[Senate Hearing 105-315]
[From the U.S. Government Publishing 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
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTH CONGRESS
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
DIRK KEMPTHORNE, Idaho FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma HARRY REID, Nevada
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri JOSEPH I. LIEBERMAN, Connecticut
TIM HUTCHINSON, Arkansas BARBARA BOXER, California
WAYNE ALLARD, Colorado RON WYDEN, Oregon
JEFF SESSIONS, Alabama
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
(ii)
C O N T E N T S
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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.
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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).
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\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.
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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.
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\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.
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\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.
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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.
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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\
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\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).
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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.
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\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.
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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.
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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\
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\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.
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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.
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\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.
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\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\
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\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.
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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.
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\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).
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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\
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\15\ U.S. General Accounting Office, Impact on States of Capping
Superfund Sites. GAO/RCED-106R. March 1996.
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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\
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\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\
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\17\ ``Toxic Cleanup: Ohioans Aim to Skirt Superfund Listing,''
Greenwire (electronic newsletter), June 14, 1995 (synopsis of story
from June 11 Cleveland Plain Dealer).
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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.
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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.
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\19\ This portion of our testimony was prepared by Sarah Chasis of
the Natural Resources Defense Council.
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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\
---------------------------------------------------------------------------
\1\ Resource Conservation and Recovery Act, also known as the Solid
Waste Disposal Act.
---------------------------------------------------------------------------
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.
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\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.
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\7\ RCRA subtitle D addresses non-hazardous wastes.
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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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