 
committee to include local government ``ability-to-pay'' provisions in 
the bill.
    Our policy also calls for the EPA to adopt administrative reforms 
to provide liability relief to generators, transporters, and arrangers 
of municipal solid waste at co-disposal sites. We are pleased that the 
Agency has responded with its recent proposal, which should apply to 
all pending third party suits. One concern, however, is how will EPA 
adjust the per ton fee as more cost efficient remedies are performed on 
co-disposal sites, and how can local governments be assured that they 
do not pay an unreasonable percentage of cleanup costs at co-disposal 
sites under this proposal. The most important principle set forth in 
EPA's policy is that municipal solid waste has virtually never been the 
cause for listing co-disposal landfills on the NPL. This principle 
should guide the policies for both legislative and administrative 
reform. Various legislative proposals in the past have relied on the 
principle that in no case should generators and transporters of 
municipal waste pay more than 10 percent of total response costs--a 
threshold that the EPA administrative reforms must meet in order to be 
viable. We are currently evaluating the EPA proposal to determine if it 
meets this test. However, we agree with the chairman's mark which 
reflects the view that the toxicity of MSW is so low that the 
transaction costs of collecting funds for response costs incurred after 
date of enactment warrant a transfer of liability from individual 
parties to the orphan share.
    Mr. Chairman, we look forward to working with the committee to 
determine if there is a way to marry the benefits of both these 
approaches.
    On the issue of remediation, many of our public water systems want 
to make sure that Superfund reforms adequately protect public health 
and preserve our drinking water supplies for future generations. Water 
supplies that are or may be used as drinking water sources must be 
remediated, if feasible, by methods that offer permanent solutions. 
Remedies that serve to protect currently uncontaminated water supplies 
which are or may be used as drinking water sources from becoming 
contaminated must take precedence over other remedies. The legislation 
should recognize that users of the drinking water may be in separate 
jurisdictions and provide for involvement of both jurisdictions in 
remedial action plans. Mr. Chairman, I serve as the Conference of 
Mayors designee to the American Water Works Association Public Affairs 
Committee, and in that capacity I have developed an even greater 
appreciation for the need to protect our long term drinking water 
sources from further contamination.
    Finally, we believe that local governments have not been adequately 
tapped as local management resources to help expedite the cleanup of 
NPL and non-NPL sites. In every aspect of the legislation, local 
governments should be viewed as valuable partners who are responsible 
for protecting human health and the environment at the local level. 
Therefore, we urge a stronger role for local governments in organizing 
the local advisory groups, in evaluating State proposals to receive 
delegated authority, in evaluating remedy selections, particularly as 
they pertain to long-term drinking water supplies, and in serving as 
catalysts for expediting cleanups.
    Mr. Chairman, we thank you for the opportunity to appear today 
before the committee. We will be submitting additional comments on 
other aspects of the bill which we did not have time to address today. 
We encourage the Senate to move forward on Superfund reform and to 
reach a bi-partisan agreement on a bill. We believe S. 8 is a good 
starting point for those deliberations. I would be pleased to answer 
any questions the committee may have.
                                 ______
                                 
  Responses by Mayor James P. Perron to Questions from Senator Inhofe
    Question 1. Will restrictions on new emissions restrict 
redevelopment opportunities in urban areas?
    Response. Without question, EPA's proposed implementation plan for 
the new air quality standards will restrict redevelopment opportunities 
in urban areas. The plan perpetuates the flawed regulatory approach 
that now targets urban ``nonattainment'' areas, imposing pollution 
control costs on businesses located in those areas. These costs can be, 
and are, avoided by locating outside of the nonattainment areas where 
increased pollution is allowed due to less stringent regulations.
    We know that redevelopment efforts in many urban areas are already 
hampered by the existing air regulations and implementation plan. EPA 
itself has admitted that the existing framework effectively drives 
businesses away from urban areas. The new implementation plan could 
serve to exacerbate this problem, not only because it retains most 
elements of the existing implementation plan, but also because it 
threatens to impose even more restrictions on many urban areas and is 
fraught with regulatory uncertainty.
    The existing implementation plan for the former 1-hour ozone 
standard already hinders redevelopment efforts in many urban areas, 
with many of the largest urban areas in the Nation already classified 
as ``nonattainment'' for ozone. Under the current legislative and 
regulatory framework, industrial and commercial businesses located in 
``nonattainment'' areas are forced to comply with a number of stringent 
regulations that do not apply to ``attainment'' areas. Among other 
requirements, businesses that want to construct a new facility or 
expand an existing facility in a nonattainment area confront the 
following: a lengthy, complicated permitting process; an offset 
requirement, which means that a new emitting facility cannot be built 
unless an existing facility decreases its emissions or ceases its 
operations; and an obligation to comply with the ``lowest achievable 
emission rate,'' or LAER, which requires use of the most stringent 
emission control technology available.
    We have seen how this scheme effectively drives businesses out of 
major urban areas. Businesses that either cannot, or choose not to, 
comply with the stringent air regulations in nonattainment areas can 
easily avoid them simply by locating their facility in an attainment 
area, on a greenfield site. EPA has even admitted that this policy 
negatively impacts economic development in cities.
    Former EPA Assistant Administrator for Air and Radiation Mary 
Nichols acknowledged these concerns in a July 24 interview with BNA. In 
discussing how air standards designate areas in or out of attainment, 
she said that creating these two categories ``has had the unintended 
consequence of creating incentives for new businesses and new 
developments to spread out into the countryside, as opposed to helping 
build the economies of our core cities.'' Nichols then explained that 
``I don't think it's so much that urban areas have been neglected per 
se. It's that we have not given as much time and attention to helping 
figure out how air quality goals can meld into other goals that we 
have.''
    EPA's present denial of the link between air quality regulations 
and brownfields redevelopment efforts simply ignores its recognition of 
the unintended consequences brought by its regulation.
    EPA's proposed implementation plan for the new air quality 
standards will perpetuate and magnify the burdens on urban areas, 
further undermining brownfields redevelopment efforts. For the new 
ozone standard, EPA is proposing an implementation plan that designates 
geographic areas as either ``nonattainment,'' ``transitional'' or 
``attainment.'' The ``nonattainment'' designation and the current 
implementation plan would continue to apply to all areas still 
designated ``nonattainment'' for the prior ozone standard. The 
stringent regulations discussed above, which clearly are in direct 
conflict with brownfields redevelopment efforts, would remain in place. 
Once these areas meet the prior standard, the new ozone standard would 
take effect. At that time, EPA has said that even more local controls 
will need to be implemented, serving to even further discourage urban 
redevelopment in those areas.
    The ``transitional'' designation will further thwart urban 
redevelopment efforts because it will discourage businesses from 
redeveloping in even more urban areas than the number of urban areas 
now where redevelopment is already discouraged. As we understand EPA's 
plan, the new ``transitional'' designation, which will apply to all 
areas meeting the prior standard but not the new standard, will likely 
attach to the remaining urban areas not already designated 
``nonattainment.'' Interestingly, EPA created the ``transitional'' 
category to avoid having to impose ``burdensome local planning 
requirements'' and ``stigmatize areas by labeling them 
``nonattainment.'' This is yet another acknowledgement that its current 
air regulations discourage businesses from locating in urban areas.
    But even the ``transitional'' designation will serve to discourage 
brownfields redevelopment. According to EPA's proposed plan, the 
transitional areas may or may not need new local controls. Faced with 
such regulatory uncertainty, businesses looking to make sound economic 
investments will certainly try to avoid transitional areas in favor of 
attainment areas where regulations are guaranteed to be far more lax.
    The proposed implementation plan for new particulate matter 
standard will also discourage urban redevelopment efforts, in that it 
creates uncertainty for at least the next 5 years. Businesses will not 
want to locate in an area that has the potential to be designated 
nonattainment.
    In summary, we disagree with EPA's representation that brownfields 
redevelopment efforts will not be jeopardized by the new air quality 
standards. Urban redevelopment is already hindered by the current 
standards, and will be further hindered under the new standards. EPA's 
approach to clean air clearly undermines efforts to redevelop our urban 
environments, and is wholly inconsistent with the many brownfields 
initiatives being pursued throughout the country.

    Question 2. Would a successful brownfields program require special 
flexibility from the new NAAQS standards? Other environmental 
standards?
    Response. While a brownfields program with special flexibility from 
the new NAAQS would be helpful in resolving the inconsistency between 
the air regulations and the goal of brownfield programs, a far better 
solution would be to correct the problem via the implementation plan 
for the air quality standards. As The U.S. Conference of Mayors has 
pointed out in numerous other forums, the current and proposed 
implementation plans not only thwart urban redevelopment efforts but 
have numerous other problems as well, including unintended, negative 
consequences for both public health and the environment. A revised 
implementation plan--one that treats all communities equally for 
purposes of regulating air quality rather than singling out individual 
cities for disproportionate or stigmatizing treatment--would resolve 
the conflict with brownfields redevelopment programs and many of these 
other public health and environmental problems.
    If revising the implementation plan for the air quality standards 
will take excessive time to accomplish, then the Conference of Mayors 
believes that an interim, flexible approach is needed to relieve urban 
areas attempting to redevelop brownfields of the undermining effects of 
the air regulations. One suggestion that the Conference is currently 
developing would be to award emission credits for businesses that 
choose to develop at a brownfield site. The emission credits would be 
justified due to the fact that employees traveling to a worksite in the 
inner-city, as opposed to outlying areas, can generally get there by 
relying on public transit or making shorter auto trips. There are other 
benefits that can be realized when we develop these sites where 
densities offer many environmental and other advantages.
    In answer to the question of whether a successful brownfields 
program would require special flexibility from other environmental 
standards, the Conference would be interested in seeing increased 
Federal funding for the cleanup of brownfields, and Federal support and 
recognition of State voluntary clean-up programs to encourage cleanup 
and redevelopment.
                                 ______
                                 
                   Prepared Statement of Wilma Subra
    Thank you for the opportunity to testify on the issue of Superfund 
reauthorization. I have been involved in Superfund issues since the 
inception of Superfund, working with citizens groups living around 
sites, serving as a technical advisor on the National Commission on 
Superfund, and provide technical assistance to citizens groups at 8 
Superfund Sites through the TAG process.
                            state delegation
    The transfer of authority to States in order to perform the 
Superfund program may be appropriate for a few States, but the 
wholesale transfer of the Superfund program to a large number of States 
will have a negative impact on the program.
    An example of a State that should not be granted Superfund 
authority is the State of Louisiana. The State lacks the financial 
resources, personnel and political will to even implement their own 
State program. The majority of the National Priority List sites in 
Louisiana were submitted to EPA by citizens groups. The State did not 
want the stigma of hazardous waste sites being on a Federal list.
    In 1995, the State legislature removed almost all of the funding 
and personnel from the State program. The current State program only 
has sufficient financial resources to perform small emergency removal 
actions when midnight dumpers drop off barrels of waste along roadsides 
and to provide Federal required oversight at the 14 Superfund Sites in 
the State. There is little or no resources to evaluate the more than 
500 potential sites or to perform remedial activities at confirmed 
sites. During the past two fiscal years 57 confirmed hazardous waste 
sites sit waiting for cleanup when and if resources become available. 
When sites pose an eminent and substantial threat, the EPA has to step 
in to finance and perform emergency removal actions for the State. The 
most recent examples of the need for Federal resources and manpower was 
the Broussard Chemical Co. sites in Vermilion Parish. The EPA spent 
more than $2.5 million performing an investigation, removal and 
disposal action at 6 separate locations operated by Broussard Chemical. 
A number of additional sites operated by the same person are currently 
being investigated by EPA.
    If it were not for the EPA and the financial resources of the 
Potentially Responsible Parties, little progress would be made in the 
State of Louisiana in addressing the hazardous waste sites.
    The EPA is currently funding site inspections at 15 potential 
hazardous waste sites in the the State of Louisiana. More than 40 
pipeline companies are performing site evaluation at sites along their 
pipelines throughout the State of Louisiana. Site cleanups were 
completed at 7 PRP funded sites. The EPA is funding a program to assist 
the State in identifying up to 25 additional sites per year. But the 
State will still lack the financial resources to address the newly 
identified sites.
    At PRP funded sites the State is still responsible for oversight. 
The lack of personnel resources has a major impact on the process. In 
Louisiana, the lack of sufficient technical resources has resulted in 
the State missing critical technical issues on the Shell--Bayou 
Trepagnier site. One of the issues missed involved the diluting of the 
contaminant levels by the PRP including the control samples in both the 
site samples and the control samples. Thus lower contaminant 
concentrations were evaluated for the site.
    The State of Louisiana and many other States which lack financial 
and personnel resources should not be even given the opportunity to 
request State delegation or feel pushed by Congress into having to 
accept the delegation of the Superfund Program.
                             failure to act
    The delegation of the Superfund Program to individual States 
contains a clause entitled Failure to Act. This clause is contained in 
three separate portions of the delegation requirements (pg. 37, 45 and 
46). Under the Failure to Act clause, if a determination is not made by 
the Administration within a specified number of days after the required 
information is received from a State, the transfer of responsibility 
shall be deemed to have been granted.
    This clause is inappropriate. A State should not be automatically 
granted delegation of the Superfund Program. The EPA must be given the 
opportunity to completely evaluate information provided by the State.
                         treatment of hot spots
    The preference for permanence in Superfund remedies has been 
modified to only treatment of hot spots. Attempts are made to justify 
the appropriateness of only treating the hot spots by including 
containment for the other hazardous substances. Reliance on containment 
is not a permanent remedy and merely puts off addressing the hazardous 
contamination until a future date. During that period when the 
containment fails, public health and the environment will be impacted. 
The community members in the area of the site will once again be 
exposed to the hazardous substances and bear the burden of health 
impacts. The preference for permanence should be expanded to include a 
larger portion of the hazardous contaminants than just the hot spots.
    A containment remedy is being proposed for the Agriculture Street 
Landfill Superfund Site in New Orleans. The landfill was operated by 
the city of New Orleans from 1909 to 1965. The city then developed 47 
acres of the 95 acre site on top of the landfill an private and public 
housing, recreation facilities and an elementary school. The 
residential population consists of 67 privately owned homes, 179 rent-
to-own townhouses, and 128 senior citizen apartments. The proposed 
containment will be a permeable two feet of soil in the residential 
area and one foot of soil in the undeveloped area. The hazardous waste 
will still be located one to two feet under the residential area with 
only a permeable layer separating the people from the waste. Even 
representatives of waste disposal companies have stated that no one 
should be made to live on top of an old landfill. In this case the 
people should be relocated and an appropriate containment remedy 
implemented.
                  community advisory group composition
    The composition of the Community Advisory Group is defined under 
SCAA Section 303(h)(5)(ii). The first type of group defined is ``Person 
who resides or owns residential property near the facility.'' In the 
case of some Superfund sites, people live and own land on the Superfund 
site. These people should be represented on the Community Advisory 
Group.
    An example of such a site is the Agriculture Street Landfill 
Superfund Site in New Orleans. Approximately 1,000 people live on top 
of the landfill and 67 families own their own homes on top of the 
landfill.
                               delisting
    Under Section 135(a)(i), the bill proposes a delisting process that 
will be initiated no later than 180 days after the completion of 
physical construction to implement the remedy. The initiation of the 
delisting process after construction completion rather than after 
remedy implementation completion is totally inappropriate.
    Under the most ideal circumstances, implementation of the remedy 
after construction has been completed encounters snags that were 
unknown during the planning process. In some cases these problems have 
required a change in part of the remedy process and required additional 
construction activities.
    Just a few months ago, the solidification and stabilization portion 
of the remedy at the Gulf Coast Vacuum Superfund site had to be 
reevaluated. The waste at the site is biotreated in land treatment 
units and was to be solidified and stabilized with portland cement. 
Bench scale tests provided appropriate results. However, when the first 
field test was executed, the stabilized mixture failed to meet the 
appropriate standards due to chromium contaminants contained in the 
portland cement. A search for noncontaminated cement was unsuccessful. 
The remedy is now being reevaluated utilizing different stabilizing 
chemicals.
    If the delisting process proposed in the bill was in place, this 
site would have already been delisted. Therefore I would request that 
the delisting process only occur after the remedy has been implemented 
and completed.
    In the case of delisting a site, the Technical Assistance Grants 
could be lost due to site delisting. If delisting occurs after 
construction completion but before the remedy has been implemented and 
completed the community will be cut out of participation in the 
critical implementation phase of the process. There is a misconception 
that once the remedy is selected and construction completed, there is 
no need for public participation. At all of the Superfund Sites that I 
have been involved in, there are always situations that arise during 
remedy implementation that require involvement of the public in 
resolving the issues to everyone's satisfaction. Please do not initiate 
a process that prevents public involvement and participation in the 
remedy implementation phase of the Superfund Process.
                           state concurrence
    The addition of sites to the National Priorities List can only be 
accomplished ``with the concurrence of the Governor of the State'' in 
which the site is located (SCAA Section 802(i)(3). In the State of 
Louisiana the Governor has only concurred on one site That site was the 
Southern Shipbuilding Site in Slidell. The Southern Shipbuilding site 
waste was to be treated in the existing Bayou Bonfouca Superfund onsite 
incinerator and the same contractors were to perform the work. Thus the 
Governor concurrence allowed the local contractors to perform the 
second Superfund job.
    At the other sites investigated and proposed for inclusion on the 
NPL, the Governor did not concur. The failure to concur stopped the 
Superfund process and put on additional financial burdens on the 
already over burdened State agency. Even though the majority of the 
non-concurrence sites would have been PRP funded, the State agency is 
still responsible for providing financial and technical resources to 
perform oversight activities. The non-concurrent sites have had little 
or no progress since the non-concurrence.
    The ability of the Governor to have the veto over a site being 
listed on the NPL in inappropriate. It not only puts an additional 
burden on the State agency if anything is to be accomplished at the 
site, it also prolongs the exposure of the citizens living and working 
on or near the site, or consuming seafood and animals contaminated by 
the site, as is the case of Bayou D'Inde in Calcasieu Parish, 
Louisiana.
                        limitation on new sites
    The proposed bill establishes a limit on the number of new sites 
that can be added to the NPL (SCAA Section 802(i)(1)). The number of 
sites decreases from 30 in 1997 down to 10 in the year 2000 and each 
year thereafter.
    For States without sufficient funding to address sites that should 
be fund led, this limit on the number of new sites will be an 
additional burden. In reality the additional burden will be borne by 
the citizens living on and adjacent to these sites. The establishment 
of a limit on the number of new sites should be removed from the bill.
    Thank you for the opportunity to provide input into this process.
                                 ______
                                 
   Prepared Statement of Gordon J. Johnson, New York State Assistant 
                            Attorney General
    My name is Gordon J. Johnson, and I am the Deputy Bureau Chief of 
the Environmental Protection Bureau in the Office of New York Attorney 
General Dennis C. Vacco. I very much appreciate the opportunity to 
appear before the committee, and particular thank Senators Chafee and 
Baucus, as well as Senator Moynihan from New York State, for giving me 
the time to present comments on S. 8 and the chairman's draft mark of 
August 28, 1997.
    I am appearing today on behalf of my office, which has had 
considerable experience in natural resource damage cases, and on behalf 
of the National Association of Attorneys General, NAAG. My office has 
handled or is now counsel in more than 25 major natural resource 
damages cases arising from the release of hazardous substances or 
petroleum products. We also challenged on behalf of the State of New 
York the initial natural resource damage assessment regulations 
promulgated by the Department of the Interior in 1986, a case which I 
argued before the United States Court of Appeals for the District of 
Columbia Circuit. That case, Ohio v. Department of the Interior, 880 
F.2d 432 (D.C. Cir. 1989), led to significant changes in the assessment 
regulations. When the revised regulations were challenged, New York 
with other states intervened in support of the rules. The decision in 
that case, Kennecott Utah Copper Corp. v. Department of the Interior, 
88 F.3d 1191 (D.C. Cir. 1996), upheld the Department's rule in large 
part.
    At its Summer meeting on June 22-26, 1997, the sole resolution 
adopted by NAAG addressed Superfund Reauthorization; a copy of the 
resolution is attached. Attorney General Vacco was among the group of 
bipartisan sponsors of the NAAG resolution. The resolution directly 
addresses the natural resource issues which are the subject of this 
panel.
    The NAAG resolution arose from the state Attorneys General's 
recognition of the critical importance of the Superfund programs in 
assuring protection of public health and the environment from releases 
of hazardous substances at thousands of sites across the country. They 
also know first hand the problems with the statutory scheme, and the 
need to limit transaction costs and streamline certain processes 
required by Superfund today. In particular, the Attorneys General want 
to make the tasks of assessing natural resource damages and restoring 
injured or destroyed resources less complicated, and to reduce the 
amount of litigation that may result when trying to accomplish those 
goals.
    In the following paragraphs, I will first address the issues raised 
in the NAAG resolution, and then address other significant issues in 
the current bill and the chairman's draft of August 28, 1997.
                           1. judicial review
    In the resolution, NAAG urges Congress to clarify that in any legal 
proceeding the restoration decisions of a trustee should be reviewed on 
the administrative record, and be upheld unless arbitrary and 
capricious. S. 8, as introduced, contained provisions in Sec. 702 
regarding the administrative record and public participation which, 
when read together, appeared to accomplish that goal. The chairman's 
mark-up retained the provision regarding the establishment of the 
administrative record but removed the language in the public 
participation section providing that judicial review of the trustee's 
restoration plan decisions would be on that record. S. 8 also removed 
the rebuttable presumption provided in current law to a trustee who 
adheres to the assessment regulations when conducting an assessment.
    The deletion of the judicial review provision is unfortunate and 
unwise, and likely will lead to greater litigation, increased expense, 
and secretive and duplicative assessments. Unless the selection of a 
plan and the assessment which led to that selection is entitled to the 
usual administrative presumption of correctness, no trustee could 
afford to conduct an assessment and select a plan on an open record 
with full public input knowing that responsible parties would not bound 
in any fashion by the determination. The key to reducing the costs of 
assessment and constructing a cooperative relationship with responsible 
parties is judicial review limited to correction of arbitrary decisions 
by a trustee. Such a process has been at the center of administrative 
law processes, and has received the approval of all courts as to its 
constitutionality. We again urge the committee to restore the judicial 
review provision deleted in the recent draft.
    We suggest language that makes clear the standard of review, 
thereby limiting the ability of the ever inventive CERCLA lawyers to 
raise a new issue with which to clog the courts and delay the 
implementation of restoration plans:

        [add to end of paragraph of draft chairman's mark--August 28, 
        1997 in Administrative Record (new Sec. 107(f)(20(C)(v)(I)] In 
        any judicial action under this chapter, judicial review of any 
        issues concerning the selection of a restoration plan shall be 
        limited to the administrative record, and a trustee's selection 
        shall be upheld unless the objecting party can demonstrate, on 
        the administrative record, that the selection is arbitrary and 
        capricious or otherwise not in accordance with law. In 
        reviewing any procedural errors, the court may disallow damages 
        only if the errors were so serious and related to matters of 
        such central relevance to the plan that the plan would have 
        been significantly changed had such errors not been made.
                       2. statute of limitations
    The Attorneys General ask that CERCLA be amended to provide that 
claims for natural resource damages be brought within three years of 
the completion of a damage assessment. Currently, CERCLA has a 
complicated two-prong statute of limitations period. The ``discovery 
prong'' requires filing a suit within three years of the discovery of 
the loss and its connection with the release in question, and the 
``regulatory prong'' requires its filing within three years of 
promulgation of natural resource damage assessment regulations. Final 
promulgation of regulations that comply with the statutory directives 
still is not complete.
    The language of both prongs is ambiguous, and provides little 
guidance. What constitutes ``discovery of the loss'' and ``its 
connection with the release'' is far from obvious, and certainly has 
various interpretation in any given situation. Even the ``regulatory 
prong'' has had numerous judicial interpretations. See, Kennecott Utah 
Copper Corp. v. Dept. of the Interior, 88 F.3d 1191, 1209-13 (D.C. Cir. 
1996); United States v. Montrose Chemical Corp., 883 F. Supp. 1496 
(E.D. Cal. 1995), rev. sub nom. California v. Montrose Chemical Corp., 
104 F.3d 1507 (9th Cir. 1986); Idaho v. M.A. Hanna Co., No. 83-4179, 
slip op. at 8-9 (D. Idaho July 17, 1995).
    These provisions often put a trustee in a difficult position and 
result in unnecessary litigation: the trustee may have to bring suit 
before he or she has sufficient information to determine the scope of 
the injury or to quantify damages, and even before the RI/FS is 
completed.
    In contrast, in the Oil Pollution Act of 1990, Congress adopted a 
clear rule: the limitations period runs three years after completion of 
an assessment. See, OPA Sec. 1017(f)(1)(B). This period has not 
resulted in uncertainty for trustees or liable parties. In addressing 
response costs for oil spills, states and the Federal Government 
generally have addressed natural resource damages and either settled or 
dropped claims, or established timetables for an assessment. Trustees 
cannot afford to delay assessments and thereby extend the liability 
period because evidence and data needed to conduct an assessment 
disappears after time. As demonstrated under OPA, NAAG's proposed 
solution has proved workable and just.
    The August 28, 1997 draft complicates the issue further. The 
pertinent provision, new Sec. 705, would apply a third period when 
trustees and responsible parties enter into an agreement regarding the 
performance of an assessment. By setting a limit of six years from the 
signing of the agreement, the provision may well force a trustee to 
court before the assessment is complete in complicated cases, and 
limits the flexibility parties need when negotiating an agreement. 
Indeed, this new provision may well discourage agreements and 
settlements because responsible parties might prefer to rely on the 
current ambiguous provisions that still would remain and avoid the 
certain extension this new provision provides. We suggest the follow 
language instead:

          Statute of Limitations.--(1) Section 113(g)(1) of the 
        Comprehensive Environmental Response, Compensation, and 
        Liability Act (42 U.S.C. 9613(g)(1)) is amended by striking the 
        first sentence and inserting the following:

          ``(1) Action for natural resources damages.--Except as 
        provided in paragraphs (3) and (4), no action may be commenced 
        for damages (as defined in section 106(6)) under this Act, 
        unless that action is commenced within 3 years after the date 
        of completion of the natural resources damage assessment in 
        accordance with the regulations promulgated under section 
        301(c) of this title, or, if the trustee elects not to follow 
        those regulations, of a plan for the restoration, replacement, 
        or acquisition of the equivalent of the injured, lost, or 
        destroyed natural resources adopted after adequate public 
        notice, opportunity for comment, and consideration of all 
        public comments.''

          (2) Section 112(d) of CERCLA is amended by striking paragraph 
        (2) and inserting the following:

          (2) Claims for recovery of damages.--No claim may be 
        presented under this section for recovery of the damages 
        referred to in section 107(a) unless the claim is presented 
        within 3 years after the date of completion of the natural 
        resources damage assessment in accordance with the regulations 
        promulgated under section 301(c) of this title or if the 
        trustee elects not to follow those regulations, of a plan for 
        the restoration, replacement, or acquisition of the equivalent 
        of the injured, lost, or destroyed natural resources adopted 
        after adequate public notice, opportunity for comment, and 
        consideration of all public comments.''
                  3. superfund moneys for assessments
    When CERCLA was amended in 1986, Congress provided in CERCLA that 
the Superfund Trust Fund could be used by state and Federal trustees to 
conduct damage assessments, recognizing in particular that many state 
trustees lack the funds to pay for the necessary expertise to conduct 
assessment themselves. In conference, language was added to the 
amendments to the Internal Revenue Code which had the practical effect 
of negating that CERCLA provisions. NAAG long has asked that the 
conflict between the IRS Code and CERCLA be eliminated and that state 
trustees be able to draw on the Fund to conduct assessments, as they 
can currently to conduct RI/FS's.
              4. use of reliable assessment methodologies
    Just as Congress does not direct EPA to use only certain scientific 
methodologies in the changing and developing area of remedial science, 
NAAG believes that Congress should retain the ability of trustees to 
recover damages based on any reliable assessment methodology. S. 8, 
however, provides that assessments must be conducted only in accordance 
with regulations not yet promulgated by the President, and effectively 
forbids the use of one methodology, the admittedly controversial 
``contingent valuation'' methodology, in the assessment process. We 
believe that state trustees should not be compelled to use one 
federally dictated method to assess damages, particularly given the 
myriad types of hazardous substances and release scenarios and the 
experience of state trustees in assessing damages in ways that are 
reliable and cost-effective. The precise methodologies allowed is a 
matter of scientific expertise best left to the regulatory and judicial 
process for resolution.
                            5. liability cap
    We are pleased that S. 8 does not alter the current liability cap. 
We are confident that trustees will continue to use their good sense, 
and in any event that the courts will not award excessive damages. 
Calamities such as the Exxon Valdez spill and the contamination of the 
Hudson River convince us that there may be circumstances where altering 
the current liability cap may result in a gross injustice to the people 
of the United States.
             6. recovery of enforcement and oversight costs
    S. 8 provides that trustees may recover the costs of their 
assessments, but is silent with respect to the related costs of 
enforcement and recovering the damages and a trustee's cost of 
overseeing restoration of damaged resources. The NAAG resolution asks 
that Congress clarify that such costs are inherent in a sound 
assessment process, and explicitly provide that trustees can recover 
both the costs of enforcement, including attorney fees generally 
incurred by a state Attorney General's office, and the costs of 
overseeing the implementation of a natural resource damage restoration.
    The NAAG resolution is consistent with the general and 
uncontroversial policy that persons responsible for the release of 
hazardous substances have an obligation to make the public whole in the 
event that there is an injury to our natural resources. Well over a 
hundred years ago in cases on the abatement of nuisances and the public 
trust doctrine, the courts made clear several bedrock principles. The 
states and the Federal Governments are trustees for the people, and 
that their trust corpus includes this nation's glorious natural 
resources. We, as trustees, have an obligation to protect these often 
irreplaceable resources from harm, and those that harm them have the 
obligation to restore them for all the people. A strong and clear 
natural resource damages remedy is essential to accomplishing these 
goals.
    Implementation of CERCLA's natural resource damage provisions had a 
difficult birth and early childhood. The initial assessment regulations 
were deeply flawed, and states such as mine had to go to court to seek 
their repromulgation. Contrary to Congress's directive, the Federal 
agencies entrusted with implementation of the Superfund natural 
resource damages program gave them little attention at first. Since the 
1989 decision in the Ohio v. Department of the Interior case, however, 
the Federal program has matured. States have continued their progress 
in implementing fair and just recovery programs at state levels, 
relying in large part with the tools provided by CERCLA. We recognize 
that like almost any tool, the natural resource damage provisions of 
CERCLA could use some sharpening. We ask that this committee and 
Congress maintain the central provisions of CERCLA that make the public 
whole when a release causes injury.
Other Issues
    S. 8 and the August 28, 1997 draft address a number of natural 
resource damage issues important to the remedy provided by CERCLA. In 
the following paragraphs, I address some of the major issues, relying 
on the experiences of my office and those of other Attorneys General, 
as well as the experiences of trustees since the early 1980's with the 
natural resource damage provisions.
    I note that the August 28, 1997 draft suggests some revisions to S. 
8 that address certain problems state trustees and my office found in 
the bill as introduced. I comment on those revisions first.
            A. Consistency Requirement
    The August 28, 1997 draft rewrote the consistency provision of S. 8 
at Sec. 703, removing troublesome language and creating in its place a 
provision requiring a trustee to ``take into account'' implemented or 
planned removal and remedial actions when selecting a restoration 
alternative. The trustee also is required to advise EPA of the 
selection, confirm that the selected plan is, ``to the extent 
practicable, consistent with the response action planned or 
accomplished at the facility,'' and to explain any significant 
inconsistencies.
    The proposal provides a workable solution to the hypothetical 
problems that might arise between EPA cleanup measures and trustee 
restoration plans. New York would suggest one minor alteration: in 
cases where EPA has not implemented or planned any removal or remedial 
action and the site is not on the NPL, notice need not be given EPA of 
the selected plan. While in most significant cases a state normally 
will include EPA in the process at least on an informational basis, 
requiring the statement adds just another layer of paper and imposes 
another mandate on state trustees in cases where EPA has had no 
involvement and plans no future involvement.
            B. Payment Period
    S. 8 provided that payment of damage over a period of years would 
be appropriate. While periodic payment settlements are far from 
uncommon in this area, S. 8 included the ``period of time over which 
the damages occurred'' among the factors to be considered when 
establishing as schedule for payment. The August 28, 1997 draft wisely 
removed that consideration. With that and the other changes, the 
provision is appropriate.
            C. Lead Federal Trustee
    The August 28, 1997 draft modifies the provision regarding the 
appointment of a lead Federal trustee appropriately. S. 8 at 
Sec. 702(a). The revised provision requires regulations to provide for 
a ``lead Federal administrative trustee'' at a facility undergoing an 
assessment, who presumably will coordinate the Federal trustees' 
activities administratively. This role is important, because it will 
give state trustees the ability to contact one Federal official when 
seeking to coordinate state efforts with Federal activities.
    We think that the committee should clarify either in the bill 
expressly or through the committee's report that the ``lead Federal 
administrative trustee'' would be the lead only among the Federal 
trustees, not among the Federal, state and tribal trustees. At many 
sites, it is much more appropriate and effective for a lead trustee who 
handles matters with the responsible parties or among all the trustees 
to be a state or tribal trustee. Who should be the lead among all 
trustees should be left to the trustees to decide, and co-lead trustees 
should be allowed.
    Finally, we do not think it is appropriate for the lead Federal 
trustee to be a responsible party, a situation which may occur in cases 
addressing damages arising from releases at a Department of Energy or 
military facility. In those situations, the lead Federal administrative 
trustee should be from one of the Federal agencies not liable for 
damages in order to eliminate even the appearance to the public and the 
states that the fox is deciding on repairs to the chicken house.
            D. Interim Losses and ``Temporary Restorations''
    By arguably limiting a trustee's ability to recover interim damages 
to natural resources, the provisions of S. 8, even as modified by the 
August 28, 1997 draft, significantly depart from the principle that 
when natural resource are damaged, the party responsible for that 
damage has an obligation to make our citizens whole. While S. 8 places 
emphasis, appropriately, on restoration or replacement of injured or 
damaged resources, arguable restrictions on recovery of interim losses 
may also have the ironic effect of delaying that restoration. Moreover, 
in cases where the injury to the resources cannot be repaired except by 
natural recovery because restoration is infeasible or grossly 
expensive, the language of the August 28, 1997 draft could be read to 
imply that a trustee cannot recover any damages whatsoever, leaving the 
public alone to bear the consequences and costs of injured or destroyed 
natural resources.
    Restoration of injured natural resources, or their replacement or 
acquisition of their equivalent when restoration is not feasible or 
appropriate, has always been the goal of a trustee. Natural resources 
almost always provide numerous ecological and human services and have 
intrinsic values to society that are difficult to quantify, and thus 
the first step in insuring proper compensation is to restore the 
resource. Pending that restoration, however, our citizens do suffer 
losses which also should be compensated. The August 28, 1997 draft's 
explicit inclusion of language allowing recovery for ``temporary 
replacement of the lost services'' is a step in the right direction, 
but is too limited.
    First, while the draft provides that a restoration alternative 
selected by a trustee may include such temporary replacement, it should 
clarify that a trustee may begin providing such services before the 
restoration plan is selected at the end of an often lengthy assessment 
study, and that the costs of such pre-selection provision of services 
will be recoverable.
    Second, even if a resource recovers naturally quickly following a 
release, the public still has suffered quantifiable and compensable 
damages. For instance, when public recreational facilities, such as 
beaches, are closed for days after a spill, temporary replacement often 
will not be practicable or implementable on a short-term basis even 
though the public has suffered an injury. Trustees still should be able 
to recover damages and use sums to improve beach access or otherwise 
enhance the resource.
    Third, the bill should be clarified to confirm that temporary 
replacement is allowed in non-restoration alternatives. A trustee may 
also evaluate ``replacement'' and ``acquisition'' alternatives when 
evaluating plans. Pending implementation of such plans if selected, a 
trustee also should' be able to recover for providing replacement 
services.
            E. Double Recovery Language
    CERCLA presently contains a clause expressly prohibiting double 
recovery: ``[t]here shall be no double recovery under this chapter for 
natural resources damages, including the costs of damage assessment or 
restoration, rehabilitation, or acquisition for the same release and 
natural resource.'' CERCLA Sec. 107(f)(1). While double recovery has 
not been an issue in the years since 1980, S. 8 rewrites the otherwise 
clear language. Unfortunately, the new version may create fertile 
ground for litigation. A strained reading of the new language may 
suggest that anyone who has recovered response costs which are used to 
restore an injured resource--and remedial work often has that 
consequence, obviously--cannot recover natural resource damages. 
Moreover, the new language appears to preempts state laws, and could 
result in significant unfairness. For instance, most states have long 
allow recovery for spills which kill fish in a river, with recoveries 
paid to a state's fish stocking programs. Such damages may not 
necessarily be recoverable under S. 8. Thus, this new language would 
appear to prevent a state from recovering such damages in the event of 
a natural resource recovery under CERCLA as amended by S. 8. Moreover, 
recovery by a state for just this element of typical damages may 
preclude any recovery under S. 8 for all the other effects of a 
release.
    Double recovery has not been raised as a problem, and the current 
language protects against such a result. We urge the committee to 
return to the current statutory language.
            F. Injury Before 1980
    Section 701(7) of the August 28, 1997 draft imposes significant and 
unwarranted restrictions on recovery of damages when a release occurred 
prior to 1980 even though damages resulting from that release still are 
being incurred. First, under current law, a trustee can recover if the 
damages caused by a pre-1980 release continue after 1980. See CERCLA 
Sec. 107(f)(1) [last sentence]. Under S. 8, a trustee may recover only 
if the injury continues. This one word substitution may be read to 
preclude recovery of all damages whatsoever for a pre-1980 release, 
even one which continues to have significant impacts and harms, because 
some courts have concluded that the ``injury'' occurs at the moment of 
release while damages occur thereafter. See, e.g., In re Acushnet River 
& New Bedford Harbor Proceedings, 716 F. Supp. 676, 681-687 (D. Mass. 
1989). Claims now being litigated for numerous sites could well be 
affected and extinguished.
    At common law, the creator of a nuisance which continues to cause 
damage after its creation still is liable for its abatement. This well-
grounded common law doctrine is at the heart of the natural resource 
damages remedy, and should not be discarded by this committee.
            G. Apparent Ban on Modeling
    Modeling of releases and spills to calculate damage quickly and 
inexpensively is not only permitted by current law, but expressly 
encouraged. See, CERCLA Sec. 301(c)(2). Especially when damages 
resulting from a spill are not extensive, modeling avoids the costs 
associated with damage assessment and the necessary scientific 
procedures and analyses that otherwise might be required to complete a 
site-specific assessment.
    In contrast, S. 8 provides that all aspects of the assessment 
process shall, ``to the extent practicable, be based on facility-
specific information.'' S. 8 at Sec. 703(a). This provision could be 
read as essentially prohibiting modeling despite the huge savings in 
assessment costs resulting from its use. We believe that the provision 
is counterproductive and may well increase assessment costs--which 
would be paid by liable parties--to many times more than any 
miscalculation modeling of restoration costs might yield at a specific 
site. We urge this committee to allow modeling and other types of 
expedited assessments as possible methodologies that could be 
considered when promulgating assessment regulations.
            H. Identification of Trustee Responsibilities
    S. 8 requires the assessment regulations include procedures for 
trustees to identify the resources under their trusteeship and the 
legal bases for their authority. These procedures are not useful, and 
could create issues for time-consuming litigation as well as foster 
jurisdictional disputes among state, Federal and tribal trustees. In 
New York, we have repeatedly worked with other trustees from the 
Federal Government, tribes and other states. Cooperation is fostered 
when we agree to avoid debates over the status and nature of our 
trusteeships, and has allowed us to work more cooperatively and 
efficiently with responsible parties. This provision of S. 8 is 
unnecessary.
            I. Timeliness of Suit
    The August 28, 1987 draft adds a paragraph prohibiting recovery by 
a trustee if the resource has returned to baseline condition before the 
trustee files a claim or incurs assessment or restoration costs. This 
provision would unfairly penalize the public and award polluters when a 
trustee lacks the finances or opportunity to address immediately a 
particular release even though the public has suffered considerable 
injury until the resource recovered.
    For instance, a release may close recreational facilities or kill 
fish, but before a trustee can turn his or her attention to the matter, 
the resource may have returned to baseline conditions. As discussed 
above, such events do cause damage which should be compensable. More 
ominous, however, is the inducement created by this section for a 
responsible party to withhold crucial information about a spill and its 
effects from the trustee and the public until the resource has 
naturally recovered. We urge that this provision be deleted from the 
bill.
            J. Non-use Values
    S. 8 expressly prohibits recovery for ``any impairment'' of non-
use, or passive use values. In New York, we believe that such a 
provision could inappropriately devalue natural resources, and may 
force the State and its taxpayers to bear themselves the costs arising 
from improper release of hazardous substances.
    The value of a natural resource is a combination of its value as a 
useful commodity, such as the value of an aquifer as drinking water or 
seal pelts as clothing, and its passive values. These passive values 
include the value placed on having a resource available for future use, 
and the fact that we repeatedly pay to have resources available merely 
because we value their existence. My state expends thousands of dollars 
a year to protect and propagate endangered species, even though we 
cannot think of any use for a piping plover, for instance. We protect 
whales and will incur costs to save stranded ones not because the 
whales are ``useful'' as commodities, but because we value their 
existence. Unique resources, such as majestic canyons and rivers like 
the Grand Canyon and the Hudson River, are valuable to society not only 
for their actual uses as parks, waterways, or recreational facilities, 
but because they just are.
    By prohibiting recoveries predicated on these values, S. 8 ignores 
the costs borne by government to protect and safeguard these resources. 
Under S. 8, a spiller who kills endangered species may not have to pay 
any damages whatsoever when it is not possible to restore the species 
through a breeding program, even though government may have expended 
thousands of dollars that year alone to protect the species. There is 
no doubt that the resource has been injured and that we, the public, 
have suffered damages, yet we will have no remedy under S. 8.
    Moreover, the provision is susceptible to misuse in litigation. It 
will certainly be used in legal arguments to oppose restoration plans 
in situations where nonuse values predominate and influence a plan's 
conclusion that the cost of restoration is not disproportionate to the 
benefits of restoration.
    There are numerous safeguards in our legal and political systems to 
prevent the inappropriate use of nonuse values. The settlements reached 
in natural resource damage cases to date reflect trustees' common-sense 
utilization of the economic concepts relating to both use and passive 
use valuation. New York urges that this provision be dropped from the 
bill.
                                 ______
                                 
               National Association of Attorneys General
    adopted summer meeting, june 22-26, 1997, jackson hole, wyoming
                 resolution--superfund reauthorization
    WHEREAS, the Attorneys General of the States have significant 
responsibilities in the implementation and enforcement of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) and analogous state laws, including advising client agencies 
on implementation of the cleanup and natural resource damage programs, 
commencing enforcement actions when necessary to compel those 
responsible for environmental contamination to take cleanup actions and 
to reimburse the states for publicly-funded cleanup, and advising and 
defending client agencies that are potentially liable under CERCLA;
    WHEREAS, the Superfund programs implemented under CERCLA and 
analogous state laws are of critical importance to assure protection of 
public health and the environment from uncontrolled releases of 
hazardous substances at thousands of sites throughout the country;
    WHEREAS, Congress is currently considering legislation to amend and 
reauthorize CERCLA;
    WHEREAS, to avoid unnecessary litigation and transaction costs over 
the interpretation of new terms and new provisions, amendments to 
CERCLA should be simple, straightforward, and concise;
    WHEREAS, the National Association of Attorneys General has adopted 
resolutions in March 1987, July 1993, and March 1994 on the amendment 
of CERCLA;
                               state role
    WHEREAS, many state cleanup programs have proven effective in 
achieving cleanup, yet the CERCLA program fails to use state resources 
effectively;
    WHEREAS, state programs to encourage the cleanup and redevelopment 
of underutilized ``brownfields'' are making important strides in 
improving the health, environment, and economic prospects of 
communities by providing streamlined cleanup and resolution of 
liability issues for new owners, developers, and lenders;
                           federal facilities
    WHEREAS, Federal agencies should be subject to the same liability 
and cleanup standards as private parties, yet Federal agencies often 
fail to comply with state and Federal law;
                               liability
    WHEREAS, the core liability provisions of CERCLA, and analogous 
liability laws which have been enacted by the majority of the states, 
are an essential part of a successful cleanup program, by providing 
incentives for early cleanup settlements, and promoting pollution 
prevention, improved management of hazardous wastes, and voluntary 
cleanups incident to property transfer and redevelopment;
    WHEREAS, the current CERCLA liability scheme has in some instances 
produced expensive litigation, excessive transaction costs, and unfair 
imposition of liability;
                            remedy selection
    WHEREAS, constructive amendments to CERCLA are appropriate to 
streamline the process of selecting remedial actions and to reduce 
litigation over remedy decisions;
                        natural resource damages
    WHEREAS, constructive amendments to CERCLA are appropriate to make 
it less complicated for natural resource trustees to assess damages and 
to restore injured natural resources, and to reduce the amount of 
litigation that may result in implementing the natural resource damage 
program.
    NOW, THEREFORE, BE IT RESOLVED THAT THE NATIONAL ASSOCIATION OF 
ATTORNEYS GENERAL urges Congress to enact CERCLA reauthorization 
legislation that:
A. State Role
    1. Provides for delegation of the CERCLA program to qualified 
states, and for EPA authorization of qualified state programs, with 
maximum flexibility;
    2. Reaffirms that CERCLA does not preempt state law;
    3 Ensures that states are not assigned a burdensome proportion of 
the cost of operation and maintenance of remedial actions and in no 
event to exceed 10 percent;
    4. Clarifies that in any legal action under CERCLA, response 
actions selected by a State shall be reviewed on the administrative 
record and shall be upheld unless found to be arbitrary and capricious 
or otherwise not in accordance with law;
B. Federal Facilities
    5. Provides for state oversight of response actions at Federal 
facilities, including removal actions.
    6. Provides a clear and unambiguous waiver of Federal sovereign 
immunity from actions under state or Federal law;
C. Liability
    7. Provides a liability system that: (a) includes the core 
provisions of the current CERCLA liability system that are essential to 
assure the effectiveness of the cleanup program; (b) provides 
incentives for prompt and efficient cleanups, early cleanup 
settlements, pollution prevention, and responsible waste management; 
(c) addresses the need to encourage more settlements, discourage 
excessive litigation, reduce transaction costs, and apply cleanup 
liability more fairly and equitably, especially where small 
contributors and municipal waste landfills are involved; and (d) 
assures adequate funding for cleanup and avoids unfunded state 
mandates;
    8. Provides reasonable limitations on liability for disposal of 
municipal solid waste;
    9. Provides an exemption from liability for ``de micromis'' parties 
that sent truly minuscule quantities of waste to a site;
    10. Encourages early settlements with de minimis parties that sent 
minimal quantities of waste to a site;
D. Remedy Selection
    11. Provides for the consideration of future land use in selecting 
remedial actions, provided that future land use is not the controlling 
factor, and provided that remedial actions based on future land use are 
conditioned on appropriate, enforceable institutional controls;
    12. Retains the requirement that remedial actions attain, at a 
minimum, applicable state and Federal standards;
    13. Retains the prohibition on pre-enforcement review of remedy 
decisions;
    14. Provides that cost-effectiveness should be considered, among 
other factors, in remedy selection;
    15. Allows EPA or the state agency to determine whether to reopen 
final records of decision for remedial actions, as under current law;
E. Natural Resource Damages
    16. Clarifies that in any legal action, restoration decisions of a 
natural resource trustee shall be reviewed on the administrative record 
and shall be upheld unless found to be arbitrary and capricious or 
otherwise not in accordance with law, without precluding record review 
on other issues;
    17. Provides that claims for damages for injuries to natural 
resources must be brought within three years of that completion of a 
damage assessment;
    18. Allows Superfund moneys to be used for assessments of damages 
resulting from injures to natural resources and for efforts to restore 
injured natural resources;
    19. Retains the ability of trustees to recover damages based on any 
reliable assessment methodology;
    20. Does not revise the cap on liability for natural resource 
damages so as to reduce potential damage recoveries;
    21. Clarifies that trustees are entitled to recover legal, 
enforcement, and oversight costs;
F. Brownfields
    22. Strengthens state voluntary cleanup and brownfields 
redevelopment programs by providing technical and financial assistance 
to those programs, and by giving appropriate legal finality to clean up 
decisions of qualified state voluntary cleanup programs and brownfield 
redevelopment programs;
G. Miscellaneous
    23. Allows EPA to continue to list new sites on the National 
Priorities List based upon threats to health and the environment, with 
the concurrence of the state in which the site is located.
    BE IT FURTHER RESOLVED that the CERCLA Work Group, in consultation 
with and with approval of the Environmental Legislative Subcommittee of 
the Environment Committee, and in consultation with NAAG'S officers is 
authorized to develop specific positions related to the reauthorization 
of CERCLA consistent with this resolution; and the Environmental 
Legislative Subcommittee, or their designees, with the assistance of 
the NAAG staff and the CERCLA Work Group, are further authorized to 
represent NAAG's position before Congress and to Federal agencies 
involved in reauthorization decisions consistent with this resolution 
and to provide responses to requests from Federal agencies and 
congressional members and staff for information, technical assistance, 
and comments deriving from the experience of the state Attorneys 
General with environmental cleanup programs in their states.
    BE IT FURTHER RESOLVED that NAAG directs its Executive Director and 
General Counsel to send this resolution to the appropriate 
congressional committees and subcommittees, and to the appropriate 
Federal agencies.
    ABSTAIN: Attorney General Don Stenberg
                                 ______
                                 
   Responses by Gordon J. Johnson to Questions from Senator Moynihan
    Question 1. What is the State's experience with the natural 
resource damage provisions in the current law? How would that change 
under the chairman's mark?
    Response. New York has been or is the plaintiff in over 25 cases 
that have sought natural resource damages arising from releases of 
hazardous substances and petroleum products. In a majority of these 
cases, the State has settled with responsible parties and recovered 
funds that are used to restore or purchase wetlands, replant 
shorelines, enhance groundwater supplies and provide alternative water 
supplies, and implement other measures relating to the restoration or 
replacement of damaged or destroyed resources. The right to recover 
damages has also helped improve remedial measures; aware that a trustee 
could recover damages for lost interim uses until restoration is 
complete, responsible parties have agreed to speedier and more 
extensive remedial measures in order to reduce potential damages.
    The chairman's mark will have significant effects on New York's use 
of the natural resource damage recovery remedy. For instance, when it 
is not possible to fully restore a contaminated aquifer, funds might 
not be recoverable that could be used to protect the groundwater from 
further degradation in compensation for the reduced or completely lost 
use of the aquifer because the measure of damages only allows for the 
temporary replacement of services rather than compensation for lost 
uses. See, Section 701(7), adding Sec. 107(f)(1)(E)(i)(I). Arguably, 
the State also could no longer recover funds to protect or enhance 
habitats of endangered species--animals or plants which may have little 
or no use value--unless the habitat itself was degraded because no 
recovery is allowed for ``impairment of nonuse values.'' See Section 
701(7), adding Sec. 107(f)(1)(E)(ii). The State's ability to fully 
recover for the loss of fisheries, impacts on birds and other species, 
and related injuries arising from longstanding but continued discharges 
of chemicals into rivers or lakes may well be jeopardized by changes in 
the provisions governing pre-1980 releases. See Section 701(7), adding 
Sec. 107(f)(1)(E)(iv)(II). Because the full value of lost interim uses 
may not necessarily be recoverable--such recovery arguably being 
limited to the costs of temporary replacement of services--delay in 
implementing remedies and restoration may work to the advantage of 
responsible parties, leading to drawn out litigation. See, Section 
701(7), adding Sec. 107(f)(1)(E)(i).

    Question 2. Are the present methods for determining the ``value'' 
of natural resources adequate? How will the chairman's mark affect our 
ability to determine natural resource damages?
    Response. The current methods generally are adequate. A trustee 
will usually follow the procedures set forth in the natural resource 
damage assessment regulations, 43 C.F.R. Part 43, which provide a range 
of methodologies that allow a trustee to calculate the full value of 
natural resources, including the non-market values that often are at 
the core of the resources' value to society. Using these methodologies, 
a trustee can calculate damages arising from the destruction or 
impairment of endangered species, aquifers, beaches, wetlands and other 
resources that are not traded in a market and thus lack market 
valuations, and which have significant non-consumptive values, such as 
existence and option values. See State of Ohio v. United State 
Department of the Interior, 880 F.2d 432, 462-4 (D.C. Cir. 1981) 
(requiring Interior Dept. to structure regulations ``to capture fully 
all aspects of the loss'' as intended by Congress).
    The chairman's mark would significantly hinder the determination 
and recovery of the full value of the loss. The absolute restriction on 
recovery of non-use values, the restriction on the use of the 
contingent valuation methodology, an apparent limitation on the 
recovery of interim lost uses, which is only partially ameliorated by 
the ability to recover the cost of a temporary restoration of services, 
and language implying that modeling may not be used to determine 
damages each will diminish a trustee's ability to determine and recover 
damages. Ironically, under both S. 8 as introduced and the chairman's 
mark, the greater the injury to and the more irreplaceable the 
resource, the less likely that a trustee will recover damages because 
of the restrictions on recovery for impairment of non-use values and 
interim loss values; injuries to unique and pristine resources that 
cannot be replaced or are not currently being used may have very low 
values under the current versions of S. 8.
                                 ______
                                 
     Responses by Gordon J. Johnson to Questions from Senator Wyden
    Question 1. Does the National Association of Attorneys General 
support including a clearer, more comprehensive waiver of sovereign 
immunity in Superfund reform legislation than what is currently 
provided in existing law. If so, could you explain why NAAG believes it 
is necessary to clarify the Superfund law's waiver of sovereign 
immunity and bring it into line with what is already provided for 
hazardous waste laws in the Federal Facilities Compliance Act?
    Response. The National Association of Attorneys General (NAAG) 
strongly supports a clearer, more comprehensive waiver of sovereign 
immunity in Superfund reform legislation. This position is reflected in 
the July, 1997 NAAG Superfund Reauthorization Resolution, a copy of 
which is attached to my written testimony. NAAG has advocated a 
clarification of this waiver for approximately ten years. It proposed 
such an amendment in the 1990 report ``From Crisis to Commitment: 
Environmental Cleanup and Compliance at Federal Facilities'' co-
authored with the National Governor's Association, and in its July, 
1993 NAAG Resolution on Superfund Reform. Numerous attorneys general, 
including those from Colorado, Washington and New Mexico have testified 
in favor of such a clarification,\1\ and forty-three attorneys general 
signed a May 3, 1995 letter requesting such a clarification, among 
other things. On July 10 of this year, 39 attorneys general urged 
passage of H.R. 1195 introduced by Representative Dan Schaefer's last 
spring. A copy of this letter is attached. Rep. Schaefer's bill would 
amend the current CERCLA waiver to accord more closely to the language 
in the Federal Facilities Compliance Act (FFCA).
---------------------------------------------------------------------------
    \1\ See e.g., Testimony of Tom Udall, Attorney General of New 
Mexico before the House Subcommittee on Commerce, Trade and Hazardous 
Materials of the House Committee on Commerce, October 26, 1995; 
Testimony of Christine Gregoire, Attorney General of Washington before 
the Senate Committee on Environment and Public Works, April 24, 1996; 
Testimony of Gale Norton, Attorney General of Colorado before the 
Senate Subcommittee on Superfund, Waste Control, and Risk Assessment, 
Committee on Environment and Public Works, May 9, 1995.
---------------------------------------------------------------------------
    NAAG supports a clarification of the waiver of sovereign immunity 
in CERCLA to enable Federal, State and local regulators to hold Federal 
facilities to the same standard that is applied to private parties. 
Although section 120(a) currently contains a waiver, it does not 
include the detailed, explicit language that appears necessary to avoid 
litigation with the Department of Justice and to withstand ultimate 
judicial scrutiny by the Courts which are compelled to construe any 
perceived ambiguity in favor of the sovereign. The waiver language in 
section 120(a)(4), pertaining to liability under State law, is 
particularly weak, and must be replaced with language similar to that 
in the FFCA to avoid fruitless disputes with recalcitrant Federal 
agencies.\2\ The fact is, as Senator Stafford remarked a decade ago, 
``no loophole, it seems, is too small to be found by the Federal 
Government.\3\ Clarification of the waiver of sovereign immunity is 
necessary to eliminate some of the loopholes that the Federal 
Government has already found, and to ensure that more State and Federal 
resources go to determining how best to comply, and not to disputing 
and litigating over whether compliance can be compelled.
---------------------------------------------------------------------------
    \2\ See, Everett, H., ``Federal Sovereign Immunity and CERCLA: When 
is the United States Liable for Costs,'' 9 J. Natural Resources and 
Environmental Law 479 (1994). A copy of this article is attached.
    \3\ 132 Cong. Rec. 514903 (daily ed. Oct. 3, 1986).

    Question 2. Another important issue involving Federal Facilities is 
whether an interagency agreement like the Hanford Tri-Party Agreement 
can be used by Federal agencies as an excuse not to have to comply with 
otherwise applicable environmental laws. This was the issue in the 
Heart of the America case. Has this issue been resolved or are there 
still outstanding issues about Federal agencies' responsibility to 
comply with environmental laws during the course of cleaning up Hanford 
and other Federal Facilities?
    Response. The issue raised by the Heart of America case has not 
been resolved. The United States argued successfully in that case that 
the existence of the Tri-Party Agreement at Hanford brought all 
environmental activities at Hanford under the CERCLA umbrella, even 
those expressly delineated in the Agreement as activities that would be 
regulated pursuant to State authorities. As a result, citizens were 
precluded by the pre-enforcement review ban in section 113(h) of CERCLA 
from enforcing applicable State law.
    Although the ruling was limited on its facts to citizen suits, 
States are concerned that the Federal Government may argue that its 
reasoning also applies to State enforcement actions. States have 
therefore been reluctant to enter into comprehensive agreements at 
Federal facilities for fear of losing the independent enforcement 
authorities they would otherwise have. Thus, the case provides a 
counter-incentive to cooperative relations between the regulators and 
regulated agency, and stymies efforts to develop sensible, coordinated, 
efficient responses at these very complicated sites. Language proposed 
by Representative Schaefer in H.R. 1195 would address this question to 
the satisfaction of NAAG (see above-referenced July 10, 1997 letter in 
support of H.R. 1195).

    Question 3. Governor Nelson stated in his testimony that NGA 
supports having applicable State environmental laws apply at Federal 
Facilities in the same manner that they apply at non-Federal Facility 
sites. Does NAAG agree with NGA that States should be authorized to 
apply their state cleanup laws to Federal Facilities?
    Response. NAAG concurs with NGA's position that Federal facilities 
should be treated the same as private responsible parties, and finds no 
justification for establishing unique delegation and remedy selection 
procedures to apply to Federal facilities.\4\ Rather, Title II on state 
role should be modified to include Federal sites. This modification 
along with other reforms urged by States would allow States to apply 
their laws at Federal facilities in the same manner that they apply 
them at non-Federal Facility sites.
---------------------------------------------------------------------------
    \4\ See e.g., NAAG Resolution on Superfund Reauthorization, June, 
1997. States have urged one exception to this general rule. In the 
States' Reform Proposals Regarding Environmental Obligations at Federal 
facilities transmitted to President Clinton by letter dated July 12, 
1995 and signed by thirty-eight Attorneys General and eleven governors, 
States advocated that the transfer of EPA authority at Federal 
facilities to States with corrective action authority should be 
automatic. This exception is necessary because at Federal facilities, 
unlike private sites, EPA cannot act truly independent of its sister 
agencies.

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  Statement of Susan Eckerly, Director, Federal Government Relations, 
              National Federation of Independent Business
    Mr. Chairman, members of the committee, thank you for the 
opportunity to testify today on the recently revised version of S. 8, 
the Superfund Cleanup Acceleration Act of 1997. My name is Susan 
Eckerly, and I am the Director of Federal Government Relations-Senate 
for the National Federation of Independent Business (NFIB).
    The NFIB is the nation's largest small business advocacy 
organization, representing 600,000 small business owners in all fifty 
states. The typical NFIB member employs five people and grosses 
$350,000 in annual sales. Our membership reflects the general business 
profile in that we have the same representation of retail, service, 
manufacturing and construction businesses that make up the nation's 
small business community. NFIB sets it legislative positions and 
priorities based upon regular surveys of its membership.
    I commend the committee for its continued efforts to reach 
consensus on legislation that will overhaul the Superfund program. We 
support your efforts to move forward by marking up legislation next 
week and hope that this Congress will at last put an end to the 
Superfund liability nightmare for small business. Those caught in the 
Superfund web cannot wait much longer for relief.
                     superfund's unintended effects
    When Superfund was originally passed in 1980, it was believed that 
the number of hazardous waste disposal sites and the costs to clean 
them up were relatively simple. Unfortunately, that has not been the 
case. Over the past seventeen years this program has proved to be one 
of, if not the worst, environmental programs on the books. It has 
failed to meet its mission of cleaning up hazardous waste sites and 
instead has encouraged wasteful, excessive litigation that can last for 
years and cost billions of dollars. Today's system is fraught with the 
wrong incentives: incentives to prolong cleanup, continue expensive 
litigation and to drag even the smallest contributor through the 
lengthy process.
    When examining the sites that have been cleaned up, the costs 
associated with such cleanups, coupled with the staggering amount of 
money that has gone directly to lawyers' coffers, it is easy to see 
that the fault and liability system currently in Superfund is flawed. 
Congress may have envisioned a system that would only catch the few, 
large, intentional or irresponsible polluters, however, the reality has 
been very different. There have been over 100,000 different potentially 
responsible parties (PRPs) identified at Superfund sites. Obviously, a 
majority of these are not Fortune 500 companies, but are small 
businesses. Since Congress last reauthorized Superfund, we have 
experienced an increasing number of complaints and questions from our 
membership. The effect of the current liability system is permeating 
all segments of the small business community. No issue in this very 
complex public policy debate will have a more direct impact on the 
present and future economic viability of many small businesses than 
this aspect of Superfund reform. There is not one segment whether it be 
a retail store, a professional service business, or a construction 
business that has not been touched.
                        small business attitudes
    It is helpful to keep in mind the unique nature of a small business 
when you examine small business owners' reactions to environmental 
legislation. Small business owners wear many hats. Two of the most 
important are being both a business owner and a citizen of a community. 
They drink the water, breathe the air and fish in the lakes. They want 
a healthy environment both for themselves and for their children. They 
also expect the government to be fair and responsible.
    It is this lack of fairness and responsibility in the area of 
Superfund that is causing a groundswell of anger, distrust and in many 
cases, despair. The committee has heard testimony twice from one of our 
members, Barbara Williams, a restaurant owner, who is a fourth party 
defendant at the Keystone landfill in Gettysburg, Pennsylvania. She is 
being sued for over $76,000 because she legally dumped her restaurant's 
trash, which consisted mostly of food scraps. If she is forced to pay 
this amount, she likely will close her restaurant and her employees 
will lose their jobs. As Barbara has testified: ``This suit defies 
common sense. I have recycled for years. I used the trash hauler that 
was approved and permitted by my borough government.'' With the 
continuing emergence of these kinds of stories, NFIB began asking our 
members questions about Superfund in an effort to identify their 
specific concerns.
    Overwhelmingly, our membership indicated that the liability scheme 
in the current statue was the area they felt needed the most reform. I 
would like to call your attention to a study undertaken by the American 
Council for Capital Formation (ACCF) in conjunction with the NFIB. This 
study surveyed small business PRP's and asked numerous questions about 
their experiences with Superfund. Approximately 70 percent of the 5,000 
small PRP's surveyed indicated that the liability system was the major 
burden of Superfund. And at the 1996 White House Conference on Small 
Business, reform of Superfund's liability was voted by the conference 
as the group's fifth highest priority. Thus, our focus has been on the 
liability system and how to make it more equitable and efficient for 
the small business owner.
Liability--Small Business Concerns
    What are the small business problems with regard to liability? NFIB 
members have identified three major problems. First, the nature of 
Superfund encourages litigation. In most cases, our members are dragged 
into the process by being named as a PRP in a third party lawsuit. They 
are forced to spend thousands of dollars and an excessive amount of 
their time defending themselves when they have done nothing wrong or 
illegal or have no records to prove their innocence.
    Second, they are forced to remain in the liability scheme when many 
times small businesses could and should be eliminated from the lengthy 
settlement process through exemptions. These businesses contributed a 
minute amount of waste, and it frankly is a waste of time and money to 
include them in the process. Nothing is gained--either for the economy 
or the environment--when businesses are forced to close their doors due 
to the lack of reasonable settlement offers.
    Third, the retroactive joint and several liability scheme is what 
our members find most unbelievable and unfair. The fact that they can 
today be held responsible for past actions that were legal at the time 
they were undertaken and could be forced to pay for 100 percent of the 
cleanup costs is un-American and outrageous. It forces our members to 
choose between two equally bad and unfair decisions: either pay for the 
cleanup even though you did nothing wrong or face years of litigation, 
huge legal fees, loss of credit and the threat of bankruptcy.
    With the large number of small businesses already entwined in this 
web and with the increasing threat of thousands more in the future, 
NFIB's goal is to achieve meaningful reform in this Congress. Given the 
widespread agreement among the Administration and both parties in 
Congress that liability relief should be provided to small business, we 
sincerely hope that these business owners do not have to wait much 
longer for the rhetoric to become reality.
                       superfund reform proposals
    As we testified in March, Senator Smith's and Chairman Chafee's 
bill, S. 8, is an important step forward to eliminating the liability 
nightmare for small business. It contains some excellent reforms, and 
we appreciate the steps that have been taken to eliminate some of the 
inequities and burdens placed on small business. We are pleased that 
the draft chairman's mark, distributed on August 28, contains much of 
the small business reforms included in S. 8.
    For the first time, a small business exemption is applicable to 
those businesses with fewer than 30 employees or less than $3,000,000 
in gross revenues. This will provide much needed relief and an early 
exit to the truly small businesses who, in most cases, do not deserve 
to be caught up in the Superfund litigation morass. By identifying an 
employee and monetary threshold, S. 8 approaches reform from a 
standpoint that NFIB has long advocated.
    Both proposals also take positive steps to reform the current 
liability system by eliminating the liability for those parties 
involved in co-disposal municipal landfill sites and those parties who 
contributed only municipal solid waste to a site. Many NFIB members 
will benefit from this reform.
    In addition, S. 8 and the revised draft make strong improvements in 
the current program by including a ``de micromis exemption'' to exclude 
the smallest of contributors from Superfund liability. We are 
disappointed, however, that the draft chairman's mark fails to contain 
the one-percent ``de minimus exemption'' included in S. 8, as 
introduced, and instead subjects those contributors to an expedited 
settlement procedure. Due to the limited financial and legal resources 
of most small business owners, we believe that both de micromis and de 
minimus contributors serve no purpose but to delay the process and 
hinder the ultimate goal of cleaning up our nation's most polluted 
sites. We hope that you will reconsider this modification.
                  small business improvements to s. 8
    While these liability reforms move in the right direction, there 
are several areas that NFIB would like to see clarified or that we have 
concerns with.
    NFIB has consistently supported creating an ``ability to pay'' 
definition that would become a required criteria when assessing a small 
business's contribution during the allocation process or any expedited 
settlement procedure. We feel that a strong definition that does not 
leave the burden on the small business owner to bring forward 
information and initiate the process is necessary. Notification to 
small business parties should be an automatic requirement in which all 
small businesses are requested to provide necessary financial documents 
and then the burden should be on the government to determine small 
business' ability to pay.
    In addition, NFIB has advocated that EPA and the allocator meet 
certain time deadlines set forth both in the expedited settlement 
procedure and in the allocation process. These deadlines, both for the 
commencement of the allocation process and for de minimis settlements, 
are a necessary ingredient in order to have a more expeditious and 
decisive process. We feel that such prompt determinations are an 
essential element if a reformed process is to succeed. To ensure that 
EPA and the allocator meet these imposed deadlines, we suggest that 
incentives be included.
    Finally, we applaud the exemption for recyclers. NFIB would suggest 
that the elimination of liability provision be broadened to include oil 
recycling or refining centers. The parties that sent their oil to these 
types of sites were not only following the direction of their local 
governments, they were attempting to improve the environment. They 
should not be penalized for acting responsibly.
Conclusion
    Mr. Chairman, we feel that the revised S. 8, in combination with 
our suggested changes, would address most of the concerns that our 
members have expressed. If passed, these reform suggestions will 
dramatically reduce unnecessary litigation, ensure that money will go 
toward its intended purpose, and most importantly, ensure that sites 
will be cleaned up in a timely manner. We thank you for this 
opportunity and for your efforts to address the small business concern 
with Superfund.
      Response by Susan Eckerly to a Question from Senator Inhofe
    Question. The draft chairman's mark contains a definition for small 
businesses of 30 employees and three million dollars in gross annual 
revenue. Does this definition meet other statutory or private sector 
definitions for small businesses? Please describe other methods for 
defining a small business.
    Response. While there is no standard definition of an average small 
business, NFIB generally would define a small business as a business 
with less than 100 employees. We have not included a revenue number 
because that would vary depending upon the type of the business.
    According to the Small Business Administration, the general 
definition of a small business is:

        . . . a business smaller than a given size as measured by its 
        employment, business receipts, or business assets. The SBA's 
        Office of Advocacy generally uses employment data as a basis 
        for size comparisons, with firms having fewer than 100 or fewer 
        than 500 employees defined as small. [The State of Small 
        Business, 1995]

    In spite of the SBA's authority on these matters, most laws and 
regulations typically devise one of their own. In fact, we have 
identified 19 statutory recommendations, outside of the tax code, 
regarding the size of a small business. The following constitute a 
sampling of the various laws that have small business definitions, 
thresholds or exemptions.
     Family and Medical Leave Act: requires employers with more 
than 50 employees to provide unpaid family and medical leave.
     Americans with Disabilities Act: Title I, which relates to 
the employment of individuals with disabilities, applies to employers 
with more than 15 employees.
     Age Discrimination in Employment Act: exempts employers 
with less than 20 employees.
     The WARN Act: exempts employers with fewer than 100 
employees from coverage.
                                 ______
                                 
  Prepared Statement of Robert N. Burt, Chairman and Chief Executive 
     Officer, FMC Corporation on behalf of The Business Roundtable
    The Business Roundtable welcomes the opportunity to submit comments 
on the August 28, version of S. 8, ``The Superfund Cleanup and 
Acceleration Act of 1997.'' The Roundtable is an organization of the 
Chief Executive Officers of over 200 of the nation's largest companies 
which agree that passing a comprehensive Superfund reform bill should 
be a priority for this Congress. We are pleased, therefore, that the 
chairman has put this bill forward as the vehicle for consideration by 
the Environment and Public Works Committee.
    While 280 of the sites on the NPL had reached the construction 
complete stage by June of this year (an additional 139 of these sites 
have already been delisted), 491 sites still have construction underway 
and approximately 500 sites are still in the study phase. Moreover, 
thousands of sites on the CERCLIS list remain as potential NPL sites. 
The slow pace of this program under current law (the GAO calculates it 
now takes twice as long to clean up a site as it did 10 years ago), its 
cost to the economy, the precedents it sets for other cleanup 
activities and its potential under current law to stretch out well into 
the next century, make reform a priority among our members. We would 
urge the committee to proceed to mark-up this bill in a bipartisan way 
which accommodates honest differences on this issue.
    The Roundtable is keenly aware of the differences which can divide 
opinion on how Superfund should be reformed. The Roundtable is 
comprised of companies which have paid a large proportion of the over 
$18 billion in business taxes which have gone into the Superfund Trust 
Fund since the law's enactment. The Roundtable also is comprised of 
companies which have spent some $30 billion on Superfund settlements 
over the life of the program, in addition to comparable sums in 
litigation concerning liability and other aspects of the Superfund 
program. Some of our members cleaned up sites in the early years of 
this program's history; while others still have substantial costs ahead 
of them.
    Despite sixteen years of disparate experience among our membership, 
we are united in our view on the need for reform and have reached basic 
agreement on how such reform should occur. The considerable debate over 
this issue over three consecutive Congresses has substantially narrowed 
our differences on Superfund policy.
    In many important ways, S. 8 is consistent with the consensus we 
have reached in the Roundtable over how best to proceed with reform. 
However, we would also note that there are important issues which we 
believe need to be addressed during the committee's consideration of 
this bill before it can have our full support. Moreover, given the 
limited timeframe in which we had an opportunity to review this bill, 
we may find it necessary to supplement these comments as our members 
review in more depth specific provisions.
    Before turning to our concerns and recommendations, let me briefly 
summarize the principles which we believe need to be part of a 
comprehensive Superfund reform effort:
     The tax revenue from Superfund must be dedicated to clean 
up.
     Significant reform of the remedy selection provisions of 
the law must be achieved, including elimination of the preference for 
treatment and the mandate for permanent remedies. Liability reform 
should provide all parties with fair and equitable relief; and not 
increase the burden on the economy.
     No Superfund taxes should be enacted without comprehensive 
reform, including reform of the current law's Natural Resource Damages 
(NRD) provisions.
     NRD should be geared to restoration of proven damages to 
resources, not to obtaining punitive damages.
    In our own analysis of how the current Superfund law should be 
reformed to enable better performance, we have concentrated on the 
liability provisions in the law. However, throughout our economic 
analysis of several liability reform proposals, it has become 
increasingly clear that liability reform cannot and should not be 
addressed apart from other issues such as remedy selection, funding and 
NRD. While we understand this increases the challenge and complexity of 
the debate, we are pleased that this committee will be addressing 
Superfund in a comprehensive way.
    The following are the ways in which S. 8 is consistent with The 
Roundtable's position. We also will point out areas where it falls 
short of our goals or where the intent of the draft is unclear:
    Remedy Selection: The remedy selection provisions underscore the 
need to base cleanup decisions on real rather than hypothetical risks. 
As drafted, this title of the bill will allow the parties involved in 
remedial decisionmaking greater flexibility to address site specific 
characteristics with emphasis on the current and reasonably anticipated 
uses of land and water resources, taking into account the timing and 
use of those resources. S. 8 does so while retaining the current goal 
for protection of human health in the National Contingency Plan (NCP) 
(i.e., 1  10-4 to 1  10-6) and 
by adding an important new, practical definition for environmental 
protection based on plant and animal populations. These goals are clear 
and will not require time consuming revision to the NCP before changes 
are realized.
    We believe that S. 8 has been substantially revised in an attempt 
to conform the law to the better practices EPA and the states are 
implementing on groundwater cleanup. This includes distinguishing 
between the cleanup goals of drinking water and water used for other 
purposes, and reinforcing EPA's initiatives to look at the specific 
characteristics of each site and propose a deliberative, managed 
remedial approach. Looking at groundwater in separate zones and phasing 
in needed control measures facilitates this cost-effective, but 
protective approach.
    We would note, however, S. 8 does seem to have some confusion in 
terminology related to groundwater. For example, it is not clear 
whether the balancing factors cited in the general rule applying to 
remedies also apply in the case of groundwater, or if the specific 
groundwater factors take precedence over these.
    There is also some need for clarity around the reference to 
groundwater that is ``suitable for use'' versus groundwater where the 
``currently or reasonably anticipated future use'' is for drinking 
water. This is important in that remedial actions must ``seek to 
protect'' uncontaminated groundwater suitable for use as drinking water 
unless technically impracticable. Since the bill provides a very 
limited definition of what is not suitable as drinking water'' and this 
definition triggers specific control goals, further clarification is 
needed for this section of the bill.
    We are also concerned that land use determinations are made based 
on site specific factors while the use of groundwater gives substantial 
deference to state classification efforts which are generally not 
facility specific.
    There also needs to be clarification of whether the bill has 
created any inflexible mandates. The reference to attaining cleanup 
goals to the edge of that contamination which is managed in place, 
might be read so as to in fact eliminate flexibility of site managers 
to look at the nature and timing of use and other factors. It is the 
experience of our membership that EPA in its own implementation of its 
administrative reforms, has gotten away from arbitrary requirements in 
terms of compliance points and choice of remedial measures. The bill 
should be clarified to conform to current practice.
    While the bill does maintain the current law's preference for 
treatment, it does so for certain discrete areas. The definition 
provided appears consistent with sound principles of protection of 
human health and the environment. It also would appear to maintain 
flexibility in how actual risk from discrete areas of highly toxic, 
highly mobile contamination with the potential for human exposure can 
best be addressed. But it is not clear that this flexibility is 
sufficiently defined to take into account the unique characteristics of 
certain types of facilities which affect our membership (i.e., 
landfills and mining sites).
    We would also note the improvements made from prior Congresses in 
the approach to reevaluating Records of Decision (ROD's). This is an 
important provision for our membership and to the pace of future 
cleanup, particularly since many of our members signed ROD's and 
performed cleanup activity in the early years of this program's 
operation. We are concerned that the language in the bill can, in 
certain instances, be interpreted to fall short of current EPA 
practice.
    For example, under current administrative reforms, EPA follows 
three criteria as the basis for review: (1) changes in the remediation 
technology which would result in a more cost-effective cleanup; (2) 
modification of the remediation objectives due to the physical 
limitations posed by site conditions; and (3) modification of 
monitoring to reduce sampling, analysis and reporting requirements 
where appropriate. We would note that only the first of these criteria 
is a part of S. 8's approach and we would recommend adoption of the 
other two. We also believe it is unnecessary to invite a Governor's 
veto of the Remedy Review Board's decision because state input to this 
process is already a part of this bill.
    In addressing the ROD review issue we recognize that reform must 
attempt to balance the competing needs of fairness and program pace. We 
would emphasize that it is in no one's interest to burden the EPA with 
having to make decisions on every single ROD currently in the pipeline; 
or to create a system that puts the Agency in the business of reviewing 
existing ROD's to the virtual exclusion of negotiating new ones. We 
believe given the status of sites in the current pipeline and the 
limits on the-number of new sites coming into the system under S. 8, 
the ROD review procedure should not impede program pace.
    We agree with the elimination of ``Relevant and Appropriate'' 
standards being applied to remedial decisions under Superfund. 
Historically, this has led to an almost arbitrary application of 
remedial standards at some sites. Retention of state ``applicable' 
standards as is now proposed, is acceptable if the standard relates to 
the remedy or to the siting of facilities and applies to the conduct or 
operation of remedial actions or cleanup levels under state law. 
However, it is not clear that these applicable state standards must 
satisfy the balancing criteria which apply to other remedies. We 
believe they should. Further, the bill requires any more stringent 
state applicable requirements relating to the remedy or facility siting 
law promulgated by the state after enactment to be published as a rule 
and consistently applied. However, the provision appears not to limit 
these new state standards to those that relate specifically to the 
conduct or operation of the remedy or the contaminants involved. We 
believe this clarification would improve the bill.
    Liability: We believe this section of the bill should significantly 
decrease the litigation inherent in the current Superfund liability 
system. It does so by establishing an allocation system which can 
mitigate much of the inherent unfairness of the joint and several 
liability system. And, it eliminates liability altogether for small and 
other appropriate parties, further acting to reduce what is now an 
almost institutionalized unfairness in the liability system.
    On principle we believe all parties should receive uniform 
treatment under any reformed liability system, regardless of their 
status as a PRP or the type of site at which they are involved. S. 8 
does not adhere to this principle for co-disposal sites at which 
certain categories of responsible parties would be treated more 
favorably than others. For example, a generator or transporter of waste 
at a co-disposal facility is treated more favorably than an owner and 
operator of such a facility. Moreover, parties at co-disposal 
facilities are generally treated more favorably than PRP's at other 
sites, including other, large multi-party sites.
    However, we are also aware that co-disposal sites historically have 
been prone to the type of litigation which is most objectionable under 
the current Superfund; i.e., third-party cost recovery litigation, 
often involving literally thousands of small parties. It is our 
understanding that the basis for the so-called ``co-disposal site carve 
out'' is to reduce the burden on the allocation system and reduce these 
transaction costs. We would also acknowledge that removing the 
liability of a vast majority of parties at co-disposal sites and 
thereby eliminating there need for allocation, significantly reduces 
what may be a burden on the allocation system and should, therefore, 
facilitate the application of this important feature of the bill to 
other multi party sites. Moreover, our preliminary economic analysis of 
the approach to liability reform currently embodied in S. 8 indicates 
that this approach is affordable within historic EPA Superfund budget 
levels.
    For the majority of parties, the critical element of fairness in S. 
8 comes from its revised allocation system. By exempting small business 
and de micromis contributors early in the process, the bill eliminates 
the need for these parties to be present or have representation during 
an allocation. Moreover, the bill has in our view, the appropriate 
amount of specificity around the allocation process; it appropriately 
sets forth the authority conveyed to the allocator (including broad 
powers to discover information), indicates the so-called ``Gore 
factors'' as the basis for determining appropriate shares, defines the 
penalties for non-settling parties, and defines the role of the 
Administrator in defending the Fund. The definition of orphan share is 
a step in the right direction with the Fund assuming a pro rata share 
of the unattributable portion of the orphan. However, as a matter of 
fairness, The Roundtable believes the unattributable share should be 
paid fully if resources are available.
    We support fairness for those parties already well into the cleanup 
process, as well as for those newly identified parties. S. 8 precludes 
those sites already under a settlement agreement from the mandatory 
allocation procedure. While we would oppose any double recovery of 
costs, there are conditions under which some sites at which there is an 
existing settlement should benefit from a mandatory allocation for 
future costs. These conditions could include the following: very high 
cleanup costs, a very large orphan share, cleanup costs which are 
driven primarily by the activities of orphan or recalcitrant PRP's, and 
viable PRPs that have cooperated with EPA in performing the cleanup 
work. Under such circumstances, third-party litigation to recover 
future costs at the site would of course be stayed.
    Moreover, we believe the mechanics of payment should be clarified. 
The language in the bill clearly intends to structure a method for 
reimbursement for construction costs for lead PRP's (i.e., PRP's which 
volunteer or are ordered to undertake construction of the remedy at a 
site). But it is less clear in setting up a specific mechanism to 
assure that the dollars from the Fund are dedicated for this purpose. 
Nor is a specific amount for such Fund contribution designated. We 
believe more specificity needs to be given to issues such as the size 
of the Fund, how much is available for reimbursement, how the Fund will 
handle requests for reimbursement that exceed the annual size of the 
Fund (or the allocated portion), what recourse the PRP has if the 
government fails to meet its obligations, etc.
    These are important issues since under the bill one or more 
responsible parties will continue to perform work at the site. They 
will then receive reimbursement from the Fund for any costs incurred 
after the date of enactment in excess of their allocated share. The 
Roundtable agrees that PRP's should continue to be the lead at sites to 
maximize efficiencies in site cleanup. However, we believe the bill, or 
at a minimum legislative history, needs to be more precise in defining 
the decision rules under which these performing parties will be 
reimbursed for amounts spent in excess of their allocated share of 
responsibility.
    Natural Resource Damages: While we acknowledge that the experience 
with actual NRD claims is relatively limited, the consistently large 
size of pending claims, coupled with statements by the trustees that 
additional claims will follow, leads us to conclude that a fundamental 
reassessment of the current NRD provisions is needed. Claims upwards of 
a billion dollars, with a majority of those costs based on speculative 
methodologies and unrelated to what is needed for restoration, clearly 
warrant the full attention of this committee. It could well be that we 
make real reforms in the rest of Superfund and accelerate the pace of 
cleanup, only to find that natural resource damage claims dwarf the 
transaction costs which are and historically have been associated with 
the liability and remedy provisions of current law.
    S. 8 does take steps toward modifying the unconstrained features of 
NRD provisions of current law. The bill seeks to eliminate so-called 
non-use damages which are based on the highly speculative Contingent 
Valuation Methodology (CVM) and unrelated to restoration. Similarly, 
The Roundtable opposes imposition of past lost use in that it is 
punitive and not related to the actual injury to the resource.
    We are also encouraged by the requirement mandating mediation of 
NRD claims as a way to fairly reduce the potential for protracted 
litigation. We are greatly concerned, however, that this sensible 
approach may be negated by other provisions that trustees may construe 
as taking away a defendants ultimate right to a de novo trial by jury.
    We would encourage the committee to reexamine the language of the 
bill which describes the objective of restoration and the criteria 
which Trustees consider in developing alternatives and selecting 
restoration measures. Specifically, unless a reformed law directs the 
trustees to select measures which are cost reasonable, there is no 
mechanism to insure that the ratio of benefits to costs will be 
balanced. S. 8 recognizes this important concept when it comes to 
selecting remedies, which makes it all the more important to apply this 
concept to NRD as well.
    In addition, it is critical that trustees be given a rational, 
objective benchmark for when the goal of restoration is accomplished. 
In our view, the benchmark should be reinstatement of the public's 
ability to use and enjoy the resource again.
    We would note that a number of provisions relating to restoration 
in S. 8 would, if made mandatory, allow trustees and PRP's to get on 
with the business of restoring injured resources; but because they are 
discretionary, they likely will lead to protracted litigation. These 
include all the criteria for selecting restoration alternatives; the 
reliance on facility specific information and scientifically valid 
principle in assessing, planning and quantifying restoration costs; 
conduct of assessments in accordance with regulations; and trustee 
coordination. These are the critical elements which will define the 
scope of the natural resource damage program. To truly focus this 
program on resource restoration, the committee should conclusively 
decide the parameters under which this will be accomplished, rather 
than deferring to continued court interpretation and litigation. 
Moreover, reforms adopted in this bill should apply to pending NRD 
claims.
    Funding: S. 8 makes reforms to the current law in a number of ways 
which will have measurable impacts on the costs of the program. We 
believe it is important that the authorizing committee continue its 
close coordination with the funding and appropriating committees on 
issues which affect how this program will be paid for in the future. S. 
8 addresses these issues in an indirect way, in particular in limiting 
future listings on the NPL to an additional 100 sites until the year 
2000 and not more than 10 per year thereafter. We believe current 
assessments of the NPL pipeline by the states and GAO, and EPA's own 
initiative to trim CERCLIS indicate such limits represent a workable 
target.
    As authorizing legislation, S. 8 understandably does not address 
future funding issues which we believe are critical for this Congress 
if we are to put the reformed program on a sound financial footing 
going forward. Yet we believe it is important for this committee to 
understand our views on enhancing the funding integrity of this program 
by more closely tying the funding aspects of this program to 
performance-based objectives.
    In this context, we would note that to date, the business community 
has paid virtually the entire cost of the Superfund program. The major 
dedicated Trust Fund, which funds EPA's responsibilities, has been 
funded by three industry taxes: excise taxes on the chemical and 
petroleum industries, and an across-the-board corporate income tax. In 
addition, individual PRP's pay the full costs of cleanup and 
transaction costs on sites at which they take the lead. They also 
reimburse EPA for Federal oversight costs at those sites.
    We would note that the amount of revenues to the Trust Fund, 
historically from $1.8 to $2.2 billion has been significantly greater 
than appropriations. This has resulted in a significant and growing 
surplus in the Fund. Due to the surplus and the limitations this bill 
would place on NPL listings going forward, the opportunity exists for 
future funding of the program to be tied to the pace of the program; 
or, put another way, its success in meeting its goals. The Roundtable 
members believe future funding for Superfund should be tied to needed 
NPL site cleanup.
    We would further note that ``core'' or non-cleanup activities have 
grown to be almost equal to clean up expenditures on EPA led sites. S. 
8 addresses the continued pressure for expenditure of funds from the 
Superfund Trust Fund for brownfields development, community 
participation, health analysis, and other items not directly related to 
cleaning up sites on the NPL. And, as indicated by provisions in the 
State Role Title of S. 8, states will inevitably assume a larger role 
in the management of individual sites on the NPL. How large a role they 
play will be determinant in the amount of funds they will require from 
the Fund as well. We would ask that the committee give special 
attention to the extent to which it is conveying additional non-NPL 
related cleanup activity to the Fund.
    In this context of providing greater fiscal discipline to the 
Superfund budget, we note that the limitation on future NPL listings is 
an important step toward defining a successful end point to the 
Superfund program, which was not intended to be a permanent Federal 
Government responsibility. In addition, the inclusion of a ``Results 
Oriented Cleanup'' section begins to address the need to impose budget 
discipline on this program, allowing the Agency the latitude to define 
how it can best be measured.
    We believe additional emphasis needs to be placed on the discussion 
of how a reformed Superfund will be funded. This discussion should 
include consideration of constraints on non-cleanup funding, and 
limitations on moneys raised other than for cleanup purposes. These two 
provisions represent a constructive step in this direction.
    Other Provisions: We would also note S. 8 makes substantial 
improvements to current law in enhancing the role citizens play in the 
remedy decisionmaking process. It is the experience of many of our 
members that such involvement can assist in developing remedies which 
are truly protective of human health and the environment, while taking 
into account the specific concerns of communities about comparative 
risks of alternative remedies. More often than not, citizens are 
looking to return Superfund sites to some productive use where this is 
consistent with meeting appropriate health and environmental standards. 
S. 8 also addresses fundamental issues associated with brownfields 
redevelopment, including limiting the liability of prospective 
purchasers and innocent landowners. However, we remain concerned that 
without additional clarification of future Superfund liability of for 
PRP's who undertake cleanup at non-NPL sites, there will be reduced 
incentive for them to undertake brownfields cleanups at non-NPL sites.
    In conclusion, The Roundtable looks forward to continuing to work 
with the committee in modifying S. 8 to accommodate the diverse range 
of views on these and other important issues in Superfund. We are 
prepared to do additional analysis of S. 8's economic and environmental 
impact by using of The Business Roundtable's Programmatic Superfund 
Model. Additionally, we are prepared to respond to amendments to S. 8 
as offered by members of the committee during mark-up. We thank you for 
this opportunity to comment.
                                 ______
                                 
Prepared Statement of Karen Florini, Senior Attorney, EDF; Accompanied 
         by Jacqueline Hamilton, Senior Project Attorney, NRDC
                              introduction
    On behalf of the Environmental Defense Fund (EDF) and the Natural 
Resources Defense Council (NRDC), I appreciate this opportunity to 
discuss the revised version of S. 8, the ``Superfund Cleanup 
Acceleration Act of 1997,'' amending Superfund. EDF and NRDC have 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. Most recently, I testified before this committee's 
Subcommittee on Superfund, Waste Control, and Risk Management regarding 
the initial version of S. 8 on March 5, 1997.
    While some of the most problematic features in S. 8 as introduced 
have been moderated,\1\ we believe that there are still numerous 
fundamental flaws in the bill as revised, compelling us to continue to 
oppose the bill in its current form. These include features that will 
make cleanups less protective, disempower communities (particularly 
where authorities are transferred to States), and let large industrial 
polluters escape liability without policy justification and with 
unacceptable consequences for the future of the cleanup program.
---------------------------------------------------------------------------
    \1\ In particular, we are glad to see that the ``polluters in 
charge'' provisions of S. 8 as introduced--under which polluter-written 
cleanup plans could have been approved by default--have been deleted. 
We also applaud the fact that the revised bill no longer allows 
Potentially Responsible Parties to serve as voting members on the 
Community Advisory Group [SCAA Sec. 303, adding CERCLA Sec. 117(h), p. 
72]. And we support the provision dropping the requirement in existing 
law for matching contributions for Technical Assistance Grants [SCAA 
Sec. 303, adding CERCLA Sec. 117(g)(2), p. 80], and expressly allowing 
up-front payments for TAGs.
---------------------------------------------------------------------------
    In addition, numerous provisions, taken together, will dramatically 
slow the pace of cleanups. This is a particularly inopportune time for 
doing so, given that the Superfund program has finally begun to make 
substantial progress in recent years.
    We urge Congress not to turn back the clock to an earlier era in 
which Superfund cleanups were abysmally slow. In particular, Congress 
must not divert funds needed for cleanups to sweeping liability carve-
outs for polluters who can well afford to pay to clean up the messes 
they have made, nor divert EPA's resources by creating unnecessary, 
time-consuming new tasks. Rather, Congress should:
     adopt a targeted set of broadly supportable provisions to 
enhance program effectiveness and public participation,
     increase funding to allow cleanups to proceed as promptly 
as is consistent with good decisionmaking and full public 
participation, and
     reinstate the now-defunct taxes that help finance the 
program.
    We would welcome an opportunity to work with the committee in 
developing a bill meeting these objectives.
    The remainder of this testimony focuses on our principle criticisms 
of the current version of S. 8, the August 28 ``Draft Chairman's 
Mark.'' Because the draft bill was made available to us only 4 business 
days before today's hearing, please note that we may subsequently 
identify additional concerns.
   i. community disempowerment: how s. 8 makes communities irrelevant
    Almost everyone agrees that early, robust public participation pays 
handsome dividends in avoiding controversy--and thus cleanup delays--
down the line. Accordingly, it is surprising as well as disappointing 
that a bill denominated the Superfund Cleanup Acceleration Act would 
contain numerous provisions that systematically curtail public 
participation in key contexts, most notably those involving state 
roles.\2\ While EDF and NRDC do not oppose a greater role in cleanup 
for states that have adequate resources, authorities, and commitment, 
this expansion must not occur at the expense of curtailing the public's 
role in Superfund cleanups.
---------------------------------------------------------------------------
    \2\ Although the community Participation provisions, Title Ill of 
S. 8 are an improvement over existing law, they will be largely 
irrelevant for all sites transferred to states given the weaknesses of 
Title II's state roles.
---------------------------------------------------------------------------
    Yet just such curtailment could well result from the state role 
provisions in Title II of S. 8 as revised. Problems with S. 8's state 
role provisions include the process through which delegation or 
authorization occurs, as well as the consequences of delegation or 
authorization. In effect, both communities and EPA are forced to trust 
that state programs will contain adequate community involvement 
provisions without any way of verifying that such provisions will 
indeed be included--and without meaningful recourse if they are not. 
Similar problems exist in Title I, the Brownfields title. Both are 
discussed below.
A. Curtailing community participation through inadequate state role 
        criteria and procedures
    Public participation is conspicuous by its absence from the list of 
criteria for EPA to evaluate in making delegation determinations [SCAA 
Sec. 201, adding CERCLA Sec. 130(e)(3)(C), p. 44]. To make matters 
worse, the bill expressly precludes EPA from including any conditions 
regarding public participation (or anything else) in approving a 
delegation request [Sec. 130(e)(4)(D), p. 46]. Similarly, for 
authorization, states merely are required to have ``procedures to 
ensure public notice and as appropriate opportunity for comment'' on 
cleanup plans [Sec. 130(c)(1)(C), p. 37]--a loophole potentially big 
enough for a proverbial Mack truck. Similar language exists for 
Brownfields programs [SCAA Sec. 102(b), adding CERCLA Sec. 128(b)(2), 
p. 15].\3\
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    \3\ This weakness in the Brownfield title is especially 
objectionable because NPL sites are (inappropriately, in our view) 
eligible to be included under Brownfield programs [SCAA Sec. 102(b), 
adding CERCLA Sec. 128(c), p. 16].
---------------------------------------------------------------------------
    Not only is public participation omitted as a criterion for 
transfer of authorities to States, but the public is excluded from 
decisions about whether to transfer such authorities. There is no 
allowance for public notice and comment in proceedings either for 
delegation or authorization. The public is even more emphatically 
excluded from participating in the context of ``expedited 
authorization'' applications, given that states meeting any 3 of 5 
specific criteria are ``conclusively presumed'' to warrant 
authorization [Sec. 130(d)(1), p. 38]. And expedited authorizations 
cannot be challenged in court [SCAA Sec. 130(d)(4)(D), p. 42]. So, if 
there are grave deficiencies in a state's program, the public will have 
no opportunity to call these to EPA's attention. Similarly, the public 
will have no opportunity to voice concerns about state enforcement 
authorities despite the fact that even delegated states are to use 
state enforcement authorities [Sec. 130(e)(1)(C), p. 43].
    Moreover, the bill's liberal use of default approvals mean that 
delegation or authorization can occur without any actual review by EPA 
of the adequacy of the state program. Decisions about toxic waste dump 
cleanup programs are too important to be relegated to the flipping of 
pages on a calendar. This is true regardless of the cause of any 
bureaucratic delays in making decisions--whether they be due to a 
personal tragedy that befalls an EPA reviewer, or a change of 
personnel, or a government-wide shutdown, or even simple inertia. 
Deadlines play a legitimate role, but default approvals do not.
B. The draconian consequences of state delegation and authorization
    Exclusion of the public from authorization and delegation decisions 
is particularly troubling because those decisions have profound 
consequences under S. 8 as revised. For example:
     State roles override CERCLA's citizen-enforcement 
provisions, because the bill provides that neither EPA nor any other 
person can take judicial enforcement action against any person 
regarding a transferred site [SCAA Sec. 201, adding CERCLA 
Sec. 130(h)(4), p. 52]. Thus, citizens will be unable to use existing 
Sec. 310 of CERCLA even to enforce cleanup agreements. The Brownfields 
title contains similar strictures for facilities ``subject to'' state 
cleanup plans, apparently regardless of whether those plans meet any 
criteria whatsoever [SCAA Sec. 103, adding CERCLA Sec. 129(b)(1), p. 
18]. These limitations are radical and unwarranted departures from 
prior law not only under Superfund, but indeed virtually all Federal 
environmental programs. There is no justification for barring citizen 
enforcement of Superfund requirements.
     State delegation/authorization eliminates virtually all 
EPA authority. The public needs and deserves an effective Federal 
fallback where states fail to carry out their environmental 
responsibilities appropriately for toxic site cleanups, just as occurs 
for air and water pollution programs. Yet, extraordinarily, the bill 
provides that EPA cannot act at a site covered by a delegation 
agreement unless the agency goes to court and obtains a declaratory 
judgment that the state has failed to make reasonable cleanup progress 
[SCAA Sec. 201, adding CERCLA Sec. 130(h)(4)(B)(ii)(II), p. 53]. For a 
bill that supposedly seeks to accelerate cleanups and reduce 
litigation, forcing EPA to wait helpless pending completion of a 
lawsuit against a state is as curious as it is counterproductive. 
Provisions almost as onerous apply in the Brownfields title, with 
regard to any facility that is ``subject to'' a State remedial action 
plan--despite the fact that EPA apparently has no role in reviewing 
state remedial programs at all [SCAA Sec. 103, adding CERCLA 
Sec. 129(b)(4), p. 18].
    All the preceding problems are compounded by the fact that the bill 
offers EPA no option of partial de-delegation or de-authorization. 
Instead the only option is the ``nuclear'' one of total program 
withdrawal--a seldom-used tactic.
C. Other features that undercut effective public participation.
    In addition to the state role and Brownfields provisions discussed 
above, several other features of the bill undercut public participation 
as well. These are briefly discussed below.\4\
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    \4\ In addition, the presumptive remedies section as now written 
further disempowers communities. While the concept of presumptive 
remedies can be beneficial, S. 8 as revised seems to make the 
presumption an irrefutable one--regardless of community concerns. 
Specifically, the bill provides that the Administrator may select a 
presumptive remedial action ``without consideration of (other) 
technologies, approaches, or methodologies'' [SCAA Sec. 403, adding 
CERCLA Sec. 132(c)(2), p. 120]. This could be read to allow the 
Administrator to adopt a presumptive remedy regardless of community 
views at a particular site. At the same time, the bill specifies that 
identification of presumptive remedies does not constitute rulemaking 
and need not go through public notice and comment procedures 
[Sec. 132(b)(3), p. 120]. The text of the bill should make clear that 
nothing in the presumptive remedy section authorizes EPA to disregard 
comments and alternative remedies suggested by interested parties at 
sites for which presumptive remedies exist.
---------------------------------------------------------------------------
            1. 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 are located [SCAA Sec. 802, adding CERCLA 
Sec. 105(i)(3), p. 246]. Similarly, a state can block any 
administrative cleanup order under Sec. 106 by failing to concur within 
90 days [SCAA Sec. 103, adding CERCLA Sec. 129(c), p. 20].
    While it may be appropriate to give states ``first dibs'' on 
cleanups at sites that will be appropriately addressed through state 
action, these provisions go 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 program only upon affirmatively 
determining that the State will conduct an adequate, timely cleanup 
absent the listing or 106 order.
            2. Shifting the Public Out of Cleanup Decision Revisions.
    As written, the bill's provisions for reopening existing cleanup 
decisions essentially eliminate opportunities for effective public 
participation. Given that review boards are to complete their review 
within 180 days [SCAA Sec. 406, adding CERCLA Sec. 136(d), p. 144], 
communities often will have inadequate time to receive notice and 
respond. This is particularly true at sites where no Technical 
Assistance Grant is currently in place. (Even where TAGs already exist, 
the limited number of community-oriented technical experts would be 
unable to provide effective support if large numbers of reopener 
petitions are submitted--a possible outcome under the bill as now 
drafted, see section III below.) To assure that the public is 
meaningfully involved, the Administrator should be able to extend the 
deadline for the Board to complete its review.
                ii. s. 8's inadequate cleanup provisions
    Although the revised version of S. 8 has dropped the egregious 
provisions that let polluters run the cleanup decisionmaking process, 
the remedy title still has several major deficiencies that make it 
highly objectionable. These include a preference for treatment of ``hot 
spots'' that is worse than useless; critical omissions from the range 
of cleanup objectives; and important weaknesses in the cleanup 
standards themselves. These are discussed in turn below.
A. The hot spots ``preference''
    Given current EPA practice of cleanup up to unrestricted use at 
only one-third of sites even with the existing preference for 
treatment, we have increasing reservations about whether there is any 
rationale for changing this portion of the law. However, if the 
preference for treatment contained in current law is to be narrowed, it 
is essential to provide a preference for treatment of ``hot spots.'' 
While S. 8 as revised now includes such a preference, as currently 
drafted it applies only when contaminants ``cannot reliably be 
contained'' and ``present substantial risk . . . because of high 
toxicity . . . and high mobility'' and there is ``a reasonable 
probability of actual exposure based on site-specific factors'' [SCAA 
Sec. 402, amending CERCLA Sec. 121(c)(3), p. 108].
    Such an approach is highly objectionable because it implies that 
treatment will occur only when these onerous and unworkable 
requirements are met. More generally, this approach entirely misses the 
point of having a preference for treating hot spots: to avoid 
intrinsically uncertain guesstimates about whether material cannot 
reliably be contained, and whether and how future exposures will occur. 
Because it is impossible to see into the future with the level of 
confidence these phrases suggest, a preference for treatment is vital.
    Another approach to this issue may also warrant consideration. The 
current statute's preference for treatment and mandate for permanent 
remedies have caused problems primarily at sites with high volumes of 
low-toxicity wastes. That problem could be dealt with explicitly, by 
maintaining the preference for treatment while creating an exception 
for high-volume, low-toxicity sites. Rather than making containment the 
rule and hot spots the exception, Superfund would maintain treatment as 
the rule and make the problematic type of sites (high-volume, low 
toxicity) the exception.
B. Weaknesses in institutional controls provisions
    Even with Superfund's existing mandate for permanence and broad 
preference for treatment, many sites have been cleaned up only part 
way, to a degree that allows for some but not all types of use of land 
or water (e.g., industrial use only, or no excavation). To assure that 
restricted-use sites are in fact only used in a manner consistent with 
their restrictions, legal mechanisms known as ``institutional 
controls'' may be employed. Unfortunately, while S. 8 would do much to 
increase the prevalence of restricted-use sites,\5\ it provides no real 
assurance that any institutional controls adopted as part of such 
cleanups will actually work. As experience at Love Canal itself amply 
illustrates, institutional controls that fail can be a disaster on many 
fronts.\6\
---------------------------------------------------------------------------
    \5\ For example, the bill expressly provides that use of 
institutional controls is `to be on an equal basis with all other 
remedial action alternatives'' [SCAA Sec. 402, amending CERCLA Sec. 121 
(c)(4)(E), p. 112]--despite the fact that institutional controls are 
inherently more uncertain than treatment-based remedies. The bill also 
requires facility-specific risk evaluations to ``consider the use of 
institutional controls'' [SCAA Sec. 403, adding CERCLA 
Sec. 131(b)(1)(D), p. 116].
    \6\ Love Canal is a classic illustration of the failure of 
institutional controls. The deed contained a notice of the presence of 
chemical wastes, but a subsequent owner eventually disturbed the waste 
when doing construction on the site. See U.S. v. Hooker Chemicals & 
Plastics Corp., 722 F. Supp. 960,962 (W.D.N.Y 1989).
---------------------------------------------------------------------------
    Among other problems in this critical section, the definition of 
``institutional controls'' is itself overly broad [SCAA Sec. 402, 
amending CERCLA Sec. 121(c)(4)(A), p. 1 10]. While zoning, land use 
plans, and notification systems may be extremely valuable as 
supplements to institutional controls, these devices are too ephemeral 
and/or too weak to serve as institutional controls in this context: 
protecting human health and the environment from the effects of toxic 
contaminants left on land or in water after cleanup activities are 
``complete.''
    Similarly, the bill's current ``requirements'' for institutional 
controls--that they are ``adequate to protect human health and the 
environment,'' ``ensure . . . long-term reliability,'' and ``will be 
appropriately implemented, monitored, and enforced''--are far too vague 
to be meaningful [SCAA Sec. 402, amending CERCLA Sec. 121(c)(4)(c), p. 
112]. Rather, the bill must explicitly require that specific criteria 
be met for any institutional control that is adopted as part of a 
remedy. These include, at a minimum:
     permanence (i.e., the control will remain in effect until 
removed following an affirmative, site-specific determination that it 
is no longer needed because the contamination is gone);
     universality (i.e., applies to all current and future 
interest-holders of the land or water);
     enforceability (i.e., by all interested parties, including 
citizens); and
     permanent notice (i.e., in land records unless 
inappropriate given the specific nature of the control).
    Given the Byzantine complexity of much of American property law, 
some jurisdictions may lack mechanisms that meet these criteria. 
Congress should create an array of Federal institutional controls to 
assure that qualifying mechanisms are available in all jurisdictions. 
The only other alternatives are either unlikely (disallowing 
institutional controls in jurisdictions that lack qualifying controls 
and requiring that all sites be remediated to unrestricted use) or 
intolerable (allowing use of inadequate institutional controls).
C. Weaknesses in cleanup standards
    The cleanup standards in S. 8 continue to commit critical sins of 
omission. In particular, there is still no explicit requirement for 
protecting the health of children and other highly susceptible or 
exposed groups.\7\ Likewise, ``protection of health'' is still defined 
as a cancer risk in the range of 10-4 to 10-6 
[SCAA Sec. 402, amending CERCLA Sec. 121(a)(1)(B)(i)(l), p. 85], but 
without the National Contingency Plan's provision specifying that 
10-6 is the ``point of departure.'' As a result, cost 
considerations are likely to tilt remedies toward the less-protective 
outcome, since cleaning up to a less-protective level is almost always 
cheaper.
---------------------------------------------------------------------------
    \7\ This problem is exacerbated by the fact that the bill calls for 
use of central estimates in risk communication principles [SCAA 
Sec. 403, adding CERCLA Sec. 131 (d)(2), p. 118]. This is a specific 
statistical technique that is only appropriate under particular 
circumstances--ones generally not found in the Superfund context--and 
are otherwise affirmatively misleading. This language should be 
stricken.
---------------------------------------------------------------------------
    Similarly, S. 8 continues to lack explicit objectives of protecting 
clean groundwater, and making contaminated land and groundwater 
available for beneficial use. These important objectives have, until 
now, been inherent in the program, given the existing mandate for 
permanence and preference for treatment. If those provisions are to be 
narrowed, the list of objectives must grow (with the recognition that 
not every remedy may be able to attain these additional objectives).
    While the revised bill has taken some steps in this direction, it 
does not go far enough. Beneficial use of land is now included, but 
only as one element in developing future land use assumptions [SCAA 
Sec. 402, amending CERCLA Sec. 121(b)(1)(B)(ii)(IV), p. 97]. Protection 
of groundwater shows up only in an amorphous way--the bill merely 
provides that remedial action ``shall seek to protect uncontaminated 
groundwater], and ``shall seek to restore groundwater to a condition 
suitable for beneficial use'' [SCAA Sec. 402, amending CERCLA 
Sec. 121(c)(?)(B) & (C),\8\ p. 100]. It is not clear how these 
aspirational statements relate to the bill's express objectives and 
balancing factors. Moreover, even they are ``not required to be 
attained in an area in which any hazardous substance, pollutant, or 
contaminant is managed in place'' [SCAA Sec. 402, amending CERCLA 
Sec. 121(b)(1)(B)(v), p. 102]--potentially an immense loophole if 
interpreted to mean areas other than those directly underlying 
landfills or other clearly and narrowly delineated areas.
---------------------------------------------------------------------------
    \8\ The numbering of this subparagraph appears to be erroneous.
---------------------------------------------------------------------------
    More generally, S. 8 continues to provide only limited protection 
for water resources. In particular, protection of groundwater is 
dependent on its anticipated use--with all the inherent uncertainties 
of predicting both who will need the water when, and where the water 
will be at that time--rather than its status as a valuable and limited 
resource. Moreover, the bill provides that assumptions about future 
water use are to take into consideration state water use plans [SCAA 
Sec. 402, amending CERCLA Sec. 121(c)(2), p. 98]. Unfortunately, in 
many cases, these plans were originally developed with no meaningful 
public input, often many years prior to the cleanup decisions and in a 
generalized statewide rulemaking or policymaking context in which it 
was not clear to any member of the public or affected community that 
the decision would have any effect upon a particular site's cleanup.\9\
---------------------------------------------------------------------------
    \9\ Moreover, it is not clear what will happen when a State has 
designated an area as a low priority for protection under one program--
such as a classification of groundwater protection program--but as an 
underground source of drinking water (USDW) in a rulemaking under the 
underground injection control program. Clearly, the most protective of 
the state actions should control In addition, it is important to 
clarify two additional points: first, that point-of-use devices may 
only be used on a temporary basis (i.e., while more permanent 
arrangements are being made), or where no other approach is technically 
feasible; and second, that technical feasibility'' means what can be 
accomplished from an engineering and technical perspective.
---------------------------------------------------------------------------
    Finally, one other point bears mention with regard to clean up 
standards. The bill exempts on-site activities from otherwise-
applicable provisions of hazardous waste regulations under the Resource 
Conservation and Recovery Act (RCRA) [SCAA Sec. 402, amending CERCLA 
Sec. 121(a)(1)(C)(i)(II), p. 89]. The bizarre result will be that 
Superfund sites will be the only locations in the United States where 
untreated hazardous-waste soils can lawfully be placed in substandard 
landfills. This provision is an artifact of a problem that EPA has 
already taken formal steps to alleviate, through the proposal of rules 
tailoring hazardous waste standards to clean up situations.\10\ Rather 
than eviscerating RCRA's applicability to on-site cleanups, the 
tailored rules should themselves become the applicable standards.
---------------------------------------------------------------------------
    \10\ 61 Fed. Reg. 18780 (Apr. 29, 1996); The proposal is due to be 
finalized in the next several months.
---------------------------------------------------------------------------
iii. superfund slowdown: how s. 8 is the superfund cleanup deceleration 
                                  act?
    More than a dozen provisions of the revised bill impose major new 
or expanded obligations on EPA. But far from assuring that additional 
resources will be available so that EPA can accelerate the rate of 
cleanup completions while meeting these new and largely unnecessary 
demands, the bill does precisely the opposite: it allows dollars now 
available for cleanups to be diverted to polluter-pays liability 
rollbacks, with costs shifted from polluters to the Fund, and with no 
``firewall'' between cleanup costs and these pay-the-polluter funds 
(see discussion below in section IV).
    Even beyond the pernicious effect of the changes in liability on 
the speed and thoroughness of cleanups, S. 8 as revised has numerous 
features that will slow down cleanups. These include potentially 
creating expansive new rights to re-open existing cleanup decisions as 
well as bottlenecks in the Remedy Review Board process, and requiring 
EPA to issue a slew of complex new rules implementing changes imposed 
under the Act--most of which are unnecessary and counterproductive.
    The ROD re-opener provisions warrant particular scrutiny. Although 
the bill provides that a re-opener petition ``may'' be accepted if 
certain criteria are met [SCAA Sec. 406, adding CERCLA 
Sec. 136(b)(3)(A), p. 141], under existing case law that language could 
well be construed to require that all petitions meeting those criteria 
must be accepted.\11\ Such a result would likely lead to an 
unmanageable explosion in EPA's workload, forcing the agency to divert 
additional resources from making progress in cleanups to rehashing 
existing decisions.
---------------------------------------------------------------------------
    \11\ Although we believe that such interpretations are 
fundamentally inconsistent with the use of the discretionary term 
``may,'' the D.C. Circuit recently adopted just such a reading of 
section 211(f) of the Clean Air Act. There, the statute provided that 
EPA ``may'' grant a petition allowing use of a gasoline additive known 
as MMT upon finding that the additive would not foul automotive 
pollution-control systems. EPA made such a finding, but rejected the 
petition on the basis of concerns about the additive's potential health 
effects. The court ruled that EPA lacked discretion to consider any 
factors other than the one expressly stated in the statute, e.g., 
effect on automotive systems, regardless of the fact that the Clean Air 
Act's objectives expressly include protection of human health. Ethyl 
Corn. v. Environmental Protection Agency, 51 F.3d 1053, 1058-59 (D.C. 
Cir. 1995).
---------------------------------------------------------------------------
    Similarly, because the bill creates a new role for the Remedy 
Review Board in assessing reopener petitions [SCAA Sec. 406, adding 
CERCLA Sec. 136(b)(3)(A), p. 141], while also requiring Board 
involvement in reviewing a third of new cleanup decisions [SCAA 
Sec. 404, adding CERCLA Sec. 134(e)(2)(B)(ii), p. 131], the Board may 
well become a major bottleneck. To avoid that result, EPA may have to 
establish multiple Boards, in which case more and more EPA personnel 
will have to be involved in Boards instead of actual cleanup 
activities.
    With regard to regulations, the bill requires EPA to issue a slew 
of new rules, most within six months of the bill's enactment. Even 
aside from forcing EPA to divert considerable resources to re-writing 
rules, the pendancy of this array of rulemaking will very likely stall 
future cleanups, and ongoing ones, while everyone waits to see how the 
new rules will come out.
    Specific rulemaking obligations coming due within 180 days of the 
bill's enactment include:
     revise the National Priorities List to delete over-lying 
parcels from NPL [SCAA Sec. 407(b), p. 148];
     revise the National Contingency Plan within 180 days of 
enactment to reflect changes made by the Act [SCAA Sec. 404, adding 
CERCLA Sec. 133(a), p. 122];
     issue regulations for providing polluter paybacks [SCAA 
Sec. 502, adding CERCLA Sec. 112(g)(4), p. 161];
     issue regulations establishing procedures for the remedy 
review board [SCAA Sec. 404, adding CERCLA Sec. 134(e)(2)(A), p. 130]
     issue regulations for selection of allocators (due within 
90 days of enactment) [SCAA Sec. 504, adding CERCLA Sec. 136(d)(3)(A), 
p. 172];
     issue regulations incorporating Results Oriented Cleanup 
requirements into the National Hazardous Substances Response Plan [SCAA 
Sec. 801(b), p. 244];
     issue regulations implementing risk assessment and risk 
communication provisions (due within 18 months of enactment) [SCAA 
Sec. 403, adding CERCLA Sec. 131(f), p. 119].
    Furthermore, the bill establishes a broad mandatory allocation 
process that the Administrator must conduct [SCAA Sec. 504, adding 
CERCLA Sec. 136(b)(1)(A), p. 165]. Allocations are mandatory even for 
sites at which consent decrees and settlements have long since been 
established, if any additional costs will be incurred. In addition, the 
Administrator (or the Attorney General with EPA staff participation) 
will need to participate in such allocations in order to assure that 
the Fund is not drained by unduly enthusiastic attribution of expenses 
as ``orphan'' shares that will be paid for by the Fund. Given that 
multi-party sites with 1 or more viable parties currently lacking a 
final settlement will use the allocation process--potentially covering 
several hundred sites--this resource drain is likely to prove 
substantial.
    Last but by no means least, several provisions relating to risk 
assessment will slow down cleanups unnecessarily and will drain EPA 
resources. For example, the bill requires use of ``chemical-specific 
and facility-specific data in preference to default assumptions 
whenever it is practicable to obtain such data'' in facility-specific 
risk assessments [SCAA Sec. 403, adding CERCLA Sec. 131(b)(1), p. 116]. 
This language may force EPA to engage in massive data-gathering, to 
little purpose. Defaults are appropriately chosen for policy purposes, 
including protection of health where the science is uncertain. Unless 
someone makes chemical- or facility-specific data available to the 
Administrator (and the Administrator concludes those data are 
reliable), generic default values should be used.\12\
---------------------------------------------------------------------------
    \12\ Similarly, the bill imposes an unworkable requirement to 
identify research needs emerging from each risk assessment, and peer-
reviewed studies that are relevant to or fail to support estimates of 
public health effects and methods used to reconcile inconsistencies in 
scientific data [SCAA Sec. 403, adding CERCLA Sec. 131(d)(4), p. 1 18]. 
while such steps can be useful, they should be done generically, not in 
each risk assessment. Moreover, the requirement in paragraph (d)(5) to 
discuss individual studies that fail to support' any risk estimate is 
at odds with a weight of evidence approach. It would end up focusing as 
much attention on a single study that contradicts or fails to support 
the risk estimate or assumption as the multitude of studies which do 
support that position.
---------------------------------------------------------------------------
    Similarly inappropriate is the requirement to use ``the best'' 
science in accordance with ``objective'' practices [SCAA Sec. 403, 
adding CERCLA Sec. 131(e), p. 119]. This is excessive, amorphous 
verbiage that invites endless wrangling to no useful purpose. If any 
such provision is to be included, it should simply direct the agency to 
use available, reliable data.
  iv. overly broad liability ``reforms'': still corporate welfare by 
                           another name \13\
    There is no dispute that Superfund's existing liability system has 
often been abused by some Potentially Responsible Parties (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 routinely provides 
contribution protection to settling parties.
---------------------------------------------------------------------------
    \13\ Because the liability provisions of S. 8 as revised are 
substantially similar to those of S. 8 as introduced, this section of 
our testimony closely parallels the liability section of EDF's 
testimony of March 5, 1997.
---------------------------------------------------------------------------
    Even if legislation on this point were viewed as desirable, S. 8 as 
revised continues to go 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. The trade-off between liability rollbacks vs. cleanup dollars
    Although the bill provides that parties who have already received 
cleanup orders must carry out the cleanup, it also specifies that they 
will be repaid for all costs attributable to a party whose liability is 
limited [SCAA Sec. 502, adding CERCLA Sec. 112(g)(1) & (2), p. 160]. 
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. 160], and must be made 
within a year [Sec. 112(g)(6), p. 161]. In addition, parties that 
settle pursuant to an allocation have ``an entitlement'' to be promptly 
reimbursed for any costs they incur attributed to an orphan share [SCAA 
Sec. 504, adding CERCLA Sec. 136(m), p. 186].
    This language creates a legal entitlement, as contrasted with 
discretion under current law 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 funds remaining in the Superfund are inadequate, 
one of three 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. The latter two are unacceptable from an 
environmental perspective, while the first appears politically 
implausible.
B. Overly broad exemption for ``co-disposal'' sites
    S. 8 repeals polluter-pays liability for generators and 
transporters of industrial wastes at hundreds of ``co-disposal'' sites 
at which those wastes were dumped along with municipal trash [SCAA 
Sec. 501(b), adding CERCLA Sec. 107((t)(1)(B), p. 153]. 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 40 percent of cleanup costs (or 
the cost of closure) [Sec. 501(b), adding CERCLA Sec. 107(t)(1)(D)(i), 
p. 156].
C. Overly broad exemption for ``small'' businesses
    While we do 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. 152]. 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. 152 (exception to exemption for de micromis 
contributors)).
    v. the npl cap: dumping cleanups on communities and states \14\
    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 can only add a total 
of 90 sites to the Superfund National Priorities List before 2000, and 
then 10 sites/year thereafter [SCAA Sec. 802, adding CERCLA 
Sec. 105(i)(1)(A), p. 245]. 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.
---------------------------------------------------------------------------
    \14\ Because the NPL cap provisions of S. 8 as revised are 
identical to those as introduced, this section of our testimony is 
identical to that in EDF's March 5 testimony (other than with regard to 
bill citations).
---------------------------------------------------------------------------
    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.\15\
---------------------------------------------------------------------------
    \15\ 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,

        ``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.'' \16\
---------------------------------------------------------------------------
    \16\ 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.'' \17\
---------------------------------------------------------------------------
    \17\ ``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.'' \18\ 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.
---------------------------------------------------------------------------
    \18\ 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 states 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. natural resource damage provisions \19\
    While there have been some improvements in the revised version of 
S. 8 relating to natural resource damages, there have also been some 
weakening changes. Most importantly, the draft retains the major 
deficiencies of S. 8 as introduced: it arbitrarily prevents trustees' 
from factoring heritage values--the values people place on passing on 
to their children and their grandchildren a pristine wilderness, a 
population of endangered whales or a national symbol such as the Grand 
Canyon--into their restoration decisions and from recovering damages 
for the impairment of these values. This approach has the effect of 
valuing least our most pristine and endangered resources.
---------------------------------------------------------------------------
    \19\ This portion of our testimony was prepared by Sarah Chasis of 
the Natural Resources Defense Council.
---------------------------------------------------------------------------
    The revised bill accomplishes this result by retaining the 
prohibition on the recovery for impairment of heritage values, referred 
to in the draft as ``nonuse'' damages [SCAA Sec. 701, amending CERCLA 
Sec. 107(f)(1), p. 231] and by its prohibition on trustees' recovery 
for the costs of conducting contingent valuation studies [SCAA 
Sec. 702, amending CERCLA Sec. 107(f)(2), p. 234], a methodology that 
Nobel laureate economists recognize as legitimate and that market 
researchers and businesses use regularly.
    Other deficiencies of the revised bill include its limitations on 
the trustees' ability to recoup for the interim losses that may be 
suffered pending restoration of damaged natural resources. The bill has 
at least four significant limitations on interim losses:
     It limits such recoveries to ``temporary replacement of 
the services provided by injured . . . resource'' [SCAA Sec. 701, 
amending CERCLA Sec. 107(f)(1), p. 230; see also, SCAA Sec. 703, 
amending CERCLA Sec. 107(f), p. 240]. This language artificially limits 
recoveries to measures that are temporary and replacement in nature 
(thus precluding acquisition, for example) and also potentially limits 
recoveries to prospective losses, those for which temporary replacement 
costs are incurred, omitting compensation for past losses. The term 
``services'' also could be construed too narrowly to mean just human 
services, rather than ecological services as well.
     It precludes recovery of any lost uses that occurred prior 
to December 11, 1980 [SCAA Sec. 701, amending CERCLA Sec. 107(f)(1), p. 
231];
     It precludes recovery of interim losses, no matter how 
significant, if the resource has returned to baseline condition before 
trustees have had a chance either to file a claim or to incur 
assessment or restoration costs [SCAA Sec. 701, amending CERCLA 
Sec. 107(f)(1), p. 232]; and
     It prohibits recovery of any lost heritage values [SCAA 
Sec. 701, amending CERCLA Sec. 107(f)(1), p. 231].
    With respect to the selection of restoration options, we strongly 
support the revised version's deletion of the ``reasonable cost'' 
criterion that was in S. 8 as introduced. However, we remain concerned 
about the criteria that are included [SCAA Sec. 703, amending CERCLA 
Sec. 107(f), p. 239]. First, we believe they should be listed as 
considerations, rather than as absolute criteria, as is the case in 
Interior's regulations. Second, arguably the most important criterion 
is not even mentioned, namely effectiveness in restoring the resource 
to baseline. This should be included. Cost-effectiveness is included as 
a requirement, but the term is not defined. To avoid confusion and to 
clearly distinguish this criterion from a reasonable cost criterion, a 
definition of the term should be included. Finally, we strongly object 
to the limitation placed on the last factor, ``timely'' to the extent 
consistent with cost and the other three factors. This factor should be 
included without limitation, just as the other factors are. The current 
language renders this factor potentially irrelevant. Natural recovery 
will tend in many instances to be more cost effective than active 
restoration. If timeliness is not considered as a separate factor but 
must always be consistent with what is most cost effective, natural 
recovery will tend to win out, even if it will take decades to occur.
    We strongly object to the deletion from the revised bill of the 
provision contained in S. 8 as introduced for judicial review of the 
restoration plan on the administrative record. If the trustee goes 
through the process of compiling an administrative record, which we 
believe is highly desirable to ensure openness and fairness in 
decisionmaking, then the evaluation of the decision reached by the 
trustee should be based on that administrative record. The deletion of 
this provision from the revised bill defeats the whole purpose of 
providing for an administrative record with public participation. It 
means that a PRP could come into court with entirely new evidence that 
it kept out of the administrative process and use that evidence to 
discredit the trustee's restoration plan. There will be no incentive 
for the trustee to compile an administrative record since the PRP will 
be free to ignore the process and submit its evidence later in court. 
This change represents a serious step back from S. 8 as introduced.
    The revised bill's language on the relationship between response 
actions and restoration [SCAA Sec. 703, amending CERCLA Sec. 107(f), 
pp. 239-240] is an improvement over S. 8 as introduced, as is the 
provision for a Federal ``administrative'' trustee (as opposed to a 
lead Federal ``decisionmaking'' trustee).
    The provision [SCAA Sec. 705, adding to CERCLA Sec. 113(g)(1), p. 
241] allowing for an extension of the current statute of limitations 
only where, in effect, the PRP agrees (by entering into a cooperative 
agreement) is ineffective in addressing trustees' concerns on this 
issue. We strongly recommend that the provision on mediation [SCAA 
Sec. 706, adding to CERCLA Sec. 136, p. 242] be made optional. To 
require trustees to go through a mediation process when there is no 
prospect of cooperation from the PRP only introduces delay and expense 
into the process. Mediation works only when there is a real interest on 
both sides; otherwise, it is a waste of time and money and further 
delays restoration of the resources.
    Three final points. We oppose the provision on double recovery 
which would broaden current law in a number of ways (e.g., by extending 
to actions brought under state law, as well as Federal law, and 
potentially limiting recoveries in such state actions for damages other 
than restoration costs, as well as extending to response actions--which 
are not designed to achieve restoration) [SCAA Sec. 701, amending 
CERCLA Sec. 107(f)(I), p. 231].
    We also are concerned with the failure to call for the development, 
as part of the regulations, of simplified damage assessment methods. 
This combined with the call for ``facility-specific'' information [SCAA 
Sec. 702, amending CERCLA Sec. 107(f)(2), p. 233] could be used to call 
into question the ability of trustees to utilize simplified assessment 
techniques, which not only save time and money, but ensure that smaller 
spills and sites are assessed and restored.
    Finally, we have serious objections to the grandfathering provision 
[SCAA Sec. 707, p. 242] that seeks to carve out a special exception for 
the Clark Fork case in Montana.
                               conclusion
    Thank you for this opportunity to present our views.
                                 ______
                                 
   Prepared Statement of George J. Mannina, Jr., Executive Director, 
                        Coalition for NRD Reform
    Mr. Chairman, distinguished members of the committee, I am 
appearing today on behalf of the twenty-three companies and 
associations comprising the Coalition for NRD Reform. A list of 
Coalition members is attached as Appendix 1. Mr. Chairman, I would like 
to begin by thanking you for recognizing that the NRD program needs 
reform. As the Interior Department's 1994 Report on Reinventing 
Government stated: ``The existing [NRD] process is complex for all 
parties involved and creates conflict instead of restoring resources.''
    When the NRD Coalition formed two years ago, we were told NRD was a 
small problem involving only a few sites. A scant two years later, 
Federal trustees state that they want to use their NRD authority at 
half the NPL sites and at 80,000 surface lagoons, 14 percent of all 
U.S. lake acreage and 4 percent of all U.S. river miles. EPA's recently 
completed study of 2,100 watersheds ranked 824 as Priority 1-5 for 
sediment contamination, but, to date, trustees have asserted major NRD 
claims at only 10 of the 824 priority watersheds. To put the EPA survey 
into further perspective, one watershed which EPA placed in its lowest 
priority category is the subject of an NRD claim of over $1 billion. 
The rapidly escalating NRD program also presents a serious problem for 
the Federal Government, particularly at sites owned by the Departments 
of Energy and Defense where there is extensive contamination of 
resources subject to state and tribal authority.
    The problem which brings us before you today is that the NRD 
program has lost its focus on reasonable restoration. Unless the NRD 
program is reformed, not only will the problems with this program dwarf 
the well recognized problems of the cleanup program, but any progress 
made on remedy reform in S. 8 will be undone. Remedy reform without NRD 
reform will be like squeezing a balloon at the bottom, all the air will 
shift to the top--government agencies will be able to bypass the new 
remedy requirements under the guise of resource restoration. For 
example, while S. 8 establishes an environmental protection standard 
tied to population and community level effects on plants and animals, 
Federal trustees assert that any measurable adverse change in the 
chemical, physical, or biological environment justifies an NRD claim. 
In other words, trustees claim that any change from the so-called 
baseline--or pre-release--condition supports an NRD claim--even when 
there is no population or community level impact. If the trustees' 
definition of injury prevails, reforms to EPA's remedial program can be 
overridden or rendered moot. Small and large businesses which have 
engaged in cleanup under EPA standards, agreed to a remedy selection, 
or entered into a covenant not to sue with EPA can find themselves 
liable for additional cleanup under the NRD program.
    Because trustees define a resource injury requiring NRD action as 
any measurable adverse change in the chemical, physical or biological 
environment, Superfund is no longer two programs, cleanup and 
restoration, but it is three programs: cleanup 1 administered by EPA 
designed to protect human health and the environment; cleanup 2 
administered separately by resource trustees in which trustees can 
second guess EPA remedial decisions; and natural resource restoration 
administered by trustees to restore fisheries, wetlands, etc.
    S. 8 offers a unique opportunity to fix the problem of having two 
separate cleanup programs. Unfortunately, the language in the 
chairman's mark does not clarify the differences between the remedial 
program and restoration, thereby allowing NRD to remain as a second 
cleanup program. In fact, we think the trustees will read the first 
part of proposed Section 703(a) as confirming that NRD is a second 
cleanup program. We strongly urge you to develop a clearer definition 
of the objective of restoration. We would like to work with you to 
address this issue which we believe must be fixed--otherwise the 
Superfund program will become even slower and more litigious. Trustees 
for the public should focus on restoring injured public resources and 
providing the public with appropriate alternatives to use while 
restoration is taking place--not on creating a second cleanup program.
    Having said that, there are provisions in the chairman's mark which 
we think are positive. The requirements for technically feasible and 
cost effective restoration are good, as is the requirement for proof of 
causation and the clarification of the right to seek contribution from 
other responsible parties. We are interested in the provisions allowing 
for an extended payment period and would like to better understand your 
intent.
    We are particularly pleased by the intent of the chairman's mark to 
limit the measure of damages to the cost of restoration, including 
permanent and temporary measures, and to exclude surplus and punitive 
damages. However, we are concerned that trustees will circumvent your 
intent. The chairman's mark states non-use ``values'' are not allowed. 
But trustees have begun to change the words, asserting that they are 
not collecting values and damages but are collecting ``compensatory 
restoration'' or determining the proper level of restoration. Non-use 
claims need to be prohibited regardless of what they are called. We 
would be pleased to work with you in this regard. Similarly, the 
chairman's mark does not clearly prohibit the use of the much 
criticized contingent valuation methodology (``CVM''). The mark only 
says trustees cannot collect the costs of a CVM study from liable 
parties. This implies that CVM can still be used. Again, we think a 
simple fix could be made to prohibit the use of CVM and we would like 
to work with you to accomplish that.
    Since much of the debate on NRD reform has swirled around non-use 
and lost use damages, it is worth taking a moment to trace the history 
of these damage claims because the history demonstrates how the 
regulatory expansion of the NRD program has changed congressional 
intent and mired the program in controversy and litigation. When 
Superfund passed in 1980, there was no hint that the NRD program 
included lost use and non-use damages. Not until 1986 did the Federal 
regulations introduce the concept of lost use and then it was to 
require that liable parties pay the lesser of the cost of restoration 
or lost use. And non-use was only to be considered if it was impossible 
to restore the resource or to compute lost use damages. Today, trustees 
claim they can require parties to pay for the full cost of restoration 
plus past lost use and non-use. If the resource is fully restored, what 
are past lost use and non-use moneys used for? The answer is that they 
are surplus to the actual cost of restoration and are punitive damages. 
A moment ago, I told you that because of regulatory interpretations 
adopted by Federal trustees Superfund has become three programs, 
cleanup 1, cleanup 2, and restoration. Based on this regulatory 
history, I think it is fair to say trustees have added a fourth program 
not intended by Congress--punitive non-use and past lost use damages. 
Such damages undermine your intent to limit the measure of damages to 
the cost of restoration.
    In this regard, it is worth noting the most recent regulatory 
expansion of the NRD program. The trustee's latest view is that lost 
use also includes surplus resource to resource lost use. In simple 
English what that means is that trustees are going to attempt to 
compute the value to the squirrel of having to eat acorns instead of 
walnuts while restoration is occurring, or the value to a robin of 
eating bugs instead of worms--and to file claims for the robin's pain 
and suffering. That type of lost use will lead to speculative claims, 
increased litigation, and conflict instead of restoring resources. We 
hope that your focus on actual restoration precludes this result and we 
would like to work with you to clarify this issue. The NRD program 
should focus on restoration.
    We also understand your intent is to leave the status quo unchanged 
on the critically important issue of a defendant's right to a trial. 
However, we think you have inadvertently changed existing law and may 
have established record review by (1) referencing Section 113(k) which 
provides for record review, (2) providing for the creation of an 
administrative record, which implies that judicial review is based on 
that record, and (3) repealing the rebuttable presumption which has 
been relied on by courts as proof that the law requires trial de novo, 
not record review. The Coalition is unalterably opposed to record 
review and we believe this section of the chairman's mark must be 
changed. We cannot understand why the trustees are afraid of a standard 
which requires that they prove their case in court. We urge you to 
delete those provisions in the chairman's mark which will be used by 
trustees to argue for record review under which trustees do not have to 
prove that their case is supported by the preponderance of the 
evidence.
    Mr. Chairman, as I said at the beginning of my statement, the 
Coalition for NRD Reform thanks you for recognizing that the NRD 
program needs reform. We believe important substantive adjustments need 
to be made to the chairman's mark to better effectuate your policy of 
reforming the NRD program so that it focuses on real restoration and we 
look forward to working with you. We also think there are important 
technical issues which merit additional attention. For example, your 
double recovery provision only prohibits persons from acting first 
under Superfund and then proceeding under another statute. The double 
recovery prohibition should be expanded to run both ways as it does in 
Section 114(b)(1) so that persons also cannot collect for a natural 
resource injury under another statute and then proceed under CERCLA for 
the same injury. The double recovery provision should also prohibit 
more than one person from recovering for the same resource.
    A second technical issue involves the statute of limitations 
issues. Since CERCLA's existing statute of limitations provides that 
the statute of limitations begins to run after the promulgation of 
regulations, and since the courts have ruled the regulations have been 
issued, one possible reading of the chairman's mark which requires 
regulations to be issued within two years is that you are reviving 
claims now barred by the existing statute of limitations. We understand 
that is not your intent and we hope you will clarify this point. 
Efforts by the trustees to apply the statute retroactively for NRD are 
bad enough, double retroactivity by reviving stale claims is doubly 
bad.
    A third technical issue is that there are a number of positive 
provisions in the chairman's mark which are then undermined by saying 
the provisions are requirements only ``to the extent practicable.'' We 
think the ``to the extent practicable'' language should be deleted. 
Why, for example, should trustees use the best available scientific 
information only ``to the extent practicable.'' Or why should trustees 
use site specific analyses to determine the extent of injury at a site 
only ``to the extent practicable.''
    Finally, the requirement for the designation of a lead Federal 
trustee is positive but your language is subject to interpretation at 
sites involving Federal, state and tribal trustees. One interpretation 
of your language is that the Federal trustee will be the lead trustee 
at every site, even sites principally involving state or tribal 
resources. We believe that would not be the right result.
    Mr. Chairman, I appreciate the opportunity you have given the 
Coalition for NRD Reform to testify before you today and I would 
pleased to answer any questions you might have.
    Thank you for this opportunity to testify.
                                 ______
                                 
                               Appendix 1
                members of the coalition for nrd reform
ALCOA
ARCO
General Electric Company
Zeneca, Inc.
ASARCO
FMC
Kennecott
American Petroleum Institute
Reynolds Metals Co.
Fort Howard Corporation
Georgia-Pacific Corporation
Hercules
Elf Atochem
USX Corporation
Mobil
American Forest and Paper Association
Montrose Chemical Corporation
National Paint & Coatings Association
Beazer East, Inc.
Dow Chemical Co.
National Mining Association
Amoco Corporation
Western Regional Council
                                 ______
                                 
Responses to Questions Submitted by Senator Daniel Patrick Moynihan to 
George J. Mannina, Jr., to Supplement September 4, 1997 Hearing Record.
    Question 1. You mention in your testimony that natural resources 
can recover on their own--essentially, you suggest that we can wait for 
a ``natural recovery'' rather than trying to speed the process of 
recovery through restoration. How long, sir, are you prepared to wait 
for such ``natural recovery'' to occur?
    Answer. Although my testimony does not mention natural recovery, 
your question is an important one. The facts are that once cleanup is 
completed, the environment will begin to recover and many resources 
will recovery naturally. In such circumstances, the question becomes 
how much money should be spent to accelerate the recovery process.
    To simplify the analysis, assume that a resource can recover 
naturally in 15 years, but also can recover in 10 years with the 
expenditure of $5 million or in 2 years with an expenditure of $10 
million. If all three restoration alternatives achieve the same result, 
the question becomes which alternative should be selected. Without more 
information, it is not possible to make that decision. The needed 
information relates to the purpose of the NRD program which is to 
restore what the public lost. If the affected resource has a very high 
public use, if may be appropriate to select the more expensive option 
in order to accelerate restoration. If the resource has a lower public 
use, then a slower restoration alternative might be appropriate.
    The Coalition for NRD Reform has never advocated that we should 
always wait for natural recovery. Rather, we have recommended that 
natural recovery be considered as an option but that restoration should 
be timely. This means there must be careful consideration of the loss 
to the public. Often, this will argue against natural recovery and for 
accelerated restoration.
    When considering accelerated restoration alternatives versus 
natural recovery, it is also important to recognize that accelerated 
restoration options may create unintended problems. For example, 
scientists have long recognized that in certain circumstances it may be 
appropriate to allow natural forces to cover over contaminated 
sediments rather than dredge such sediments. The reason is that the act 
of dredging releases otherwise trapped contaminants into the water 
column causing adverse environmental consequences.

    Question 2. Is it your view that there are no non-use values 
associated with natural resources? If so, is the habitat of an 
endangered species worthy of protection?
    Answer. The purpose of the NRD program is to restore, replace, or 
acquire the equivalent of the injured resource. Unfortunately, trustees 
have expanded the program to collect money that is surplus to the 
actual costs of restoration. Non-use damages fall into that category. 
If the resource is fully restored, what is the additional non-use money 
used for? The answer became clear in a Senate stakeholders meeting when 
trustees responded by stating that they would use non-use funds to 
address other environmental issues. The point is that non-use values 
are surplus to the cost of restoration.
    With respect to your specific example of endangered species, if a 
release caused an injury to an endangered species, the Coalition for 
NRD Reform would support necessary restoration actions. If the impact 
on the endangered species was occurring because of impacts to the 
habitat, then habitat restoration measures would clearly be 
appropriate. However, claims for ``non-use values'' are surplus to the 
cost of actual restoration. In fact, any non-use values which may 
attach to endangered species are satisfied once the resource is 
restored.

    Question 3. How do you feel we should address natural resource 
damages like those associated with the contamination of the Hudson and 
St. Lawrence Rivers?
    Answer. The question assumes incorrectly that the trustees have 
established that there are natural resource damages associated with the 
Hudson and Saint Lawrence Rivers. To date, the trustees for both rivers 
have completed only the preassessment screen, the first step in 
determining whether there are any compensable injuries (i.e., actual 
adverse effects) to natural resources. It remains to be seen what 
natural resource damages (i.e., the cost of restoring, replacing, or 
acquiring the equivalent of any injured natural resource plus 
reasonable assessment costs) if any, are associated with any such 
injuries to natural resources of the Hudson and St. Lawrence Rivers.
    With respect to the Hudson, the General Electric Company (GE) has 
spent more than $130 million on PCB research and cleanup at its two 
plant sites and the River. In 1976, GE settled a claim by New York for 
PCB damage to the River to the full satisfaction of the State. The 
Natural Resources Defense Council, the Hudson River Fisherman's 
Association and the Sloop Clearwater were parties to the settlement. 
The State also received $20 million from the Federal Government to 
address PCB contamination in the River, but did not take any action 
using those funds. In 1984, EPA concluded that no action other than 
natural recovery and the capping of exposed areas near GE's plant sites 
was appropriate at that time to address PCBs in the River. GE performed 
the capping pursuant to an agreement with EPA. In 1990, EPA began a 
reassessment of the River under Superfund, which will not be complete 
for at least another two years. GE has cooperated fully with that 
effort. In addition, GE settled the claims of the commercial fisherman 
for PCB damage.
    We also note that there have been no restrictions on swimming, 
boating, or other recreational use of the Hudson or on its use as a 
drinking water supply because of PCBs. In a 1993 report entitled ``20-
year trends in Water Quality of Rivers and Streams in New York State, 
Based on Macroinvertebrate Data 1972-1992,'' the New York Department of 
Conservation (DEC) classified the seventy miles of the Hudson lying 
between Hudson Falls and Fort Edward and the City of Hudson as non-
impacted or slightly impacted, reflecting ``excellent'' water quality 
and ``good'' water quality. The DEC, which was well aware of the PCBs 
in the river, concluded, ``No impact at the community level has been 
observed at any site that can be attributed to high PCB levels.'' Fish 
are abundant and healthy in the Hudson.'' In 1995, the DEC described 
the upper River as supporting ?robust populations of prized gamefish, 
largemouth bass, smallmouth bass, walleye, northern pike and striped 
bass of excellent size and quality [that] will draw recreational 
anglers from much of eastern New York.'' As to birds, the Fish and 
Wildlife Service study of tree swallows cited in the preassessment 
screen does not show or claim any reduction in the abundance of tree 
swallows or other birds found along the Hudson. After a hundred years, 
eagles have returned and hatched on the lower Hudson. Obviously, if 
eagles have not been present in the Hudson Valley for 100 years, 
something other than PCBs was the cause. Claims that there are 
significant natural resource damages associated with the Hudson River 
ignore these facts and other evidence of the robust health of the 
River.
    To the extent that there are any compensable natural resource 
injuries associated with contamination of the Hudson and St. Lawrence 
Rivers that may give rise to damages, such injuries can be addressed 
effectively and responsibly by implementing a natural resource damages 
program as proposed by the Coalition for NRD Reform and detailed in the 
attached chart. Under that proposal, which is based in large part on 
the statute and the Department of the Interior's Type B damage 
assessment regulations, the trustees must first determine, using 
scientifically valid, site-specific assessment methods, that a release 
of hazardous substances has caused a natural resource injury. If the 
trustees determine that a release has injured a natural resource, the 
trustees next would determine whether the injured natural resource was 
committed to public use at the time of the conduct giving rise to the 
release. If the resource was so committed, then the trustees would 
determine whether the services provided to the public by the resource 
have been eliminated or impaired. If the services have been eliminated 
or impaired, the trustees then would develop and select a technically 
practicable, cost-effective and cost-reasonable plan for restoring 
those services in as timely a manner as is consistent with those 
criteria. Trustees would not be permitted to assert claims for non-use 
damages or past lost use damages, which are surplus to the cost of 
restoration. This approach would move the focus of the natural resource 
damages program away from maximizing damages claims to restoring what 
the public has lost as a result of an injury to a natural resource.
                                 ______
                                 
 CRS Report--Superfund: Summary of the Draft Chairman's Mark of S. 8, 
the Superfund Cleanup Acceleration Act of 1997; Prepared at the Request 
 of the Senate Committee on Environment and Public Works--September 2, 
  1997 (By Mark Reisch, Mark Holt, James E. McCarthy, Linda Schierow, 
    Mary Tiemann, Environment and Natural Resources Policy Division)
                                summary
    The Superfund Cleanup Acceleration Act, S. 8, was introduced on 
January 21, 1997, by Senator Bob Smith. It proposes extensive changes 
to the Superfund law, and would reauthorize it for 5 years at a level 
of $8.5 billion.
    Title I (Brownfields Revitalization) authorizes $65 million per 
year for programs to characterize brownfields, to capitalize revolving 
loan funds for their cleanup, and to promote state voluntary cleanups. 
The Federal Government may not intervene at a site subject to a state 
remedial action plan unless there are certain specified risks present. 
Liability protection is given to neighbors of a Superfund site, and to 
innocent purchasers of contaminated property.
    Title II (State Role) allows a state to receive authorization, or 
full or partial delegation of Superfund authorities at sites in the 
state. The state may ask EPA to remove cleaned sites from the National 
Priorities List (NPL). The 50 percent state cost-share requirement is 
reduced to 10 percent, or a percentage determined by the Office of 
Management and Budget.
    Title III (Local Community Participation) authorizes the 
establishment of Community Action Groups to be conduits of information, 
and to represent the people during cleanup planning and implementation. 
The funds-matching requirement for Technical Assistance Grants to 
communities would be eliminated; early disbursements would be allowed.
    Title IV (Selection of Remedial Actions) requires cleanups to be 
cost-effective and protective of human health and the environment. 
Remedies must be based on site-specific conditions and future use. It 
generally replaces the law's preference for permanent treatment 
remedies with specified factors, and establishes remedy review boards 
to reexamine remedy decisions.
    Title V (Liability) exempts waste generators and transporters at 
co-disposal landfills for their liability for activities prior to 
January 1, 1997. Co-disposal landfills are those that mostly received 
municipal solid waste and sewage sludge. The liability of owners and 
operators (O/O) is capped at varying amounts depending on whether the 
O/O is private or a municipality, and how large the municipality is. 
Small businesses and other small waste contributors are exempt from 
liability. The bill establishes an allocation process for dividing 
liability at multi-party sites.
    Title VI (Federal Facilities) allows the cleanup of Federal 
facilities to be delegated to a state provided it uses the Federal 
remedy selection process and standards. Federal facilities may be used 
to test innovative technologies.
    Title VII (Natural Resource Damages) eliminates non-use damages, 
and claims for lost-use activities for pre-1980 activities. Title VIII 
limits the number of sites that can be added to the NPL, and doubles 
the emergency response authority to $4 million and 2 years. Title IX 
authorizes $8.5 billion for 5 years.
Superfund: Summary of the Draft Chairman's Mark of S. 8, The Superfund 
                    Cleanup Acceleration Act of 1997
    The Superfund Cleanup Acceleration Act of 1997, S. 8, was 
introduced on January 21, 1997, by Senator Bob Smith, Chairman of the 
Environment and Public Works Subcommittee on Superfund, Waste Control, 
and Risk Assessment. The bill reauthorizes the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
(CERCLA, or Superfund) for 5 years at a level of $8.5 billion total, 
and makes extensive amendments in its nine titles. The subcommittee has 
received comments on the bill since its introduction, and has 
negotiated changes with Senators and the Administration. The draft 
chairman's mark circulated by the subcommittee in late August is the 
result of those discussions and is summarized in this report. A hearing 
on the revised bill is scheduled for September 4, 1997, and markup is 
planned for September 11.
                  title i--brownfields revitalization
    There is no specific brownfields authority in CERCLA; the current 
program was initiated administratively by EPA. It provides 2-year 
grants of up to $100,000 annually ($200,000 total) to help communities 
address brownfields, which are abandoned, idle, or underused industrial 
and commercial facilities where expansion or redevelopment is 
complicated by real or perceived environmental contamination. The 
grants are for site assessment and related activities--not cleanups. 
The Taxpayer Relief Act of 1997 (P.L. 105-34) allows brownfield cleanup 
costs to be deducted in the current year, a tax break estimated at $417 
million by the Joint Committee on Taxation, that ends December 31, 
2000.
    S. 8 directs EPA to establish two programs. The first, the 
Brownfield Characterization Grant Program, would provide grants of up 
to $100,000 per year for 2 years to characterize and assess brownfield 
sites; $15 million annually is authorized for the program for 5 years. 
``Eligible entities'' to receive the grants are local governments, 
regional councils, state-chartered redevelopment agencies, and Indian 
tribes.
    The second program, the Brownfield Remediation Grant Program, would 
provide grants to states or eligible entities to capitalize revolving 
loan funds (RLF) for brownfield cleanups. A state receiving a grant 
must pay a matching share of at least 50 percent of the costs of the 
response action for which the grant is made, from other sources of 
state funding. The maximum amount of a grant with respect to any 
facility may not exceed $150,000 annually for 2 years. Twenty-five 
million dollars annually is authorized for the program for 5 years. An 
eligible entity receiving a grant for either program may leverage the 
funds by using them at a brownfield project for which funding is 
received from other sources, but the grant may only be used for the 
purpose specified (site characterization or capitalizing the RLF).
    Requirements for grant applications are set out, as are criteria 
for EPA to use in ranking the applications. Facilities being cleaned up 
under other authorities are excluded from the program, namely:
     facilities subject to emergency removal actions under 
CERCLA,
     facilities on the National Priorities List (NPL),
     facilities subject to corrective action under RCRA,\1\
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    \1\ Resource Conservation and Recovery Act, also known as the Solid 
Waste Disposal Act.
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     facilities being closed under RCRA,
     facilities subject to administrative orders or consent 
decrees,
     Federal facilities, and
     facilities for which cleanup assistance has been provided 
under the Leaking Underground Storage Tank (LUST) Trust Fund.
    The bill also authorizes technical and financial assistance to 
states to maintain, establish, and administer voluntary response 
programs. Elements of a qualifying state program include public 
participation in remedy selection, streamlined procedures, oversight 
and enforcement authorities to ensure that response activities are 
completed, and a requirement for state certification that the response 
is complete. A voluntary cleanup at an NPL site must protect human 
health and the environment to the same extent as a remedial action 
selected by EPA. The bill authorizes $25 million per year for 5 years 
for assistance to states. Each qualifying state program is guaranteed 
at least $250,000 per year.
    EPA must notify a state prior to undertaking an administrative or 
judicial enforcement action at a facility \2\ where there is a release 
or threatened release of a hazardous substance. The state must notify 
EPA within 48 hours whether the facility is currently, or has been, 
subject to state remedial action. The Federal Government is forbidden 
from taking an administrative or judicial enforcement action, or 
bringing a private civil action against anyone at a facility subject to 
a state remedial action plan. There are several exceptions to this 
prohibition. EPA may bring an administrative or judicial enforcement 
action if:
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    \2\ This provision and the rest of this section describing title I 
applies to any applicable facilities, not just brownfields.
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     the state requests assistance; or
     EPA makes a written determination that the state is 
unwilling or unable to take appropriate action, after giving the 
governor notice and an opportunity to cure; and (1) the Agency for 
Toxic Substance and Disease Registry issues a human health advisory, or 
(2) EPA determines there is an imminent threat; or
     EPA determines the contamination has migrated across a 
state line; or
     EPA obtains a declaratory judgment in U.S. district court 
based on: newly discovered information about the contamination; the 
discovery of fraud; a failure of the remedy; or a change in land use 
that presents a clear threat of exposure to hazardous substances.
    At a facility not subject to a state remedial action plan, the 
President shall provide notice to the state within 48 hours after 
issuing a section 106(a) administrative order.\3\ The order shall cease 
to have effect 90 days after issuance unless the state concurs in the 
continuation of the order.
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    \3\ A section 106(a) administrative order is a unilateral 
administrative order whereby EPA can order a potentially responsible 
party (PRP) to perform certain remedial actions at a Superfund site if 
there is an imminent and substantial endangerment to public health, 
welfare, or the environment; failure to comply with a section 106 order 
is subject to a fine of not more than $25,000 per day.
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    The bill protects from liability landholders whose property may be 
contaminated by a contiguous NPL site, if they did not contribute to 
the contamination; such landholders shall provide cooperation and 
facility access to those cleaning up the property. Also relieved from 
liability are purchasers of contaminated property, if they did not 
contribute to the contamination, and conducted appropriate inquiries 
prior to the purchase. ``Appropriate inquiries'' is clarified.
                          title ii--state role
    At present, states are involved in the selection of remedies and 
may enter into cooperative agreements with EPA to carry out most 
cleanup activities on a site-by-site basis. However, final remedy 
selection must be done by EPA.
    The bill defines several terms for use in this title, including:
     ``Authorized state'' means a state that is authorized to 
apply its own cleanup program requirements, in lieu of the requirements 
of CERCLA, to the cleanup of a non-Federal listed facility.
     ``Delegable authority'' means the authority to perform all 
the elements in one or more of the following categories of authority:
    (1) site investigations, evaluations, and risk analyses;
    (2) development of alternative remedies, and remedy selection;
    (3) remedial design and remedial action;
    (4) operation and maintenance; and
    (5) information collection, and allocation of liability.
     ``Delegated state'' means a state that has received 
delegable authority. Delegation allows a state to implement the Federal 
CERCLA program.
     ``Delegated facility'' means a non-Federal listed facility 
with respect to which a delegable authority has been delegated to a 
state.
     ``Non-Federal listed facility'' means a facility not owned 
by any entity of the U.S. Government, and that is on the National 
Priorities List (NPL).
     ``Enforcement authority'' means all authorities necessary 
to recover response costs, to require Potentially Responsible Parties 
(PRPs) to perform response actions, and otherwise to compel 
implementation of a response action, including: issuance of a section 
106(a) administrative order, a response action cost recovery, 
imposition of a civil penalty or award, settlement, and information 
gathering.
     ``Non-delegable authority'' means authority: (1) to make 
grants to Community Advisory Groups; and (2) to conduct research and 
development under CERCLA's provisions.
    The bill directs EPA ``to seek . . . to transfer'' to states the 
responsibility to perform response actions (cleanups) at non-Federal 
listed facilities. There are four ways to accomplish the transfer of 
responsibility: by authorization, expedited authorization, delegation, 
and limited delegation. Authorization allows a state to implement its 
own program within its borders. Delegation allows a state to implement 
the Federal program.
     Authorization. EPA may authorize a state to apply any or 
all of the requirements of the state's cleanup program in lieu of 
CERCLA to any non-Federal listed facility if the state: (1) has 
adequate legal authority, financial and personnel resources, 
organization, and expertise; (2) will implement its cleanup program in 
a manner protective of health and the environment; (3) has procedures 
for public notice and an opportunity to comment; and (4) agrees to use 
its enforcement authority to require potentially responsible parties 
(PRPs) to perform and pay for the response actions. EPA must determine 
within 180 days whether the state meets the requirements, or the 
transfer of responsibility to the state is deemed to have been granted.
     Expedited Authorization. A state that meets any three of 
the following five criteria may receive expedited authorization to 
operate its program in lieu of the Federal program: (1) the state's 
program has been in effect for at least 10 years; (2) the state has 
spent at least $10 million from its state cleanup fund or other state 
source of cleanup funding; (3) the cleanup program has at least 100 
employees; (4) at least 200 response actions have been performed at 
non-NPL sites under the program; and (5) there are at least 100 non-
Federal listed facilities in the state, or 6 non-Federal listed 
facilities per million state residents. EPA has 90 days to review the 
state's certification, after which the transfer of responsibility to 
the state is deemed to have been granted.
     Delegation. A state may apply to receive one or more 
delegable authorities for one or more non-Federal listed facilities. 
The state must demonstrate that its enforcement authorities are 
equivalent to those under CERCLA. Its application must identify each 
delegable authority it requests for each non-Federal listed facility 
for which it requests delegation. The application must also enable EPA 
to determine whether and to what extent: (1) the state has adequate 
financial and personnel resources, organization, and expertise; (2) the 
state will implement the delegated authorities in a manner protective 
of health and the environment; and (3) the state agrees to require PRPs 
to perform and pay for the response actions. EPA must approve or 
disapprove the application within 120 days or the application is deemed 
to have been granted.
     Limited Delegation. EPA may delegate to a state limited 
authority to perform, ensure the performance of, supervise, or 
otherwise participate in the performance of one or more delegable 
authorities, as appropriate.
    A state shall have sole authority to perform the transferred 
responsibility. A delegated state shall implement the applicable 
provisions of CERCLA (including regulations and guidance issued by EPA) 
in the same manner as EPA at facilities that are not delegated.
    EPA may withdraw the transfer of responsibility if it finds that a 
state does not meet the requirements that it has certified or agreed 
to.
    Before EPA performs an emergency removal at a non-Federal listed 
facility under section 104 it must notify the state. If the state 
notifies EPA within 48 hours that it intends to take action, EPA shall 
not proceed unless the state fails to act within a reasonable period of 
time. In case of a public health or environmental emergency, EPA need 
not provide notice prior to acting.
    If there is a hazardous substance release at a non-Federal listed 
facility where responsibility has been transferred to the state, the 
Federal Government may not take an administrative or judicial 
enforcement action, or bring a private civil action, unless the state 
requests assistance, or EPA obtains a declaratory judgment in U.S. 
district court that the state has failed to make reasonable progress 
and there is an imminent threat of exposure to hazardous substances.
    Of the amount of any response costs recovered from a responsible 
party by a state that has received transferred responsibility for a 
non-Federal listed facility, the state may retain: (1) 25 percent of 
any Federal response costs incurred there, plus (2) any response costs 
incurred by the state at the facility; the remainder shall be deposited 
in the Superfund trust fund. EPA may recover response costs from a PRP 
if the state says it does not intend to, or the state fails to take 
timely action in light of applicable statutes of limitation. If EPA 
takes a cost recovery action against a PRP, the state may not take any 
other action for recovery of response costs relating to that release.
    A state may request EPA to remove all or part of a transferred 
facility from the NPL, and EPA shall do so if the delisting is not 
inconsistent with a requirement of CERCLA. The agency shall report 
annually to Congress describing actions taken under this provision. 
Facility-specific and non-facility-specific grants to delegated states 
are provided for. Grant money may not be used to pay the state share of 
response costs. The 50 percent state cost-share requirement at state-
operated facilities would be repealed. The state cost share would be 
the lower of 10 percent, or a percentage determined by the Office of 
Management and Budget.
                title iii--local community participation
    Currently, CERCLA requires only that there be a public notice and 
comment period before the adoption of many emergency removal actions 
and all remedial (cleanup) actions. Technical assistance grants (TAGs) 
of $50,000 are available to the public.
    Title III would facilitate participation in decisionmaking by the 
people affected by sites that are on or proposed for the National 
Priorities List (NPL), or where there is a removal action expected to 
last more than a year or that will cost more than the amount specified 
in section 104(c)(1). EPA would be required to inform and consult with 
the affected community and to consider their views in developing and 
implementing the remedial action plan. The affected community would 
have access to documents regarding response actions, but not to those 
relating to liability nor confidential documents.
    S. 8 directs EPA to assist in establishing Community Advisory 
Groups (CAGs). A CAG shall contain 20 or fewer EPA-approved voting 
members representing the affected community, including residents or 
property owners; other affected citizens; the local medical community; 
local Indian communities; citizen, civic, environmental, or public 
interest groups; local businesses; and employees at the facility. When 
appropriate, CAGs will include as non-voting members representatives of 
EPA, other Federal agencies, states, Indian tribes, local governments, 
facility owners, and potentially responsible parties.
    CAGs would serve as conduits of information to and from the 
community, and represent it during the remedial action planning and 
implementation process. CAGs may be recipients of technical assistance 
grants (TAGs) to obtain expert assistance in interpreting information 
or for training in community involvement. No more than 10 percent of a 
grant could be used to train citizens. As in current law, TAGs are for 
$50,000, but the bill allows a waiver of that limit. The bill 
eliminates the current law fund-matching requirement, and authorizes 
early disbursement to the TAG recipient in advance of the recipient's 
making expenditures to be covered by the grant; up to $5,000 may be 
advanced at a time.
                title iv--selection of remedial actions
    Under CERCLA, cleanup standards are set by looking at applicable or 
relevant and appropriate requirements (ARARs) of Federal and state 
laws. Where no ARARs exist, cleanup levels are determined using site-
specific risk assessments. The law states a preference for remedies 
using treatment (of soil and groundwater) that permanently reduces or 
eliminates volume, toxicity, and mobility of contaminants.
    Section 401 adds two definitions to CERCLA section 101. The first 
new definition, ``technically impracticable,'' means impracticable due 
to engineering infeasibility or unreliability or inordinate costs. The 
second added definition, 'beneficial use,'' means the use of land on 
completion of a response action in a manner that confers economic, 
social, environmental, conservation, or aesthetic benefit.
    Mandate to Protect Human Health and the Environment. Section 402 
requires the President to select a cost-effective remedial action that 
achieves the mandate to protect human health and the environment, and 
that complies with other applicable Federal and state laws. The bill 
states that, notwithstanding any other provision of this Act, a 
remedial action shall protect human health. The remedial action is 
deemed to protect human health if, considering the expected exposures 
associated with the current or reasonable anticipated future land and 
water use, and on the basis of a facility-specific risk evaluation, the 
remedial action: (1) achieves a residual risk from exposure to 
threshold carcinogenic hazardous substances such that the cumulative 
lifetime additional cancer risk is in the range of 10-4 to 
10-6 (one in 10,000 to one in 1,000,000) for the affected 
population; (2) achieves a residual risk from exposure from 
nonthreshold carcinogenic and noncarcinogenic hazardous substances that 
does not exceed a hazard index of 1; and (3) prevents or eliminates any 
human ingestion of drinking water containing hazardous substances in 
excess of Safe Drinking Water Act maximum contaminant levels (MCLs), or 
if MCLs have not been established for the substance, at levels that 
meet the goals for protecting human health.
    Stated another way, the remedial action will ``protect human 
health'' if the remaining chemicals at the site are: (1) at levels 
unlikely to cause more than one case of cancer in a population of 
between 10,000 and 1,000,000 people who are exposed all their lives; 
and (2) below levels expected to cause any other adverse health effects 
in any people exposed.\4\
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    \4\ The intent is to ensure that exposure to hazardous substances 
is small enough that adverse health effects are either: precluded (for 
threshold substances that are known to be harmless at low exposure 
levels); or highly unlikely (for nonthreshold hazardous substances that 
have no known level of harmless exposure, such as many carcinogens).
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    The remedial action for a facility is deemed to protect the 
environment if it protects plants and animals from significant impacts 
resulting from releases of hazardous substances at the facility. The 
determination of what is protective would not be based on individual 
plants and animals unless the species is listed as threatened or 
endangered under the Endangered Species Act.
    A remedy must comply with the substantive requirements of Federal 
and state environmental and facility-siting laws applicable to the 
conduct of the remedial action or to the determination of the cleanup 
level. More stringent state requirements may be applied at NPL sites if 
the state demonstrates that they are generally applicable and 
consistently applied to remedial actions, and the state publishes and 
identifies the applicable requirements to the President. Federal 
hazardous waste management provisions of the Solid Waste Disposal Act 
(Section 3004) do not apply to the return of ``contaminated media into 
the same media in . . . then-existing areas of contamination at the 
facility.'' Federal and state procedural requirements, including 
permitting requirements, shall not apply to response actions conducted 
on site at the facility. Waivers from the substantive requirements of 
Federal and state environmental and facility siting laws are authorized 
for specified reasons; however, the President must publish findings 
including documentation and an explanation of how the remedial action 
meets the cleanup requirements of Section 121.
    If no applicable Federal or state standard exists for a 
contaminant, a remedial action must meet a standard that the President 
determines to be protective.
    Remedy Selection Methodology. The President shall select a remedial 
action from among a range of alternatives by following remedy selection 
rules and balancing adequately the following factors:
     effectiveness of the remedy in protecting health and the 
environment;
     reliability in achieving the protectiveness standard over 
the long term (replacing the current law's preference for permanence);
     short-term risk posed by implementing the remedial action;
     acceptability to the community;
     implementability; and
     reasonableness of the cost.
    A remedial action that implements a presumptive remedial action is 
considered to achieve the goals to protect human health and the 
environment, balance the above factors, and account for remedy 
selection rules.\5\
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    \5\ Presumptive remedies are preferred technologies for common 
categories of sites, based on historical patterns of remedy selection 
and EPA's scientific and engineering evaluation of performance data on 
technology implementation.
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    Remedy Selection Rules. In selecting a remedy for a facility, the 
President shall take into account the reasonably anticipated future use 
of land and water potentially affected by the release. In developing 
assumptions regarding reasonably anticipated future land uses, the 
President must consider the views of local officials and community 
members and consider specified factors. In developing assumptions 
regarding reasonably anticipated future groundwater and surface water 
uses, the President must give substantial deference to classifications 
in a state comprehensive groundwater protection program and consider 
other designations or plans adopted by the governmental unit that 
regulates surface or groundwater use planning in the area. The 
information on which the President bases the development of these 
assumptions must be included in the administrative record.
    If appropriate, a remedial action for contaminated groundwater may 
proceed in phases, allowing collection of sufficient data to evaluate 
other actions at the site, and to determine the appropriate scope of 
the remedial action. Groundwater decisions must take into consideration 
current or reasonably anticipated future use of the groundwater, any 
natural attenuation that would occur without action, and the effect of 
any other response actions. A remedial action shall seek to protect 
uncontaminated groundwater that is suitable for use as drinking water 
for such beneficial use unless it is technically impracticably to do 
so. For contaminated groundwater that is, or is planned to be, used for 
drinking, if it is technically practicable, the President shall try to 
restore it to a condition suitable for beneficial use. In determining 
technical practicability and timeframe for restoring groundwater, the 
President may distinguish among groundwater contamination zones at a 
site.
    For contaminated groundwater that is suitable for drinking water, a 
remedial action must, if technically practicable, attain in the 
contaminated groundwater plume and extending to the edge of any 
contaminant that will be managed in place, either Federal drinking 
water standards or state water quality standards for water designated 
for drinking water use, whichever is more stringent. If no standard 
exists, then the remedy must attain a level that is protective of human 
health and the environment. If restoration is technically 
impracticable, the selected remedy may rely on point-of-use treatment 
or other measures to ensure there is no ingestion of contaminated 
drinking water; point-of-use treatment shall be considered as part of 
the remedy's operation and maintenance.
    For groundwater not suitable for drinking water, a remedy must, if 
technically practicable, attain a standard that is protective of the 
current or future uses of the water and any connected surface water.
    Groundwater shall not be considered suitable for drinking water if 
naturally occurring conditions prevent it, or it is so contaminated by 
broad-scale human activity (unrelated to a facility release) that 
restoration is technically impracticable, or if it is physically 
incapable of yielding 150 gallons a day to a well or spring (unless it 
is currently used as drinking water).
    For discrete areas containing highly toxic contaminants that cannot 
be reliably contained or are highly mobile, and present a substantial 
risk to human health and the environment, the remedy selection process 
shall include a preference for a remedy that includes treatment. For 
such areas, the President may select a final containment remedy at a 
landfill or mining site in specified circumstances.
    The Administrator may not select a remedy that allows a contaminant 
to remain at a facility above a protective level unless institutional 
and engineering controls are incorporated into the remedial action that 
ensure protection of human health and the environment. Institutional 
controls are defined to mean restrictions of the permissible use of 
land, groundwater or surface water included in any enforceable decision 
document for a NPL facility to comply with the requirements to protect 
human health and the environment. A remedial action that uses 
institutional and engineering controls shall be considered to be on an 
equal basis with all other remedial action alternatives. EPA is 
required to maintain a registry of institutional controls that place 
restrictions on land, water, or other resources uses; and that are 
included in an enforceable decision document.
    If, after reviewing a remedy, the President finds that attaining a 
standard is technically impracticable, the President shall select a 
technically practicable remedy that protects public health and most 
closely achieves the cleanup goals through cost-effective means.
    Facility-Specific Risk Evaluations. Section 403 states that the 
goal of a facility-specific risk evaluation is to provide informative 
estimates that neither minimize nor exaggerate the current or potential 
risk posed by a facility.
    A facility-specific risk evaluation shall: (1) use chemical and 
facility-specific data in preference to default assumptions whenever 
practicable or, if this is not practicable, use a range and 
distribution of realistic and scientifically supportable default 
assumptions; (2) ensure that the exposed populations and all pathways 
are accurately evaluated; (3) consider current and anticipated future 
use of land and water resources in estimating exposure; and (4) 
consider the use of institutional controls. The President may consider 
only institutional controls that are in place at the facility when the 
risk assessment is conducted.
    This section directs that facility-specific risk evaluations be 
used to: determine the need for remedial action evaluate the current 
and potential exposures and risks at the facility; screen out 
contaminants, areas or exposure pathways from further study; evaluate 
the protectiveness of alternative proposed remedies; demonstrate that 
the selected remedial action can achieve the goals of protecting health 
and the environment and land and water resource uses; and establish 
protective concentration levels if no applicable requirement exists or 
if an applicable requirement is not sufficiently protective.
    The President must ensure that the presentation of health effects 
information is informative, comprehensive and understandable. The 
document reporting the results of the risk evaluation must specify each 
population addressed by the risk estimates, present the central 
estimate of risk for specific populations and the upper- and lower-
bound risk estimate, identify uncertainties is the assessment process, 
and known peer-reviewed studies that do or do not support the health 
effects estimates and the methodology used to reconcile inconsistencies 
in the data. In preparing facility-specific risk evaluations, the 
President must use the best available peer-reviewed science and 
studies, and data collected by accepted methods. Within 18 months of 
enactment, the President must promulgate a regulation implementing this 
section.
    Presumptive Remedial Actions. For the purpose of streamlining the 
remedial action selection process, Section 404 directs EPA to establish 
presumptive remedial actions that: identify preferred technologies and 
approaches for common categories of facilities, and identify site 
characterization methodologies for those categories of facilities. Such 
presumptive remedies may include institutional and engineering 
controls. They must be practicable, cost-effective, and protective of 
human health and the environment. Within one year, EPA must issue a 
list of presumptive remedial actions that are available for specific 
categories of facilities. At least once every three years, EPA must 
solicit information for updating the presumptive remedial actions to 
incorporate new technologies or to designate additional categories of 
facilities.
    Section 404 directs the President to expedite implementation of 
response actions and reduce transaction costs. This is to be achieved 
by implementing measures to accelerate and improve the remedy selection 
and implementation processes, tailor the level of oversight of response 
actions, and streamline the process for submitting, reviewing and 
approving plans and other documents. The President must attempt to 
expedite completion of response actions through appropriate phasing of 
investigative and response activities. The results of initial 
investigations shall be used, as appropriate, to focus subsequent data 
collection or to develop multiple phases of a response action.
    The bill authorizes the President to allow a potentially 
responsible party (PRP) or group of PRPs to perform a response action 
where the President determines that the party(ies) will perform the 
action properly and promptly and the PRPs agree to reimburse the Fund 
for oversight costs. The President may tailor the level of oversight of 
PRP-led response actions taking into consideration specified factors.
    The bill requires EPA to issue guidelines identifying the contents 
of a draft proposed remedial action plan which must include a 
discussion of alternative remedies and their costs, a recommended 
remedy, and a summary of information used to make the recommendation 
including a brief description of site risks.
    Remedy Review Boards. EPA must establish at least one remedy review 
board comprised of technical and policy experts from Federal and state 
agencies. Within 180 days of enactment, EPA must promulgate a 
regulation establishing procedures for the operation of the review 
board including cost-based or other criteria for determining which 
draft proposed remedial action plan will be eligible for review. EPA 
may develop different criteria for different categories of facilities. 
The criteria shall, to the extent practical, allow for the review of 
not less than an annual average of one-third of the draft proposed 
remedial action plans. A proposed remedial action plan that meets the 
criteria shall be submitted to the board unless EPA determines that 
review by the board would unacceptably delay measures to protect human 
health and the environment. The Administrator shall give substantial 
weight to the board's recommendations in determining whether to modify 
a remedial action plan. The President may approve a draft proposed 
remedial action plan prepared by a PRP.
    Delisting NPL Sites. Section 405 sets procedures and timeframes for 
EPA to provide notice of completion of a remedial action and delisting 
of a facility from the NPL. Delisting does not affect liability 
allocations, cost-recovery provisions, or operation and maintenance 
obligations. A PRP is released from liability if the facility is 
available for unrestricted use, and operation and maintenance are not 
needed. If the facility is not available for unrestricted use, or 
operation and maintenance are required, EPA must review the status of 
the facility every 5 years and require additional remedial action, as 
needed. A facility or portion of a facility may be made available for 
restricted use.
    Transition rules for remedy review. Section 406 establishes 
transition rules for facilities currently involved in remedy selection. 
EPA is directed to use the remedy review boards to determine, on 
petition by the implementor of a record of decision (ROD), whether an 
alternative remedy should apply to a facility, rather than the one 
specified in the ROD.
    For facilities for which a record of decision (ROD) was signed 
before the date of enactment and that meet specified criteria, the 
implementor of the ROD has one year to submit to the remedy review 
board a petition to update the ROD to incorporate alternative 
technologies or approaches in the remedial action. To be eligible for 
review, the implementor must demonstrate that the alternative proposed 
remedial action meets the cleanup requirements of Section 121, the 
Governor does not object to consideration of the petition, the ROD was 
issued before certain dates, and the ROD has implementation costs in 
excess of $30 million (or the cost is between $5 million and $30 
million, and the alternative remedy achieves at least a 50 percent cost 
savings). The review board must prioritize decisions to accept 
petitions for remedy update based on the above criteria and the 
potential for cost savings. In forming recommendations for remedy 
updates, the review board must consider the continued relevance of the 
exposure and risk assumptions in the original remedy, the effectiveness 
of the original cleanup strategy, cleanup goals, new technologies and 
approaches, the level of community and PRP involvement and consensus in 
selecting the original strategy, and other factors. The board must 
submit its recommendations to EPA within 180 days of receiving a 
petition. In deciding whether to approve a proposed remedy update, EPA 
is to give substantial weight to the board's recommendations. EPA must 
submit an annual report to Congress on the Agency's activity in 
reviewing and modifying RODs signed before the date of enactment of 
this section. In conducting remedial action reviews, EPA should give 
priority consideration to RODs that were issued before October 1, 1993, 
and that involve primarily groundwater treatment for dense, nonaquaeous 
phase liquids.
    National Priorities List. When listing a site on the NPL, EPA 
should not include, to the extent practicable, any parcel of real 
property at which no release has occurred, but to which a released 
contaminant has migrated in groundwater unless the groundwater is (or 
was) in use as a public drinking water supply, and the facility owner 
or operator is liable for any response costs.
                           title v--liability
    Current law imposes joint and several liability on a strict and 
retroactive basis, covering owners and operators of sites, generators 
and transporters of hazardous substances released at Superfund sites, 
and those who arranged for disposal at those sites. It authorizes EPA 
to settle with PRPs, provides authority for EPA to prepare non-binding 
allocations of responsibility, and has special settlement provisions 
for de minimis parties. EPA may use mixed funding, and may provide 
settling parties protection from third party lawsuits and covenants not 
to sue.
    The bill defines ``codisposal landfills'', ``municipal solid 
waste'', ``municipality'', and ``sewage sludge''. A codisposal landfill 
is one that was listed on the NPL as of January 1, 1997; received 
municipal solid waste or sewage sludge (MSW or SS); and also may have 
received, before the effective date of RCRA subtitle C requirements,\6\ 
hazardous waste, if the landfill contains predominantly MSW or SS that 
was transported to the landfill from outside the facility.
---------------------------------------------------------------------------
    \6\ Subtitle C of the Resource Conservation and Recovery Act 
address the generation, handling, treatment, storage, and disposal of 
hazardous waste; for most purposes, its effective date was November 19, 
1980.
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    Title V would exempt from liability for any response costs incurred 
after the date of enactment the generator, arranger, and transporter of 
MSW and SS. De micromis contributors are exempt from liability for 
response costs incurred after enactment unless the material contributed 
or may contribute significantly to the amount of response costs; a de 
micromis contribution is less than 200 pounds or 110 gallons of 
material containing a hazardous substance prior to January 1, 1997. 
Also exempt from liability is any small business with fewer than 30 
employees, or less than $3 million in annual gross revenues.
    For generators, transporters, and arrangers there is no liability 
for response costs incurred after enactment for codisposal landfills. 
For the owners and operators of codisposal landfills, the situation is 
different, and depends on whether the owner or operator is private or a 
municipality, and if the latter, on its size.
    Large and small municipalities are defined as those with 
populations above and below 100,000 respectively. For a codisposal 
landfill that is owned or operated only by small municipalities, and is 
not subject to RCRA subtitle D \7\ criteria, the aggregate liability of 
the municipalities for response costs incurred after enactment shall be 
the lesser of (a) 10 percent of the total response costs, or (b) the 
cost of complying with RCRA subtitle D (as if the facility had 
continued to accept MSW through January 1, 1997). For large 
municipalities, their aggregate liability would be the lesser of 20 
percent of the total response costs, or the RCRA subtitle D compliance 
costs.
---------------------------------------------------------------------------
    \7\ RCRA subtitle D addresses non-hazardous wastes.
---------------------------------------------------------------------------
    For codisposal landfills owned or operated by non-municipalities, 
and that are not subject to RCRA subtitle D, the liability would be the 
lesser of 40 percent of the total amount of response costs, or the 
costs of complying with RCRA subtitle D. For codisposal landfills owned 
or operated by a combination of small and large municipalities, or 
persons other than municipalities, and are subject to RCRA subtitle D, 
the allocator shall determine the proportion of the use of the landfill 
that was made by small and large municipalities and persons other than 
municipalities, and shall allocate among them an appropriate percentage 
of total liability not exceeding the aggregate liability percentages 
stated. For a codisposal landfill that is subject to RCRA subtitle D, 
regardless of the status of the owners and operators, the aggregate 
liability is no more than the costs of complying with RCRA subtitle D.
    The codisposal landfill exemption does not apply to one who acted 
in violation of RCRA subtitle C or D if the violation pertains to a 
hazardous substance that caused the incurrence of response costs at the 
facility.
    A responsible party who currently is subject to a section 106 
administrative order or has entered into a settlement decree is 
required to fulfill his obligations, even if the responsible party is 
not liable by reason of a liability exemption or limitation. The party 
may apply to the Fund for contribution, and shall be reimbursed 
expeditiously.
    The bill replaces the de minimis settlement provisions of section 
122 with a provision establishing expedited settlement procedures for 
parties that contributed less than 1 percent of the volume of material 
containing a hazardous substance at an NPL site. It provides that any 
such settlement will be final if the settling party pays a premium of 
not to exceed 10 percent of the amount of the settlement.
    The bill would establish a mandatory, non-binding allocation 
process for multi-party sites where response costs are incurred after 
enactment. Excluded from the allocation process are facilities where 
cost shares are already determined. The bill excludes from liability 
relief any party found guilty of violating Federal or state law 
resulting in the release of a hazardous substance which caused the 
incurring of response costs at the facility.
    The bill sets a moratorium on litigation until 120 days after the 
allocator's report is issued.
    The bill would require that each allocation be performed by a 
neutral third-party allocator in a fair, efficient, and impartial 
manner. The allocator is to make every effort to streamline the process 
and minimize costs. Prior to issuing a final allocation report, the 
allocator shall give each party opportunity to comment on a draft. The 
actions of the allocator would not be subject to judicial review.
    Within 90 days of enactment, the bill requires EPA to establish a 
process for the expedited selection and retention of a neutral 
allocator. The EPA Administrator or the Attorney General shall 
participate in the allocation process as the representative of the Fund 
from which any orphan share shall be paid. Allocators are authorized to 
acquire reasonable support services, and the Administrator may not 
limit the discretion of the allocator in the conduct of the allocation.
    The Administrator begins the allocation process for a facility by 
performing a comprehensive search for all potentially responsible 
parties. The allocator is required to allow each of these parties at 
least 30 days to name additional potentially responsible parties and 
provide supporting information. These parties will be included on the 
list of allocation parties unless there is no basis to believe they are 
liable. Any party assigned a zero share in the allocator's final 
report, however, will be entitled to recover its costs of participating 
in the process, including attorney's fees, from the person who 
submitted its name.
    The allocator is required to provide a written final allocation 
report to the Administrator and each allocation party specifying the 
percentage share of each party and any orphan shares. The allocator 
shall allow the parties 60 days to reach a voluntary settlement, and 
shall adopt any such settlement in lieu of issuing an allocation report 
if it allocates at least 95 percent of the recoverable costs of 
response action and contains the terms and conditions generally 
applicable to allocation settlements.
    The allocator shall prepare a nonbinding allocation report that 
specifies the percentage share of each party, and any orphan share. The 
factors for allocation are:
     the amount, degree of toxicity, and mobility of hazardous 
substances contributed by each party;
     the degree of involvement of each party;
     the degree of care exercised with respect to hazardous 
substances;
     the cooperation of each party in contributing to any 
response action, and in providing complete and timely information to 
the allocator; and
     such other equitable factors as the allocator determines 
are appropriate.
    The orphan share consists of: (1) the shares of insolvent or 
defunct parties; (2) the remainder of any share not paid by a party 
where: (i) it was an expedited settlement with a person with limited 
ability to pay; (ii) the party's share is eliminated, limited, or 
reduced by any provision of this Act; or (iii) the person settled with 
the U.S. before the allocation was completed. Unattributable shares 
will be distributed among the allocation parties and the orphan share 
in accordance with the allocated share assigned to each.
    The allocator has information-gathering authorities, including the 
authority of the President under section 104(c) and authority to issue 
subpoenas. Information submitted to the allocator is to be kept 
confidential by all persons involved in the allocation and is not 
discoverable (if not independently discoverable or admissible) in 
judicial or administrative proceedings. The submission of information 
to the allocator does not constitute a waiver of any privilege under 
any Federal or state law.
    The Administrator and the Attorney General may jointly reject a 
report by an allocator if they determine, not later than 180 days after 
the Administrator receives the report, that no rational interpretation 
of the facts would form a reasonable basis for the shares assigned to 
the parties, in light of the factors required to be considered, or that 
the allocation process was directly and substantially affected by bias, 
procedural error, fraud, or unlawful conduct. If a report is rejected, 
the allocation parties shall select an allocator to perform a new 
allocation based, to the extent appropriate, on the record available to 
the previous allocator.
    Unless a report is rejected, any party at a mandatory allocation 
facility shall be entitled to resolve its liability to the United 
States if it offers to settle on the share specified by the allocator 
within 90 days of issuance of the allocator's report. The terms of such 
settlements shall provide authority for the Administrator to require 
any allocation party or group of parties to perform the response 
action, and shall include i) a waiver of contribution rights against 
all potentially responsible parties; ii) a covenant not to sue and 
provisions regarding performance or adequate assurance of performance 
of the response action; iii) a premium not to exceed 10 percent to 
cover the risk of the United States not collecting unrecovered response 
costs; iv) complete protection from all claims for contribution; and v) 
provisions for prompt contribution from the Fund for any response costs 
incurred in excess of the party's allocated share.
    The bill provides that an allocation party that incurs response 
costs after the date of enactment to an extent that exceeds its 
allocated share shall be entitled to prompt payment of the excess 
amount from the Fund, reduced by an amount not exceeding the litigation 
risk premium. The bill includes specific provisions concerning the 
timing of any such payment, failure to perform work, auditing of 
claims, and waiver of contribution rights from other responsible 
parties.
    If funds are unavailable in any fiscal year to provide contribution 
to all eligible allocation parties, the Administrator may delay payment 
until funds are available. The priority for payment shall be based on 
the length of time that has passed since settlement. Delayed payments 
shall include interest on the unpaid balance at a rate equal to that of 
the current average market yield on outstanding marketable obligations 
of the United States with a maturity of 1 year.
    If a party does not pay its allocation share within 120 days of the 
allocator's report, EPA may commence an action to recover response 
costs not recovered through settlements with other parties. Parties 
that do not pay their allocation share are subject to the joint, 
several, strict, and retroactive liability of section 107.
    The cost of implementing the allocation process and the funding of 
orphan shares shall be considered necessary response costs under 
Superfund.
    Response action contractors (RACs) would receive additional 
liability protection by being excluded from the definition of owners 
and operators, and by extending their existing exemption from Federal 
law to state law. RAC negligence would be evaluated based on the 
standards and practices in effect at the particular time and place. 
Subcontractors are also covered.
    The liability of ``501(c)(3) organizations'' (religious, 
charitable, scientific and educational organizations) that receive a 
facility as a gift, would be limited to the fair market value of the 
facility. The bill relieves the liability of a railroad owner or 
operator of a spur track if he is not responsible for a release.
    The bill provides an exemption from liability for those who arrange 
for the recycling of seven specified materials if they can meet certain 
threshold demonstrations. The seven materials are paper, plastic, 
glass, textiles, rubber (other than whole tires), metal, and batteries.
                      title vi--federal facilities
    Current law makes Federal agencies subject to CERCLA in the same 
way as other parties. The agencies must pay for cleanup of their 
facilities out of their appropriations; they are not eligible to use 
any Superfund moneys. Cleanups of federally owned sites on the NPL are 
under the sole jurisdiction of Federal environmental laws; federally 
owned sites not on the NPL are subject to state law concerning removal, 
remedial action, and enforcement.
    Title VI authorizes EPA to transfer responsibilities over federally 
owned NPL sites to qualified states. To receive authority over a site, 
a state must have an adequate environmental enforcement program, 
utilize CERCLA's remedy selection process and standards, and abide by 
the terms of any existing interagency agreement between EPA and the 
Federal agency that owns the site. The President may take enforcement 
action at such a transferred site if the state requests it, or if EPA 
obtains a declaratory judgment in U.S. district court that the state 
has failed to make reasonable progress and there is an imminent threat 
of exposure to hazardous substances.
    A Federal officer, employee, or agent may not be held criminally 
liable for failing to comply with a state order to take a response 
action at a federally owned or operated site, unless: (1) he has not 
fully performed his duties to ensure that a sufficient request for 
funds to undertake the response action was included in the President's 
budget, or (2) appropriated funds were available to pay for the 
response action.
    The President may designate Federal facilities on the NPL for 
research, development, and application of innovative technologies by 
Federal and state agencies, and public and private entities. EPA may 
approve or deny the use of any innovative technology at a Federal site.
                  title vii--natural resource damages
    CERCLA makes the Federal and state governments trustees for natural 
resources; claims against responsible parties must be made within 3 
years after the later of (1) discovery of the loss, or (2) the date on 
which regulations are promulgated.
    The bill would limit the measure of damages for injury or loss of 
natural resources to the costs of restoration, replacement, or 
acquisition of equivalent natural resources, and the costs of assessing 
damages. The bill eliminates non-use damages, and claims for lost-use 
activities that occurred prior to December 11, 1980; there can be no 
double recovery under both CERCLA and other law. Nor can there be 
recovery if the natural resource has returned to its baseline condition 
before the filing of a claim for natural resource damages, or the 
incurrence of assessment or restoration costs by a trustee.
    The bill strikes the provision which gives a trustee's 
determination of damages the force and effect of a rebuttable 
presumption. New natural resource injury and restoration assessment 
regulations must be written that identify procedures for determining 
the reasonable cost of restoration, and that require consideration of 
natural recovery as a restoration method, and the availability of 
replacement or alternative resources. The regulation shall be issued 
within 2 years of enactment, and be reviewed every 5 years.
    Under the bill, the goal of any restoration shall be to restore the 
injured natural resource to the condition it would have been in had the 
hazardous substance release not occurred. A trustee shall select a 
restoration alternative that is technically feasible, in compliance 
with applicable law, consistent with CERCLA and the National 
Contingency Plan, cost-effective, and timely. The range of alternatives 
considered by the trustee shall consider an alternative that relies on 
natural recovery. In selecting a restoration alternative, the trustee 
shall take into account what any removal or remedial action carried out 
or planned has accomplished or will accomplish. A restoration 
alternative may include temporary replacement of the lost services 
provided by the natural resource.
    A responsible party may seek contribution from other liable persons 
for natural resource damages.
    The bill proposes that where the trustees and PRPs have entered 
into a cooperative agreement, the period in which an action for damages 
may be brought would be the earlier of 6 years after the signing of the 
cooperative agreement, or 3 years after the completion of the damage 
assessment.
    A trustee seeking damages for injury to a natural resource shall 
initiate mediation of the claim with any PRPs within 120 days after 
commencing the action for damages.
    The amendments made by this title shall not apply to an action to 
recover natural resource damages under section 107(f) in which trial 
has begun before July 1, 1997, or in which a judgment has become final 
before that date.
                       title viii--miscellaneous
    Section 801 amends section 105(a) of CERCLA to require the 
President to revise the National Hazardous Substance Response Plan (a 
part of the National Contingency Plan) to establish results-oriented 
procedures for remedial actions that minimize the time required and 
reduce the potential for exposure to hazardous substances in a cost-
effective manner.
    Section 802 amends section 105 of CERCLA to limit additions to the 
National Priorities List to 30 vessels and facilities in 1997, 25 in 
1998, 20 in 1999, 15 in 2000, and 10 in any year after 2000. EPA shall 
prioritize the vessels and facilities on a national basis in accordance 
with the threat they pose to health and the environment. Additions to 
the list may be made only with the concurrence of the Governor of the 
state in which the vessel or facility is located.
    Section 803 increases the authority for emergency response actions 
from $2 million to $4 million, and the time limit from 1 year to 2.
                           title ix--funding
    Section 901 amends CERCLA section 111 to authorize appropriations 
from the Fund of $8.5 billion for the 5-year period, fiscal years 1998 
to 2002.
    Section 902 amends CERCLA section 111 to allow payment of orphan 
shares as a use of the Fund.
    Section 903 amends CERCLA section 111 to authorize appropriations 
from the Fund for the activities of the Agency for Toxic Substances and 
Disease Registry of $50 million for each of fiscal years 1998-2002.
    Section 904 sets limits for FY 1998-2002 of $30 million per year 
for alternative or innovative technologies research, development, and 
demonstration programs; for hazardous substance research, demonstration 
and training, $37 million for FY 1998, $39 million for FY 1999, $41 
million for FY 2000, and $43 million each year for FY 2001 and FY 2002, 
with no more than 15 percent of those amounts to be used for training; 
and $5 million annually for university research centers.
    Section 905 authorizes appropriations from General Revenues of $250 
million annually for fiscal years 1998-2002.
    Section 906 limits funding for Community Action Groups to $15 
million for the period from January 1, 1997, to September 30, 2002. The 
section also specifies that any response cost recoveries will be 
credited as offsetting collections to the Superfund appropriations 
account.
    Section 907 amends CERCLA section 111(a) to allow the Fund to be 
used to reimburse PRPs if a PRP and EPA have entered into a settlement 
under which the Administrator is reimbursed for response costs, and the 
Administrator determines (through a Federal audit) that the costs are 
unallowable due to contractor fraud or the Federal Acquisition 
Regulation, or should be adjusted due to audit procedures.
                                 ______
                                 
         Prepared Statement of the American Petroleum Institute
    The American Petroleum Institute (API) has long supported reform of 
the Superfund program. API members believe that S. 8, the ``Superfund 
Cleanup Acceleration Act of 1997,'' incorporates many important and 
necessary reforms to the program.
    As we have previously stated, the petroleum industry has a unique 
perspective with regard to Superfund. Petroleum-related businesses are 
estimated to be responsible for less than 10 percent of the 
contamination at Superfund sites; yet these businesses have 
historically paid over 50 percent of the taxes that support the Trust 
Fund. This inequity is of paramount concern and should be rectified 
forthwith. It has caused API members to focus on those elements of 
reform that affect the costs of the program and the authorized uses of 
the Trust Fund.
    API members are pleased that the Senate bill would reduce the 
number of sites to be added to the NPL in the future and commend the 
sponsors for taking this important step. Limiting new additions to the 
NPL ensures a more reasoned, cost-efficient, and focused Federal 
program with reduced future funding requirements. Once again, 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 remedy selection, state roles, liability/funding reform, natural 
resource damages, used oil recycling, as well as exploration and 
production wastes. Additional comments on various provisions contained 
in S. 8 are outlined in an attachment to this testimony. We--and other 
stakeholders--have had limited time to review the revisions to S. 8; 
thus, this testimony represents our initial reactions. As we develop 
other comments, we will forward them to you.
                        remedy selection reform
    API members continue to support remediation standards that are 
site-specific and risk-based and are pleased that provisions in the 
bill would establish requirements for facility-specific risk 
evaluations to determine the need for remedial actions and to evaluate 
the protectiveness of remedial actions. However, it should be made 
clear that the President is required to use the results of risk 
assessments in selecting the appropriate remedy.
    API members believe that 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. As noted 
in our previous testimony, API members support the provisions in S. 8 
that would:

          Establish a protective risk range of 10-4 to 
        10-6 for all remedies;
          Establish facility-specific risk evaluations;
          Establish the reasonableness of cost as a remedy selection 
        criterion;
          Give consideration to reasonably anticipated future land and 
        water use; and
          Consider all remedial alternatives on an equal basis, 
        including engineering and institutional controls.

    API also endorses the use of the remedy selection balancing 
criteria and is pleased to see that the Chairman's mark maintains the 
reasonableness of cost as a remedy selection criterion. The balancing 
criteria are the keystone of the remedy selection process, and API 
believes that all remedy selection procedures and applications, 
including groundwater remediations, should be subject to them.
    API has several serious concerns with the bill, and these are 
outlined below.
    Preference for Treatment. API is concerned that the bill's proposal 
to maintain a preference for treatment for some discrete areas 
containing hazardous substances is inconsistent with the overriding 
principles of remedy selection (e.g., facility-specific risk 
assessments and the balancing of environmental and economic factors). 
There should be no generic preference for treatment, and this section 
of the bill should be deleted. The need for treatment should be 
determined on a site-specific basis for each facility using the 
balancing criteria and the risk assessment procedures.
    Presumptive Remedies. The bill would allow EPA to select 
presumptive remedial actions without allowing a PRP the opportunity to 
select more cost-effective and protective remedies. A PRP should be 
able to conduct a risk-based response action in lieu of a presumptive 
remedy. The inequity of this situation is compounded by the fact that 
presumptive remedies are subject to neither traditional rulemaking 
procedures nor judicial review. API members believe that stakeholders 
must have an opportunity to review and comment on such remedies and 
that there must be an opportunity for judicial review.
    Applicable Federal and State Laws. The bill would also allow the 
use of ``applicable'' Federal and state laws and state standards in 
selecting remedial alternatives. We continue to hold the view that 
``applicable'' laws should be subject to the balancing factors; 
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 remediation requirements including the balancing 
criteria and the risk assessment procedures.
    Technical Impracticability. The consideration of technical 
impracticability in remedy selection and groundwater is poorly defined. 
Factors for determining technical impracticability need to be made 
clear. The bill should clearly specify the timing constraints on such 
determinations, and the concept of ``inordinate costs'' as included in 
the definition of technical impracticability should be defined. 
Moreover, there is no opportunity in the statute for PRPs to 
participate in the technical impracticability decision through public 
notice and comment.
    Establishment of Standards. If no applicable Federal or State 
standard has been established for a specific hazardous substance and 
pollutant and contaminant, the bill gives the President broad authority 
to establish such standards. Current laws define the process for 
developing such standards, and this bill should not undermine the 
established process. We believe that generic cleanup standards are 
unnecessary and that remediation should be determined by site-specific 
risk evaluations. Most importantly, any requirement to adopt standards 
should not be granted without a requirement for public review and 
comment.
    Groundwater. We find the bill's groundwater provisions to be 
troublesome and confusing for a variety of reasons. First, it needs to 
be made clear that the requirement to protect and restore groundwater 
is subject to the balancing criteria and the risk assessment 
procedures. The reasonableness of cost must be considered when 
selecting a groundwater protection remedy. The Chairman's mark would 
allow only inordinate costs caused by technical impracticability to be 
considered.
    Second, remedial actions for contaminated groundwater are required 
to attain ``a standard'' that is protective of the current or 
reasonably anticipated use of the water. Once again, the term 
``standard'' is not clearly defined, and API is opposed to the 
establishment of generic cleanup standards for groundwater and other 
media without due process.
    Third, the bill would require restoration of contaminated 
groundwater to meet maximum contaminant levels or state drinking water 
standards throughout the groundwater plume. Such a requirement would be 
very difficult--if not impossible--to attain and would be achieved only 
at great expense. Cleanup of contaminated groundwater should be based 
on a reliable risk analysis and the balancing of environmental and 
economic factors.
    Finally, as drafted, the preference for treatment appears to apply 
to groundwater remediation as well as remediation on land. Given the 
difficulty of groundwater treatment, it must be made clear that the 
preference for treatment does not apply to groundwater remediation.
                              state roles
    API members support the bill's provisions that would delegate 
Superfund remedial authority to states at non-Federal NPL sites. 
However, we have concerns about the bill's State authorization 
provisions. While delegated States must implement provisions of the 
bill, there is not a similar provision for authorized States. 
Presumably, authorized States could ignore the remedy reform contained 
in S. 8 as long as the State cleanup program met the extremely general 
standard of protecting human health and the environment. Authorized 
State cleanup programs should be implemented in accordance with the 
reformed Federal program.
    Additionally, the bill appears to allow authorized States to apply 
more costly remedies at NPL sites and to recover the additional costs. 
States applying more stringent remedies should not be able to recover 
incremental costs from PRPs, other agencies, or the Fund.
                        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.
    We continue to question the cost of the liability exemptions 
outlined in S. 8. For example, under the liability provisions, 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'/operators' and others' liability for response costs 
under Superfund and any other Federal or State statute would be capped 
at such landfills. In addition, de micromis, de minimus parties and 
others would be exempt. These provisions are far too broad and the 
costs to the Fund are not known, but they are likely large.
    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. Taxpayers to the 
Fund--which is expected to cover most of the future costs of the 
Federal Superfund program--need to know these cost implications to 
evaluate legislation.
    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 a few 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.
                     natural resource damages (nrd)
    API is an active member of the Coalition for Legislative NRD Reform 
and strongly supports the coalition's positions and the testimony they 
are submitting. While the bill would favorably repeal liability for 
non-use values, API members are extremely concerned by the bill's 
failure to require de novo trials of NRD cases and to distinguish the 
objective of restoration from remediation. The focus of the bill should 
be on restoring the functions of natural resources that were committed 
to public use at the time of the injury.
                           used oil recycling
    The bill exempts recyclers of scrap glass, metal, paper, plastic, 
rubber, textiles and spent batteries from liability; however, used oil 
recycling is noticeably absent from the list. If the Senate is intent 
on maintaining recycling exemptions, API members feel strongly that 
used oil recycling, including used oil filters, should be exempt as 
well. Adding used oil and used oil filters to the list of recyclable 
materials encourages recycling of these valuable commodities.
                    exploration and production waste
    As noted in our testimony of March 5, 1997, 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. API continues 
to urge Congress should clarify that these wastes are excluded under 
Superfund.
                               conclusion
    In summary, API commends members of the subcommittee for their 
continuing efforts to develop meaningful Superfund reform. However, we 
believe our concerns must be addressed if the Superfund process is to 
be truly reformed. 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.
                          additional comments
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.
     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.
     Contaminated media is exempt from the substantive 
provisions of section 3004 of RCRA. Since many states are authorized to 
implement these provisions, the exemption should also apply to state 
corrective action requirements.
Land and Water Use Considerations
     In determining reasonably anticipated future land use, EPA 
should consider the views of the broadest spectrum of stakeholders 
including facility owners and operators as well as potentially 
responsible parties. Facility owners and operators should be listed 
among those whose views are to be considered regarding reasonably 
anticipated future uses.
     In determining reasonably anticipated future use of water 
resources, the bill requires EPA to give substantial deference to 
classifications and designations in State groundwater protection 
programs. API agrees that State classifications are important, but we 
also believe additional factors should be considered (e.g., current 
water uses, recent development patterns, population projections, as 
well as the plans of the owner/operator of the facility).
Groundwater
     The bill would require protection of uncontaminated 
groundwater and restoration of contaminated groundwater that is 
suitable for use as drinking water. The bill needs to make clear that 
the requirements are applicable only to drinking water used for human 
consumption.
     API endorses provisions that would give consideration to 
reasonably anticipated future land and water use. However, we are 
concerned that in considering reasonably anticipated future use, EPA 
may consider the potential for ``beneficial use'' which encompasses 
conservation and aesthetic benefits. The consideration of these 
speculative factors is troublesome and could lead to requirements to 
remediate all groundwater.
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 be clarified to require that facility-
specific risk assessments be used in selecting the remedy.
     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 authorized or delegated 
states.
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.
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 five 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.
Brownfields
     The bill does not explicitly release owners, sellers, or 
buyers of brownfield properties from liability. This will result in 
impediments to recovery of such properties for re-use.
Community Participation
     Section 301 defines an affected community to be a group of 
two or more individuals who may be affected by the release or 
threatened release of a hazardous substance. The definition of affected 
community should be limited to persons living within some reasonable 
proximity to a site.
     The local community and its advisory group should be 
required to submit comments on remedy selection in a timely manner.
     The process for selecting facility employees for community 
advisory groups should be determined by the facility.
Federal Facilities
     Federal employees, who fail to take or comply with 
response action requirements, will not be subject to criminal liability 
unless they have failed to ensure that sufficient funds were available 
in the President's budget. This provision should be deleted. Criminal 
prosecution under environmental laws requires the government to prove 
criminal intent.
                                 ______
                                 
 Prepared Statement of the American Public Health Association and the 
        National Association of County and City Health Officials
    The following statement is submitted on behalf of the American 
Public Health Association (APHA) and the National Association of County 
and City Health Officials (NACCHO). APHA represents a combined national 
and affiliate membership of more than 50,000 health professionals. 
NACCHO is the principal organization representing local public health 
officials and serves all 3000 of the nation's local health 
departments--in cities, counties, and townships. The statement explains 
why Superfund is a public health program and urges the committee to 
keep public health issues in the forefront as it considers 
reauthorization of this program.
                  superfund is a public health program
    The underlying purpose of Superfund is to prevent disease and 
disability due to toxic exposures. Human exposures to toxic substances 
have many potential adverse health outcomes, including neurological 
damage, birth defects, and cancer. Preventing the exposure of entire 
communities to potentially devastating health consequences is no less 
important than protecting people from infectious diseases such as polio 
or diphtheria, or protecting them from food poisoning. Identifying 
potential health hazards and cleaning up hazardous waste sites are just 
as important in protecting public health as vaccinating children or 
requiring safe food processing.
    Public health does not concern itself solely with the health of 
individuals. It encompasses a much broader concept of community health 
and well-being. Public health practice is a comprehensive approach to 
ensuring that individuals and communities remain healthy--this means 
tracking the occurrence of disease, providing health care services, 
identifying and addressing hazards before they cause damage, and 
educating the public about how to prevent disease and injury.
    Public health involvement in Superfund site assessment and 
remediation has been built into the program from the beginning, 
primarily through the activities of the Agency for Toxic Substances and 
Disease Registry. However, the full potential of public health 
approaches to improve the efficiency and effectiveness of Superfund has 
never been fully realized. To achieve this potential, the Superfund 
program must require early, strong, and meaningful involvement of 
public health agencies and experts at local hazardous waste sites, 
beginning at site discovery.
public health participation is essential in addressing hazardous waste 
                                 sites
    Public health experts, Federal, state and local, must be engaged 
actively at the earliest stages of the Superfund process. When a 
hazardous waste site is identified in a community, everybody has 
questions and concerns. Responding to these requires collection of the 
proper kinds of data using the most appropriate scientific methods and 
practices. Public health assessments, using the best epidemiologic and 
toxicological methods and data available, serve two important purposes. 
First, they alert all the parties to what the key public health 
problems are. Second, they can alleviate many concerns by ruling out 
health problems that are unrelated to the site. When a hazardous waste 
site is identified, there is a window of opportunity for establishing 
baseline health and exposure data, understanding potential health 
risks, and developing plans for remediation that specifically address 
those health risks. This window often is closed before public health 
expertise has been tapped. Early involvement by public health experts 
assures that public health needs will determine the priorities for 
clean-up. Early public health involvement will improve the ultimate 
outcome of Superfund site clean-ups in achieving and documenting better 
public health outcomes and sustaining healthy communities.
    Public health involvement must extend to off-site activities as 
well. For instance, testing of air, water, and soil in nearby locations 
is necessary to identify more precisely which neighbors of a hazardous 
waste site may be subjected to toxic exposures, and which are not. This 
is important also in addressing the interactive effects of exposures to 
a community through air, water, and soil contamination, whether or not 
all such contamination is attributable to the site itself.
    Local public health agencies, which often are left out or brought 
in late in the Superfund process, are ideally situated to spearhead 
early public health involvement in hazardous waste sites. They bring a 
critical local perspective to a process that is largely governed by 
state and Federal agencies. They can provide an immediate response to 
imminent hazards. For instance, a local health department can promptly 
arrange a safe drinking water alternative where there is suspected 
drinking water contamination around a hazardous waste site.
    The Superfund statute requires action by Federal and state agencies 
that is largely confined to the sites, with little flexibility to 
address community problems and concerns. Local health agencies, which 
have no statutory authority related to the Superfund process, have 
responsibility and expertise for protecting the health of the community 
and addressing the community's health concerns. They know the 
demographic and cultural characteristics of the community and they know 
the other health problems of the community. This knowledge, and the 
relationships that have been cultivated by addressing other community 
health issues, can be critical when dealing with the myriad problems 
caused by a hazardous waste site.
     community involvement is integral to a public health approach
    Community involvement is necessary not only because the Superfund 
process is intended to protect the community, but also because 
communities can offer extremely valuable information and assistance. 
Residents have knowledge that nobody else has. They know how a site has 
been used in the past, who lived near the site, and who has moved away. 
This information is essential to the conduct of studies that help us 
understand both the short-term and long-term health effects associated 
with a hazardous waste site. For example, in Michigan City, Indiana, a 
partnership between the local health department and a minority health 
coalition uncovered exposures to contaminated game and fish by an 
African-American community that hunted and fished for food.
    Community participation in Superfund processes also helps the 
public better understand what has taken place at the site, what will be 
done about it and what it means for their health. The Presidential/
congressional Commission on Risk Assessment and Risk Management 
strongly recommends including all stakeholders in environmental risk 
management decisions at the earliest possible time. Information builds 
trust and support within the community and helps individuals affected 
by toxic exposures to take appropriate steps to protect their own 
health. A successful and efficient Superfund clean-up process is one 
that avoids frustration, stalemates, and delays due to poor 
communication and misunderstandings. It is one that creates a sense of 
ownership and shared responsibility in the entire community, including 
residents, community organizations, health professionals, and elected 
officials. It is one that employs to best advantage all the community's 
resources in cleaning up the site to protect public health.
         superfund must support the use of public health tools.
    Data collection, research, ongoing disease surveillance, and health 
education must be adequately supported to enable Superfund to achieve 
its purpose of protecting the health of communities. The Agency for 
Toxic Substances and Disease Registry (ATSDR) is the cornerstone of 
public health in the Superfund program, in partnership with state and 
local health departments, the National Institute for Environmental 
Health Science, and universities. Within the limits of the resources 
available to it, ATSDR has performed well. Local and state public 
health departments that have used ATSDR's technical expertise in 
addressing hazardous waste sites in their communities have a high 
regard for its work.
    ATSDR has also invested in building the capacities of state and 
local health departments to respond to hazardous waste issues, thus 
increasing our nation's ability to meet public health concerns related 
to hazardous waste. However, health departments, physicians and other 
health care providers in communities around Superfund sites have a 
significant unmet need for training and technical assistance in matters 
of hazardous substances.
    In order to do its job better, ATSDR also needs expanded authority 
and flexibility in conducting site-specific public health assessments, 
health studies, surveillance and registries. ATSDR's various activities 
complement each other and work together to enable Superfund site 
activities to address adequately the health needs of communities. 
Superfund reforms must provide expanded support for ATSDR.
    For further information, please contact: Ilisa Halpern, American 
Public Health Association; Donna Grossman, National Association of 
County and City Health Officials.
                                 ______
                                 
  Prepared Statement of John H. Sullivan, Deputy Executive Director, 
                    American Water Works Association
                              introduction
    The American Water Works Association (AWWA) appreciates the 
opportunity to present its views on Superfund Reauthorization and S. 8, 
The Superfund Cleanup Acceleration Act of 1997). AWWA is the world's 
largest and oldest scientific and educational association representing 
drinking water supply professionals. The Association's 54,000 plus 
members are comprised of administrators, utility operators, 
professional engineers, contractors, manufacturers, scientists, 
professors and health professionals. The Association's membership 
includes over 3,800 utilities which provides over 80 percent of the 
nation's drinking water. Since our founding in 1881, AWWA and its 
members have been dedicated to providing safe drinking water.
    AWWA believes few environmental activities are more important to 
the health of this country than assuring the protection of water supply 
sources, and the treatment, distribution and consumption of a safe and 
healthful supply of drinking water. AWWA strongly supports measures 
which protect groundwater from contamination and the remediation of 
drinking water sources from groundwater. AWWA urges the committee to 
include groundwater remedy standards at least as protective as current 
law in the Superfund reauthorization bill.
    AWWA commends Senator Chafee and Senator Smith for their leadership 
in moving the legislative process forward by introducing S. 8 and 
holding hearings on Superfund Reauthorization. AWWA supports superfund 
reforms which will streamline the process, resolve the liability issues 
which are preventing clean-up and effectively remediate contaminated 
sites. However, AWWA is concerned that Superfund reforms adequately 
protect public health and preserve our water supplies for future 
generation. In this statement, AWWA will focus on groundwater 
protection and remediation; however, many of the issues presented also 
apply to surface water.
Groundwater
    Groundwater is one of the most finite natural resources of this 
country. It is valuable, not only as an ecological resource, but is 
also the only source of drinking water for millions of Americans. 
Approximately 100 million Americans use groundwater from community 
public water systems. Another 20 million consumers get their drinking 
water from private wells which are fed by groundwater.
    Increasingly, public water suppliers throughout the country are 
closing down wells dues to pollution. The most recent highly publicized 
case is in San Bernardino, California, where some of the city wells had 
to be closed because of ammonium perchlorate contamination--a rocket 
fuel contaminant that is not regulated under the Safe Drinking Water 
Act (SDWA). Another chemical not regulated under the SDWA, MTBE 
(methyl-t-butyl ether), which is an additive to gasoline to comply with 
the Clean Air Act is now being found increasingly in groundwater. MTBE, 
because a small amount produces a foul taste, renders groundwater unfit 
to drink at levels far below a level which would pose a health threat. 
These incidents illustrate how vulnerable groundwater is to 
contamination, not only from highly toxic and mobile concentrations of 
pollutants, but also from lower levels of contamination.
    Much of the cost of obtaining alternative supplies of drinking 
water or installing expensive treatment facilities has been borne by 
the drinking water consumer rather than the those responsible for the 
pollution. AWWA urges the committee to address this inequity in the 
cost of cleanup and provide cleanup standards that will make 
groundwater fit for use as a drinking water source, where practicable, 
and prevent further contamination of uncontaminated groundwater (or 
surface water) in Superfund reauthorization.
Clean Up Standards
    While it is recognized that Superfund reform needs to provide 
flexibility for effective remediation, there is concern that the 
elimination of ``applicable and relevant appropriate requirements'' 
(ARARs), such as the standards promulgated under the Safe Drinking 
Water Act, from the law for use in cleanup standards may not provide 
for protection and remediation of drinking water source supplies. Other 
ARARs could be used to address contaminates that are not regulated 
under the SDWA. Retention of the use of ARARs would provide a means of 
determining specific cleanup actions and standards. Remedies such as 
attenuation and biodegradation alone cannot be used to satisfy cleanup 
standards unless it occurs in a relatively short period of time. AWWA 
strongly urges the committee to retain stringent cleanup standards for 
groundwater (and surface water).
Costs and Benefits
    AWWA supports the concept of using costs and benefits in 
implementing environmental statutes. However, AWWA is concerned that 
the value of groundwater both at the time of remediation and in the 
future be given high priority in these decisions. The reasonableness of 
cost alone in determining the technical practicability of a cleanup 
could potentially block the cleanup of a water supply even if there is 
a need for the water for drinking water purposes. The value of 
groundwater as a future drinking water source must be taken into 
consideration even if it is not used as a drinking water source at the 
time of remediation. Naturally occurring contamination should not be 
used as a sole factor in determining the suitability of groundwater as 
a drinking water source. Clean up of contaminants that do not naturally 
occur in the groundwater still should be required. AWWA urges the 
committee to require formal consultation with local public water 
suppliers in determining beneficial uses of groundwater.
Permanent Solutions
    Superfund reforms must continue to favor permanent solutions for 
remediation and protection of groundwater. Water supplies that are or 
may be used as drinking water sources must be remediated, if feasible, 
by methods that offer permanent solutions rather than point-of-use 
devices or provision of alternative water supplies. Remedies that serve 
to protect currently uncontaminated water supplies which are or may be 
used as drinking water sources from becoming contaminated must take 
precedence over other remedies. Point-of-use devices, point-of-entry 
devices, and bottled water should be considered in remediation as a 
temporary expedient to resolve an urgent situation. Further, at sites 
in which it has been determined that it is not technically practical to 
clean up the groundwater as part of remediation for the site, permanent 
measures must be implemented to prevent the contaminant of adjacent 
uncontaminated groundwater. AWWA also recognizes the need to remediate 
highly toxic and mobile sites or ``hot spots'' but sites of lesser 
toxicity must also be addressed in the law, particularly when there is 
contamination of groundwater. AWWA recognizes the difficulties in 
remediating groundwater; however, to ensure the availability of 
groundwater as a drinking water source permanent solutions must be 
implemented wherever possible to assure a continuing supply of drinking 
water.
Local Jurisdictions
    AWWA urges a strong role for local jurisdictions in organizing 
local advisory groups, evaluating state proposals to receive delegated 
authority, and in evaluating remedy selection, particularly as they 
pertain to long-term plans for drinking water supplies. Water suppliers 
must be part of any remedy selection process involving groundwater. 
Remedy selection of site which involves contaminated groundwater must 
not only involve the jurisdiction in which the site is located, but 
water suppliers in other jurisdictions which use the aquifer as a 
source drinking water. Without required inter-jurisdictional 
coordination in these cases, site remediation may not protect the 
drinking water sources of other communities.
                               conclusion
    In summary AWWA recommends that the committee include the following 
points in the Superfund reauthorization bill:
     Put the cost of clean-up of groundwater on those 
responsible for the contamination rather than public water systems and 
consumers.
     Retain stringent standards for the clean-up and protection 
of groundwater that is or may be used as a drinking water supply.
     Assure that the beneficial use of groundwater as an 
existing or potential source of drinking water be given high value in 
cost-benefit analysis determinations.
     Favor permanent clean-up solutions to remediate and 
protect drinking water sources.
     Increase participation of local jurisdictions and public 
water suppliers in the Superfund decisionmaking process concerning 
groundwater that is or may be used as a drinking water supply.
    AWWA thanks you for the opportunity to present comments on Super 
Fund Reauthorization. We hope that comments will be helpful to the 
committee in its deliberations. AWWA looks forward to working with the 
committee on these and other Superfund issues. AWWA was very pleased to 
work with the committee in 1995-1996 in the successful reauthorization 
of the Safe Drinking Water Act. bi-partisan cooperation and consensus 
building among the majority party, the minority party, the 
Administration and affected parties such as state and local government 
and the drinking water community was the hallmark of that effort. We 
encourage the Senate to move forward on Superfund reform in a similar 
manner and to reach a bi-partisan agreement. S. 8 is a good starting 
point for those deliberations.
    This concludes the AWWA statement on Superfund Reauthorization and 
S. 8, The Superfund Cleanup Act of 1997.
                                 ______
                                 
  Prepared Statement of the Association of Metropolitan Water Agencies
      re: superfund--remedy selection and community participation
    Groundwater is a finite resource and one that nearly 120 million 
Americans rely upon as a primary source of drinking water. About 100 
million of these consumers are served by more than 40,100 community 
water systems using groundwater for all or most of their water supply. 
The remaining 20 million consumers rely on private wells, which are fed 
by groundwater and are not protected by Federal or State drinking water 
standards.
    Today, drinking water suppliers in different regions of the country 
are closing down wells due to pollution and seeking alternative sources 
of supply for the communities they serve. In other cases, the water 
utility has had to install expensive treatment methods they would not 
have otherwise needed. Much of this has occurred at the expense of 
drinking water consumers and not those responsible for the pollution.
    Given the overwhelming need for clean groundwater and the costly 
implications of pollution, the Association of Metropolitan Water 
Agencies (AMWA) strongly urges the Senate Committee on Environment and 
Public Works to develop a Superfund reauthorization bill with 
groundwater remedy standards at least as stringent as current law. It 
should ensure the protection of future sources of drinking water and 
place appropriate and fair responsibility for cleaning up polluted 
groundwater on the polluter, and not water suppliers and consumers.
    AMWA is comprised of the nation's largest publicly-owned drinking 
water systems, represented by their general managers and commissioners 
of water. Altogether, AMWA member agencies serve nearly 100 million 
Americans with clean, safe water.
    Having reviewed the remedy selection and community participation 
titles of the August 28,1997, draft proposal, AMWA offers the following 
specific comments:
                        preference for treatment
    The association supports the continuation of the current law's 
broad preference for treatment and could not support the narrow 
preference for ``hot spots'' only. We appreciate the need to address 
highly toxic and mobile concentrations of pollutants, but focusing only 
on hot spots could leave the water supplier with a future cleanup 
burden. Such an amendment could lead to water suppliers having to treat 
low-level contamination to satisfy drinking water standards or other 
health standards if the circumstances of the pollution do not meet the 
hot spot definition.
                             general rules
    AMWA believes the general rule governing remedy selection should 
include a statement that underlines the importance of protecting 
uncontaminated groundwater and, wherever practicable, restoring 
contaminated water to beneficial uses.
      legally applicable and relevant and appropriate requirements
    AMWA is very concerned that the elimination of relevant and 
appropriate requirements or ``RARs'' could leave water systems 
responsible for another party's pollution simply because no legally 
applicable requirement exists for the given contaminant. Under the 
August 28 draft proposal, if no official standard exists, a remedy is 
to be protective of public health if risk falls within a certain range. 
While this approach is valuable, RARs provide a State or other entity 
with greater authority to require a polluter to conduct a cleanup, as 
current law has shown.
    In California, water systems are just recently finding MTBE, a fuel 
additive, and ammonium perchlorate, a constituent of rocket fuel, in 
groundwater supplies. No regulations exist for these two chemicals, nor 
is there enough information to confidently determine risk. Without 
RARs, it would seem that MTBE and perchlorate contamination would go 
unaddressed under the August 28 draft proposal. Retaining RARs, 
however, would give States at least some means to direct polluters to 
clean up such contamination. This could mean reliance upon anti-
degradation laws or other statutes or rules providing adequate 
authority to require a cleanup.
            determination of beneficial uses of groundwater
    AMWA strongly urges the committee to require formal consultation 
with local water suppliers when EPA and the States determine beneficial 
uses of groundwater supplies. The association applauds the Chairman for 
adopting the state comprehensive groundwater management plans endorsed 
by EPA to determine beneficial uses, but local water suppliers are 
integral to predicting use patterns and needs in a given area. Most 
large water suppliers have conducted detailed studies to plan for 
future needs. To ignore these plans could leave a community unprepared.
                       uncontaminated groundwater
    AMWA believes the August 28 draft proposal could be more protective 
of uncontaminated groundwater, as it now applies only to groundwater 
suitable for use as drinking water. This approach is too narrow and 
discounts sources that could be needed in the future, but are not being 
used as a drinking water source at the time a remedy decision is made. 
The language sets aside the inherent value of groundwater simply 
because we have no immediate practical use for it, and it threatens to 
allow polluters to avoid their rightful responsibilities.
               groundwater not suitable as drinking water
    In some regions of the country, water suppliers rely on groundwater 
containing naturally occurring contaminants. In these cases, suppliers 
treat this contamination in order to meet community demands.
    Under the August 28 draft proposal, groundwater currently used for 
drinking water, but containing naturally occurring contaminants, would 
be exempt from treatment requirements under Superfund. The proposal 
allows the existence of naturally occurring contaminants in groundwater 
to preclude its designation as a drinking water source, thus getting 
around the cleanup of contaminants that are not naturally occurring in 
the aquifer. AMWA believes naturally occurring contamination should not 
be used as a sole factor in determining the suitability of groundwater 
as a drinking water source.
                    technical impracticability (ti)
    AMWA supports the inclusion of ``inordinate cost'' as a factor in 
determining whether a remedy is technically impracticable, as well as 
the concept that a TI determination may be made at any time after 
adequate information is available. In addition, the association 
strongly supports the requirements for a polluter to execute, after a 
TI waiver is granted, the following, at a minimum:
     prevention or elimination of exposure or ingestion of the 
pollutant in excess of the MCL,
     containment of the pollution source,
     containment of contaminated around water,
     prevention of further contamination, prevention of 
impairment of surface water designated uses under the Clean Water Act,
     long-term monitoring, and
     assurance that the party responsible for the cleanup 
assumes responsibility and liability and all associated incremental 
costs for operation, maintenance and delivery of drinking water for 
present and anticipated future uses until such time as the level of 
contamination is reliably and consistently below the MCL.
    Also, use of point-of-use or point-of-entry devices and bottled 
water should be explicitly temporary and for the purpose of resolving 
an urgent situation. Consumers are entitled to a consistent and 
permanent source of safe drinking water they do not have to treat 
themselves. Nor should consumers have to rely for any significant 
period of time on bottled water to satisfy their everyday needs.
    Without these requirements, it is unclear how uncontaminated water 
would be protected or how exposure to contaminants would be prevented 
once a TI waiver is granted.
Maximum Contaminant Level (MCL)
    To ensure compliance with Federal drinking water regulations, water 
suppliers often seek to keep contaminant levels reliably and 
consistently below the MCL. Given that cleaned up groundwater, whether 
returned to the aquifer or sent to a distribution system, is 
anticipated to be used as drinking water, consumers would be best 
served if parties responsible for cleanup follow the same rule of thumb 
to which water suppliers subscribe.
    This is the approach AMWA recommends if the committee seeks to 
provide relief to responsible parties by allowing treated groundwater 
to be sent to a distribution system, storage tank or reservoir, rather 
than back to the aquifer where it may come in contact with the source 
of contamination again.
Community Participation
    The association urges the committee to include in its 
reauthorization bill a requirement that any remedy decision involving 
groundwater be made in consultation with drinking water suppliers whose 
districts are adjacent to the contaminated aquifer. These systems and 
their customers will be affected in one way or another by the 
contaminated aquifer.
    The Association of Metropolitan Water Agencies recognizes the 
difficulties involved in treating polluted groundwater or otherwise 
preventing exposure to harmful contaminants. Nonetheless, AMWA strongly 
believes it is the responsibility of the polluter, not the consumer or 
the water supplier, to treat contaminated water, where possible, and 
protect uncontaminated groundwater to ensure its availability as a 
drinking water source.
    We hope you have found our comments on the remedy selection and 
community participation titles helpful as you prepare for the September 
4 hearing. In the near future, we plan to provide you with the 
association's thoughts on other reauthorization issues.
    If you have any questions in the meantime, please don't hesitate to 
call me.

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    Prepared Statement of the National Association of Manufacturers
    The National Association of Manufacturers (NAM) is the nation's 
oldest and largest broad-based industrial trade association. Its 14,000 
member companies and subsidiaries, including approximately 10,000 small 
manufacturers, are in every state and produce about 85 percent of U.S. 
manufactured goods. The NAM's member companies and affiliated 
associations represent every industrial sector and employ more than 18 
million people.
    The NAM commends Chairman John Chafee (R-RI) and Chairman Bob Smith 
(R-NH) on their attempt to reauthorize one our nation's centerpiece 
environmental statutes, the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA or ``Superfund''). The NAM is 
supportive of the Senators' continuing efforts to move Superfund reform 
legislation forward and remains hopeful that this process will result 
in an improved Superfund statute sooner rather than later. The NAM 
continues to have reservations, however, regarding several major titles 
and provisions of the draft chairman's mark of S. 8, The Superfund 
Cleanup Acceleration Act of 1997, which are summarized below.
                            remedial actions
    The NAM applauds the Senators' efforts to improve Superfund's 
remedy provisions. The draft chairman's mark reflects progress on a 
number of key issues toward ensuring a site-specific, risk-based 
management approach to remediation. Areas that require further work 
include imposition of Federal and state standards, presumptive remedies 
and the preference for treatment.
    In addition, the groundwater provisions are complex and require 
clarification. The provisions are extremely prescriptive and fail to 
provide the needed flexibility to adopt common sense solutions. The 
groundwater provisions deviate significantly from the site-specific, 
risk-based approach provided for soil contamination and, in several 
respects, would require more expensive, less cost-effective remedies 
than are currently being selected at some sites. Similarly, the remedy-
update proposal introduces new and significant limitations not present 
in current practice and represents a step backwards.
                               liability
    While the liability provisions did not change significantly, the 
NAM remains concerned that the reforms of Superfund's liability system 
should not, for reasons of equity, be limited to sites listed on the 
National Priorities List. Other liability provisions also remain 
inconsistent with the NAM's principles for reform. For example, in the 
division of liability for unattributable wastes between the fund and 
parties that remain liable for their own wastes, the potentially 
responsible parties (PRP's) should not be held liable for any wastes 
not of their own making.
    In addition, since recycling is a positive behavior to be 
encouraged, the recycling provision should be designed to encourage 
recycling of all materials put to any productive secondary uses. 
Generator and transporter liability protection for recycling, whether 
required by law or undertaken voluntarily, should apply to all recycled 
material. This change would correctly provide incentives for recycling 
rather than narrowly providing an exemption for only specified 
materials.
                        natural resource damages
    The new draft natural resource damages (NRD) provisions properly 
exclude recovery of speculative non-use values, a change that the NAM 
strongly supports. However, the mark does not include a definition of 
``non-use values.'' Unfortunately, the provisions still allow trustees 
to assert claims for post-1980 lost-use damages. These claims are 
surplus since the aim of the NRD program is only to restore, replace or 
acquire the equivalent of the injured resource. In addition, the NAM's 
recommendations for reaffirming the liability cap and clarifying 
CERCLA's original intent to limit liability to damages related to post-
1980 conduct were not addressed.
    The draft also includes a number of new provisions to S. 8. Among 
the new items are: (a) use of mandatory mediation for NRD litigation; 
(b) confirmation of a PRP's right to contribution for NRD claims; and 
(c) elimination of the rebuttable presumption. The NAM generally 
supports these changes. The NAM's support for the elimination of the 
rebuttable presumption, however, is contingent on the addition of 
express legislative language affirming that PRPs will continue to be 
entitled to a trial de novo on all aspects of any claim for damages.
    In addition, the NAM is concerned about the language in the mark 
that could result in the revival of stale NRD claims, as well as the 
language that could take away retroactive liability defenses that may 
well be afforded under current law.
    Finally, a major issue raised by the chairman's mark is the growing 
number of inconsistencies between remedy-selection criteria elsewhere 
in the bill and the NRD restoration-selection criteria, such as use of 
the terms ``cost-reasonable'' and ``technical impracticability'' for 
remedy selection, and ``cost-effective'' and ``technical feasibility'' 
for restoration selection. These inconsistencies, and others, might 
lead to anomalous results such as NRD trustees requiring actions not 
permitted or required under the remedy-selection criteria. These two 
titles should be made consonant to reflect the reforms in the remedial 
actions title.
    While the NAM supports certain of the mark's proposed changes to 
the NRD program, on balance the NAM is not persuaded that the draft NRD 
title will enhance the overall goal of Superfund reform.
                               state role
    The NAM is concerned that the mark allows states to use their own 
cleanup programs in lieu of any or all of the requirements of a revised 
CERCLA. This approach does not ensure that the federally legislated 
reforms will be carried through to the states where Superfund dollars 
are used.
                               conclusion
    These issues merit serious attention and we stand ready to work 
with appropriate parties to reach constructive solutions. The NAM 
continues to support other titles of the bill, including the 
brownfields provisions. The NAM applauds the continued effort to pass 
comprehensive reform of the badly broken Superfund program and desires 
to work toward a bill that will speed cleanups, reduce unnecessary 
costs and increase equity.

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