[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]



 
   LEGISLATION TO IMPROVE THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, 
                     COMPENSATION AND LIABILITY ACT

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

                                HEARINGS

                               before the

                            SUBCOMMITTEE ON
                    FINANCE AND HAZARDOUS MATERIALS

                                 of the

                         COMMITTEE ON COMMERCE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

  AUGUST 4, 1999--BROWNFIELDS PROVISIONS OF H.R. 1300, H.R. 1750, and 
                               H.R. 2580
              SEPTEMBER 22, 1999--H.R. 1300 and H.R. 2580

                               __________

                           Serial No. 106-82

                               __________

            Printed for the use of the Committee on Commerce


                      U.S. GOVERNMENT PRINTING OFFICE
58-513CC                      WASHINGTON : 1999



                         COMMITTEE ON COMMERCE

                     TOM BLILEY, Virginia, Chairman

W.J. ``BILLY'' TAUZIN, Louisiana     JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio               HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida           EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas                    RALPH M. HALL, Texas
FRED UPTON, Michigan                 RICK BOUCHER, Virginia
CLIFF STEARNS, Florida               EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio                FRANK PALLONE, Jr., New Jersey
  Vice Chairman                      SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania     BART GORDON, Tennessee
CHRISTOPHER COX, California          PETER DEUTSCH, Florida
NATHAN DEAL, Georgia                 BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma              ANNA G. ESHOO, California
RICHARD BURR, North Carolina         RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California         BART STUPAK, Michigan
ED WHITFIELD, Kentucky               ELIOT L. ENGEL, New York
GREG GANSKE, Iowa                    THOMAS C. SAWYER, Ohio
CHARLIE NORWOOD, Georgia             ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma              GENE GREEN, Texas
RICK LAZIO, New York                 KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming               TED STRICKLAND, Ohio
JAMES E. ROGAN, California           DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois               THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico           BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona             LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING, 
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland

                   James E. Derderian, Chief of Staff

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

            Subcommittee on Finance and Hazardous Materials

                    MICHAEL G. OXLEY, Ohio, Chairman

W.J. ``BILLY'' TAUZIN, Louisiana     EDOLPHUS TOWNS, New York
  Vice Chairman                      PETER DEUTSCH, Florida
PAUL E. GILLMOR, Ohio                BART STUPAK, Michigan
JAMES C. GREENWOOD, Pennsylvania     ELIOT L. ENGEL, New York
CHRISTOPHER COX, California          DIANA DeGETTE, Colorado
STEVE LARGENT, Oklahoma              THOMAS M. BARRETT, Wisconsin
BRIAN P. BILBRAY, California         BILL LUTHER, Minnesota
GREG GANSKE, Iowa                    LOIS CAPPS, California
RICK LAZIO, New York                 EDWARD J. MARKEY, Massachusetts
JOHN SHIMKUS, Illinois               RALPH M. HALL, Texas
HEATHER WILSON, New Mexico           FRANK PALLONE, Jr., New Jersey
JOHN B. SHADEGG, Arizona             BOBBY L. RUSH, Illinois
VITO FOSSELLA, New York              JOHN D. DINGELL, Michigan,
ROY BLUNT, Missouri                    (Ex Officio)
ROBERT L. EHRLICH, Jr., Maryland
TOM BLILEY, Virginia,
  (Ex Officio)

                                  (ii)



                            C O N T E N T S

                               __________
                                                                   Page

Hearings held:
    August 4, 1999...............................................     1
    September 22, 1999...........................................   137
Testimony of:
    Curtis, Jonathan G., President, Environmental Business Action 
      Coalition..................................................    78
    Fields, Hon. Timothy, Jr., Assistant Administrator, Office of 
      Solid Waste and Emergency Response, U.S. Environmental 
      Protection Agency:
        Accompanied by Lois Schiffer, Assistant Attorney General, 
          Department of Justice..................................    19
        Accompanied by Steve Herman, Assistant Administrator, 
          Office of Enforcement and Compliance Assurance.........   150
    Florini, Karen, Senior Attorney, Environmental Defense Fund..    83
    Garczynski, Gary, Treasurer, National Association of Home 
      Builders...................................................    92
    Helmke, Paul, Mayor of Fort Wayne, Indiana, on behalf of the 
      U.S. Conference of Mayors..................................    54
    Jackson, Jeremiah D., President-elect, Environmental Business 
      Action Coalition...........................................   221
    Jeffers, Christopher, City Manager, Monterey Park, on behalf 
      of the National Association of Counties....................   193
    Johnson, Gordon J., Deputy Bureau Chief, Office of the 
      Attorney General, State of New York, on behalf of the 
      National Association of Attorney's General.................   201
    Kerbawy, Claudia, Section Chief, Superfund, Environmental 
      Response Division, Michigan Department of Environmental 
      Quality, on behalf of Association of State and Territorial 
      Solid Waste Management Officials...........................    69
    Mills, Teresa, on behalf of the Buckeye Environmental Network    75
    Nobis, Mike, JK Creative Printers, on behalf of National 
      Federation of Independent Business.........................   198
    Stypula, Donald J., Manager of Environmental Affairs, 
      Michigan Municipal League, on behalf of National 
      Association of Local Government Environmental Professionals    62
    Williams, Jane, Chair, Waste Committee, Sierra Club..........   215
Material submitted for the record by:
    Association of Metropolitan Water Agencies and the American 
      Water Works Association, letter dated October 8, 1999, to 
      Hon. John Dingell..........................................   252
    California Environmental Agency, letter dated October 12, 
      1999, to Hon. Thomas J. Bliley, Jr.........................   277
    Campaign for Safe and Affordable Drinking Water, letter dated 
      November 1, 1999...........................................   285
    Children's Health Environmental Coalition, letter dated 
      November 1, 1999...........................................   282
    Clean Water Action, letter dated October 26, 1999............   284
    Curtis, Jonathan G., President, Environmental Business Action 
      Coalition, letter dated September 7, 1999, enclosing 
      response for the record....................................   129
    Jennings, Jon P., Acting Assistant Attorney General, U.S. 
      Department of Justice, letter dated October 4, 1999, to 
      Hon. Michael G. Oxley......................................   287
    Lew, Jacob, Director, Office of Management and Budget, letter 
      dated October 12, 1999, to Hon. John Dingell...............   251
    Salazar, Ken, Attorney General, State of Colorado, letter 
      dated November 5, 1999, to Hon. Tom Bliley, enclosing 
      material for the record....................................   272
    Spitzer, Eliot, Attorney General, State of New York, letter 
      dated October 12, 1999, to Hon. Tom Bliley, enclosing 
      material for the record....................................   256

                                 (iii)




   LEGISLATION TO IMPROVE THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, 
                     COMPENSATION AND LIABILITY ACT

                              ----------                              


                       WEDNESDAY, AUGUST 4, 1999

                  House of Representatives,
                             Committee on Commerce,
           Subcommittee on Finance and Hazardous Materials,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room 2123, Rayburn House Office Building, Hon. Michael G. Oxley 
(chairman) presiding.
    Members present: Representatives Oxley, Greenwood, Largent, 
Lazio, Shimkus, Wilson, Shadegg, Fossella, Blunt, Ehrlich, 
Bliley (ex officio), Towns, Stupak, DeGette, Barrett, Luther, 
Markey, Hall, Pallone, Rush, and Dingell (ex officio).
    Staff present: Nandan Kenkeremath, majority counsel; Amit 
Sachdev, majority counsel; Kristi Gillis, legislative clerk; 
and Dick Frandsen, minority counsel.
    Mr. Oxley. The subcommittee will come to order. The Chair 
will recognize himself for an opening statement.
    Today we start the first day of a hearing for the 106th 
Congress on legislation to improve the Comprehensive 
Environmental Response Compensation and Liability Act. For 
those who need a reminder, this is the same broken Superfund 
statute on which we have had over 26 hearings in this committee 
over the past 7 years. The sad truth is, during the nearly 20 
years of CERCLA, we have been cleaning up sites with greater 
speed and less waste, while protecting people's health and the 
environment.
    Superfund creates disincentives and uncertainty for State 
and voluntary cleanups, where a lot of the work is getting done 
these days. As I have stated before, the quality of our 
Nation's most prominent cleanup program does matter. When sites 
stay abandoned because of Superfund's vagaries, people suffer. 
Neighborhoods suffer, cities and towns suffer. The hardest task 
in politics is fixing a broken environmental program.
    Superfund, however, could not be a better case for reform. 
I still believe there is a bipartisan majority in the house and 
a broad number of stakeholders for significant changes to the 
Superfund statute.
    Many Members of Congress have worked on a bipartisan basis 
over the last 6 years with State cleanup agencies, cleanup 
engineers and dozens of experts to develop statutory changes 
that would make a real difference. The 105th Congress saw 
several serious bipartisan efforts in this regard, including 
H.R. 3000, which was introduced with 19 original Democrat 
cosponsors. In this Congress we see that H.R. 1300, the Recycle 
America's Land Act of 1999, now has 47 Democratic cosponsors 
and 47 Republican cosponsors.
    Mr. Greenwood's bill, the Land Recylcing Act of 1999, is a 
serious bipartisan effort covering several areas, with 9 
Democrat cosponsors and 7 Republican cosponsors. I commend the 
long and growing list of Democratic and Republicans for their 
willingness to move forward on a bipartisan basis. It is these 
efforts that the subcommittee must look to. For the 106th 
Congress if you cannot work in a bipartisan fashion, it would 
appear that you do not want any legislation at all. If you are 
willing, let's start working now and start showing the ability 
for a bipartisan compromise.
    Today we will focus on certain provisions related to 
brownfields issues. No one should take from this first day that 
I want to limit the scope of Superfund reform efforts to these 
topics. To the contrary, Superfund is broken in a number of 
areas and there have been positive bipartisan proposals in a 
number of these areas which should be fully considered.
    On today's topic I would state that needless uncertainty 
and counterproductive Federal rules have hurt the effort to 
clean up brownfields. We must overcome the lack of trust that 
the administration and the national environmentalist activists 
continue to carry for State cleanup programs. The record shows 
that big Federal Government is hurting, not helping; and States 
like Ohio and Pennsylvania are moving ahead to protect the 
environment and create jobs.
    For example, 83 projects have been undertaken through 
Ohio's voluntary action program. These are non-NPL lesser 
contaminated sites that might otherwise have languished and 
spread blight. Instead properties are being cleaned up and jobs 
are being created from Cleveland to Columbus to Cincinnati.
    I also recall an impressive brownfields project that I saw 
at the Pfizer plant in Congressman Town's district in New York 
City. We need to respect the position of the State agencies and 
cleanup contractors who have the most experience in the 
brownfields area; otherwise we have just more unworkable 
prescriptions from Washington, DC.
    Again, I will be turning to all of today's witnesses, other 
stakeholders, on both sides of the Chair, for more information, 
the right formula and the right opportunity for positive 
reforms. The Chair is now pleased to recognize the ranking 
member, the gentleman from New York, Mr. Towns.
    Mr. Towns. Thank you very much, Mr. Chairman. I want to 
thank you for holding this hearing. If you recall at the 
subcommittee's March 23 oversight hearing, many members on both 
sides of the aisle expressed their interest in working on 
brownfields legislation. Recently the United States Chamber of 
Commerce has adopted a policy that urges Congress to focus on 
brownfields legislation rather than comprehensive Superfund 
reform.
    In early May, I, along with all of my colleagues on this 
side of the aisle, introduced H.R. 1750, the Community 
Revitalization and Brownfields Cleanup Act of 1999. It provides 
liability protection for the new purchasers and developers, 
innocent landowners and contiguous property owners. It also 
provides brownfields funding for local governments and 
addresses the finality issue of current owners. I am pleased to 
say that H.R. 1750 has already obtained the strong support of 
the President of the United States, the only brownfields bill 
to do so--and I repeat, the only brownfields bill to do so.
    The mayors from big cities like Denver, Detroit, St. Louis, 
Newark, Philadelphia, and Elizabeth, New Jersey and other local 
government organizations have written to express their support 
of H.R. 1750. Just this week, the National Association of 
Counties and National Association of Towns and Townships 
endorsed H.R. 1750 and expressed their strong interest in 
legislation ratifying EPA's municipal settlement policy as 
well.
    Finally, H.R. 1750 has received support from the National 
Realty Committee, a member organization of leading real estate 
owners, developers, investors and lenders throughout this 
Nation.
    Mr. Chairman, if we keep our aim narrowly focused and 
targeted, and our approach based on obtaining a broad 
consensus, I believe brownfields legislation can be signed into 
law in this Congress. The approaches taken by H.R. 1750 and 
H.R. 2580 on liability protection for new purchasers, liability 
clarification for innocent landowners, and funding for site 
assessment grants and revolving loan funds track very closely 
the difference in these important brownfields provisions. It 
should be easily resolvable.
    However, on several other provisions, there are significant 
differences in the bills. These will not be as easily 
resolvable as we discuss these differences and State authority 
versus Federal authority. I urge the subcommittee to not forget 
the needs of citizens and communities throughout this Nation 
when they fear that contamination at any site may be presenting 
a risk to their health and welfare. Citizens want to have all 
of the necessary authorities available to protect their health 
and the environment.
    Mr. Chairman, again I thank you for holding this hearing 
and I look forward to hearing from the witnesses. I yield back 
the balance of my time.
    Mr. Oxley. The Chair is now pleased to recognize the 
gentleman from the full Commerce Committee, the gentleman from 
Richmond, Mr. Bliley.
    Chairman Bliley. Thank you, Mr. Chairman. Let me commend 
you for holding this hearing on legislation to improve 
Superfund. Perhaps one of the hardest tasks in politics is 
fixing a broken environmental program. Superfund could not be a 
better case for reform. The statute is excessively litigious, 
slow, unrealistic, imposes barriers to cleanups all across the 
Nation.
    House Republicans and many Democrats agree on the need for 
substantial reform. The 105th Congress saw several bipartisan 
efforts in this regard, including Chairman Oxley's bill, H.R. 
3000, which was introduced with 19 original Democrat 
cosponsors.
    Today we are holding a hearing on 3 bills to fix the 
Superfund program. First we see that H.R., 1300 the Recycle 
America's Land Act of 1999, now has the same number of Democrat 
cosponsors as Republicans: 47. Similarly, Mr. Greenwood's bill, 
the Land Recycling Act of 1999 is a serious bipartisan effort.
    This presents us with a gulf that must be bridged. We have 
a bipartisan group that supports Superfund reform, and, on the 
other hand, we have the House Democrats and the administration 
who support partisan legislation. To bridge this gulf and 
finally enact Superfund legislation, we must address both the 
substantive and political differences.
    On the substance, I see a program that takes 8 years to 
accomplish the identification and listing of a hazardous waste 
site, and another 10 years to accomplish remedy selection. 
While the administration and some of my colleagues call this a 
satisfactory pace, I see only waves and waves of litigation. 
Where the administration sees vindication of the ``polluter 
pays'' principle, I see needless uncertainty and 
counterproductive Federal rules. On bipartisanship, I note that 
it is not alive and well.
    So the divide within the Democrat Party remains. There are 
those who are willing to work on a bipartisan reform and those 
that have not shown a desire to make Superfund work. It seems 
to me for the 106th Congress, if you cannot work in a 
bipartisan fashion, then you do not want change at all. We have 
a short time to determine whether we will cross this divide. 
After 5 years, my patience is running thin. If you are willing, 
let's start working with Chairman Oxley now and start showing 
the ability for a bipartisan compromise.
    Today is the first day of our legislative hearings on 
Superfund. Today we will focus on the brownfields-related 
provisions of several bills. I believe we must listen to State 
cleanup agencies and cleanup contractors who have the expertise 
to know what it takes to bring life to the cleanup and 
redevelopment arena by reforming Superfund. After years of 
trying and negotiating, we have developed workable bipartisan 
provisions that can make a difference.
    I look forward to hearing from today's witnesses and to 
moving forward on Superfund reform. Thank you, Mr. Chairman.
    Mr. Oxley. I thank the Chair.
    [The prepared statement of Hon. Tom Bliley follows:]
 Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
    Thank you, Mr. Chairman. Let me commend you for holding this 
hearing on legislation to improve Superfund.
    Perhaps one of the hardest tasks in politics is fixing a broken 
environmental program. Superfund could not be a better case for reform. 
The statute is excessively litigious, slow, unrealistic, and poses 
barriers to cleanups all across the Nation. House Republicans and many 
Democrats agree on the need for substantial reform.
    The 105th Congress saw several bipartisan efforts in this regard, 
including Chairman Oxley's bill, H.R. 3000, which was introduced with 
19 original Democrat cosponsors. Today we are holding a hearing on 
three bills to fix the Superfund program. First, we see that H.R. 1300, 
the Recycle America's Land Act of 1999, now has the same number of 
Democrat cosponsors as Republican: 47. Similarly, Mr. Greenwood's bill, 
the Land Recycling Act of 1999 is also a serious bipartisan effort.
    This presents us with a gulf that must be bridged--on the one hand, 
we have the bipartisan groups that support Superfund reform, and on the 
other hand, we have the House Democrats and the Administration who 
support partisan legislation. To bridge this gulf and finally enact 
Superfund legislation, we must address both the substantive and 
political differences.
    On the substance, I see a program that takes eight years to 
accomplish the identification and listing of a hazardous waste site, 
and another 10 years to accomplish remedy selection. While the 
Administration and some of my colleagues call this a satisfactory pace, 
I see only waves and waves of litigation. Where the Administration sees 
vindication of the ``polluter pays'' principles, I see needless 
uncertainty and counterproductive Federal rules.
    On bipartisanship, I note that it is not alive and well. So the 
divide within the Democrat party remains. There are those who are 
willing to work on bipartisan reform and those who have not shown this 
desire to make Superfund work. It seems to me that for the 106th 
Congress, if you cannot work in a bipartisan fashion, then you do not 
want change at all.
    We have a short time to determine whether we will cross this 
divide. After five years my patience is running thin. If you are 
willing, lets start working with Chairman Oxley now and start showing 
the ability for a bipartisan compromise.
    Today is the first day of our legislative hearings on Superfund. 
Today we will focus on the brownfields-related provisions of several 
bills. I believe we must listen to State cleanup agencies and cleanup 
contractors who have the expertise to know what it takes to bring life 
to the cleanup and redevelopment arena by reforming Superfund. After 
years of trying and negotiating, we have developed workable bipartisan 
provisions that can make a difference. I look forward to hearing from 
today's witnesses and to moving forward on Superfund reform.

    Mr. Oxley. The gentleman from New Jersey, Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman. I want to thank you 
for holding this hearing on brownfields legislation. With 
certain Federal protections in place, along with State 
voluntary programs, we can work to put abandoned or underused 
contaminated industrial or commercial sites back into use. This 
not only spurs economic development, but avoids development of 
greenfields or pristine open spaces.
    In Long Branch, New Jersey, we recently received a $200,000 
grant to participate in the pilot project that is part of EPA's 
brownfields initiative; and EPA's national brownfields 
initiative has already resulted in the assessment of 398 
brownfields properties, cleanup of 71 properties and 
redevelopment of 38 properties.
    Mr. Chairman, on the subject of the Superfund program, 
which I know is not the subject of the hearing today, I just 
wanted to say that I remain pleased with the direction of 
progress that EPA is making, particularly in New Jersey and in 
my district. To try to enact Superfund reforms at this time 
could delay progress. If anything, we need to ensure that our 
Federal Superfund program remains strong; that the burden of 
site cleanups remains with the polluter, the potentially 
responsible party; that we avoid corporate carveouts and ensure 
communities' and children's protection and right to know.
    I want to mention that I believe we should have a separate 
hearing on the Superfund right-to-know issue because it has 
been left out of the Boehlert Superfund bill. In the meantime, 
we should act to pass sound brownfields legislation.
    Mr. Towns' bill, H.R. 1750, is endorsed by President 
Clinton and the National Association of Attorneys General 
support the strengthening of State voluntary cleanup and 
brownfields redevelopment programs. Yet they oppose parts of 
the Boehlert bill, H.R. 1300, because potentially responsible 
parties would be able to avoid enforcement too easily under 
that bill. Many State officials have informed me and other 
Congress members that the existing Federal framework, with its 
liability and enforcement mechanisms, provides important 
incentives for private entities to voluntarily clean up State 
sites. And I believe we must uphold the imminent and 
substantial endangerment standard that exists in current 
Federal and State statutes as well as in the memorandum of 
agreement between 12 States and the EPA in their State 
voluntary cleanup programs.
    In fact, in my home State of New Jersey, our State 
environmental or Department of Environmental Protection may 
direct the discharger to clean up and remove the discharge 
whenever any hazardous substance is discharged. A substantial 
threat of endangerment does not have to be proven. And it is 
important to maintain a Federal safety net for sites where 
State cleanups failed to adequately protect human health and 
the environment, as the Environmental Defense Fund points out 
in its testimony.
    The standard should be consistent with Federal enforcement 
authority to order cleanups under other Federal statutes, 
including CERCLA, the Clean Air Act, the Clean Water Act, and 
the Safe Drinking Water Act, as well as these memoranda of 
agreement. And I want to say that the Towns bill provides such 
a safety net. The other bills under consideration do not.
    While current law may not adequately address targeted 
liability relief for qualified parties, we must take care not 
to create exemptions that are too broad or that enable PRPs to 
avoid liability. In H.R. 1750 we have carefully defined and 
provided limited liability relief for innocent landowners, 
prospective purchasers and contiguous property owners, but only 
for these categories. The administration supports targeted 
liability relief for these parties. Other bills under 
consideration today include inadequate and overly broad 
exemptions for innocent landlords.
    Finally, I would urge my colleagues to join me in passing 
brownfields legislation that contains provisions that enjoy 
widespread support and consensus, and I believe and I urge full 
consideration and ultimate passage of the Towns bill for that 
reason. Thank you, Mr. Chairman.
    [The prepared statement of Hon. Frank Pallone follows:]
  Prepared Statement of Hon. Frank Pallone, Jr., a Representative in 
                 Congress from the State of New Jersey
    Thank you, Mr. Chairman. We need to keep this hearing, and any 
legislation the Subcommittee and Committee might consider, focused on 
something we can pass, namely Brownfields. With certain federal 
protections in place along with state voluntary programs, we can work 
to put abandoned or underused, contaminated industrial and commercial 
sites back into use. This not only spurs economic development but 
avoids development of ``greenfields,'' or pristine, open spaces. In 
fact, Long Branch, New Jersey, my home town, has received a $200,000 
grant to participate in a pilot project that is part of EPA's 
Brownfields Initiative. This Initiative has already resulted in the 
assessment of 398 brownfields properties, cleanup of 71 properties and 
redevelopment of 38 properties.
    In addition, I remain pleased with the direction of progress that 
EPA is making in the Superfund program, particularly in New Jersey and 
in my district. To try to enact major reforms at this time could delay 
this progress. If anything, we need to ensure that our federal program 
remains strong, that the burden of site cleanups remains with the 
polluter (the Potentially Responsible Party), that we avoid corporate 
carve-outs, and ensure communities', and particularly children's, 
protection and right-to-know. I believe that we should have a separate 
hearing on the right-to-know issue. This issue has been completely left 
out of the Boehlert bill and the current debate.
    In the meantime, we should act to pass sound Brownfields 
legislation now. The Democrats' bill, H.R. 1750, is endorsed by 
President Clinton. And, the National Association of Attorneys General 
support the strengthening of state voluntary cleanup and brownfields 
redevelopment programs. Yet, they oppose parts of H.R. 1300 because 
Potentially Responsible Parties would be able to avoid enforcement or 
listing too easily under the bill. Many state officials have informed 
me and other Congressmembers that the federal framework, with its 
liability and enforcement mechanisms, provide important incentives for 
private entities to voluntarily clean up state sites.
    We must uphold the ``imminent and substantial endangerment'' 
standard that exists in current federal and state statutes as well as 
in Memoranda of Agreement between 12 states and the U.S. Environmental 
Protection Agency (EPA) in their state voluntary cleanup programs. In 
fact, in my home state of New Jersey, the State Department of 
Environmental Protection may ``. . . direct the discharger to clean up 
and remove . . . the discharge'' ``whenever any hazardous substance is 
discharged.'' A substantial threat of endangerment doesn't even need to 
be proven. It is important to maintain a federal safety net for ``sites 
where state cleanups fail to adequately protect human health and the 
environment,'' as the Environmental Defense Fund points out in its 
testimony. And, the standard should be consistent with federal 
enforcement authority to order cleanups under other federal statutes, 
including CERCLA, the Clean Air Act, Clean Water Act, and the Safe 
Drinking Water Act, as well as these Memoranda of Agreement. H.R. 1750 
provides for such a safety net; the other bills under consideration 
today do not.
    While current law may not adequately address targeted liability 
relief for qualified parties, we must again take care not to create 
exemptions that are too broad or that enable PRPs to avoid liability. 
In H.R. 1750, we have carefully defined and provided limited liability 
relief for innocent landowners, prospective purchasers, and contiguous 
property owners, but only for these categories. The Administration 
supports targeted liability relief for these parties. Other bills under 
consideration today include inadequate and/or overly broad exemptions 
for innocent landowners.
    I urge my colleagues to join me in passing Brownfields legislation 
that contains provisions that enjoy widespread support and consensus. I 
urge full consideration and ultimate passage of H.R. 1750. Thank you, 
Mr. Chairman.

    Mr. Oxley. The Chair now recognizes the gentleman from 
Illinois, Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman. As we know, there 
seems to a breakthrough in Superfund with the Transportation 
Committee. While I applaud my colleague's work, I will fight 
vigorously to preserve the committee's jurisdiction.
    With a move of this committee on brownfields and hopefully 
small business liability protection, I think we will start 
addressing some of the major concerns of Superfund that the 
general public understands. They understand that we ought to be 
able to clean up industrial sites and reuse them for industrial 
sites and protect liability of future users.
    As my colleague from New Jersey said, we ought to hold the 
primary responsible parties responsible, but we should not hold 
the small restaurant owners for a million dollars' worth of 
cleanup costs, as we have seen in Quincy, Illinois.
    I look forward to learning more about this entire issue and 
hopefully moving legislation sometime in this Congress. I 
appreciate the opportunity to work on this, Mr. Chairman and I 
yield back the balance of my time.
    Mr. Oxley. The gentleman yields back.
    The gentleman from Michigan, Mr. Stupak.
    Mr. Stupak. Thank you. As we all know, the Superfund 
program has been successful in helping to make our environment 
cleaner in many communities across the country. Michigan has 82 
sites on the Superfund national priority list and over 60 
percent have effectively completed all necessary construction 
activity.
    By the end of this Congress, approximately 3 of every 4 
Superfund sites in Michigan will be completed. In addition, EPA 
has performed over 150 cleanup actions at Michigan sites that 
are not on the Superfund list under its removal program. The 
overall program has made incredible progress, but we should not 
overlook the opportunity to make targeted changes to enhance 
and facilitate brownfields cleanup.
    The ranking member of this subcommittee has introduced 
legislation of which I am cosponsor, H.R. 1750. H.R. 1750 
addresses many of the same Superfund liability issues which I 
have worked on in the past. In the last Congress I introduced 
legislation, along with several Republican colleagues, to 
provide liability protection for innocent landowners and bona 
fide prospective purchasers. We have had a bipartisan consensus 
on these issues for many years, and yet each Congress we are 
faced with the same debate.
    It is time that we move targeted brownfields legislation 
forward, without getting tied up in the other contentious 
Superfund issues. But it is also important that any new 
legislation not construct additional obstacles to protecting 
health and welfare of our communities over the long term. For 
example, the use of new statutory language in H.R. 2580 raises 
serious protection questions. This legislation may unreasonably 
limit the ability of Federal Superfund enforcement authorities 
to take action against a responsible party only when the 
response action is, and I quote, ``immediately required to 
prevent or mitigate a public health emergency and for which the 
State is not responding in a timely manner.''
    Twelve States, including Michigan, currently have 
memorandum of agreement with the EPA regarding their voluntary 
cleanup programs. However, these agreements use the standard 
imminent and substantial endangerment language which is found 
in all Federal environmental laws and many State laws, 
including Michigan. If these changes were to become law, how 
would these State agreements be affected? The elimination of a 
widely recognized environmental standard should be of concern 
for both those who are concerned about new legislation and 
citizens who rely on a Federal safety net for protection of 
their health, safety and welfare.
    Mr. Chairman, I look forward to the testimony and I welcome 
all of our witnesses today. Mr. Chairman, I will be going back 
and forth between another hearing, and I would ask unanimous 
consent to enter into the record the opening statement of my 
colleague, Mr. Hall, and that of Mr. Klink who is also at 
another Commerce Committee hearing.
    Mr. Oxley. Without objection all of the opening statements 
will be made a part of the record.
    Mr. Stupak. Thank you, Mr. Chairman.
    Mr. Oxley. The gentleman from Pennsylvania, the sponsor of 
the aforementioned legislation.
    Mr. Greenwood. Thank you, Mr. Chairman.
    I would like to take this opportunity to thank Chairman 
Oxley for holding this hearing on my Land Recycling Act, as 
well as the Towns and the Boehlert bills. While I believe the 
legislation I have introduced represents a well-balanced 
approach to the brownfields issue, I still do look forward to 
continuing to work in a bipartisan manner toward overall reform 
of the Comprehensive Environmental Response Compensation and 
Liability Act, better known as Superfund. The Land Recycling 
Act represents an important first step toward that goal.
    On July 21 I, along with a strong bipartisan group of 
cosponsors, introduced the Land Recycling Act of 1999. The act 
is intended to remove barriers to the cleanup of brownfields 
across the country. Accelerating these cleanup efforts will 
spur investments and provide tools for State and local 
governments to tackle this problem. These efforts will provide 
for more livable, secure neighborhoods. The blight on both 
urban and rural areas can be cleansed. My bill will bring about 
aggressive State reclamation and cleanup of brownfields, 
abandoned or underutilized former industrial properties where 
actual or potential environmental contamination hinders 
redevelopment or prevents it altogether. The U.S. Environmental 
Protection Agency estimates that there may be as many as 
500,000 such sites nationwide.
    In my Congressional district, the southern portion of 
Buck's County, Pennsylvania, we have 3 miles of abandoned or 
underutilized industrial property. Thus, these well-positioned, 
once productive industrial real estate sites pose continuing 
risks to human health and the environment, erode State and 
local tax bases, hinder job growth, and allow existing 
infrastructure to go to waste.
    This subcommittee visited that portion of my district 3 
years ago. The Land Recycling Act of 1999 will revitalize these 
sites and is based on the input of all of the stakeholders in 
the brownfields debate, the Federal Government, States, local 
governments, cleanup contractors, sellers, buyers, developers, 
lenders, environmentalists, community interests and others. And 
it is particularly based on my own experiences in my district.
    Among other things, the bill provides finality for 
brownfields cleanup done pursuant to and in compliance with 
State programs releasing buyers and sellers from liability and 
litigation under Federal law. In today's testimony, the 
National Governors Association and the State and Territorial 
Waste Management Association officials testify that H.R. 2580 
``satisfies the goal of clarifying which governmental entity is 
and should be responsible for deciding when a cleanup is 
complete, and when a party is released from liability.''
    H.R. 2580 will also provide liability protection under 
Federal law for a number of nonpolluters, including innocent 
landowners, prospective purchasers, contiguous landowners and 
response action contractors, thus removing disincentives to 
cleanup and reuse. In their May 12, 1999 testimony before the 
Subcommittee on Water and the Environment, the Honorable Mark 
Morial, the Mayor of New Orleans; the Honorable Michael Turner, 
Mayor of Dayton; and the Honorable Jim Marshall, Mayor of 
Macon, testified that, ``it has been shown that Superfund's 
liability regime unfairly threatens innocent parties and too 
often drives private sector investors from brownfields to more 
pristine locations.'' and we recognize, they went on to say, 
that ``this act helps fuel a development cycle that imposes 
increasing burdens on all of us.''this legislation will 
streamline the Federal cleanup process and employ sound and 
objective science.
    Finally the Land Recycling Act of 1999 will provide 
brownfields grants to States, local governments and Indian 
tribes with the inventory and assessment of brownfield sites 
and the capitalization of the revolving loan funds for 
cleanups.
    I believe these straightforward solutions will provide an 
aggressive anecdote to the wasteful burden of brownfields in 
America, and are part of an overall set of solutions that we 
must pursue to reform the Nation's broken hazardous waste laws. 
While I am confident that the Land Recycling Act will go a very 
long way, we in Congress have also a larger task at hand, over 
all of the Superfund program in its entirety, to ensure that we 
do not perpetuate the brownfields problem across the country.
    The Land Recycling Act of 1999 is only a piece of the 
puzzle. I look forward to the chairman of the Commerce 
Committee, Mr. Bliley, and the chairman of this subcommittee, 
Mr. Oxley, for continued leadership on Superfund reform to 
address the areas that we can and must address.
    Thank you for holding this hearing today. I look forward to 
continuing to work with the committee on this issue.
    Mr. Oxley. The gentleman's time has expired.
    The Chair now recognizes the gentleman from Minnesota, Mr. 
Luther.
    Mr. Luther. Thank you, Mr. Chairman. I thank you very much 
for holding the hearing today. This is an issue that I dealt 
with extensively in Minnesota as a member of the Minnesota 
legislature, but this will be an opportunity to be directly 
involved here at the Federal level. And being a new member of 
this subcommittee, I am very much looking forward to the 
testimony. Thank you very much.
    Mr. Oxley. Thank you.
    The Chair now recognizes the gentleman from New York, Mr. 
Lazio.
    Mr. Lazio. Thank you, Mr. Chairman. I just want to add my 
voice of compliments both to you for holding the hearing and to 
Mr. Greenwood and Mr. Towns and Mr. Boehlert for their work on 
Superfund reform and on the brownfields issue.
    I think the primary reason why we need to address this 
issue quickly and honestly is because it is a major opportunity 
for this committee to speak to urban policy and to redevelop 
areas that have the potential to be areas that can create jobs 
and be economic magnets. And I think failure to act has the 
perverse impact of creating continued frustration for 
communities and continued disinvestments in some of the 
communities that most need investment. I think this is a great 
opportunity for this committee to be speaking to an issue that 
is important to the environment and quality of life of 
Americans, but, more importantly, speaks very much to the 
economic quality of life of some of our urban areas. I thank 
you for your concern in holding the hearings.
    Mr. Oxley. The Chair now recognizes the gentlewoman from 
Colorado, Ms. DeGette.
    Ms. DeGette. Thank you, Mr. Chairman. I am gratified this 
committee is addressing a variety of bills that deal with 
brownfields specifically. When I was elected to Congress I was 
a little mystified why we didn't pass brownfields legislation, 
since everybody loves it, particularly the environmentalists in 
my district and the business communities in my district. I was 
dismayed to find that the reason, apparently, we had not passed 
brownfields legislation was that it was all tied up in a ball 
with Superfund reauthorization and some really knotty Superfund 
issues like liability.
    I have maintained that we need to look at Superfund reform, 
but we need to pass meaningful brownfields legislation as 
quickly as possible because it can be helpful not just in urban 
areas like my district, but also in suburban and rural areas 
around the country. Areas that, luckily for the landowners 
don't warrant Superfund listing, but do need some kind of 
cleanup, and, frankly, areas where the property owners are 
often scared to undertake any cleanup because they are afraid 
of government enforcement actions.
    This is an area I have worked on for a long time, as you 
may know. When I was in the Colorado legislature in the mid-
1990's I was the chief sponsor of the Colorado State Voluntary 
Cleanup Act, which was one of the very first laws in the 
country that a State passed to do brownfields-type legislation 
on a State level. I learned a lot through sponsoring that 
legislation and, frankly, Colorado has learned a lot ever since 
that was sponsored. We have now had over 70 applications under 
that State law for redevelopment and cleanup of property in 
Colorado. This is true even though we don't have Federal 
legislation providing liability relief, as is contemplated in 
at least two of these bills.
    People still think that it is worthwhile. The State has 
entered into an agreement with the EPA, for example, that they 
will hold off on any kind of EPA action while the State 
voluntary redevelopment and cleanup plan is being executed; and 
that has been really, really successful for a number of 
property owners.
    When I introduced the legislation in Colorado, I tried to 
give more incentives to clean up these sites, other than the 
State restraining itself from any kind of enforcement action. I 
tried to give tax relief, and I learned that it was 
unconstitutional under the Colorado Constitution. I tried to do 
other things and they didn't work, so I felt like we were sort 
of giving minor relief to these property owners, but they felt 
that it was a big step out from under government regulation and 
it has been tremendously successful.
    I think this experience gives us some clue as to what we 
should do in terms of liability relief for bona fide 
purchasers. I do believe that we should give some liability 
relief for bona fide purchasers of contaminated properties, for 
innocent landowners, and for contiguous property owners. And I 
also support the establishment by some States of voluntary 
cleanup programs to address sites that don't warrant Federal 
protection to protect human health and environment. But I am 
concerned about language that will preclude Federal, State or 
local governments from taking action at any time after the 
cleanup is started or completed, especially if new conditions 
or contamination is found.
    And so as these bills go through the process, I look 
forward to talking with Mr. Greenwood and others about how we 
can protect the health and the rights of property owners around 
this property to make sure we give appropriate incentives for 
cleanup, to make sure that we give appropriate liability 
protection, but at the same time that we protect the public 
health from unseen contamination that may crop up during a 
cleanup.
    I look forward to the testimony today. I look forward to 
hearing how the Federal statute will interact with State 
statutes. With that, Mr. Chairman, I yield back the balance of 
my time.
    Mr. Oxley. The gentlewoman yields back.
    The gentleman from Illinois, Mr. Rush.
    Mr. Rush. Thank you, Mr. Chairman. I am delighted that the 
committee is holding this very important hearing on select 
Superfund reforms. I believe we should not go into the summer 
recess without addressing the issue of Superfund, especially as 
it relates to brownfields.
    In my congressional district in Chicago, there are many 
abandoned areas which once were the source of thriving 
communities and thriving commerce. Mr. Chairman, there is one 
area in my district, the Engelwood area, that has the highest 
concentration of brownfields in the city. But it also has the 
highest concentration of those who don't own homes in my city, 
as provided by Fannie Mae, and I have a chart here. It has the 
lowest median household income, the lowest median home value. 
Also the lowest--a number of affordable housing in this area, 
which has the highest concentration of brownfields; the lowest 
owner-occupied housing units; the highest rental-occupied 
housing units.
    So as you can see, brownfields has a direct impact on the 
economic worth and survival of communities throughout the 
Nation, especially in urban areas.
    The cleanup of brownfields is not simply cleaning up 
abandoned areas. However, it is a significant part of the 
revitalization of blighted urban areas which can provide jobs 
and recreational opportunities to local residents.
    I look forward to hearing the testimony by our 
distinguished panelists on this important issue of brownfields 
provisions as it relates to H.R. 2580, H.R. 1300 and H.R. 1750. 
As you know, these bills address a myriad of issues, including 
voluntary cleanup, availability of cleanup funds and liability 
of innocent parties. With that, Mr. Chairman, I yield back the 
balance of my time.
    Mr. Oxley. The Chair now recognizes the gentleman from 
Maryland, Mr. Ehrlich.
    Mr. Ehrlich. Mr. Chairman, this is an important issue for 
an awful lot of members, particularly for me representing an 
area right outside the city of Baltimore. I look forward to 
working with the members of our subcommittee and the full 
committee in a bipartisan way to improve a very important piece 
of legislation. I yield back the balance of my time.
    Mr. Oxley. The gentleman from Massachusetts, Mr. Markey.
    Mr. Markey. Thank you, Mr. Chairman. Brownfields tend to be 
in closer, nearer the inner city areas, because they were the 
original industrial sites. As we turn the corner from the 
Industrial Age to the Information Age, many of these sites 
which were found to be undesirable in the 1950's and 1960's and 
1970's because as the high-tech companies were beginning to 
expand, obviously these sites, the brownfields sites, were 
still being occupied. And so as a result, the high-tech firms 
in the fifties and sixties went out to the next beltway, out 
further. They would have preferred to be in nearer, but they 
were occupied.
    As the sites have been left vacant by that industrial era 
type of development, we have a responsibility to make sure that 
they become reusable. If they were reusable, I think many of 
those corporations that leaped all of the way out would much 
prefer to be in closer to the universities and the inner city, 
as would many of the workers. That is, that they would desire 
to work and live in closer.
    So the job that we have is to try to get to a commonsense, 
quick resolution of this issue. Unfortunately, under H.R. 1300 
and H.R. 2580, a current owner who has made a site into a toxic 
cesspool could participate in a voluntary program, cleaning the 
surface but leaving an underground mess, cleaning one piece of 
a large area, and then would be free to walk away. No one, not 
the Federal Government, not the city or the neighbors, could 
intervene to make the polluter clean up the rest of the site.
    Under H.R. 2580, even if the EPA thought there was an 
imminent and substantial endangerment to public health or 
welfare or the environment at an RCRA site, they could not do a 
thing. And requirements for Federal permits under other laws 
such as wetlands protection would be waived.
    The voluntary State programs were never meant to replace 
the backstop of Federal action, and in many cases do not 
include full cleanup requirements.
    Finally, H.R. 2580 also seems to seep outside the 
boundaries of what we usually call brownfields, to limit action 
on proposed Superfund national priority list sites. Unlike the 
other major brownfields bills, H.R. 2580 would prohibit Federal 
action at proposed Superfund sites, and it would require a 
Governor's concurrence before a proposed site could be 
designated a Superfund site, even if the contamination affects 
neighboring States, even if local governments or citizens 
propose the listing, even if the State itself caused the 
contamination and would be responsible for the cleanup.
    We have a lot of work to do. These bills are a starting 
point, but they clearly are not the finishing point if we are 
to be effective in dealing with brownfields. Thank you, Mr. 
Chairman.
    Mr. Oxley. The Chair is pleased to recognize the ranking 
member of the full committee, Mr. Dingell.
    Mr. Dingell. First of all, Mr. Chairman, thank you for 
conducting this hearing on brownfields legislation. This is a 
subject important to me and most members of the subcommittee. 
In the Detroit metropolitan area alone, which is home to our 
country's industrial strength for over 100 years, brownfields 
cover tens of thousands of acres of lands once occupied by 
mighty manufacturing facilities and thriving communities.
    Today many of these properties are abandoned by once 
prosperous owners. They have become an eyesore, a threat to the 
livelihood and health of the citizens in the area. This is the 
fourth Congress in which we have considered reauthorization to 
the Superfund statute. In each Congress, among our many 
disagreements, we have collectively, however, agreed that 
brownfield legislation is needed. We have gone so far as to 
agree even on legislative language to clarify the liabilities 
of lenders, bona fide prospective purchasers, and innocent 
landowners.
    Lender liability relief was enacted into law because we 
achieved consensus among the stakeholders, the administration 
and members on both sides of the aisle.
    By contrast, the many controversial provisions we have 
considered in the past Congress have never become close to 
becoming public law. They have held hostage consensus 
provisions such as prospective purchaser and innocent landowner 
relief. As many consensus provisions languish, some members of 
this body still wish to tinker, thus sparking controversy where 
there was need for none.
    As the committee with primary jurisdiction over Superfund, 
it is incumbent upon us to recognize that we have now an 
opportunity to do something that is meaningful, rather than to 
tilt at windmills and to fiddle around with Superfund, which 
has no prospect of enactment during this Congress. It should be 
noted that great success has been achieved despite an awful lot 
of trouble with Superfund. About three-quarters of all 
Superfund sites in Michigan will shortly be completed. A higher 
percentage of sites in other States have already been 
completed.
    As you know, Mr. Chairman, I have been a frequent critic of 
Superfund and the program and its administration. Our oversight 
efforts in the 1980's emptied some people from the EPA and, I 
would hope, taught the Agency some lasting lessons. At a time 
when Superfund lawyers have now moved on to other specialties, 
we do not want to give them reason to flock back to the 
Superfund practice once again. But some of the legislation that 
we consider today will create just that incentive by 
introducing new and vague terms, and repealing well-settled law 
for no reason that I think makes good sense.
    I am pleased to report that brownfields development is 
occurring as local governments, developers and citizens are 
finding creative ways to build their own consensus and to 
rebuild our communities. In Taylor, Michigan, an abandoned 
eyesore will be replaced by a $9.8 million retail complex that 
will create 150 jobs. City officials plan to clean up another 
contaminated site and create 250 jobs, 70 percent of which will 
be full-time. The city of Monroe is one of the leading 
communities in redeveloping brownfields properties.
    We can build upon this success, then, with carefully 
targeted consensus legislation. The administration must be a 
part of this. Of the three bills today, only H.R. 1750 has been 
endorsed by the President. The bill has 168 cosponsors. It also 
enjoys the support of mayors of numerous cities, including 
Mayor Dennis Archer of Detroit and Mayor Wellington Webb, the 
current president of the Conference of Mayors. The National 
Realty Committee which testified in Dearborn, Michigan on this 
subject, supports this bill. I note that the National 
Association of Counties, with a number of other government 
organizations, have endorsed H.R. 1750, and I hear that the 
Chamber of Commerce has suggested that it is important that we 
should move forward on brownfields and dispense with efforts 
with regard to Superfund.
    I hope that we recognize from these facts that it is urgent 
for us to commence addressing the problem of brownfields, to 
abandon a failed tactic of trying to amend Superfund, proceed 
with that which is possible, achieve a great success in the 
public interest and move forward. And I thank you for 
recognizing me.
    [The prepared statement of Hon. John D. Dingell follows:]
    Prepared Statement of Hon. John D. Dingell, a Representative in 
                  Congress from the State of Michigan
    Mr. Chairman, I thank you for conducting this hearing on 
brownfields legislation. This subject is important to me, and to many 
of the Members of this Subcommittee. In the Detroit metropolitan area 
alone--home to much of our country's industrial strength for over 100 
years--brownfields cover tens of thousands of acres of land once 
occupied by mighty manufacturing facilities and thriving communities. 
Today, many of these properties are abandoned by their once-prosperous 
owners. They have become an eyesore and, in some instances, a threat to 
the livelihood and health of the citizens who live around them. This 
situation is not unique to the Detroit area, nor to urban areas 
generally.
    This is the fourth Congress during which we have considered the 
reauthorization of the Superfund statute. In each Congress, among our 
numerous disagreements, we have collectively agreed that brownfields 
legislation is needed. We have gone so far as to agree on legislative 
language to clarify liability for lenders, bona fide prospective 
purchasers and innocent landowners. Lender liability relief was enacted 
into law because we achieved consensus among stakeholders and the 
Administration, and Members on both sides of the aisle. By contrast, 
the many controversial provisions we have considered in the past four 
Congresses have never come close to becoming public law--and they have 
held hostage consensus provisions such as prospective purchaser and 
innocent landowner relief. As these consensus provisions languish, some 
Members in this body cannot resist the temptation to tinker, thus 
sparking controversy where there was none.
    As the Committee of primary jurisdiction over the Superfund 
statute, it is incumbent upon us to understand what needs to be done 
with this statute, and what does not. While we have wasted time trying 
to build a better mousetrap that effectively guts the Superfund 
program, the Superfund program itself has progressed substantially, 
particularly in the past six years. By the end of this Congress, 
cleanup construction at about three quarters of all the Superfund sites 
in Michigan will be completed. A higher percentage of sites already 
have been completed in many other states.
    As you know, Mr. Chairman, I have been a frequent critic of the 
Superfund program. Our oversight efforts in the 1980s taught the Agency 
some lasting lessons. At a time when Superfund lawyers have moved on to 
other specialties, we do not want to give them reason to flock to the 
Superfund practice once again. But, some of the legislation we will 
consider today will create just that incentive by introducing new and 
vague terms, and repealing well-settled law, for no good reason.
    I am pleased to report that brownfields redevelopment is occurring, 
as local governments, developers and citizens are finding creative ways 
to build their own consensus and to rebuild their communities. In 
Taylor, Michigan an abandoned eyesore will soon be replaced by a $9.8 
million retail complex that will create 150 jobs. City officials plan 
to clean up another contaminated site and to create 250 jobs, 70 
percent of which would be full-time. The city of Monroe also has been 
one of the leading communities in Michigan in redeveloping brownfields 
properties.
    We can build upon this success with targeted, consensus 
legislation. The Administration must be part of this consensus. Of the 
three bills we will consider today, only H.R. 1750 has been endorsed by 
the President. The bill has 168 House cosponsors. It also enjoys the 
support of the mayors of numerous major cities, including Mayor Dennis 
Archer and Mayor Wellington Webb, the current President of the 
Conference of Mayors. The National Realty Committee, which testified in 
Dearborn, Michigan on this subject back in 1995, also supports this 
bill. I am also pleased to announce that the National Association of 
Counties along with a number of other local government organizations 
have endorsed H.R. 1750 and expressed their strong interest in 
legislatively ratifying EPA's current municipal settlement policy. I 
ask unanimous consent that the statements of these supporters of H.R. 
1750, and others, be entered into the record.
    We must stop holding our communities hostage to the inside-the-
beltway poker game that uses brownfields provisions as the 
``sweetened'' for bills containing controversial provisions sought only 
by the special interests that have not yet met their responsibilities 
to clean up their mess. The good people outside the beltway deserve 
better. This Committee, having overseen the implementation of this 
program since its beginning, is in the best position to identify the 
areas of agreement and to provide the states and local governments with 
needed additional tools to strengthen their communities. Mr. Chairman, 
I thank you again for holding this hearing.

    Mr. Oxley. The gentleman's time has expired.
    The Chair would note that there are two votes on the House 
floor and it would be my desire to recess at this time and 
return in approximately 20 minutes. The subcommittee stands in 
recess for 20 minutes.
    [Additional statements submitted for the record follow:]
Prepared Statement of Hon. Vito Fossella, a Representative in Congress 
                       from the State of New York
    First of all, I'd like to thank the Chairman for having a hearing 
on such an important and timely issue. Legislation to Improve the 
Comprehensive Environmental Response, Compensation and Liability Act is 
much needed. Brownfields are generally accepted to be abandoned or 
underutilized former industrial properties in which potential or real 
environmental contamination hinders or prevents redevelopment reuse.
    One issue of particular concern to me is that of liability. It 
makes no sense whatsoever to saddle new owners with liability for 
pollution they did not cause or create. One area of particular concern 
in my district is an area called Richmond Terrace. While it has so much 
property available to potentially develop, business owners are leery to 
buy the property for fear of being held liable for cleanup and damages 
and banks and insurance companies are leery of putting any financial 
backing behind potential investors. Even a GAO report from 1996 on 
Barriers to Brownfield Redevelopment affirmed this theory:
        Superfund's liability provisions make brownfields more 
        difficult to redevelop, in part, because of the unwillingness 
        of lenders, developers, and property owners to invest in a 
        redevelopment project that could leave them liable for cleanup 
        costs. While brownfields usually are not contaminated seriously 
        enough to become Superfund sites, these parties, still fear 
        that they could be sued for cleanup costs if they become 
        involved with a contaminated site. For example, as a result of 
        the liability problem and the general riskiness of investing in 
        redeveloping brownfields, banks sometimes refuse to lend funds 
        for this purpose. United States General Accounting Office 
        Report to Congressional Requesters, RCED-96-125, Barriers to 
        Brownfield Redevelopment, June 1996, Page 2.
    In addition, I believe the States should be responsible for 
overseeing the redevelopment of Brownfields sites and that if a State 
registers a Voluntary Cleanup Program with the Federal Government, 
those Brownfields sites should be free of the risk of being looked at 
by the EPA. As it stands now, businesses, municipalities and potential 
landowners are fearful of the EPA second guessing the judgments of 
states and having to face potential insurmountable problems down the 
road.
    I quote again from that same GAO report:
        Although most brownfields are no highly contaminated, cities, 
        lenders, and developers cite the possibility that the liability 
        provisions in CERCLA could be applied to these properties as a 
        major barrier to redeveloping them. United States General 
        Accounting Office Report to Congressional Requesters, RCED-96-
        125, Barriers to Brownfield Redevelopment, June 1996, Page 3.
    I strongly believe that we must all work together to foster the 
redevelopment of Brownfields sites and help small businesses and others 
utilize these properties and therefore make them once again viable 
community areas as well as economically productive. Businesses, the 
financial industry, government and environmentalists have an excellent 
opportunity to work together to give these properties new leases on 
life. We all need to strike a balance that safeguards the environment 
and guarantees that these sites are cleaned up thoroughly, and yet also 
provides businesses with protection to take them over.
    I look forward to working with the Chairman and the rest of the 
Committee Members on this issue that is not only important to Staten 
Island and Brooklyn, but to New York City, New York, and every 
community around the country.
                                 ______
                                 
Prepared Statement of Hon. Ralph M. Hall, a Representative in Congress 
                        from the State of Texas
    Thank you Mr. Chairman for calling this hearing today. I think it 
is important that we take this opportunity to closely examine the 
strengths as well as the possible weaknesses in each of these three 
bills that address the problems currently associated with clean-up at 
Brownfields sites. While voluntary actions seem to have worked quite 
well in my home state of Texas, we have heard a great deal of criticism 
from other areas of the country where they have not been so fortunate, 
and the regulations seem to have hindered more than promoted the goal 
of clean-up and redevelopment.
    I am a cosponsor of two of these bills, H.R. 2580, introduced by 
Representative Greenwood, and H.R. 1750, introduced by Representative 
Towns. I think all reasonable minds agree that we should encourage 
property owners and developers to take necessary actions to convert 
these properties into usable and productive resources for the 
community. I think all reasonable minds can also agree that currently 
their is a serious legal and political disincentive for property owners 
and developers to initiate appropriate clean-up actions. While these 
three bills provide for varying degrees of autonomy to property owners 
in making certain clean-up decisions, they all recognize the fact that 
if clean-up and redevelopment are to be accomplished, we must move away 
from the philosophy that erects obstacles and undeserved penalties 
toward a philosophy that promotes incentives for responsible action.
    I think the Brownfields issue really symbolizes the overall 
inequity that can be so easily perpetrated through unfair regulatory 
policies that seek to simply catch ``the unlucky ones'' in a trap. I 
think instead we must make a more honest effort to attribute 
responsibility where it is actually due. And when that is not possible, 
we must provide incentives rather than penalties to the innocent 
landowners and bonafide purchasers who simply find themselves in the 
wrong place at the wrong time.
    We know that many of these sites serve as major sources of blight 
and as symbols of hopelessness in urban areas where almost any kind of 
economic development would be embraced enthusiastically by the 
residents of those communities. We have a responsibility to encourage 
rather than penalize those people who would seek to make this kind of 
redevelopment a possibility. For these reasons I look forward to 
working in a bipartisan fashion, and where appropriate in concert with 
our colleagues on the Transportation and Infrastructure Committee, 
towards the goal of marking up a bill that contains Brownfields 
provisions that will promote clean-up and redevelopment, at these sites 
where people have hesitated to act in the past due to unfair, punitive 
and outdated regulatory structures. Mr. Chairman, I thank you again for 
scheduling this hearing, and I yield back the balance of my time.
                                 ______
                                 
Prepared Statement of Hon. Ron Klink, a Representative in Congress from 
                       the State of Pennsylvania
    I want to thank Subcommittee Chairman Michael Oxley, and Ranking 
Member Edolphus Towns, for holding this hearing today. It is my hope 
that the Committee will mark up a brownfields bill during this first 
session of Congress, and that the provisions of H.R. 1750, the 
``Community Revitalization and Brownfields Cleanup Act of 1999,'' will 
be incorporated into any brownfields bill the Committee sends to the 
House Floor. I was pleased to be an original co-sponsor of H.R. 1750, 
which was introduced by Ranking Member Towns, Congressman Robert Borski 
of the 3rd District of Pennsylvania, and Congressman John Dingell, 
Ranking Democratic Member of the Committee on Commerce.
    The issue of brownfields cleanup is important in all 50 states, and 
certainly in Pennsylvania, which has a history of heavy industrial 
production. Pennsylvania is working to revitalize industry while taking 
a leading role in high tech and medical research. I am pleased that all 
Democrats in the Pennsylvania congressional delegation have cosponsored 
H.R. 1750.
    I deeply appreciate the endorsements of H.R. 1750 from key 
government officials in Pennsylvania. We have received endorsement 
letters from Mayor Ed Rendell of Philadelphia, Mayor Tom Murphy of 
Pittsburgh, and from several communities in my District, the 4th of 
Pennsylvania: Mayor James Mansueti of the City of Aliquippa, Mayor 
William DeMao of the City of Arnold, Mayor Gilmore Hendrickson of the 
Borough of Brackeridge, City Clerk Ronald Dinsmore of the City of 
Jeannette, Mayor Dennis Kowalski of the City of Lower Burrell, Mayor 
William Shovlin of the Borough of Midland, Mayor Timothy Fulkerson of 
the City of New Castle, Mayor Patrick Petit of the City of New 
Kensington, and Mayor Matthew Cucinelli of the Borough of Rochester.
    These government officials recognize that when brownfields are 
cleaned up, new businesses come in, jobs are created and the tax base 
is stimulated. The provisions of H.R. 1750 provide the best chance for 
this to happen. Under H.R. 1750, brownfield sites may include 
associated rivers, streams, lakes and mine-scarred land. This is 
beneficial to Pennsylvania, with its history of coal mining.
    I respect the fairness of Chairman Oxley in allowing three bills, 
with differing viewpoints about brownfields clean up, to be considered 
at this hearing today: H.R. 1750, which I support, H.R. 2580 introduced 
by my Committee colleague from Pennsylvania, Jim Greenwood, and H.R. 
1300, introduced by Sherwood Boehlert of New York. While I respect the 
efforts and hard work of my colleagues Jim Greenwood and Sherwood 
Boehlert, I differ with the provisions of their bills.
    Regarding funding, we must recognize that sometimes local 
governments cannot afford to clean up brownfields and need financial 
support. H.R. 1750 is the best bill providing federal financial 
assistance. The authorization provisions of H.R. 1750 are clearly 
stated.
    In order to clean up brownfields, the sites must be assessed to 
determine the type of contamination, and the level of contamination. 
H.R. 1750 authorizes $35 million a year from general revenues, for five 
years, for grants to local governments for site assessment. From these 
funds, local governments can receive a maximum grant of $500,000 a 
year, and the local officials oversee the work.
    In contrast, both H.R. 1300 and H.R. 2580 cap site assessment 
grants at $200,000.
    In order to capitalize local government revolving loan funds to 
clean up brownfields properties, H.R. 1750 authorizes $65 million a 
year from general revenues, for five years. From these funds, local 
governments can receive $500,000 annually, with the Environmental 
Protection Agency (EPA) having discretion to increase the grant amount 
to $1,000,000 if significant economic and environmental benefits would 
be achieved.
    In contrast, H.R. 2580 simply authorizes ``such sums as may be 
necessary.''
    In order to assist states in developing their voluntary clean up 
program, where brownfield site owners or developers work cooperatively 
with the state, as opposed to an enforcement driven program, H.R. 1750 
authorizes $15 million a year from general revenues, for five years, 
for the voluntary clean up program.
    In contrast, H.R. 2580 does not authorize funding for voluntary 
clean up programs.
    Regarding liability, H.R. provides liability protection for any 
person at a brownfields site if the site is undergoing cleanup in a 
state cleanup program (including a voluntary cleanup program) as long 
as the program meets basic criteria such as protection of human health 
and the environment, adequate state oversight, and adequate 
certification indicating that the cleanup is complete.
    In contrast, H.R. 1300 has no qualifying criteria for state cleanup 
programs.
    These are a few instances of the differences that I hope we can 
iron out in a markup. However, in this statement, I would rather focus 
on the positive role that brownfields programs play in revitalizing 
blight, thereby protecting our rapidly disappearing green fields--those 
green spaces around our cities.
    In Pittsburgh, Pennsylvania, we had a case we call ``slag to 
riches.'' Along the riverfront what used to be 240 acres of land that 
was considered unusable, because it was a former dumping area for 
industrial slag, will now be valuable residential property with 
picturesque views. This is known as Nine Mile Run.
    Total private investment in Nine Mile Run is expected to exceed 
$200 million, which will be used to develop 713 new housing units, 
100,000 square feet of new neighborhood commercial retail space, and 80 
acres of park land. By the time of the projects's completion, more than 
$240 million of new housing stock, $10 million in new retail 
construction and 1,680 temporary and permanent jobs are anticipated. 
All of this came from revitalizing the abandoned Lectromelt 
Electroplating plant. The City of Pittsburgh received a $200,000 grant 
from the federal government to begin site assessment.
    However, if H.R. 1750 had been enacted into law, when the Nine Mile 
Run grant was awarded, the ``Slag to Riches'' case could have received 
a $500,000 grant for site assessment, allowing this procedure to begin 
earlier.
    There are other brownfields success stories in Duquesne, McKeesport 
and Clairton, Pennsylvania, communities which were once the heart of 
the nation's iron, steel, coke, chemical, glass and electrical 
manufacturing industries, which experienced traumatic collapses 
beginning in the late 1970s and extending through the 1980s. This hurt 
smaller commercial businesses and ruined the communities' prosperity.
    The Steel Valley Authority listed 52 brownfields sites in the 
southwestern Pennsylvania area totaling 1,420 acres. The solid funding 
provisions of H.R. 1750 are a key aspect in helping to build momentum 
toward economic development for the entire Monongehela Valley.
    In addition, in a survey published in April of 1999 by the U.S. 
Conference of Mayors, the Mayors of 153 cities across the nation 
estimated that if brownfields were cleaned up and redeveloped, a 
conservative estimate of potential tax revenues would total $955 
million annually.
    In the survey, Mayors from many Pennsylvania cities--Bethlehem, 
Erie, our Capitol City of Harrisburg, Lancaster, McKeesport, 
Norristown, Philadelphia, and York responded that a sum total of 38,875 
jobs could be created for brownfields redevelopment in their 
communities.
    In summary, H.R. 1750 is the best bill to meet the economic 
redevelopment potential in states like Pennsylvania, which have been 
hard hit with dying industries. Not only does H.R. 1750 provide grants 
to local governments, as well as to site owners and developers, but it 
authorizes the EPA to provide technical assistance and training to 
individuals and organizations to inventory brownfield sites and conduct 
site assessments or cleanups.
    A key feature of H.R. 1750 is that the funds are taken from General 
Revenues, rather than the Superfund Trust Fund, allowing the Superfund 
Trust Fund to be used for National Priority Listing sites.
    Because H.R. 1750 focuses strictly on brownfields, rather than the 
all-encompassing Superfund program, it has a much better chance to be 
enacted, because Superfund reauthorization has been a divisive issue, 
especially when it comes to reinstating the Superfund taxes, as would 
be done under the provisions of H.R. 1300.
    I fervently hope we can hammer out a bipartisan brownfields bill 
including the good, solid provisions of H.R. 1750 in the areas of 
grants, and liability protections for prospective purchasers, innocent 
landowners, and contiguous property owners, while protecting the 
environment. H.R. 1750 is the most common-sense brownfields bill, 
providing the financial assistance and liability protections 
communities need in order to redevelop brownfields. Thank You.

    Mr. Oxley. The subcommittee will reconvene.
    Having completed our opening statements from the members, I 
now turn to our first panel. Let me invite an old friend and a 
frequent visitor here, Mr. Tim Fields, Assistant Administrator 
of the Office of Solid Waste and Emergency Response with the 
U.S. Environmental Protection Agency.
    Mr. Fields, welcome.
    Mr. Fields. And Lois Schiffer will be joining me.
    Mr. Oxley. Ms. Lois Schiffer from the Justice Department as 
well.
    We are pleased to have you back, Mr. Fields, and you may 
begin, and don't be too concerned about the 5-minute rule.

       STATEMENTS OF HON. TIMOTHY FIELDS, JR., ASSISTANT 
 ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, 
   U.S. ENVIRONMENTAL PROTECTION AGENCY; ACCOMPANIED BY LOIS 
  SCHIFFER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

    Mr. Fields. I will be very brief, Mr. Congressman. Mr. 
Chairman, thank you for the time to be here to speak before 
this subcommittee. I am pleased to be here to offer comments on 
the three pending bills before this subcommittee, H.R. 1750, 
H.R. 2580 and H.R. 1300. I appreciate your leadership in having 
this hearing on the very important topic of brownfields 
assessment, cleanup, redevelopment.
    I am accompanied today by Assistant Attorney General Lois 
Schiffer, who will be available with me to respond to questions 
after this testimony.
    The administration believes that environmental protection 
and economic redevelopment can complement one another. We are 
pleased to see that members of the committee from both sides of 
the aisle are interested in enacting responsible brownfields 
legislation. The Clinton administration continues its support 
for the enactment of responsible brownfields legislation, and 
EPA Administrator Carol Browner has testified before both the 
House and the Senate earlier this year in support of 
legislation that would promote brownfields cleanup and 
redevelopment through Federal grants and loans, which encourage 
private sector investment by providing appropriate liability 
protection to prospective purchasers and contiguous property 
owners, and would clarify liability protection for innocent 
landowners.
    An enormous amount of bipartisan support has been generated 
for these brownfields provisions, and I am confident that the 
President would sign legislation like H.R. 1750.
    The administration did not wait for Congress to enact 
brownfields legislation, however, to implement administrative 
reforms to encourage brownfields redevelopment. In 1995, EPA 
announced our brownfields action agenda, which has provided 
local communities with brownfields assessment grants. It has 
clarified liability issues. It has encouraged workforce 
development and job creation. It has provided brownfields 
cleanup revolving loan funds to communities across the country.
    To date, we have awarded more than 300 brownfields 
assessment grants and 68 revolving loan fund grants for 
cleanup. We have changed policies for prospective purchasers, 
innocent landowners, and contiguous property owners. We have 
created more than 3,000 jobs and allowed private and public 
sector investment of more than $1.4 billion through based on 
EPA's investment of roughly $100 million.
    EPA and the Department of Justice are committed to removing 
the barriers to brownfields cleanup and redevelopment. That is 
why we have worked together on effective policy changes that 
clarify liability under the current statute.
    For example, more than 110 prospective purchaser agreements 
have been negotiated, resulting in the purchase of more than 
1,500 acres of contaminated property and the redevelopment of 
much more property. We have signed memoranda of agreement with 
12 States. Seven more memoranda of agreement under development, 
like the ones Congresswoman DeGette referred to earlier.
    Mr. Chairman, I would hate to see the progress under that 
brownfields agenda inhibited or curtailed by well-intentioned 
but ill-conceived legislative proposals. We believe that we 
should not inappropriately limit Federal response and 
enforcement authorities or provide broad liability exemptions 
to owners of contaminated property. We believe that the 
legislation should not limit EPA's ability to list Superfund 
sites on the national list, where appropriate.
    The administration opposes H.R. 2580 and H.R. 1300 as 
currently crafted. Both bills go much too far in limiting 
Federal response and enforcement authorities at non-NPL sites. 
The American people have come to depend on a nationally 
consistent public health and environmental safety net provided 
by Federal environmental laws. Superfund is no different. The 
Superfund program and State cleanup programs work together hand 
in hand to clean up waste sites. They are not mutually 
exclusive.
    We sincerely appreciate the leadership of Congressman 
Greenwood on brownfields legislation. We congratulated him as 
he celebrated the completion of Superfund site number 600 in 
his district.
    However, we are concerned about elements of H.R. 2580 that 
we believe would prevent EPA and citizens from using our 
imminent and substantial endangerment authority to protect 
public health and the environment from serious risk. H.R. 2580, 
we believe, would also limit the Federal Government's authority 
at sites that are proposed for Superfund listing. Coupled with 
the mandatory Governor's concurrence requirement for NPL 
listings, H.R. 2580 provides an extremely narrow set of 
circumstances under which EPA can come back in, even if it is 
needed, to protect public health and the environment.
    H.R. 2580 provides very minimal criteria for a State 
response program, which we believe is inadequate. There are no 
State program requirements for public participation or adequacy 
of cleanup. H.R. 2580 eliminates the requirement to obtain 
Federal permits and permit revisions, even when the Federal 
Government is responsible for overseeing the permit.
    The liability provisions in the bill, we believe, are 
better. With some modification they could made acceptable, but 
we are concerned about the restrictions on Federal enforcement 
and response capability.
    Regarding H.R. 1300, we are concerned with the liability 
provisions. These provisions allow current owners that purchase 
property with the knowledge of contamination to avoid 
liability. This is inconsistent with long-standing principles 
of common law and creates significant fiscal consequences for 
the trust fund.
    Like H.R. 2580, H.R. 1300 would take away the Federal 
Government's ability to use the imminent and substantial 
endangerment standard as a mechanism for protecting public 
health and the environment. H.R. 1300 has no minimum, 
qualifying criteria for a State response or voluntary cleanup 
program.
    Mr. Chairman, we believe we can work together to pass a 
bill that encourages people to redevelop brownfields properties 
by codifying responsible prospective purchaser liability 
protection, contiguous property owner protection and innocent 
landowner clarification, as well as other elements of an 
effective brownfields program. The administration believes that 
Congressman Towns' bill, H.R. 1750, has all the necessary 
elements of brownfields legislation that can generate a broad 
consensus among a variety of local, State, and private sector 
stake holders. We remain committed to working with members of 
this committee and with Congress to enact brownfields 
legislation that can be signed into law.
    In H.R. 1750, funding is provided for State response 
programs and brownfields grants are provided for assessment and 
for cleanup revolving loan funds. In H.R. 1750, prospective 
purchasers, innocent landowners and contiguous property owners 
are provided with appropriate liability protections. Under H.R. 
1750, crucial environmental safeguards for communities are 
provided by ensuring the EPA has the authority to protect human 
health and the environment, where appropriate.
    Mr. Chairman, we believe that brownfields legislation can 
be enacted that the President can sign. We believe that these 
three bills, if modified pursuant to the administration's 
comments today, would be bills and legislation that we could 
live with. But right now, we believe H.R. 1750 is the only one 
that currently meets the minimal criteria that the 
administration would need.
    Thank you, Mr. Chairman, for your time. Assistant Attorney 
General Schiffer and I will be pleased to answer any questions 
you and members of the subcommittee may have. Thank you very 
much.
    [The prepared statement of Hon. Timothy Fields, Jr. 
follows:]
       Prepared Statement of Hon. Timothy Fields, Jr., Assistant 
     Administrator, Office of Solid Waste and Emergency Response, 
                    Environmental Protection Agency
                              introduction
    Good morning, Mr. Chairman, and Members of the Committee. I am 
pleased to have this opportunity to appear before you today to: 1) 
share with you the substantial accomplishments EPA has achieved since 
the inception of the Brownfields Economic Redevelopment Initiative in 
1995; and 2) address the legislative proposals now before this 
Committee and the U.S. House of Representatives: H.R. 1300, H.R. 2580 
and H.R. 1750.
             brownfields economic redevelopment initiative
    Through the Initiative, EPA continues to promote redevelopment of 
abandoned and contaminated properties across the country that were once 
used for industrial and commercial purposes (``brownfields''). While 
the full extent of the brownfields problem is unknown, the United 
States General Accounting Office (GAO\RCED-95-172, June 1995) estimates 
that approximately 450,000 brownfield sites exist in the United States. 
Virtually every community in the country, no matter what the size, is 
grappling with the challenge of problems associated with recycling 
older, mostly industrial properties. The presence of these properties 
fuels urban sprawl, luring investment and job development farther from 
city centers and inner suburbs.
    The Administration believes that environmental protection and 
economic progress are inextricably linked. The Brownfields Initiative 
seeks to bring all parties to the table--and to provide a framework for 
them to seek common ground on a whole range of challenges: 
environmental, economic, legal and financial. As the former Director of 
the Portland Oregon Brownfields Initiative said, ``brownfields renewal 
is one of the most important environmental and economic challenges 
facing our nation's communities, calling for partnership among our 
federal and local governments, businesses and community and 
environmental leaders. We must work together to build a national 
brownfields partnership from the ground up.'' The Agency's multifaceted 
initiative represents a significant step forward by the Administration 
and, according to Renew America, represents ``a new paradigm in 
locally-based environmental protection that forges public-private 
partnerships, promotes innovation, and relies on market incentives and 
private sector actions.''
    The initial Brownfields Action Agenda announced on January 25, 
1995, focused on the award of Brownfields Assessment Demonstration 
Pilots; building partnerships to all brownfields stakeholders; 
clarifying liability and cleanup issues; and, fostering local workforce 
development and job training initiatives. By mid-1996, EPA completed 
all of its commitments on the initial Action Agenda and continues to 
move forward. Let me briefly describe what we have done in the last 
four years.
Brownfields Assessment Demonstration Pilots
    The Brownfields Assessment Pilots have formed a major component of 
the Brownfields Initiative since its beginning. To date, EPA has 
selected 307 pilots in states, communities and tribes, funded at up to 
$200,000 each. These two-year pilots are intended to generate further 
interest in Brownfields redevelopment across the country. Many 
different communities are participating, ranging from small towns to 
large cities. In charting their own course toward revitalization, we 
are seeing many positive results. The assessment pilot effort combined 
with our targeted state and EPA site assessment efforts has resulted in 
the assessment of 845 brownfields properties. Our assessment pilots 
have reported the related cleanup of 91 properties, and determined that 
more than 574 properties do not need additional cleanup. This has led 
to known redevelopment of 51 properties. The assessment pilots have 
provided information that they have leveraged more than $1.4 billion in 
redevelopment funds and have been the catalyst for support for more 
than 3,000 jobs as a result of the EPA program.
    Chosen through a competitive process, these pilots are helping 
communities articulate a reuse strategy that demonstrates model 
opportunities to organize public and private sector support, and 
leverage financing, while actively demonstrating the economic and 
environmental benefits of reclaiming brownfield contaminated sites. The 
Brownfield pilots enable recipients to take a unified approach to site 
assessment, environmental cleanup, and redevelopment, an approach that 
stimulates economic activity and the creation of jobs.
    Stakeholders tell the Agency that many Brownfields redevelopment 
activities could not have occurred in the absence of EPA efforts. For 
example:

 On an abandoned, four-acre railroad site, the city of 
        Emeryville, CA. and a development corporation are planning to 
        construct 200 units of residential housing. Approximately 100 
        construction workers have already been hired to build these 
        housing units. Within the next five years, construction of 
        retail, hotel and office complexes is expected to create as 
        many as 10,600 jobs and nearly 4 million square feet of new 
        facilities, and provide an additional $6.4 million in annual 
        property tax revenues.
 In Shreveport, LA., as a result of $1.3 million in cleanup and 
        redevelopment funding, the former HICA steel foundry and 
        upgrade company has been upgraded and renovated into the new 
        HICA Steel Castings, LLC, with owners committed to running an 
        environmentally safe operation in the Cedar Grove neighborhood 
        of the city.
 In Birmingham, Alabama, efforts are underway to transform a 
        run-down industrial area into a 150-acre industrial park, with 
        75 acres reserved for heavy industry, a 50-acre distribution 
        center, a business park, and a full-scale retail center. Work 
        on the distribution center is already underway, and by the 
        project's completion, more than 2 million square feet of 
        industrial and commercial facilities could be in place. 
        Planners believe that ultimately the area will see the creation 
        of more than 2,000 jobs.
Brownfields Cleanup Revolving Loan Fund Pilots
    EPA is building on its experience with the assessment pilots 
through a ``second stage'' brownfields pilot award. These pilots, 
called Brownfields Cleanup Revolving Loan Fund (BCRLF) pilots, enable 
communities and coalitions of communities to fundthe safe cleanup and 
sustainable reuse of brownfields through revolving loan funds that EPA 
helps to capitalize. Again, EPA's goal through these pilots is to 
develop revolving loan fund models in communities across the nation 
that can be used to promote coordinated public and private partnerships 
for the cleanup and reuse brownfields.
    In fiscal year 1997, EPA's used $10 million of its brownfields 
budget for the award of BCRLF pilots at up to $350,000 each. Twenty-
three pilots are now in various stages of development. These early 
pilots have been the Agency's pioneers of the program, and many are 
expected to make their first loans soon.
    As a result of our early experience with the BCRLF pilots, the 
Agency has determined that recipient of the most recent pilots would 
benefit from an increased capitalization of $500,000 each. Representing 
more than 60 communities as single pilot communities or as coalitions 
of states and communities, forty-five (45) new BCRLF pilots were 
announced just this past May. In ten of the new pilots, states like 
Massachusetts, Illinois, Arizona and California will assist cities in 
carrying out a variety of activities under the BCRLF. We were extremely 
pleased to see in their applications an increased level of 
understanding of program parameters and needs and a sophistication in 
infrastructure planning. We are confident that the program has caught 
hold and can move forward to make loans for brownfields cleanups.
Job Training and Development Pilots
    EPA initiated a third brownfields demonstration pilot program in 
1998 to help local citizens take advantage of new jobs created by 
assessment and cleanup of brownfields. The Job Training and Development 
Demonstration Pilot program provides two-year grants of up to $200,000 
to applicants located within or near one of the existing assessment 
pilot communities. Colleges, universities, non-profit training centers, 
and community job training organizations, as well as states, Tribes and 
communities, were eligible to apply. Today, 21 job training pilots are 
in place. The first 11 were awarded last year, and the most recent 10 
pilot awards were announced in May.
    The goal of these unique pilots is to facilitate cleanup of 
brownfields sites and prepare trainees for future employment in the 
environmental field. The pilot projects must prepare trainees in 
activities that can be usefully applied to cleanup employing an 
alternative or innovative technology. Among the projects proposed in 
the first round of pilots, the Jobs for Youth-Boston Brownfields Job 
Training and Development Pilot, awarded in September, 1998, has already 
graduated fifteen (15) trainees from a 17-week training program 
designed to prepare graduates to work as environmental field and lab 
technicians, hazardous materials handlers and emergency response 
technicians. Half of the trainees (8) have obtained jobs, and the 
remainder are currently interviewing for employment. In Clearwater, 
Florida, Career Options, Inc., awarded a Brownfields Job Training and 
Development Pilot in September, 1998, graduated 11 trainees from its 
first class on May 20, 1999.
Brownfields Partnerships Build Future Solutions
    The Brownfields Initiative is clearly about partnerships--with 
other Federal, State, and local agencies, and a diverse array of 
stakeholders. The EPA has undertaken partnership efforts with 
individual States as well as through broad organizational structures 
like the National Association of Development Organizations (NADO), the 
National Governors Association (NGA), the National Association of Local 
Government Environmental Professionals (NALGEP), the Conference on 
Urban Economic Development (CUED) and the U.S. Chamber of Commerce. EPA 
also forged working relationships with a vast spectrum of other 
stakeholders, including the Environmental Bankers Association, the 
Irvine Foundation's Center for Land Recycling, the International City/
County Management Association (ICMA), to mention but a few.
    EPA continues to work closely with States and Indian Tribes as key 
partners in the cleanup and redevelopment of contaminated properties. 
The Administration supports the continued growth of the State and 
Tribal regulated and voluntary programs which have greatly expanded the 
number of sites cleaned up to protect human health and the environment. 
To date, 44 States have established voluntary cleanup programs. 
Recognizing the important role that State environmental agencies have 
in encouraging economic redevelopment of brownfields, EPA has provided 
$28.6 million in funding to States and Tribes to support the 
development of these programs since FY 1997. EPA has proposed to 
continue to provide $10 million, in FY00, 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 redevelopment. 
EPA is also pleased with the progress it has made in signing MOAs with 
States. Twelve States have now signed MOAs with EPA regarding sites to 
be cleaned up under voluntary cleanup programs. The most recent state 
to sign an MOA with EPA is Oklahoma in Region 6. Two additional MOAs 
are now close to signature.
Brownfields National Partnership
    Early in the development of EPA's Brownfields Initiative, the 
Agency realized that it needed to find ways to further identify, 
strengthen, and improve commitments to brownfields, while continuing 
efforts toward a comprehensive, community-based approach to clean up 
and redevelop contaminated property. We recognized the important 
contribution of many of our Federal partners to brownfields through 
their participation in the Brownfields National Partnership. Through 
the partnership Federal departments and agencies can offer special 
technical, financial, and other assistance that can be of great benefit 
to brownfields communities. More than 20 national partners are 
committing resources and assistance to brownfields. The Federal Home 
Loan Bank System, for example, is exploring ways to bring more private 
investment to redeveloping brownfields properties and, along with the 
U.S. Conference of Mayors, has selected 50 cities to participate in a 
project to research opportunities, impediments, and successes by both 
cities and lenders to address brownfields.
    Many of the commitments by our federal partners were expressed 
through initial Memoranda of Understanding (MOUs). EPA has signed MOUs 
with the Economic Development Administration of the Department of 
Commerce, the Departments of Labor, Housing and Urban Development, and 
Interior. EPA also is working with the Agency for Toxic Substances and 
Disease Registry and county health officials to address the health 
concerns of brownfields communities. Our partnership with HUD has been 
particularly beneficial for brownfields. The HUD Brownfields Economic 
Development Initiative (BEDI) grants program is providing $25 million 
this year in assistance to cities to redevelop contaminated industrial 
and commercial sites.
Showcase Communities
    The Brownfields Showcase Communities project is an outgrowth of 
those early partnership efforts and now forms an important component of 
the Brownfields Initiative. It represents a multi-faceted partnership 
among federal agencies to demonstrate the benefits of coordinated and 
collaborative activity on brownfields in 16 Brownfields Showcase 
Communities. For example, through the Showcase Community in Glen Cove, 
New York, a revitalization plan to convert brownfields and Superfund 
sites into tourist destinations has been completed. State, Federal, and 
local agencies have played a crucial role in securing $18 million in 
grants from various agencies. In addition, a prospective purchaser 
agreement was signed between EPA and the Glen Cove Industrial 
Development Corporation for the Li Tungsten and Captain's Cove 
Superfund sites. Proceeds from selling the property will go toward 
repaying response costs.
    The report, Building A Brownfields Partnership from the Ground Up, 
by the National Association of Local Government Environmental 
Professionals, (February 13, 1997), presented the views of a network of 
local government brownfields leaders on the value of EPA's brownfields 
programs and policies. The report calls local government leaders ``a 
key link in the success of brownfields partnerships, for it is the 
environmental, health, development and political leaders in our cities, 
counties and towns who can best build a brownfields partnership `from 
the ground up' ''. EPA has developed its brownfield capacity for 
outreach through each of its ten regions. Each region has a designated 
``Brownfields Coordinator'' to assist and oversee the brownfields 
pilots and other actions under the Brownfields Initiative. We believe 
our Brownfields Coordinators are the most effective link to communities 
and form the linchpin of success under the Brownfields Initiative.
Brownfields Redevelopment and Environmental Justice
    These partnerships and those that we will develop in the future 
represent new ways of doing business with communities. We are working 
hard to continue to improve communication and coordination among all 
stakeholders. In this regard, we are encouraged by the increasing 
linkage being made between brownfields redevelopment and environmental 
justice. EPA is working with the National Environmental Justice 
Advisory Council (NEJAC) to promote meaningful community involvement 
and environmental justice. This past June, EPA provided support for a 
program held in South Carolina by the Medical University of South 
Carolina. The conference, ``Environmental Justice: Strengthening the 
Bridge between Economic Development and Sustainable Communities,'' 
sought to bring together stakeholders to explore solutions to the dual 
achievement of environmental justice and economic development. The 
conference also gathered findings for a report to be shared with the 
Congressional Black Caucus.
    Most recently, as a follow up to the February 1998 issuance by EPA 
of its ``Interim Guidance for Investigating Title VI Administrative 
Complaints Challenging Permits'' for public comment, the Agency 
conducted studies to determine whether the guidance would prove to be a 
barrier to the redevelopment of brownfields if implemented. EPA 
undertook case studies at six of its Brownfields Assessment 
Demonstration Pilots. These case studies were recently released, 
Brownfields Title VI Case Studies: Summary Report, June 1999, EPA 500-
R-99-003, DRAFT. Title VI complaints, according to the report, have 
been avoided at brownfields projects because a wide variety of 
governmental, community and business stakeholders are involved in 
brownfields cleanup and redevelopment decision-making. These case 
studies speak to the early and meaningful involvement of communities in 
the brownfields process, redevelopment plans and activities for the 
revitalization of blighted property.
Redevelopment Barriers--Addressing Liability Concerns
    The Agency also committed to addressing the fear of liability and 
other barriers impeding the cleanup and redevelopment of brownfields. 
Over the past several years, EPA has announced a variety of guidance 
and initiatives that have had a positive impact among Brownfields 
stakeholders in terms of removing uncertainties often associated with 
brownfields properties. EPA is promoting redevelopment of brownfields 
properties by protecting prospective purchasers, lenders, and property 
owners from incurring Superfund liability.
    EPA's Prospective Purchaser Agreement (PPA) guidance issued in May 
1995 has been used to stimulate the development of sites where parties 
otherwise may have been reluctant to redevelop due to liability 
concerns. Through agreements known as ``prospective purchaser 
agreements,'' EPA clarifies that bona fide prospective purchasers will 
not be responsible for cleaning up sites, provided they do not further 
contribute to or worsen contamination. The 1995 guidance expanded the 
universe of sites eligible for such agreements to include sites where 
EPA has undertaken, is undertaking, or plans to undertake a response 
action. Approximately 110 PPAs have been negotiated to date. 
Environmental justice advocates see these agreements as a tool to 
promote environmentally sustainable enterprises or green spaces 
occupying former brownfields sites next to residential areas.
    In 1998, EPA undertook a survey effort to gather information on the 
impacts of the PPA process. Preliminary survey data indicate that 
redevelopment projects cover over 1252 acres, or 80% of the property 
secured through PPAs. EPA regional personnel estimate that nearly 1600 
short-term jobs (e.g., construction) and over 1700 permanent jobs have 
resulted from redevelopment projects associated with PPAs. An estimated 
$2.6 million in local tax revenue for communities nationwide have 
resulted from these projects. In addition, EPA regional staff estimate 
that PPAs have resulted in the purchase of over 1500 acres of 
contaminated property and have spurred redevelopment of hundreds of 
thousands of adjacent acres. Using the survey results, EPA continues to 
develop ways to improve the PPA process. The Agency is pleased to see 
the inclusion of prospective purchaser relief as a common element of 
most brownfields legislation being considered by the Congress.
Property Owner Protections
    Other guidance issued by the Agency to benefit brownfields 
assessment, cleanup and redevelopment have included the ``Policy Toward 
Owners of Property Containing Contaminated Aquifers.'' Prior to the 
issuance of this guidance in July 1995, people owning property under 
which hazardous substances had migrated through groundwater also feared 
liability under the statute. EPA responded by announcing that it will 
not take enforcement actions under the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) against owners of 
property situated above contaminated ground water, provided the 
landowner did not cause or contribute to the contamination. Further, 
EPA also will consider providing protection to such property owners 
from third party lawsuits through a settlement that affords 
contribution protection.
    The Agency also is pleased to see the inclusion of innocent and 
contiguous landowner defenses as common elements of most brownfields 
legislative proposals. We believe these liability relief provisions--
innocent landowner, contiguous landowner and prospective purchaser--
will provide a great deal of certainty to homeowners, buyers, and 
developers involved in the purchase and sale, and cleanup and 
redevelopment of brownfields properties.
Lender Protections
    With respect to the lending industry and to governmental entities 
who acquire property involuntarily, EPA was pleased to see the 104th 
Congress enact the ``Asset Conservation, Lender Liability, and Deposit 
Insurance Protection Act of 1996, which included provisions to clarify 
the liability of lenders and fiduciaries under CERCLA and other toxic 
waste laws. This reform, which was developed through a bipartisan 
effort, was incorporated into a broader banking reform bill enacted in 
the final days of the Congress as part of the continuing budget 
resolution. This change in the law is providing significant relief to 
banks and lending institutions, expanding the availability of credit 
for small businesses, and greatly facilitating the assessment, cleanup, 
and redevelopment of brownfields sites. EPA's lender liability policy 
clarifies the steps a lender or governmental entity may take after 
acquiring contaminated property through, for example, foreclosure or 
involuntary acquisition.
    EPA also is providing ``comfort/status letters'' in appropriate 
circumstances to requestors, including new owners, lenders, or 
developers to inform them of EPA's intentions at a site. The Policy on 
the Issuance of Comfort/Status Letters is designed to assist parties 
who seek to cleanup and reuse brownfields. EPA often receives requests 
from parties for some level of ``comfort'' that, if they purchase, 
develop, or operate on brownfield property, EPA will not pursue them 
for the costs to clean up any contamination resulting from the previous 
use. The policy contains four sample comfort/status letters that 
address the most common inquiries for information EPA receives 
regarding contaminated or potentially contaminated properties. The 
policy aims at using such ``comfort'' toward facilitating the cleanup 
and redevelopment of brownfields.
Supplemental Environmental Projects
    In addition, EPA encourages the use of Supplemental Environmental 
Projects (SEPs) to facilitate the reuse of brownfields through 
assessment and cleanup projects at brownfield properties. SEPS are 
environmentally beneficial projects that a defendant agrees to 
undertake in settlement of a civil penalty action, but that the 
defendant is not otherwise legally responsible to perform. SEPs enhance 
the environmental quality of communities that have been put at risk due 
to the violation of an environmental law.
Removing Sites From CERCLIS
    Finally, EPA believes that the removal of sites from the active 
Federal inventory, the Comprehensive Environmental Response, 
Compensation and Liability Information System (CERCLIS), is having 
positive repercussions for the Brownfields Initiative. To date, EPA has 
removed approximately 31,681 sites from CERCLIS. The removal of these 
sites eliminates the stigma of potential contamination and fear of 
liability associated with these sites, and allows stakeholders to focus 
on the future land use and redevelopment of such sites.
Brownfields Tax Incentive
    EPA is pleased with the passage of the Brownfields Tax Incentive in 
the last Congress. Passage of the 1997 Brownfields Tax Incentive has 
enabled the federal government to level the economic playing field 
between brownfields and greenfield sites. Under the tax incentive, 
environmental cleanup costs for properties in designated areas are 
fully deductible in the year in which they are incurred, rather than 
capitalized. This incentive can reduce the capital cost for these types 
of investments by more than one half. We regard this tax provision as 
an essential element of a complete and comprehensive brownfields 
program and hope it can be made a continuing and broad tool for 
brownfields redevelopment in the future. Under current law, the 
incentive will expire on December 31, 2000. The FY 2000 Budget proposes 
to make it permanent.
    The tax incentive is applicable to properties that meet specified 
land use, contamination, and geographic requirements. To satisfy the 
land use requirement, the property must be held by the taxpayer 
incurring the eligible expenses for use in a trade or business or for 
the production of income, or the property must be properly included in 
the taxpayer's inventory. To satisfy the contamination requirement, 
hazardous substances must be present or potentially present on the 
property. To meet the geographic requirement, the property must be 
located in one of the following areas: EPA Brownfields pilot areas 
designated prior to February 1, 1997; census tracts where 20 percent or 
more of the population is below the poverty level; census tracts that 
have a population under 2,000, have 75 percent or more land zoned for 
industrial or commercial use, and are adjacent to one or more census 
tracts with a poverty rate of 20 percent or more; and Empowerment Zones 
and Enterprise Communities. Both rural and urban sites qualify for the 
proposed incentive. Sites on EPA's National Priorities List are 
excluded. In West Chester, Pennsylvania, the tax incentive was used to 
help a demolition and environmental service company relocate its 
headquarters at a brownfield. This site was in a part of the town 
suffering a 29.6% poverty rate, well above the 20% poverty rate 
threshold set in the guidelines. The company estimates that 100-200 
jobs could be created.
Better America Bonds
    Innovative approaches and solutions to the problems faced by 
communities are manifested in every aspect of brownfields. Innovative 
financing efforts are no exception. Just as the federal government has 
helped the brownfields program through the tax incentive, so, too, will 
the Clinton Administration's latest effort through the proposed Better 
America Bonds program. To build healthy, livable communities for the 
21st century, the federal government would provide new resources to 
communities to achieve their ``smart growth'' objectives. This proposal 
for FY 2000 seeks to create $9.5 billion in bonding authority to state, 
local, and tribal governments over 5 years. Communities will have 
access to zero-interest financing for smart growth projects because 
investors who buy these fifteen year bonds will receive tax credits in 
lieu of interest. The tax credits would total approximately $700 
million over five years. Communities would pay back the principal at 
the end of the 15-year term of the bond.
    To help communities preserve green space for future generations, 
protect public health, and provide for greater economic development, 
Better America Bonds can be used for three purposes:

 Preserve and Enhance Open Space: State, Tribal and local 
        governments can create, restore, or enhance parks, preserve 
        green spaces, and protect threatened farmland and wetlands. 
        Land can be protected either by acquiring title or purchasing 
        permanent easements.
 Protect Water Quality: Rivers, lakes, coastal waters, and 
        wetlands--and drinking water sources--can be restored or 
        protected through reducing polluted runoff, the largest 
        remaining threat to the nations' waterways. Eligible projects 
        to curb runoff include purchase of sensitive lands, wetlands 
        restoration, and the creation of planted or forested buffer 
        strips along waterways.
 Clean Up Brownfields: Pressure to develop green space can be 
        eased through cleaning up and reusing brownfields. Communities 
        can acquire and clean up brownfields for use as open space, or 
        for economic redevelopment in cases where abandoned brownfields 
        are acquired by the local government through tax foreclosure.
    EPA believes Better America Bonds will further the Brownfields 
Economic Redevelopment Initiative by providing much needed flexible 
funding that communities can use for brownfields activities and add an 
important funding source for site assessments and cleanups.
             key elements of brownfields legislative reform
    The Brownfields Economic Redevelopment Initiative has achieved much 
initial success. The continuing value of the Brownfields Initiative is 
its evolution and promise for the future. To build upon these 
successful first steps and launch others, we must not lose sight of our 
overall goal to revitalize communities. 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 legislative proposals addressing brownfields.
Address Full Range of Brownfields Reforms
    Brownfield reforms made under CERCLA should be codified, and should 
reaffirm use of the Superfund Trust Fund to 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, innocent 
landowners of contaminated property and contiguous property owners, 
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.
Support Brownfields FY 2000 Budget Request
    The Administration has requested funding for the brownfields 
program in FY 2000 of $92 million to support additional assessment, 
cleanup and job training pilot awards, to fund support for targeted 
brownfields assessments, and to continue support for State Voluntary 
Cleanup infrastructure and brownfields related job training efforts. 
The United States Conference of Mayors has recently reiterated it's 
earlier statement that ``the lack of cleanup funds'' for brownfields is 
``the most frequently identified impediment.'' Recycling America's 
Land, Volume II, April 1999. EPA urges the Committee to support this 
component of the President's Budget as we work together on other 
statutory changes that not only will enhance our ability to implement 
these proposals, but also will enable us to forge stronger partnerships 
with States, local governments, communities, and private interests that 
successfully accelerate brownfields revitalization.
                              legislation
    The Clinton Administration strongly supports the passage of 
brownfields legislation and views it as an important step toward 
restoring hope, opportunities, and jobs to local communities and 
neighborhoods that are being held back by the presence of abandoned 
industrial sites. Through three rounds of administrative reforms, the 
Superfund program has made significant progress in cleaning up 
hazardous waste sites, protecting public health and the environment, as 
well as in the assessment and cleanup of brownfields sites.
    In the past, the Administration supported brownfields legislation 
within the framework for comprehensive legislative reforms to the 
Superfund program. In light of the progress being made, the ever 
increasing need to meet and assist communities in their revitalization, 
as well as the apparent bi-partisan, and broad-based public support for 
brownfields reform, the Administration now supports a targeted 
legislative approach which addresses brownfields cleanup and 
redevelopment, and specific liability provisions necessary to support 
brownfields. In addition, EPA strongly supports the legislation that 
would reinstate the expired Superfund taxes. These funds are needed for 
the ongoing Superfund cleanup effort and the brownfields program.
    EPA is encouraged by the focus that Congress has given to the 
problems engendered by brownfields and we look forward to working with 
Congress to enact this very necessary legislation.
                               h.r. 2580
    EPA is encouraged to see in H.R. 2580, the ``Land Recycling Act of 
1999'', a focus on the clean up and return of contaminated sites to 
productive uses. However, provisions in H.R. 2580 severely restrict 
EPA's ability to ensure protective cleanups at sites throughout the 
country. The Administration opposes the bill in its current form.
Enforcement Authority is Severely Restricted.
    H.R. 2580 represents the strongest limitations on the Federal 
``safety net'' to date. While other bills, such as H.R. 1300, have 
reduced EPA's (and other persons) ability to take CERCLA enforcement 
actions, H.R. 2580 extends these prohibitions to citizens' and EPA's 
imminent and substantial endangerment enforcement authority under 
Sec. Sec. 7002 and 7003 of the Solid Waste Disposal Act. While HR 2580 
leaves intact administrative judicial orders or decrees issued or 
entered into under CERCLA, SWDA, FWPCA, TSCA, and SDWA before the 
commencement of a response action under a state program, H.R. 2580 is 
ambiguous about the continued viability of those authorities after the 
commencement of a response action under a state program.
    Given the patchwork of authorities throughout the 50 states, if 
federal authorities are eliminated, it is unclear what authorities 
would be available to protect public health and the environment. For 
example, neither Arizona nor Idaho have RCRA Sec. 7003-like authorities 
to address situations that pose an imminent and substantial 
endangerment. Accordingly, the Administration strongly opposes the 
enforcement bars present in HR 2580.
    Further, the bill prescribes only minimal standards that a state 
cleanup program must meet in order to trigger the broad prohibitions 
upon EPA's and citizens' ability to take enforcement actions. In 
addition, these minimal standards require no demonstration, but instead 
can be met simply through self-certification. This represents a 
significant departure from other environmental laws, which envision a 
role for EPA review, and public comment on, a determination that a 
state program is adequate, and that a transfer of federal enforcement 
authority is appropriate.
    While the inclusion of criteria is an improvement over H.R. 1300, 
which contains no criteria state programs must meet, we believe the 
criteria in HR 2580 are inadequate. Notably, while implementation of 
the program must be in a manner that is protective of human health and 
the environment, there is no requirement that response actions be 
protective of human health and the environment, as required by H.R. 
1750. Further, under H.R. 2580, a state must only certify the adequacy 
of its financial and personnel resources at the point in time when it 
submits its certification to EPA. There is no assurance that a state 
ensure adequate resources in the future, as opposed to H.R. 1750, which 
requires states to maintain consistency with the program criteria. This 
requirement is critical, as state cleanup requirements can vary widely, 
and resources can fluctuate over time. In fact, we are aware of several 
states whose resources for hazardous waste cleanup programs have been 
significantly diminished in recent years.
    Also of great concern, H.R. 2580's criteria lack any requirement 
for public involvement in program development or the selection of 
response actions. The permitting process under environmental statutes 
triggers public participation requirements. Thus, if an operating 
facility wants to change their discharge limits under a Clean Water Act 
NPDES permit or modify their RCRA permit, the public would have an 
opportunity to participate in that decision. Given that the bill also 
cuts off citizens' rights under RCRA and CERCLA, H.R. 2580 leaves the 
citizens most likely to be affected by contamination in their community 
with no voice, and no assurances of a federal ``floor'' of protection. 
Accordingly, the Administration objects to the criteria set forth in HR 
2580 as inadequate to ensure protection of human health and the 
environment.
    The exclusion of the public is exacerbated in H.R. 2580 by its 
elimination of the requirement for any federal permit--including RCRA 
corrective action permits--or permit revision for the on-site portion 
of response actions. Although superficially similar to existing 
language in CERCLA section 121(e)(1), CERCLA's current on-site permit 
exemption does not negate the role of the public, as the CERCLA remedy 
selection process, which requires significant public involvement, acts 
as an equivalent to the role of the public in the permitting process. 
However, state programs may not provide for public participation. Out 
of 17 state voluntary cleanup programs it surveyed, GAO found that 8 
had no requirements for public participation. GAO/RCED-97-66, Apr. 6, 
1997 ``Superfund: State Voluntary Programs Provide Incentives to 
Encourage Cleanups.'' If the state programs have no public 
participation requirements, then HR 2580's language rendering federal 
permits inapplicable represent a further blow to citizen's rights. 
Taken as a whole, the bill would allow states to operate their cleanup 
programs without adequate public scrutiny, contrary to the approach 
taken in all other major federal environmental laws.
    In addition to the limitations on public involvement, we are 
concerned with other negative effects which will result from the permit 
waiver. The bill would entirely extinguish the applicability of permits 
in states not authorized to administer federal programs, such as the 
Clean Water Act NPDES or Sec. 404 permits for dredging and filling 
wetlands, or RCRA. For example, not all states are authorized for all 
components of RCRA, meaning that federal permits issued in states 
without their own permitting abilitity will be useless. States and 
territories not authorized for either the base RCRA program or 
corrective action include Iowa, Hawaii, Alaska, Puerto Rico, Virgin 
Islands,American Samoa, and the Northern Mariana Islands. States not 
authorized for corrective action include Connecticut, Massachusetts, 
Rhode Island, New Jersey, Maryland, Pennsylvania, Delaware, Virginia, 
West Virginia, District of Columbia, Florida, Mississippi, Tennessee, 
Kansas, Nebraska, and Montana. In addition, in many cases, a facility 
in an authorized state may still require a Federal permit for those 
aspects of the RCRA program for which the state has not yet been 
authorized. Thus, Under H.R. 2580, most RCRA permits, as well as any 
permit modifications, would be invalid.
    In addition, H.R. 2580 removes the requirement for federal permits 
and permit revisions, even when the federal government is responsible 
for overseeing the permit. H.R. 2580 limits EPA's ability to respond to 
emergencies that affect the environment and sets a high and unclear 
standard for EPA emergency response. For example, EPA issued a Section 
7003 order at two adjacent facilities (that did not have federal or 
state permits) to address lead and chrome contamination from Lead 
Products, a battery reprocessing facility and Dixie Electroplating, a 
plating facility. The metals from the facility contaminated residential 
yards. The lead contamination becoming airborne was of particular 
concern because the citizens' yards did not have grass and the streets 
were not paved. The state's (Texas) voluntary cleanup program stopped 
at the facilities' boundaries and would not require off-site cleanup. 
EPA's federal RCRA authority provided for the coordination of off-site 
response with the State(of Texas)'s on-site facilities.
Inadequate Reopeners Limit Federal Safety Net and Will Cause 
        Litigation.
    The Administration is opposed to the provisions in H.R. 2580 
regarding state response/voluntary cleanup programs. The bill would 
eliminate the authority of EPA and other federal agencies to respond to 
releases of hazardous substances whenever a state remedial action plan 
has been prepared, whether under a voluntary response program, or any 
other state program. It is critical that EPA retain its ability and 
capacity to respond to threats that may present an imminent and 
substantial danger to the public health or welfare or the environment.
     This federal response ability or federal safety net, has several 
important aspects. The federal safety net enables EPA, through its 
emergency response capacity, to quickly mobilize and perform a removal 
because the state does not have the resources to conduct and/or 
complete removals. The federal safety net also establishes federal 
requirements for public participation. These federal requirements offer 
communities a recourse should a community perceive that the state is 
excluding the community from meaningful involvement This bill could 
eliminate community involvement if none is provided at the state level. 
The federal safety net provides for federal permits, which are 
important protections to human health, welfare, or the environment. 
These are important aspects of the federal program that we think should 
be retained.
    Under HR 2580, where a state law or state-lead cleanup falls short, 
or a local community seeks a federal response, EPA will be unable to 
address public health or environmental concerns, except under the 
strictest of circumstances. Unlike other legislative proposals, HR 2580 
extinguishes ``any authority'' of CERCLA. Thus, HR 2580 eliminates 
EPA's ability to fund-finance a response action when necessary. This is 
a further departure from H.R. 1300, which would not extinguish EPA's 
authority under Sec. 104 of CERCLA.
    Further, as noted above, HR 2580 extinguishes EPA's (and citizens') 
imminent and substantial endangerment authority under both CERCLA and 
RCRA, a standard that has withstood more than 20 years of judicial 
interpretation in cases occurring under both CERCLA and RCRA. In 
addition, this standard is common to most other major environmental 
laws, including the Clean Air Act (Sec. 303), the Clean Water Act 
(Sec. 504), and the Safe Drinking Water Act Sec. 1431. It has been an 
important attribute in the ``federal safety net'' that has ensured 
protection of human health and the environment for all citizens.
    As a result in the departure from the current standard of 
``imminent and substantial endangerment,'' we have serious concerns 
with the enforcement bar in both H.R. 2580 and H.R. 1300. While it is 
important to ensure that federal liability does not inhibit brownfields 
cleanup and redevelopment, such an inhibition should not come at the 
expense of protecting human health and the environment. Our concerns 
are exacerbated by the breadth of sites that may be subject to the 
enforcement bar. H.R. 2580 excludes from the enforcement bar only sites 
that are listed on the NPL (as well as federal facilities, and 
facilities subject to orders or decrees under other environmental 
statutes). HR 1300, by comparison, at least also excludes sites 
proposed for listing on the NPL. When combined with the provision in 
H.R. 2580 that allows an absolute governor veto on further NPL 
listings, the bill could include even high-risk sites into the universe 
of those subject to the enforcement bars. H.R. 2580 is also unclear as 
to what type of ``response action'' is sufficient to trigger the 
enforcement bar. For example, a site at which a surface removal had 
been done would appear to be sufficient to trigger the enforcement bar, 
even if extensive underlying groundwater contamination continued to 
threaten nearby drinking water wells.
    Compounding the problems above is the new standard for allowing EPA 
to take action under H.R. 2580. On those occasions where a state 
doesn't request EPA assistance, H.R. 2580 would create a new, and 
burdensome, standard for EPA enforcement action that would require 
EPA's satisfaction of essentially a three-pronged test: 1) response 
actions must be immediately required; 2) response action may only be 
used in the case of a public health emergency; and 3) the State is not 
responding in a timely manner. This new standard will likely cause 
significant and contentious litigation. ``Public Health Emergency'' is 
not defined in current law nor in H.R. 2580. The term appears only in 
CERCLA 104(a)(4) in the context of an exception to CERCLA 
Sec. 104(a)(3), which limits EPA from responding to releases that are 
naturally occurring; that are from products which are part of a 
building; or that result from deterioration of a drinking water supply 
system. EPA has never used 104(a)(4) to justify a response action. As a 
result, there is no precedent to define the term. Additionally, it is 
not clear how the word ``immediacy'' differs from the word 
``imminence''. Finally, it is likely that additional litigation will 
ensue regarding whether a State is responding in a timely manner. The 
Administration believes it is inappropriate to risk public health by 
barring EPA intervention until conditions have become sufficiently (or 
legally) dangerous enough to lift the enforcement bar.
Targeted Liability Provisions
    The Administration generally supports the targeted liability relief 
provisions of H.R. 2580 for qualified parties that builds upon the 
current success of the Superfund program. The Administration generally 
supports the provisions in HR 2580 that address prospective purchasers, 
innocent landowners and contiguous property owners. While these 
provisions are close to H.R. 1750, there are concerns with the 
provisions in H.R. 2580 as written.
    We are concerned, for instance, that some of the preferable 
language in H.R. 1750, was excluded from H.R. 2580. For example, with 
regard to the bona fide prospective purchaser exemption, HR 1750 
provides the United States with the ability to place a lien on other 
property to recover its costs. Regarding the innocent landowner 
defense, H.R. 1750 confirms that persons seeking to assert the defense 
must, in addition to satisfying the requirements of Sec. 107(b)(3) as 
to care and precautions, must also demonstrate that they performed an 
appropriate inquiry as described in Sec. 101(35) before buying the 
property, to demonstrate that they did not know or have reason to know 
that the property was contaminated when they bought it.
    We are concerned with HR 2580's approach towards contiguous 
landowners. We prefer the approach in HR 1750, which creates an 
affirmative defense for these parties, whereas HR 2580 gives them an 
outright exemption. In addition, H.R. 2580's provisions relating to 
contiguous property owners have been severely weakened, creating the 
opportunity for parties to ``game the system.'' By removing any 
requirement for an appropriate inquiry, prospective purchasers can 
acquire contiguous property at a substantial discount with full 
knowledge of the contamination and still avoid the potential for a 
windfall lien. H.R. 2580 also removes any care requirement, due, 
appropriate, or otherwise, which allows contiguous property owners to 
turn a ``blind eye'' to contamination on their property for which they 
are getting an exemption. Finally, H.R. 2580 omits the requirement that 
a contiguous property owner not exacerbate the release. Such 
requirements are appropriate in this context for parties seeking a 
release from liability under CERCLA.
NPL Listing Is Severely Restricted
    We continue to oppose provisions that restrict EPA's ability to 
list sites on the NPL without a Governor's approval. This approval 
requirements applies even in situations where Tribal, local community, 
or interstate impacts exist, or where the State is a PRP. We currently 
are working with States in a very successful voluntary effort to seek 
their approval before listing a site on the NPL. In addition, HR 2580 
prohibits listing of sites to the NPL if a Governor assures the site is 
being addressed or will be addressed in the future. The bill has no 
provision for when in the future a promised action to address 
contamination might occur.
State Response Program Provisions
    See above discussion on federal safety net.
    EPA is developing MOAs with concerned States to ensure that its 
response authorities complement and encourage rather than duplicate or 
discourage, voluntary cleanups. This approach, we believe, strikes the 
right balance between Federal and State programs while continuing to 
provide the needed protection of public health and the environment for 
our communities.
Brownfields Assessment and Remediation Grant Programs
    H.R. 2580 provisions authorizing EPA to issue grants for assessment 
and to capitalize revolving loan funds is similar to language in H.R. 
1300. The bills provide funding for assessment grants ($200,000 per 
grantee) and for capitalization of revolving loan funds ($1M per 
grantee). Although EPA supports the grant programs for brownfields, 
there are several problems we have identified with H.R. 2580 in this 
regard. Among the concerns identified: (1) ranking criteria for 
brownfield grant eligibility are onerous and call for information that 
may not become available until site assessment is completed; (2) the 
bill requires State matching funds for remediation grants of 50% for 
receipt of State revolving loan fund grant; (3) political subdivisions 
of a state could be deemed ineligible to receive loans under 
remediation grant program as written; (4) eligible entities for 
brownfield remediation grants may include parties who have caused or 
contributed to contamination; and (5) references to ``remedial 
actions'' preclude removals at brownfields sites. States may receive 
grants to capitalize revolving loan funds for ``remedial actions'' but 
not removals at brownfields sites. In addition, we are concerned about 
the level of funding that would be provided for the Brownfields grant 
program since the bill provides for ``such sums as are necessary.''
Breadth of Current Brownfields Program.
    EPA is concerned that H.R. 2580 addresses only portions of the 
current brownfields program and is limited to the grant program for 
assessments and revolving loan funds. In particular, the bill omits 
technical support and funding for job training and workforce 
development.
    Although the Committee did not request specific comment on the 
remedy provision of H.R. 2580, the Agency has provided a brief summary 
of concerns on section 9.
Remedies Are Less Protective
    Superfund cleanups must be protective of human health and the 
environment over the long term. H.R. 2580's remedy title weakens 
current law and could result in a Superfund program that would not 
adequately protect human health and the environment.
    Under the current statute, remedies are required to ``utilize 
permanent solutions and alternative treatment technologies or resource 
recovery technologies to the maximum extent practicable.'' Under H.R. 
2580, the word ``maximum'' is stricken. This change effectively 
eliminates the importance of selecting permanent remedies and permanent 
protection for communities.
    Under H.R. 2580 the preference for treatment does not apply to 
treatment remedial alternatives ``that would increase risk to community 
or to worker's health''. Under the current law, protection of community 
and workers is addressed under: (1) the NCP remedy selection criteria 
of protection of human health and the environment, and short-term 
effectiveness; (2) the ARAR waiver of greater risk to human health and 
the environment; and (3) worker protection standards. The bill's 
imposition of a separate test for treatment remedies may weaken long-
term protection of remedies by reducing treatment, inviting additional 
litigation, and delaying cleanups.
Groundwater Is Not Protected
    Contaminated ground water is a problem at more than 85 percent of 
Superfund sites. With roughly fifty percent of the U.S. population 
relying on ground water for their drinking water, the Administration 
strongly believes that this critical resource must be protected. 
Legislation should not weaken the goal of restoring ground water to 
beneficial uses, wherever practicable. H.R. 2580 replaces this goal 
with a much lower standard. H.R. 2580 creates uncertainty and will 
cause litigation over what or how contaminated ground water should be 
restored. By including the term ``at reasonable points of compliance,'' 
the bill invites disputes over whether drinking water standards should 
be met in the groundwater or at the tap. The use of ``reasonable'' will 
inspire endless arguments, may let polluters off the hook for cleaning 
up ground water, and will force EPA to determine what groundwater a 
community will need in the future.
    In addition, remedies selected under H.R. 2580 would not keep 
contaminated ground water from spreading to uncontaminated ground 
water. Inappropriate use of land use planning principles ``under-
protect'' ground water resources for the future. In fact, H.R. 2580 
creates a bias against protecting uncontaminated ground water and 
minimizes the need for cleanup because ground water is to be protected 
only for its ``reasonably anticipated'' future use. Current practice 
and proper nomenclature for ground water should be ``current or 
potential beneficial use.''
Cleanups May Be Delayed
    Under H.R. 2580 new and confusing provisions and terminology 
regarding risk assessments will delay cleanups and generate costly new 
litigation. Risk assessments under H.R. 2580 must be based on ``best'' 
scientific and technical information, and include site-specific 
bioavailability data. This new terminology may cause time consuming and 
costly litigation as the meaning and relevance of new terms are fought 
over in the courts. The new language will not improve the quality of 
remedies; rather, parties involved at sites could needlesslyl tie up 
cleanups by litigating what is meant by the word ``best.''
                               h.r. 1750
    H.R. 1750, the ``Community Revitalization and Brownfields Cleanup 
Act of 1999,'' was introduced by Mr. Towns and is co-sponsored by 167 
Members. As EPA Administrator Carol Browner stated in her letter of May 
10, 1999, ``this brownfield redevelopment legislation is an important 
step toward restoring hope, opportunities and jobs to local communities 
and neighborhoods that are being held back by the presence of abandoned 
industrial sites.'' Accordingly, Administrator Browner expressed the 
Clinton Administration's strong support for the approach taken in HR 
1750, which would promote brownfields cleanup and redevelopment by 
providing grants and loans, and providing appropriate liability 
protection to prospective purchasers, contiguous property owners and 
innocent landowners; and preserves critical safeguards for communities 
by ensuring EPA has authority to protect human health and the 
environment.
    A June 4, 1999 letter from Bill Clinton to the Hon. Deedee 
Corradini and the Nation's Mayors echoes the sentiments expressed in 
Administrator Browner's letter. Administrator Browner's letter notes 
the broad consensus of Congressional and public support enjoyed by 
brownfields reform proposals, and requests the opportunity to continue 
to work with Representative Towns on appropriate resource levels and 
other refinements to the bill. Mr. Clinton's letter likewise remarks 
that HR 1750 offers the best prospect for broad public support, because 
it focuses on those proposals that reflect substantial consensus in 
Congress and among communities; and confirms his commitment to continue 
to work with Representatives Boehlert and Borski, as well as senators 
Chafee and Baucus, to achieve truly bipartisan brownfields legislation.
    Many of the provisions in H.R. 1750 find some reflection in those 
of H.R. 2580 and, as such, both emphasize the appropriateness of 
targeted legislative solutions for brownfields. H.R. 1750 also provides 
relief for prospective purchasers of brownfields properties, protection 
to innocent landowners, and defenses to liability for contiguous 
landowners, as well as funding brownfields assessment and cleanup grant 
programs.
    EPA has identified several provisions of H.R. 1750 that are of 
particular merit. The bill provides $500,000 for brownfields assessment 
grants and $500,000--up to $1million--for grants for the capitalization 
of revolving loan funds. Unique to the legislation, however, are 
provisions which (1) ensure grant funding support for local 
governments, consortiums, and regional councils; (2) provide 
opportunities to support projects and programs with particular 
significant environmental and economic benefits; (3) make awards to 
states as determined necessary to facilitate receipt of funds by one or 
more local governments and (4) simplify the grant application and 
review procedures conducted by the Agency.
    In the last case, H.R. 2580 so laboriously details the review and 
ranking process for brownfields grants it is doubtful that either the 
applicant or the Agency would ever succeed in actually awarding a 
grant. In many instances, the ranking criteria in these other bills are 
onerous and would call for information that may not become available 
until a site assessment is completed. These processes require 
information like economic projections, employment opportunities, and 
tax revenue forecasts that neither EPA nor the applicant could make. 
H.R. 1750, by contrast, avoids this stumbling block by simply 
recognizing that a grant application procedure is needed, requiring the 
Agency to establish one and attaching such grant conditions as may be 
appropriate.
    H.R. 1750 also limits the procedural requirements of the NCP in 
brownfields ``to the extent that those requirements are relevant and 
appropriate to the program...'' Refinements to the brownfields program, 
such as this one, reflect and express the insights and experience we 
have gained from our brownfields pilots. H.R. 1750 removes yet another 
barrier to the redevelopment of properties in distressed urban areas 
and small towns.
    H.R. 1750 provides funding support to states for the development of 
their voluntary cleanup programs and further clarifies the 
circumstances under which the EPA may have a role at a brownfields 
site, while maintaining a ``safety net'' in the event the Agency must 
act at a site presenting an imminent and substantial endangerment to 
the community or the environment. Qualified state programs are ones 
where the state is ensuring: adequate site assessment and protection of 
human health and the environment; opportunities for technical 
assistance; meaningful opportunities for public participation; 
streamlined procedures for expeditious voluntary response actions; 
adequate oversight and enforcement; and mechanisms for approval of 
response action plans. EPA is pleased to see the bill ``grandfather'' 
existing memoranda of understanding between states and the Agency. We 
look forward to working with Representative Towns on appropriate 
resource levels consistent with the President's Budget and certain 
refinements to the bill.
                               h.r. 1300
    The Administration has previously commented on HR 1300. EPA 
Administrator Carol Browner testified on the bill at a hearing before 
the House Water Resources and Environment Subcommittee, and supplied a 
May 11, 1999 letter from Jon Jennings, Acting Assistant Attorney 
General, for the hearing record. For purposes of the present hearing, 
we will reiterate some of our concerns with HR 1300's brownfield 
provisions.
    With regard to liability relief, HR 1300's treatment of contiguous 
landowners is problematic, first, because it creates an exemption 
rather than an affirmative defense, as set forth in HR 1750, and 
second, because it lacks most of the eligibility requirements contained 
in HR 1750, indeed, it contains fewer than in HR 2580.
    We remain particularly concerned with HR 1300's ``innocent 
landowner'' provision, which essentially collapses into one the 
innocent landowner defense and the bona fide prospective purchaser 
exemption that have both appeared in numerous legislative proposals. 
Although we generally support protection for both groups, we are 
gravely concerned that HR 1300's provision of relief for current owners 
that knowingly bought contaminated property is inconsistent with 
longstanding principles of common law. Those principles recognize that 
owners are often in the best position to address hazardous substances 
on their property; and that they must take steps to address hazards on 
their property even if they did not themselves create the condition. In 
addition, many of these owners acquired the property, not only with 
knowledge of contamination, but also with knowledge of a responsibility 
for performing a cleanup. Relieving these parties of this 
responsibility constitutes an enormous windfall for these parties, and 
creates significant fiscal consequences for the Trust Fund, especially 
at sites where the current owner is the only major viable responsible 
party.
                               conclusion
    The Agency's administrative reforms have fundamentally improved the 
Superfund program. Brownfields reforms made under CERCLA should be 
codified, and Congress should reaffirm use of the Superfund Trust Fund 
to address the full range of brownfield issues. We fully support 
targeted legislation that will address brownfields and liability relief 
provisions for qualified parties that builds upon the current success 
of the Superfund program.
    The federal attention directed at brownfields redevelopment over 
the past four years reflects a growing realization that yesterday's 
eyesore is today's opportunity. For EPA and the federal government, it 
is an opportunity to demonstrate that environmental protection can also 
promote economic development. For communities and cities, it is the 
opportunity to return a wasted asset to productivity, job creation and 
revenue generation. For local contractors and developers, brownfields 
redevelopment is an opportunity to expand their work, to clean up sites 
and to build new facilities. For local lenders, it is the opportunity 
to meet their community reinvestment needs, often at much less of a 
credit risk than they might otherwise anticipate. But the biggest 
opportunity is for the people who live withbrownfields sites every day. 
Eyesores are cleaned up. Frequently, potential threats to health are 
substantially reduced, if not altogether eliminated The value of 
property increases. And often brownfields redevelopment provides the 
neighborhood's residents with a new sense of hope.
    Thank you. I would be happy to answer any questions on brownfields 
you may have.

    Mr. Oxley. Thank you, Mr. Fields, once again, for your 
appearance and for your testimony.
    Let me begin with perhaps the mother of all questions in 
terms of length at least, and so bear with me.
    The Governors, States and the State cleanup agencies, the 
mayors, cleanup contractors and the GAO state that the broad 
liability and uncertainty from potential second guessing caused 
by Superfund is and has been part of the brownfields problem 
for almost 2 decades. We have had that discussion before.
    I want to provide you some quotes on the relationship of 
the Superfund statute to brownfields cleanups. Some of these 
quotes are from written testimony of witnesses on today's 
second panel, and other quotes are from witnesses in other 
hearings or statements in other forums. Without objection, I 
would like this document placed into the record, and without 
objection, so ordered.[The information referred to follows:]

    Quotes on the Barriers Superfund Poses for Brownfields Cleanups
Mayors and Municipal Cleanup Agencies
    ``Most mayors will tell you that the major impediment in securing 
private capital for the clean up and redevelopment of brownfields is 
Superfund's liability regime. We believe that . . . [i]t is time to 
free innocent parties, both public and private entities, from 
Superfund's unfair liability strictures. Parties that had no part in 
causing the contamination at individual sites should no longer be held 
liable under federal law . . . It is time to create more certainty for 
the current owners of contaminated properties--the hundred of thousands 
of sites in every place in America that are likely to be brownfields at 
some time in the future--by providing them certainty in their cleanup 
costs and liability exposure.''
--The Honorable Jim Marshall in testimony before the United States 
        Senate Environment and Public Works Committee, May 25, 1999
    ``We have been living under a federal statute and its strict 
liability regime--although well-intended and largely aimed at more 
contaminated properties posing greater threats to the public--that has 
dramatically slowed progress by all parties in coming to terms with 
lesser contaminated properties, sites we generally describe as 
brownfields . . . It has produced a legacy of inaction by property 
owners, be they innocent or responsible parties, which we now measure 
in terms of thousands of properties and millions of acres . . . 
Rhetoric and political advantage will not cleanup one brownfield, but 
bipartisan legislative action will . . . ``[F]inality'' must be 
provided to prompt current owners to move forward and cleanup 
contaminated properties . . . The price of keeping EPA over-empowered 
in this area is simply too high.''
--The Honorable Jim Marshall in testimony before the United States 
        Senate Environment and Public Works Committee, May 25, 1999
    ``It has been shown that Superfund's liability regime unfairly 
threatens innocent parties and too often drives private sector 
investors from brownfields to more pristine locations. And, we 
recognize that this Act helps fuel a development cycle that imposes 
increasing burdens on all of us.''
  --The Honorable Marc Morial, Mayor of New Orleans, The Honorable 
Michael Turner, Mayor of Dayton, The Honorable Jim Marshall, Mayor 
      of Macon, testimony before the Subcommittee on Water and the 
                                          Environment, May 12, 1999
    ``We know that Superfund's liability regime too often drives 
private sector investors from brownfields to more pristine locations. 
We know these rules punish innocent parties, fueling a development 
cycle that is unsustainable. We know that current law must be reformed 
to undo the bias toward new land resources over recycling land that is 
already urbanized or developed. Mitigating the effects of this nearly 
twenty-year Superfund policy will require actions on several fronts.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of 
the U.S. Conference of Mayors, testimony before the Subcommittee on 
                    Finance and Hazardous Materials, August 4, 1999
    ``We have learned that liability under Superfund is their dominant 
concern. Despite progress in securing ``comfort letters'' at many 
sites, lender liability reforms and growing confidence in state program 
efforts, there is real anxiety, and we would wish otherwise, among 
bankers and other lenders on these issues. The specter of Superfund 
liability severely limits their ability to increase the flow of private 
capital into these projects.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of 
the U.S. Conference of Mayors, testimony before the Subcommittee on 
                    Finance and Hazardous Materials, August 4, 1999
    ``We also strongly support liability reforms contained in H.R. 1300 
and H.R. 2580 to address the many circumstances whereby cities and 
other local governments have acquired brownfield properties in the 
past. Under these provisions, cities and other public agencies are 
rightly afforded innocent party relief in the performance of local 
government functions.''
    ``We hope that the legislation that is adopted by this Committee, 
as provided in H.R. 2580, will encourage states to use these funds to 
place more priority on efforts to bolster state programs in support of 
brownfield cleanups.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of 
the U.S. Conference of Mayors, testimony before the Subcommittee on 
                    Finance and Hazardous Materials, August 4, 1999
    ``Without this certainty on state authority, we can't hope ever to 
provide the necessary assurances sought by private investors in 
brownfield sites, let alone secure final decisions on the hundreds of 
thousands of brownfields sites we are seeking to clean up and 
redevelop. Mr. Chairman, we also want to indicate our interest in 
seeing provisions that would help accomplish more cooperation and 
integration of applicable federal laws and standards. One of the areas 
that H.R. 1300 does not address is the applicability of RCRA and LUST 
specifically at brownfield sites. Mayors have been very consistent in 
urging more attention in federal policies to a `one-stop' brownfields 
regulatory program at the state level, where states, which are vested 
with delegated authority, can provide more coordinated and integrated 
programs. Such an approach would respond to the realities of the 
contaminants and types of problems that localities encounter at these 
sites.''
    ``I would note that H.R. 2580 provides authority for RCRA waivers 
to allow states to integrate this law's permit requirements with 
cleanups of brownfields. I understand that this provision does not 
diminish or alter RCRA requirements, but is intended to give states 
some flexibility in delivering a more responsive and coordinated 
regulatory program in addressing brownfields. This or some variant of 
this provision would be very helpful to those of us at the local level 
who often find ourselves confronting increased complexity at specific 
sites as we work to return them to productive use.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of 
the U.S. Conference of Mayors, testimony before the Subcommittee on 
                    Finance and Hazardous Materials, August 4, 1999
    ``Legal authority for qualified states to play the primary role in 
liability clarification is critical to the effective redevelopment of 
local brownfield sites. A state lead will increase local flexibility 
and provide confidence to developers, lenders, prospective purchasers 
and other parties that brownfield sites can be revitalized without the 
specter of Superfund liability or the involvement of federal 
enforcement personnel. Parties developing brownfields want to know that 
the state can provide the last word on liability, and that there will 
be only one ``policeman,'' barring exceptional circumstances.''
    ``Therefore, in delegating brownfields authority for non-NPL 
caliber sites to the states, NALGEP proposes that: EPA should provide 
that it will not plan or anticipate further action at any site unless, 
at a particular site, there is: (1) an imminent and substantial threat 
to public health or environment; and (2) either the state response is 
not adequate or the state requests U.S. EPA assistance.''
     --Donald J. Stypula, Manager, Environmental Affairs, National 
Association of Local Government Environmental Officials, testimony 
before the Subcommittee on Finance and Hazardous Materials, August 
                                                            4, 1999
The Governors and State Cleanup Agencies
    ``There is no question 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. Many potential 
developers of brownfields sites have been deterred because even if a 
state is completely satisfied that the site has been properly 
addressed, and even if the site is not on the NPL, there is the 
potential for EPA to take action against the cooperating party under 
the CERCLA liability scheme . . . In considering how to restore 
brownfields sites to productive use, please remember the importance of 
state voluntary cleanup programs in contributing to the nation's 
hazardous waste cleanup goals.''
   --Tom Curtis, Director of the Natural Resources Group, National 
Governor's Association, in testimony before the Senate Committee on 
                         Environment and Public Works, May 25, 1999
    ``H.R. 2580 succinctly mandates that U.S. EPA must receive a 
Governor' concurrence prior to listing a facility on the National 
Priorities List. We support this provision as it is clear, unambiguous 
and satisfies our goal of clarifying the role of the federal Superfund 
program in the future.''
    ``Both the National Governors' Association and ASTSWMO oppose 
provisions which allow the U.S. EPA to review and approve existing, 
established State voluntary cleanup programs.''
    ``It is our belief that we can no longer afford to foster the 
illusion that State authorized cleanups may somehow not be adequate to 
satisfy federal requirements. The potential for U.S. EPA overfile and 
for third party lawsuits under CERCLA is beginning to cause many owners 
of potential Brownfields sites to simply `mothball' the properties.''
    ``H.R.2580 satisfies the goal of clarifying which governmental 
entity is and should be responsible for deciding when a cleanup is 
complete and when a party is released from liability.''
 --The National Governors Association and the Association of State 
and Territorial Waste Management Officials in testimony before the 
   Subcommittee on Finance and Hazardous Materials, August 4, 1999.
    ``Another provision that is important to the nation's Governors 
concerns the requirement for a Governor to request the listing of a 
site before a state's site may be added to the NPL . . . Because states 
are currently overseeing most cleanups, listing a site on the NPL when 
the state is prepared to apply its own programs and authorities is not 
only wasteful of federal resources, it is very often counterproductive, 
resulting in increased delays and greater costs. The Governors fear a 
case where there will be `two masters' of the cleanup process . . . To 
avoid this we advocate that Governors should be given the statutory 
right to concur with the listing of any new NPL sites in their 
states.''
   --Tom Curtis, Director of the Natural Resources Group, National 
Governor's Association, in testimony before the Senate Committee on 
                         Environment and Public Works, May 25, 1999
The Cleanup Contractors
    ``I am here to tell you that, in actuality, the true Brownfields 
market has not kept pace with expectations. Why? We have been asking 
our clients just that. Our clients' responses are fairly unanimous. 
They fear that EPA will ``second guess'' Brownfield cleanups, and 
require costly site rework at a later date to reach a different site 
cleanup standard so they ``hold onto'' lightly contaminated parcels 
instead of turning them over to beneficial reuse. Moreover, there 
remains potential down-stream liability associated with that reuse 
which further retards the process. These concerns result in owners of 
such properties not undertaking redevelopment efforts at viable 
Brownfields sites. While EPA has indicated a willingness to enter into, 
on a case-by-case basis, prospective purchaser agreements at 
Brownfields sites, the process to enter into those agreements is quite 
time consuming and there is no certainty in the end that EPA will agree 
to a prospective purchaser agreement.
    ``H.R. 2580's provisions in Section 3 provide the finality in 
Brownfields decisions that are truly needed in this market, and the 
actual cleanups, are to accelerate . . . This provision is very 
important to spurring increased voluntary cleanup actions at 
Brownfields sites across the country and reducing possible risks to 
nearby populations that are currently not addressed, expressly because 
of the fear of federal liability.''
    ``The permit waiver for on-site response actions that is contained 
in H.R. 2580 would remove the barriers to actual on-site cleanup and 
significantly increase the pace of Brownfields cleanups.''
 --The Environmental Business Action Coalition in testimony before 
    the Subcommittee on Finance and Hazardous Materials, August 4, 
                                                              1999.
Realtors and Property Owners
    ``One common incentive provided by these programs is liability 
relief. Typically, the state will provide some form of liability relief 
once it has approved a cleanup. In Ohio, relief comes in the form of a 
``No Further Action'' letter from the state EPA. Unfortunately, there 
is no guarantee that the federal EPA will not assert authority at a 
future date and require additional cleanup. Without the certainty of 
knowing that they are protected from federal as well as state 
liability, property owners and developers are very reluctant to 
undertake development of a site which is or might be contaminated. Let 
me illustrate with an example. I recently had a contract as listing 
agent to sell a large warehouse property. The property was adjacent to 
a government-owned landfill. There were concerns about contamination on 
the property due to migration of heavy metals from the landfill. If we 
only had to comply with Ohio law, the government entities that owned 
the landfill would have removed the contamination, and the property 
would have been sold in a reasonable time. However, because of 
uncertainty over federal liability, the lender and the purchaser were 
reluctant to go forward. As a result, it took five years to close the 
deal, and only after we found a new buyer and a new lender willing to 
face the risk of future liability.''
                   --National Association of Realtors, May 12, 1999
    ``The Superfund liability scheme has clearly exacerbated the 
difficulty of bringing brownfields back to productive use. Moreover, 
that liability scheme itself is responsible for the creation of many 
brownfields. This system makes the owners of contaminated properties 
liable for millions of dollars in cleanup costs even if they had 
nothing to do with contaminating the site and they purchased the 
property decades after the contamination occurred. It exposes 
landowners not only to Superfund actions by EPA, but also to lawsuits 
decades in the future by as-yet unanticipated parties who incur costs 
to clean up the property. Concerned about this ``trailing'' liability, 
owners of the properties that may be contaminated hold these properties 
back from the market. This practice has been referred to as 
``mothballing,'' bringing to mind the useless hulks of rusting ships 
set aside by the U.S. Navy after World War II. When properties which 
carry the stigma of contamination become available for sale, most 
developers avoid them out of concern for exposure to endless 
uncertainty and undue financial liability.''
--Barry J. Trilling, National Association of Industrial and Office 
  Properties, testimony before the Subcommittee on Water Resources 
                                      and Environment, May 12, 1999
    ``The example of states like Pennsylvania, Michigan, Indiana, and 
others with voluntary cleanup programs support this view. In 
Pennsylvania, for example, NAIOP actively participated in the 
legislative process that resulted in Act 2, the Land Recycling and 
Environmental Remediation Standards Act. Under that statute, parties 
may choose to clean up contaminated properties to one or more of three 
different levels, after which they receive a release from liability 
under state environmental laws. The remediation standards of Act 2 
apply both to voluntary cleanups and mandatory remedial actions under 
the state's version of Superfund. The Pennsylvania statute has been 
adopted as model legislation by the American Legislative Exchange 
Council, an organization represented by legislators from all 50 states. 
Under Pennsylvania's program, in effect since July, 1995, 267 sites 
have already been cleaned up and nearly 500 sites are in the process of 
remediation. State voluntary remediation and revitalization efforts, 
such as Pennsylvania's, are significant steps forward, but these state 
programs do not protect our members from liabilities arising under the 
federal Superfund statute.
--Barry J. Trilling, National Association of Industrial and Office 
  Properties, testimony before the Subcommittee on Water Resources 
                                      and Environment, May 12, 1999
The General Accounting Office and Others
    ``Lenders and developers are wary of investing in such contaminated 
property because, under the environmental laws, they could be held 
liable for cleaning up the contamination. They have often cited the 
liability provisions in the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA), commonly known as Superfund, 
as one of the major disincentives to redeveloping brownfields.''
 --United States General Accounting Office Report to Congressional 
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June 
                                                      1996, Page 1.
    ``Superfund's liability provisions make brownfields more difficult 
to redevelop, in part, because of the unwillingness of lenders, 
developers, and property owners to invest in a redevelopment project 
that could leave them liable for cleanup costs. While brownfields 
usually are not contaminated seriously enough to become Superfund 
sites, these parties still fear that they could be sued for cleanup 
costs if they become involved with a contaminated site. For example, as 
a result of the liability problem and the general riskiness of 
investing in redeveloping brownfields, banks sometimes refuse to lend 
funds for this purpose.''
 --United States General Accounting Office Report to Congressional 
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June 
                                                      1996, Page 2.
    ``Although most brownfields are not highly contaminated, cities, 
lenders, and developers cite the possibility that the liability 
provisions in CERCLA could be applied to these properties as a major 
barrier to redeveloping them.''
 --United States General Accounting Office Report to Congressional 
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June 
                                                      1996, Page 3.
    ``The liability for the costly cleanup of environmental 
contamination is a barrier to brownfield redevelopment because it 
discourages lenders, developers, and property owners from participating 
in these projects.''
 --United States General Accounting Office Report to Congressional 
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June 
                                                      1996, Page 7.
    ``Perhaps the greatest barrier to industrial site reuse, however, 
is the 1980 Comprehensive Environmental, Response, Compensation, and 
Liability Act--commonly known as Superfund.''
  --``Restoring Contaminated Industrial Sites'' by Charles Bartsch 
 and Richard Munson, Issues in Science and Technology, Spring 1994 
                                                             Issue.
    ``Superfund laws actually reduce the reuse, supply of, and demand 
for brownfield properties.''
     --Unlocking the Brownfields: Overcoming Superfund Barriers to 
Redevelopment, by Ross Macfarlane, Jennifer Belk and J. Alan Clark, 
  a Report Done By the Law Firm of Preston Gates & Ellis, Seattle, 
                                                        Washington.

    Mr. Oxley. This document sets out a clear and unambiguous 
point that Superfund creates problems for brownfields and 
voluntary cleanup programs. Let me read just a few so that the 
subcommittee can get an understanding of where I am coming 
from. This is from the cleanup contractors.
    Quote, ``The true brownfields market has not kept pace with 
expectations. Why? We have been asking our clients just that. 
These are the people who are trying to develop these 
brownfields. Our clients' responses are fairly unanimous. They 
fear that EPA will second guess brownfields cleanups and 
require costly site rework at a later date to reach a different 
site cleanup standard so they hold on to lightly contaminated 
parcels instead of turning them over to beneficial reuse. 
Moreover, there remains the potential downstream liability 
associated with that reuse which further retards the process. 
These concerns result in owners of such properties not 
undertaking redevelopment efforts at viable brownfields sites. 
While EPA has indicated a willingness to enter into on a case-
by-case basis prospective purchaser agreements at brownfields 
sites, the process to enter into these agreements is quite 
time-consuming, and there is no certainty in the end that EPA 
will agree to a prospective purchaser agreement.
    Continuing to quote, ``H.R. 2580's provisions in section 3 
provide the finality in brownfields decisions are truly needed 
if this market and the actual cleanups are to accelerate. This 
provision is very important to spurring increased voluntary 
cleanup actions at brownfields sites across the country and 
reducing possible risk to nearby populations that are currently 
not addressed expressly because of the fear of Federal 
liability.''
    Now, this is what the State cleanup agencies say.
    Quote, ``It is our belief that we can no longer afford to 
foster the illusion that State-authorized cleanups may somehow 
not be adequate to satisfy Federal requirements. The potential 
for U.S. EPA over-file and for third party lawsuits under 
CERCLA is beginning to cause many owners of potential 
brownfields sites to simply mothball the properties.''
    The State cleanup agencies aalso state: ``H.R. 2580 
satisfies the goal of clarifying which governmental entity 
should be responsible for deciding when a cleanup is complete 
when a party is released from liability.''
    Now, do you disagree with the Governors and the State 
cleanup agencies, the mayors, the cleanup contractors and the 
GAO that the liability provisions and uncertainty posed by 
Superfund is inhibiting remediation activities?
    Mr. Fields. I don't agree with the comments that have been 
made. I would like to clarify why I don't.
    We believe that finality and assurance can be provided if 
you enact the type of legislation that we support. We believe 
that finality can be provided for prospective purchasers, for 
innocent landowners, and contiguous property owners if 
legislation were enacted like H.R. 1750. We endorse voluntary 
cleanup program memoranda of agreement with minimal criteria 
for State programs. We have already signed 12 memorandums of 
agreement, and we are negotiating with others.
    We support liability relief along the lines of Federal 
legislation that we endorse and memoranda of agreement for 
signing off and agreeing to an acceptable State program that is 
managing sites no longer of Federal interest. We believe those 
are the kind of elements that would provide the kind of the 
cleanup community, State officials and those who are being 
regulated.
    We believe there needs to be retention of what we call the 
Federal safety net, the ability to come in, where appropriate, 
when imminent and substantial endangerment situations do occur.
    This is my last point, and Attorney General Schiffer may 
want to add something. The last point I would like to make is 
this. Brownfields cleanup and redevelopment are occurring now, 
even without the legislation that we support. We think the 
legislation we support would make it go even faster. Right now 
in communities across the country more than 845 properties have 
been assessed. Many of them are being cleaned up. Much 
redevelopment is occurring: 3,000 jobs, $1.4 billion in private 
sector investment for cleanup. So I don't think brownfields 
cleanup and development are not occurring. It is occurring in 
communities across the country, and the type of legislative 
proposals we are supporting we believe would make that go 
faster.
    Mr. Oxley. So you don't agree then with the folks who are 
out in the field trying to make cleanup occur. In fact, there 
are a lot of these parcels being set aside and warehoused, 
because of the fear that EPA will come in and second guess the 
decisions by the local people as well as the State?
    Mr. Fields. I would just add that my information is also 
gathered by people in the field, and I have been to many of 
these cities and communities. Over the last 4 years we have 
implemented changes to policy, to guidance on prospective 
purchaser agreements and contiguous properties, and we have 
tried to make sure we clarify liability so these deals can 
occur.
    We support the types of provisions in both Mr. Towns' bill 
and Mr. Greenwood's bill to limit liability for those parties. 
We want to limit liability in the statute so we don't have to 
worry about working through all the 110 prospective purchaser 
agreements, through policy and guidance, as we have under the 
current statute for the last many years. We think that Federal 
legislation would go a long way toward alleviating that fear 
people have about entering into deals for prospective purchaser 
agreements or comfort letters or other types of comfort that we 
currently are providing to people who want to get enter into 
real estate transactions.
    Mr. Oxley. Well, according to the contractors, they don't 
have a whole lot of comfort, nor do their client.
    Let me ask you this. Is there some fear at the EPA that 
somehow the States will collude with the contractors and the 
developers in developing a site that is not clean enough for 
your standards? Is that basically it?
    Mr. Fields. No. It is very clear that we work real closely 
with the States. Many of the States have indicated to us they 
want a strong Federal environmental program. They want that as 
a backstop when they need to become involved. We have entered 
into partnerships with 12 States. Seven more are being 
negotiated. We believe that, with minimum criteria for what a 
State response program should be, we are willing to sign off 
and reach an agreement with the State with respect to the sites 
in that State.
    Mr. Oxley. Right, under the current law. I understand that.
    I think we are going to have testimony from the second 
panel, from at least one of our witnesses from Michigan who 
will indicate that, given the choice of an agreement with EPA 
or supporting legislation from Mr. Greenwood, they would 
support the ability of the State of Michigan to make those 
decisions. They feel that they are qualified, and they have a 
distinct interest in not only protecting the public health and 
the environment but at the same time fostering job creation in 
Detroit, as the gentleman, Mr. Dingell, mentioned. Is there 
some disconnect here between the States and the contractors and 
the EPA?
    Mr. Fields. I think, Mr. Chairman, the issue is that not 
all States are created equal. I know the witness----
    Mr. Oxley. You trust some States and don't trust others?
    Mr. Fields. No. We have entered into agreement with 12 
States. Michigan--and the witness that will be testifying is 
from Michigan--is one of those, and we have a very good 
partnership. We have agreed to defer on certain sites to that 
State because we have a memorandum of agreement with an 
understanding, however, that if there is an imminent and 
substantial endangerment situation in the State of Michigan, 
the Federal Government would have the ability to come in and 
take action if appropriate to protect citizens.
    Mr. Oxley. Isn't the State qualified to determine a 
substantial endangerment and deal with the issue?
    Mr. Fields. Not all States are going to be capable.
    Mr. Oxley. Which ones are and which ones aren't? How about 
Ohio?
    Mr. Fields. I don't want to name States.
    Mr. Oxley. How about Ohio? Are we capable of doing that?
    Mr. Fields. We are talking to the State of Ohio about 
whether we can get a similar agreement. I know you have met 
with the EPA Regional Administrator alliance recently, and we 
want to work with the State of Ohio to see if we can come 
together on an agreement. The State of Ohio is the only one 
among the region's five States that we don't currently have a 
memorandum of agreement with.
    Mr. Oxley. Who has a bigger interest? What entity has a 
bigger interest in making certain that these sites are cleaned 
up properly, the State or Washington, DC, Federal Government?
    Mr. Fields. Well, as overall environmental stewards, we 
believe this is a shared responsibility. We have a mandate to 
protect human health and the environment. We want to work with 
States, with local governments, and with the regulated 
community to make sure that mandate is carried out. We work 
very closely with States and agencies to implement all of our 
environmental statutes, whether it is air, water, toxic waste, 
or RCRA. They are very important partners in environmental 
waste management as well as environmental cleanup. But, in some 
cases, States don't have the requisite staffing, enforcement 
authorities, or public participation requirements in place to 
assure that the people in that particular State are going to be 
protected.
    Mr. Oxley. Do you believe those situations demand that the 
State provide that kind of ability? If I were living in a State 
and I were concerned about human health and the environment, 
wouldn't I, through the electoral process, make certain that 
the State address those issues?
    Mr. Fields. That is exactly what is happening in the State 
of Ohio. As you know, there are citizens in the State of Ohio 
who have urged us to make sure that, if we negotiate a 
memorandum of agreement with the State of Ohio, there be an 
effective process for public involvement.
    One of the major issues that has been raised in the 
discussions with the State of Ohio and Region 5 on negotiating 
a memorandum of agreement is that there needs to be a better 
process for public participation around voluntary cleanup in 
brownfields sites in Ohio. We are trying to work with the State 
of Ohio to see if we can craft an agreement that will be 
satisfactory to the citizens in that State. You are right. It 
is very important the citizens who live in a particular State 
are comfortable that their environment and their health is 
going to be protected.
    Mr. Oxley. Right. And who do they hold accountable? You or 
the State officials, the elected State officials? Who is 
accountable?
    Mr. Fields. I don't think we can say it is one or the 
other. I think we feel some accountability.
    Mr. Oxley. How so?
    Mr. Fields. If a major public health threat occurs in Ohio, 
we are often called upon by the State, by the way, to take 
Federal response action. That is something we do all the time. 
We have taken a number of Federal emergency response actions in 
the State of Ohio at the State's request.
    Mr. Oxley. Well, Mr. Greenwood's bill does cover major 
public health threats, so that is not really an issue. The 
issue is the day-to-day operations.
    Mr. Fields. But his bill does not provide for the 
flexibility to prevent a major emergency from occurring. We 
believe that the Federal ability, the Federal standard, ought 
to be imminent and substantial endangerment in terms of the 
Federal Government's ability to come back in.
    Mr. Oxley. So we have a philosophical difference. Some of 
us think that the States are accountable and have the ultimate 
responsibility to protect the citizens of their particular 
State, and you think that it ought to be the Federal EPA.
    Mr. Fields. I think it is a shared responsibility but I 
believe that to assure even-handed and consistent protection 
for all citizens across the country there needs to be an 
ability for the Federal Government to come back in if there is 
an imminent and substantial endangerment situation that is not 
being addressed.
    Mr. Oxley. Which Mr. Greenwood's bill covers, by the way.
    My time has expired. I am sorry.
    Let me turn to my friend from New York, the gentleman from 
Brooklyn.
    Mr. Towns. Thank you very much, Mr. Chairman.
    Let me just say that I think the argument has really been 
made here very strongly, and you have assisted us, that H.R. 
1750 should be the bill that we move forward with, and I think 
that by now Mr. Greenwood probably also agrees with the fact 
that because mine will allow them to come back in, and I think 
that is very, very important. So I want to just make that point 
before I ask this question.
    Mr. Fields, if the Federal EPA is not allowed to act at a 
site after a State has performed some action there, no matter 
how complete the State's actions, then the citizens around the 
site may find themselves without a resource they now rely upon 
to address their concerns. This could be a step backwards for 
the communities disproportionately affected by an usually high 
number of contaminated sites. In other words, it could make 
environmental justice concerns even worse, to be frank. Where a 
State may have allowed the disproportionate siting of a number 
of facilities that polluted the community in the first place, 
then that same State may not be as responsive to the citizens' 
request for more cleanup. Does your agency hear directly from 
citizens about the fears they may have about polluted 
properties?
    Mr. Fields. Yes, Congressman. We do hear from citizens who 
live in States across the country about the need for the 
Federal Government to make sure that, before they delegate, 
before they authorize, before they enter into an agreement to 
transfer responsibility to State programs that environmental 
justice, community involvement, public participation, and 
adequacy of cleanup issues be addressed. So that is a concern 
and one of the reasons we believe that there needs to be an 
ability for the Federal Government to be able to come back in 
is to assure that the citizens in the situation that you point 
to are going to be protected if the State does not do so.
    Mr. Towns. Thank you very much.
    Ms. Schiffer, it appears that the innocent landowner 
provision of H.R. 2580, section 5, of course in H.R. 1750 which 
will be section 201, are very similar in providing certainty 
and clarifying the steps necessary to qualify for liability 
protection as an innocent landowner. Would you agree?
    Ms. Schiffer. I do agree that the innocent landowner 
provisions of your bill, Congressman, and Congressman 
Greenwood's bill are quite similar, yes.
    Mr. Towns. However, H.R. 1300 contains a very different 
innocent landowner provision which the National Association of 
Attorneys General have commented on, and let me quote. It says 
it would obliterate the current owner/operator category from 
CERCLA Superfund liability. The State Attorney General also 
stated that this would be contrary to one of the important 
tenets of the CERCLA liability scheme. What is your opinion on 
the innocent landowner provision of H.R. 1300?
    Ms. Schiffer. The innocent landowner provision of H.R. 
1300, which is really an innocent owner provision, is a very 
drastic change. And basically what it would have the effect of 
doing is retroactively repealing owner liability under the 
Superfund law, rather than focusing on what we are trying to 
achieve with brownfields, which is to say that if somebody 
comes in, wants to be a new purchaser of a property, takes 
reasonable steps and then goes ahead and develops the property, 
that that is a person who we think shouldn't be liable, which 
is what your proposed legislation does and Congressman 
Greenwood's proposed legislation does on notifying a 
prospective purchaser.
    And H.R. 1300 basically says that if people currently own 
property or in the past owned property and it was contaminated 
and they were owners of it and they knew perfectly well they 
were going to have to clean up, now we are going to create an 
exception for liability. And that is not fashioned in any way 
to help address any concerns that there might be about 
brownfields, and it really does completely upset the apple cart 
on the kinds of payment principles, polluter-based principles 
that have operated effectively under Superfund.
    Mr. Towns. Right. Thank you very much.
    Let me ask one other question, Mr. Chairman. I think it was 
on May 24, 1999, the National Association of Attorneys General 
commented on H.R. 1300 as follows. They said, H.R. 1300 allows 
a potentially responsible party to deflect enforcement actions, 
including listing on the NPL, so long as it is merely 
conducting a response action or engaged in a response action 
that is under way pursuant to the identified undefined concept 
of a State response program. Such provisions allow PRP many 
easy routes to avoid enforcement of listings.
    Do you agree with that?
    Mr. Fields. Well, we are very concerned about that 
provision, and we do believe it could interfere with the 
ability of EPA to list sites. We are concerned particularly 
about the requirements for governor commerce on listing.
    Mr. Towns. Thank you very much.
    Mr. Chairman, I yield back.
    Mr. Oxley. The gentleman yields back.
    The Chair now recognizes the sponsor of one of the pieces 
of legislation before us, Mr. Greenwood.
    Mr. Greenwood. Thank you, Mr. Chairman.
    And let me say to my friend Mr. Towns that I am leaning a 
little bit your way on some of this testimony right now, but I 
suspect when the next panel gets up you will start leaning my 
way, and my bill is going to start looking good.
    Mr. Fields, in response to Chairman Oxley's question where 
he basically laid out the concerns by a variety of groups about 
the fact of the liability and the uncertainty posed by 
Superfund does inhibit remediation, your response was twofold. 
You said essentially that the Towns' bill would fix that, and 
then you also pointed to your ability to do prospective 
purchaser agreements, and I think EPA has done 85 of those and 
comfort status letters, which I think you have done 250 or 
something like that.
    Two concerns about that in terms of the adequacy of the 
comfort status letters and the prospective purchase agreements. 
One of them is that they don't prevent third parties from 
intervening under Federal law, isn't that right? I mean, that 
gets EPA off my back, but it doesn't give me certainty that 
other entities won't use the statute to come and expose me to 
liability; is that not correct?
    Ms. Schiffer. In general, the Superfund statute is one that 
is very focused on EPA being the entity that tries to get 
people to undertake the cleanups, and so we are not aware of a 
lot of instances where when there has been no EPA cleanup and 
the site isn't contaminated at the level where there would be 
EPA involvement that there nevertheless are third parties who 
are trying to get other people to cause problems for other 
people.
    Mr. Fields. And when these 110 prospective purchaser 
agreements and 250 comfort letters have been signed, we are not 
aware of situations where people have been affected by third 
party litigation. Most of the time they have been very 
effective. They have resulted in major redevelopment at these 
sites. And because of the due diligence requirements and the 
requirements that they contribute and be part of the cleanup, 
we don't think litigation is a big issue.
    The problem is trying to make sure that prospective 
purchaser agreements are being signed and processed in a timely 
way. It has taken us, historically, 9 months on the average to 
effectuate one. We are doing it faster now because of efforts 
by Lois Schiffer and the EPA staff, but we want to make sure it 
does go faster. We don't think litigation has been a major 
concern, once an agreement is signed.
    Mr. Greenwood. I think one of the intangibles about this 
whole issue is what we cannot measure, is the number of 
property owners who don't go that route because they are 
concerned about litigation, and it is somewhat of an 
imponderable.
    The other concern I have is simply that if we have 500,000 
of these sites and you have 250, 300 agreements out there, that 
that order of magnitude, at the pace we are going, that would 
take thousands of years to get such an agreement on each one of 
these, which is why in our legislation we try to shift some of 
the responsibilities to the States because we think it is a 
volume question, that the EPA cannot possibly get through 
500,000 sites using that fairly slow and tedious, one-at-a-time 
Federal nexus in each instance.
    Mr. Fields. We should just clarify that the prospective 
purchaser agreements are not for brownfields sites. These 
agreements are mostly sites that are on the Superfund toxic 
waste list. You are not going to go the prospective purchaser 
agreements route for the typical brownfields site.
    Mr. Greenwood. You just use comfort status letters in that?
    Mr. Fields. Okay.
    Mr. Greenwood. You are employing the comfort status 
letters?
    Mr. Fields. We use comfort letters, status letters and 
memoranda of agreement between the State and EPA to provide the 
kind of comfort that the developers and others need for those 
types of sites. They don't need a PPA for those brownfields 
sites.
    Mr. Greenwood. How many EPA employees are involved in 
reviewing State cleanup decisions, and how many hours does it 
take, and how does EPA select which sites it will perform such 
a review for?
    Mr. Fields. Well, it is difficult to give you a quick 
answer. I will respond more fully for the record.
    Just put in place, for example, that many of these cleanups 
are, for example, RCRA, corrective action, 32 States, one 
territory has the authority. We have 18 States that we have the 
authority to provide oversight for a RCRA cleanup. Forty-four 
States have voluntary cleanup programs that are being overseen 
primarily by State officials. There are several hundred, but we 
will get back to you with more precise numbers. But we have got 
to keep in mind there is a shared responsibility between EPA 
and the States in terms of the oversight, whether you are 
talking Superfund, RCRA, or voluntary cleanup programs.
    Mr. Greenwood. I see my time has expired.
    It points to the fact that we have got to somehow get to a 
bipartisan solution on this because EPA cannot possibly deal 
with these hundreds of thousands of sites in our lifetime using 
those methodologies. I yield back.
    Mr. Oxley. The gentleman's time has expired.
    The gentleman from Michigan, Mr. Stupak.
    Mr. Stupak. Thank you, Mr. Chairman.
    Ms. Schiffer, it appears that both H.R. 1300 and H.R. 2580 
restrict the Federal Government's ability to respond to the 
needs of citizens when a site, even after some type of 
voluntary cleanup, when a site may present an imminent and 
substantial endangerment to human health or the environment.
    In my opening, I cite the State of Michigan which uses the 
same imminent and substantial endangerment standard as 
contained in H.R. 1750, and Michigan has signed an agreement 
with the EPA in June 1996 that clearly reserves Federal 
authority over brownfields sites where an imminent and 
substantial endangerment to human health is present or an 
emergency situation. My question is this, is the imminent and 
substantial endangerment an appropriate standard to preserve 
for Federal action? And, if so, explain why is it important to 
use this standard rather than what I believe to be the more 
narrowly focused standard of immediately required to prevent or 
mitigate a public health emergency as set forth in section 3 of 
H.R. 2580 and a similar provision found in section 104 of H.R. 
1300. Can you explain why it is important to keep that 
standard?
    Ms. Schiffer. Yes, Congressman Stupak.
    What the ``imminent and substantial endangerment'' 
authorities to protect public health and the environment do is 
mean that the Federal Government can come in and stop an 
accident before it happens, that it doesn't have to wait until 
the barrels that may appear to be leaking actually spill, until 
an explosion actually occurs, until a fire actually happens 
before it can go in and use authorities to stop the problem and 
get the polluter to pay to fix the problem. It is a tried and 
true standard. It has been in the laws for 20 years. It has 
been tested in court. People know what it means.
    What it is important for and why it is so important to have 
that authority is it means that we can go and see that there is 
a problem and stop the problem before the accident happens.
    The emergency standard--by saying that the Federal 
Government can't come in and reopen, that federal authorities 
are not triggered until there is an emergency--that is in 
Congressman Greenwood's legislation and Congressman Boehlert's 
legislation, may well mean that, basically, the government 
would have to wait until the accident happened before it could 
go in, and that just seems to be very bad public policy if what 
you are trying to do is protect public health and the 
environment. It is unfortunately the difference between saying 
somebody has to commit the violation before you can go after 
them and that we have laws that prevent the attempt to commit 
it so that you can go in and stop it before the real problem 
occurs.
    Mr. Stupak. Well, if we are looking to reopen this 
standard, it is my understanding that the State of Texas has 
agreed to a Federal safety net reopener with the EPA that is 
actually broader than Michigan's. It has three circumstances 
where the State acknowledged that it is proper for the EPA to 
take action, and they were, No. 1, where it is determined that 
the site poses a threat to human health or the environment; No. 
2, or the site poses an imminent and substantial endangerment; 
or No. 3, in an emergency situation.
    Now, this seems a little broader perhaps, this 
compassionate conservative Texas reopener. Would that be a 
basis to look at it, as opposed to the standards we see 
proposed in other pieces?
    Ms. Schiffer. We certainly think that a standard that 
includes imminent and substantial endangerment for the Federal 
Government to go back in, and that includes the other two 
circumstances you outlined, is vastly preferable to saying that 
there has to be an actual emergency before the bar drops and 
lets the Federal Government come back in and do the cleanup.
    I might add also, Congressman, a response to some of the 
earlier questions about ``do we not trust the States.'' We 
certainly trust the States; and, as Mr. Field said, it is a 
Federal-State partnership that does it in terms of getting 
sites cleaned up. But what is really the keystone is to be sure 
what we are doing collectively, Federal Government and State 
government together, is protecting public health and the 
environment; and what we really don't want is a system where, 
because we focused on who has the responsibility between the 
governments so much, what happens is the public health gets 
adversely affected and we don't have tools to go in and clean 
it up.
    Mr. Stupak. You indicated, if I may, Mr. Chairman, the 
imminent substantial endangerment standard has been litigated, 
it has been around for a number of years. If we used a 
different standard set forth in H.R. 2580 or H.R. 1300, would 
that probably open the door to litigation to determine what 
this standard is, how it is going to be applied? It seems to me 
if we have 25 years of case law and application that has been 
successfully used, why would we go to another standard that 
would be challenged probably in court and where we really would 
delay, would we not, cleanups?
    Ms. Schiffer. I, of course, love lawyers, but I do have to 
say that when you have a standard that is pretty well settled 
in the law, it does reduce litigation because people know what 
it means, and they can go ahead and apply it and lawyers can 
sort of settle their cases. But, if you put in place a new 
standard, you are opening the doors to lawyers arguing about 
what it means and leaving it to the courts to develop law for a 
while. So, it certainly will be one more step to putting the 
lawyers back in Superfund, which we have made major efforts to 
take out.
    Mr. Oxley. The gentleman's time has expired.
    Mr. Greenwood. I would ask unanimous consent that the 
gentleman be granted an additional minute and ask if he would 
yield to me on this very narrow point.
    Mr. Oxley. Without objection.
    Mr. Stupak. If I could, the standards of the State 
statutory authority to order cleanups just make it part of the 
record, the 12 States that I had mentioned, and we have them 
mentioned right here, if I may.
    Mr. Oxley. Without objection.
    Mr. Stupak. And then I would yield to Mr. Greenwood.
    Mr. Greenwood. Thank you for yielding.
    Let me just clarify something if I may.
    First off, the standard is not that there is an imminent 
and substantial endangerment. It is that there may--that the 
threat of release may present, and the problem that some on 
this side of the aisle have is that we think that that is big 
enough to drive a very wide truck through. And given the fact 
that Mr. Towns' bill reiterates the existing standard, we don't 
see it as making a difference at all in being any assistance to 
the States in getting finality. Would you respond to that?
    Ms. Schiffer. I think ``it may present an imminent and 
substantial endangerment'' is the phrase both in the Superfund 
law and in the Resource Conservation and Recovery Act, which is 
the hazardous waste regulatory statute; and it is a standard in 
other statutes as well. So it is a tried and true standard. And 
while one might set forth a parade of horribles that might 
suggest it is a very wide-open standard, as you say, the truth 
of it is that it has been applied in a way that gives the 
government--and I will say this is also State governments who 
have similar provisions and have the same provisions in their 
laws--the ability to go in and stop the accident from 
happening, to see the drums that are likely to leak and to get 
them cleaned up before they actually leak.
    The problem with the standard of an actual emergency, which 
is what is proposed in your legislation and Congressman 
Boehlert's legislation, is that we may well have to wait until 
the drums leak, until the fire happens, until the explosion 
occurs, before we can use authorities to go in and clean it up, 
and that isn't very protective of public health and the 
environment. That is preventing the problem from happening 
rather than stopping it before it actually happens.
    Mr. Greenwood. Well, I don't want to abuse my time here, 
but there certainly is a difference between imminent and may 
present imminent, and I think that is a difference that needs 
some further discussion.
    Mr. Oxley. The gentleman's time has expired.
    The Chair now recognizes the gentleman from Illinois, Mr. 
Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman. I am going to follow 
the same line of comments, and if the gentleman from 
Pennsylvania wants to jump in, please do.
    I guess the question that will come up in the next panel is 
that the phrase ``may'' and ``endangerment'' is actually used 
to basically run an ordinary cleanup program and that the 
States and the cleanup contractors and the State legislators 
and the local government entities are saying that that is the 
big truck that my colleague Mr. Greenwood is saying that needs 
to be tightened up. So if it is a regular cleanup program, that 
the ``may'' and the ``endangerment'' aspects of this do not 
close down the possibility of cleanup, and I will throw that 
out for comment.
    Mr. Fields. I think we have to look at the track record 
here. As Lois has said, this has been used in many 
environmental statutes for a number years. In implementing this 
provision, all of the 12 memoranda of agreement that we have 
signed with State officials and State agencies include language 
that says that we may come back in if there is a situation 
involving imminent and substantial endangerment. We have never 
done that in the more than 6 years we have had memoranda of 
agreement in place. We have never intervened in a State program 
inappropriately where we have had a memorandum of agreement and 
that State is overseeing cleanup.
    So the practice is such that people should not fear Federal 
interaction. As we sign a memorandum of agreement, we make it 
very clear which sites in the State are of Federal interest and 
which sites are not of Federal interest, and we operate in a 
partnership with the State. But we believe that the imminent 
and substantial endangerment language is critical to maintain 
environmental protection for all American citizens, 
particularly where you don't have an effective State program in 
place to provide and assure that protection. States need the 
backstop of the Federal Government with the ability to come in 
when these situations do occur, when we see a threat about to 
occur.
    Mr. Shimkus. And you refused to address a question earlier. 
I would like to know, one, which States want a strong Federal 
backup, as you have used numerous times, and you have mentioned 
that there are 12 States that have signed memorandums of 
agreement. Are those the 12 States? And, if not, are those 12 
States that have memorandums of agreement, are they in support 
of a strong Federal backup, and--you know, just kind of 
connecting back with the comments from my colleague from the 
State of Ohio. I would like to know the facts. I would like to 
know. We have got 50 States. Which States have come to you and 
have stated on record that they want a strong Federal backup 
and that they need you and they cannot do the job themselves?
    Mr. Fields. Well, actually, the information was given to 
the General Accounting Office in the study commissioned by 
Congress. That General Accounting Office study, which was 
completed in December, 1998, is what I was referring to or what 
Ms. Schiffer was referring to when we said that State officials 
commented to the General Accounting Office that they wanted a 
strong Federal backup.
    Mr. Shimkus. So if I go to that GAO report, that is going 
to tell me which State officials said that on the record?
    Mr. Fields. It will tell you some of the States that 
indicated they wanted a Federal backup, yes.
    Mr. Shimkus. You don't know the number?
    Mr. Fields. We don't know the number of States or which 
States specifically. I understand we can provide for the 
record.
    Mr. Shimkus. I will have the staff pull up that report.
    Mr. Fields. I can read them off if you want me to.
    Mr. Shimkus. Is it 10 percent of the States, 50 percent of 
the States, 100 percent of the States?
    Mr. Fields. I don't know the precise number of the States.
    Quickly, on your second question, we have the list of the 
12 States that have signed memoranda of agreement with EPA. I 
will be happy to give them to you for the record or read them 
to you now if you wish.
    Mr. Shimkus. Are those the similar--that want the strong 
Federal backup and feel they cannot do the job without it?
    Mr. Fields. I don't know how this set of States correlates 
with the States that are in the GAO study. I would have to go 
back and compare that study with this list of 12 States that we 
have entered into memoranda of agreement for.
    Mr. Shimkus. Okay. Thank you, Mr. Fields. My time has 
expired.
    Mr. Oxley. The gentlewoman from Colorado, Ms. DeGette.
    Ms. DeGette. Thank you, Mr. Chairman.
    You know, frankly, I think that Mr. Greenwood's point about 
property owners being concerned about cleaning up, if they 
think that the EPA is going to come in, is a good one. I would 
like you to comment, if you can, about the effect that you have 
seen in the 12 States that have signed the memoranda of 
agreement versus the States that haven't. Have you seen more 
cleanup activities under the State plans in those States?
    Mr. Fields. Right. One of those States is Colorado, where 
we have signed a memoranda of agreement. We have never 
overfiled or intervened in a State cleanup program that has a 
memorandum of agreement. Congressman Greenwood's legislation 
and Congressman Towns' legislation on liability for prospective 
purchasers, innocent landowners, contiguous property owners is 
very similar in many respects.
    So we support that kind of liability relief. But our 
history, Congresswoman DeGette, has not been that people should 
fear the EPA is going to come back in and take further action 
when a cleanup is being done pursuant to a State voluntary 
cleanup program, as in the State of Colorado. Our history has 
not been to come back in.
    Ms. DeGette. Following up on the previous question, it 
seemed to me in Colorado people wanted to do this memorandum of 
agreement, not because they wanted strong Federal backup, but 
to get the EPA threat out of their hair. So I think these 
memoranda of agreement can work both ways. They can work to 
give property owners an assurance that the EPA is not going to 
come tromping in and, at the same time, it can give the States 
that kind of backup that they want to get. I think it can be a 
win/win.
    Mr. Fields. But we don't sign the memorandum of agreement 
unless they satisfy 6 criteria. Those criteria are similar to 
what is in H.R. 1750. We believe before we sign a memorandum of 
agreement, a State ought to meet certain minimum criteria in 
terms of involvement and cleanup, et cetera.
    Ms. DeGette. It is my understanding from looking at these 
bills that while these criteria are enunciated in 1750, they 
are not enunciated in 1300 or 2850; is that right?
    Mr. Fields. That is correct.
    Ms. DeGette. The National Association of Local Government 
Environmental Professionals called for qualifying criteria 
under State voluntary cleanup programs to be established before 
Federal authority could be limited or restricted. Have these 
criteria ever been promulgated by NALGEP? And, similarly, are 
they roughly similar to the criteria you folks use?
    Mr. Fields. NALGEP, which is a great organization, has 
recommended that there be qualifying criteria for State 
programs that enter into a memorandum of agreement with EPA. 
They never promulgated that. They did publish a report that 
contained those criteria, and those criteria are the kinds of 
criteria that we support and have been utilizing for State 
memoranda of agreement. We think that recommendation by NALGEP 
is consistent with what is in H.R. 1750.
    Ms. DeGette. It seems to me, and Mr. Greenwood and I are 
going to talk about this later, but it seems to me that it 
wouldn't be too hard to come up with some criteria that both 
the locals and the States and the Federal Government would all 
like.
    Let me just follow up on one point, a confusion that I 
think we have had in this hearing. The prospective purchaser 
and innocent landowner provisions are the same in the Towns 
bill and the Greenwood bill, essentially; would that be 
correct?
    Ms. Schiffer. They are similar. There are some differences, 
particularly in the contiguous landowner provisions. We can 
probably bridge the gap with discussions. We have some concerns 
about that being created as an exception in Congressman 
Greenwood's bill rather than being a defense; but, in general, 
they are in the same direction and we think that the 
differences could be bridged.
    Ms. DeGette. Mr. Chairman, may I have another minute?
    Mr. Oxley. Without objection.
    Ms. DeGette. Thank you.
    So we are really not talking about prospective purchasers 
being chilled from buying land under this. What we are really 
talking about is who maintains the ultimate liability: Is it 
the polluter, the original person who put the contamination on 
the property, or is it the public who would pay for it--isn't 
that the real issue that we are talking about here?
    Ms. Schiffer. Yes, that is the real issue; that is, if the 
site has not been effectively cleaned up and it is a seriously 
contaminated site, who is going to bear the obligation to clean 
it up and who is going to have to pay for it?
    Ms. DeGette. No one thinks that it should be an innocent 
purchaser or some adjoining landowner or somebody like that; 
right?
    Mr. Fields. We agree that liability relief ought to be 
provided to those people. We support that kind of liability 
protection.
    Ms. DeGette. Thank you. Thank you, Mr. Chairman.
    Mr. Oxley. The gentlewoman from New Mexico, Mrs. Wilson.
    Mrs. Wilson. Thank you. I want to explore the Federal and 
State responsibilities a little bit and this concept of safety 
net. Is it your belief under your approach to this that States 
should have the authority to reopen Federal selection decisions 
when the States believe that they have a better plan? Does it 
work both ways?
    Mr. Fields. Well, under the Superfund statute under which 
both our Superfund and the brownfields programs are 
administered, Congress has clearly defined that the Federal 
Government is the lead decisionmaker regarding cleanup 
decisionmaking. But the law that Congress gave us to administer 
does very clearly make State acceptance----
    Mrs. Wilson. We are talking about making some amendments to 
that law, and I am trying to figure out what the philosophical 
point of view is here. If the issue is a safety net and 
protection of public health, if your agency is inadequate at 
protecting that health, can the States intervene and override 
your decisions?
    Mr. Fields. You are talking about brownfields, the 500,000-
plus low-to-moderate contaminated properties across the 
country. For brownfields, as a policy matter, we are trying to 
give as much authority and responsibility and support to State 
programs. We fund these programs at $10 million to $15 million 
a year.
    We support voluntary cleanup programs. We believe the best 
way to deal with this is for States to enter into a memorandum 
of agreement with EPA that clearly says the sites covered by 
the memorandum of agreement are those that the States are going 
to take the lead on and that we, the Federal Government, will 
only get involved if there is an imminent endangerment 
situation where, to protect public health, the Federal 
Government's resources need to be provided to do so.
    Ms. Schiffer. And under existing laws that affect 
brownfields, States can have more stringent remedies at sites 
if they want. All of the environmental laws are set up so that 
if States want to have standards that are more stringent, they 
are certainly welcome to put those into place.
    Mrs. Wilson. Let's talk about that question of imminent and 
substantial endangerment and particularly as it relates to 
Superfund. And, Mr. Fields, we have had discussion about 
Superfund, and after 7 years of inaction, that site in 
Albuquerque is being cleaned up, an action which you admit was 
inadequate; the response should have gone much faster.
    Mr. Fields. I would agree with that, yes.
    Mrs. Wilson. I take that from your testimony, so I assume 
that you will agree with it.
    Is it your view, should we change the Superfund law so when 
the EPA fails to act on its responsibilities to clean up these 
sites, that States can assume the authority for doing so? It is 
really a question of federalism? Your attitude seems to be that 
the Federal Government can override the States. Should the 
States also have the authority to override failure to protect 
public safety by the Federal Government?
    Ms. Schiffer. Maybe we can take a step back for a moment, 
because I don't think that what we are saying is that the 
Federal Government should be able to override the States. What 
we are talking about is when a person wants to buy or work on a 
brownfields site which, as Mr. Fields has said, are not the 
seriously contaminated sites, what assurance are they going to 
have if they go in and effectively clean up that site--and the 
State says it is an effective cleanup--that the Federal 
Government is not going to come back and say it was not an 
adequate cleanup?
    I might point out if the person cleans up the site to the 
adequate level for its use, we haven't come back, and we don't 
come back into it because we want the site cleaned up, not a 
Federal role. But what we are talking about is not overriding 
the State but, rather, if the site continues to present an 
imminent and substantial endangerment so there is a serious 
threat to public health and the environment, giving the Federal 
Government the authority to go in and get that site cleaned up 
so the public health is protected, and then having the person 
who caused the contamination pay for it. It is not the Federal 
Government overriding the State; it is looking to be sure that 
there is a way to get that site cleaned up.
    Mrs. Wilson. The question of liability is a different one, 
but I think this exchange shows just how far apart we are on a 
philosophical basis of the relationship between Federal 
authority and State authority, and that I am not even able to 
communicate conceptually that there is a federalism question 
here, and that if the Federal Government and the all-powerful 
EPA comes down with a decision about what the site cleanup 
should be, it doesn't seem--I don't seem to be able to 
communicate to you that perhaps a State should have the 
authority to override a Federal decision, because this pyramid 
seems to go only in one way. That is one of the fundamental 
differences that makes it difficult to come up with legislation 
that will work.
    Thank you, Mr. Chairman.
    Mr. Fields. Just to add one thing to what Ms. Schiffer 
indicated. To further address this issue, I think this ought to 
be a partnership. I don't think it ought to be an issue of one 
level of government overriding the other. I think the Federal 
Government and the State government ought to sit down together 
and decide jointly how they will address the universe of sites.
    As you said, Mr. Chairman, there are 500,000-plus of these 
brownfields sites across the country. It ought to be a 
partnership between the Federal and the State Government where 
we decide together what is the best delineation of 
responsibilities for the sites. We have been able to do that in 
many States, and I believe we can continue to do that in many 
more States through entering into a memorandum of agreement 
which clearly demarcates responsibilities in the State. It 
ought to be working together in partnership.
    Mr. Oxley. Mr. Fields and Ms. Schiffer, we thank you for 
your testimony. Members may submit questions in writing. 
Without objection, the hearing record will remain open for 60 
days for members to submit written questions and provide 
extraneous material for the record. Without objection, so 
ordered.
    Thank you for your participation.
    Mr. Fields. Thank you.
    Ms. Schiffer. Thank you.
    Mr. Oxley. The Chair will now call the second panel. On the 
second panel we have the Honorable Paul Helmke, Mayor of Fort 
Wayne, Indiana, on behalf of the U.S. Conference of Mayors; Mr. 
Don Stypula, Manager of Environmental Affairs, Michigan 
Municipal League, on behalf of the National Association of 
Local Government Environmental Professionals; Claudia Kerbawy, 
Section Chief, Superfund, Environmental Response Division, 
Michigan Department of Environmental Quality, on behalf of the 
Association of State and Territorial Solid Waste Management 
Officials here in Washington, DC; Teresa Mills, on behalf of 
the Buckeye Environmental Network, Grove City, Ohio; Jonathan 
Curtis, President, Environmental Business Action Coalition 
Washington, DC; Ms. Karen Florini, Senior Attorney, 
Environmental Defense Fund, Washington, DC; and Mr. Gary 
Garczynski, Treasurer, National Association of Home Builders, 
Washington, DC.

  STATEMENTS OF PAUL HELMKE, MAYOR OF FORT WAYNE, INDIANA, ON 
  BEHALF OF THE U.S. CONFERENCE OF MAYORS; DONALD J. STYPULA, 
MANAGER OF ENVIRONMENTAL AFFAIRS, MICHIGAN MUNICIPAL LEAGUE, ON 
      BEHALF OF NATIONAL ASSOCIATION OF LOCAL GOVERNMENT 
 ENVIRONMENTAL PROFESSIONALS; CLAUDIA KERBAWY, SECTION CHIEF, 
SUPERFUND, ENVIRONMENTAL RESPONSE DIVISION, MICHIGAN DEPARTMENT 
OF ENVIRONMENTAL QUALITY, ON BEHALF OF ASSOCIATION OF STATE AND 
TERRITORIAL SOLID WASTE MANAGEMENT OFFICIALS; TERESA MILLS, ON 
   BEHALF OF THE BUCKEYE ENVIRONMENTAL NETWORK; JONATHAN G. 
  CURTIS, PRESIDENT, ENVIRONMENTAL BUSINESS ACTION COALITION; 
KAREN FLORINI, SENIOR ATTORNEY, ENVIRONMENTAL DEFENSE FUND; AND 
   GARY GARCZYNSKI, TREASURER, NATIONAL ASSOCIATION OF HOME 
                            BUILDERS

    Mr. Helmke. Thank you, my name is Paul Helmke. I am the 
Mayor of Fort Wayne, Indiana. I am appearing on behalf of the 
United States Conference of Mayors. I am the past president of 
the Conference of Mayors and I am the present and co-chair of 
our Conference's Mayors and Bankers Task Force dealing 
particularly with the brownfields issue.
    You have got my full statement. Let me touch on a few 
issues. First of all, Chairman Oxley, I want to thank you for 
your leadership on the brownfields issues; and Mr. Towns and 
Mr. Greenwood, your bills, we appreciate the discussion that is 
going on today. We share a common view that our older 
industrial communities are struggling to recycle these sites. 
We know the value and the importance of the farmland that is 
often needlessly placed at risk.
    As spokesperson for the Nation's mayors and other community 
leaders, I hope we can have some legislation successfully 
enacted this year. Our communities need help. These are dead 
zones. These brownfields sites exist everywhere and cause 
problems. Securing bipartisan consensus on the legislation is a 
top priority for the Conference of Mayors. We feel that we are 
making some progress, thanks to the efforts of this committee, 
Mr. Greenwood, you and others in Congress.
    I also want to recognize EPA Administrator Browner and 
other members of the administration for their efforts in this 
area as well.
    As a Nation we are making progress, but we don't feel that 
it is quick enough or substantial enough. The problem of 
brownfields lying fallow, coupled with our Nation's appetite 
for use of greenfields, is epidemic proportions. We think the 
answer lies in getting a bipartisan agreement moving through 
this Congress.
    This effort will be advanced later today when the 
bipartisan leadership of the House Transportation and 
Infrastructure Committee announce their agreement which has 
been referred to already tomorrow. That committee will act on a 
very broad, consensus-based bipartisan agreement: H.R. 1300, 
the Recycle America's Land Act. This was the legislative effort 
led by Sherry Boehlert. There is a lot at stake for all of us 
in recycling these sites. Each of the bills is intended to move 
the Nation forward. Representative Greenwood and Towns, thank 
you for your efforts. Let me make a couple of important points.
    The time has come to stop punishing innocent parties under 
Superfund. And the time has come to undo the bias in favor of 
open space that we have in current law and start recycling 
brownfields. The time has come to take seriously the 
unnecessary consumption of our open spaces, be it farms, 
forests or other lands. The time has come to help us level the 
playing field between greenfields and brownfields. The time has 
come to help us redeploy properties that take fuller advantage 
of taxpayers' prior investments, the road and street networks, 
the public transit and rail capacities, the water and sewer 
systems, the existing housing stock and the like. The time has 
come to help us make welfare reform really work by recycling 
properties and creating jobs close by the neighborhoods where 
the people are living and having the business districts there. 
The time has come to change policies that drive businesses to 
look first for greenfields, not brownfields. I know you are all 
aware of these efforts.
    The Conference of Mayors recently released our second 
annual brownfields survey which shows part of the problems that 
are here today. One hundred eighty cities reported more than 
19,000 brownfields sites representing more than 178,000 acres. 
This is larger than the cities of Seattle, San Francisco and 
Atlanta combined.
    We feel that there are close to 500,000 sites nationwide. 
Cities were asked to provide estimates of how many people they 
could absorb if we redeveloped brownfields. One hundred fifteen 
cities reported they could absorb more than 3.4 million people 
without appreciably adding to the infrastructure. That is equal 
to the population of the city of Los Angeles. It is equal to 16 
months of our Nation's population growth.
    In the area of job creation, the 168 cities responding 
estimated that reuse of brownfields cogenerate more than 
675,000 jobs. It is important to get something done and get 
something done now. We have got a partnership with bankers, but 
they have told us that they are not willing to move forward on 
brownfields, on lending to brownfields, unless there is 
legislative effort. They are concerned about the liability 
issue. They are willing to put the investment in if the 
liability issue and some of the other brownfields issues that 
we are discussing are taken care of.
    Let me comment on the legislation. We want to emphasize, 
first of all, the importance of liability reforms. In addition 
to the prospective purchaser provisions, which is a common 
element in the pending bills and absolutely crucial, we 
strongly support the liability provisions contained in H.R. 
1300 and 2580 to address the circumstances where cities and 
other local governments have acquired brownfields in the 
performance of their legislative functions, our government 
functions. We need the funding for cleanup. We need to 
strengthen the voluntary cleanup programs and clarify the 
balance between State and Federal authority. And you might want 
to look at the Transportation Committee's agreements on these 
issues to see the balance. We need some sense of finality.
    We have urged more attention to Federal policies that 
provide for a one-stop brownfields office. The basic problem 
that we face, and I have listened to the debate earlier today 
on liability, is that these brownfields sites are staying in 
our cities. They are dead zones. They become cancer zones and 
take down our neighborhoods. And while folks are arguing at the 
Federal level or other levels about who is responsible, 
basically people are not coming in to develop these properties 
because they are not getting finality and they are concerned 
about liability.
    If we can get some help on liability and finality, we feel 
in H.R. 1300 we can help redevelop these properties and 
strengthen our neighborhoods and cities and stop eating up our 
farmland. Thank you for the opportunity to testify.
    [The prepared statement of Paul Helmke follows:]
Prepared Statement of Hon. Paul Helmke on Behalf of The U.S. Conference 
                               of Mayors
    Mr. Chairman, I am Paul Helmke, Mayor of Fort Wayne, Indiana.
    I am pleased to appear today on behalf of The U.S. Conference of 
Mayors, a national organization that represents more than 1,050 U.S. 
cities with a population of 30,000 or more.
    The Conference and its member mayors have been involved extensively 
in the legislative debate on brownfields redevelopment and related 
efforts to enact much needed reforms to the nation's ``Superfund'' law.
    I presently serve as a as co-chair of the Conference's Mayors and 
Bankers Task Force which is focusing on financing brownfield 
redevelopment deals. I am also a Past President of the Conference of 
Mayors.
    Mr. Chairman, the Conference's statement addresses a number of 
areas pertaining to the legislation before this Subcommittee today.

 First, it discusses why we believe Congress needs to act on 
        legislation to further the efforts of cities and other 
        communities in recycling brownfield properties.
 It presents new information documenting the scale of the 
        brownfields problem and the many benefits that can be achieved 
        by federal policy changes in support of our efforts.
 It explains what mayors have been learning in our continuing 
        work with bankers and other financial interests, particularly 
        how legislative reforms can help stimulate additional private 
        sector investment in these sites.
 Finally, it reviews how pending legislation responds to the 
        many issues raised by mayors and others who are seeking to 
        redevelop these sites.
                why congress needs to act on legislation
    Mr. Chairman, I would like to begin by acknowledging your 
continuing efforts, and those of others on this Committee, to address 
the many issues pertaining to brownfields redevelopment and selected 
reforms to the nation's Superfund law.
    Securing bipartisan consensus on legislation on these matters is a 
top priority for The U.S. Conference of Mayors. Mr. Chairman, we 
believe the time has come to act decisively and promptly on brownfields 
and selected Superfund reforms.
    Mr. Chairman, the Conference also acknowledges and appreciates the 
many efforts by the Administration, particularly U.S. EPA Administrator 
Carol Browner, and those of you in Congress who have supported policies 
and initiatives, such as funding for local brownfield programs, to 
further our efforts to recycle America's land. These programs and 
policies have certainly helped, and again let us underscore that we are 
very appreciative of these efforts. But, as a nation, we are not making 
progress at a rate that is quick enough or substantial enough given 
other considerations, which we discuss further in this statement.
    The problem of brownfields lying fallow, coupled with our nation's 
appetite for open space, is of epidemic proportions. To date, our 
collective actions are inadequate in meeting these and other challenges 
before the nation.
    Anyone who examines the brownfields issue acknowledges the need for 
broader strategies to promote the redevelopment of these sites. They 
also share a sense of urgency in acting promptly to address this 
national problem.
Need for Bipartisan Action
    For our part, we have tried to articulate why bipartisan action and 
leadership by the Congress and the Administration are needed. The 
Conference has also focused its efforts in support of broad, bipartisan 
legislative initiatives.
    Since I served as Conference President, the nation's mayors have 
worked with Representative Sherwood Boehlert to support his efforts to 
secure bipartisan agreement on these issues. It now appears that these 
efforts have helped produce a consensus-based bipartisan agreement. 
Tomorrow, the House Transportation and Infrastructure Committee is 
expected to act decisively on its pending legislation, H.R. 1300, the 
``Recycle America's Land Act.''
    The agreement that will come before that committee affirms our view 
that a national strategy to deal brownfields necessarily requires broad 
consensus among Democrats and Republicans. We believe that such a 
consensus needs to be enduring over time, because the nature of this 
problem does not lend itself to a one-time legislative correction.
    Each of the bills before you today is intended to move the nation 
forward in dealing with brownfields. We know that this legislation is 
not an endpoint. We anticipate working with you and future Congress' on 
redirecting the tax code, infrastructure investment patterns 
particularly in transportation, and other policies in the environmental 
and housing arenas, to make recycling our nation's land part of the 
nation's development life cycle.
    We also envision an enduring bipartisan commitment by the Congress 
to challenge investment practices and public, private and individual 
decision-making that unnecessarily consume our precious greenfields as 
brownfields are discarded.
Effects of Current Policy
    We know that Superfund's liability regime too often drives private 
sector investors from brownfields to more pristine locations. We know 
these rules punish innocent parties, fueling a development cycle that 
is unsustainable. We know that current law must be reformed to undo the 
bias toward new land resources over recycling land that is already 
urbanized or developed.
    Mitigating the effects of this nearly twenty-year Superfund policy 
will require actions on several fronts. The legislation before you 
today is the first step in reversing or slowing down our predisposition 
for pristine land. Foremost among these provisions are protections for 
innocent party developers and others as well as resources and other 
incentives to help us undo the stigma on these properties and begin to 
reshape investment decisions by the private sector.
    We also share the view that the problem of brownfields is national 
in scope and transcends more localized interests in reusing these 
properties.
    Let us explain further. As I have so often discussed in my speeches 
on this subject, we see a nation where our open spaces--farms, forests 
and other lands--are being consumed at an alarming rate. At the same 
time, we know that the nation's already substantial and growing 
inventories of previously developed lands, most notably brownfields, 
are vast and can be tapped to slow our nation's demand for open space.
    We see a nation where existing communities, particularly our older 
industrial centers, suffer unreasonably from the lingering effects of 
economic shifts and prior land uses. Once-productive lands lay fallow 
or underutilized, as inventories of brownfields grow relentlessly all 
across the nation. And, adding Superfund to the mix is one more burden 
added on. All of us know that this cycle--abandoning used properties in 
favor of pristine greenfields--can't be sustained without serious 
consequences for the nation.
    At the same time, with your support in the Congress and in the 
Administration, mayors are dealing with public education and public 
safety, updating their infrastructure, initiating other investments and 
improvements to make our cities more attractive to private investors, 
families and individuals.
    All of us increasingly understand that our patterns of urbanization 
are already saddling our citizens and our nation with unanticipated and 
unacceptable burdens, promising only more of the same in the not too 
distant future. Shrinking open spaces in areas where most Americans 
live and work is just one symptom of the many ills brought about by 
this cycle of using and disposing of our land.
    Consider some examples of this such as declining air and water 
quality, escalating flood control and transportation investment needs, 
and threats to drinking water supplies. As one indicator, consider that 
of the more than 1,050 U.S. cities with a population of 30,000 or more, 
nearly two-thirds of them are in areas that exceed national air quality 
standards for ozone. We know our development patterns are aggravating 
efforts to combat air pollution in areas where so many Americans now 
live and work. And, such patterns challenge us in other important 
areas, such as in the transportation arena where we are working to 
increase mobility, improve air quality and grow the economy.
    To illustrate this point further with brownfields, we have sites 
that are already situated to take advantage of road and street 
networks, public transit and rail capacities, as well as other assets 
that come with reusing properties in existing communities. At the same 
time, we are investing at a feverish pace to build new roads, new 
streets, new schools and other new systems to serve fewer people living 
farther away from existing and established communities.
    We all know where this development cycle is taking us and the 
stresses it continues to place on existing communities, our natural 
resources and available public and private capital resources. How we 
consume the nation's land resources, including our failure to 
effectively recycle brownfields, is at the core of this.
    We also see a nation where existing communities which are 
repositories for so much of our nation's human, economic, environmental 
and cultural resources needlessly placed at risk, as we, collectively, 
turn a blind eye to the wasteful use of our nation's land.
    Each of us here today, and mayors and local officials across this 
country, can testify to these realities and offer perspectives on the 
broader challenges before the nation. For most of us, it is about 
renewal and the sustainability of existing communities, where so many 
Americans now live and work and upon which all of us depend. It is 
where we have invested generations of the taxpayers dollars and where 
we continue to extract so much of the wealth that keeps the national, 
state and regional economies growing.
    It is also about meeting the challenge of making welfare reform 
work where jobs are being created and retained in close-by 
neighborhoods and business districts, not just an exercise in 
terminating public assistance and sentencing our most vulnerable 
citizens to endless bus trips elsewhere in search of jobs and income.
    For many mayors, redevelopment of these sites is about securing a 
fairer share of state and federal resources to upgrade 
infrastructures--water, sewer, roads and streets, school buildings--to 
make their communities more competitive in the marketplace. This is 
about leveling the playing field, offering some comparability in the 
quality of public facilities and infrastructures. We now offer modern 
and new infrastructures in our growing areas, but we do so by directing 
substantial shares of the public's capital to these areas, while 
depleting the asset base of our existing communities.
    Just to cite a few examples of many. We would point out how Clean 
Air standards are now applied to the established and denser, closer-in 
areas of the non-attainment areas, not the outlying and developing 
areas which have gone unnoticed in air models. Or, consider the 
application of municipal stormwater requirements to the preponderance 
of larger and established communities, like cities with a population of 
100,000 or more, not the faster growing and newer developing areas 
where options are more plentiful and can be deployed more readily at 
less cost. These are examples of federal policies which further 
motivate businesses to look for greenfields, where too often our 
transportation and other infrastructure investment dollars are more 
plentiful or soon will be captured.
    For our discussion this morning, consider what we know about 
Superfund and how its liability provisions have scared private sector 
investors away from already urbanized lands, much of which is viewed as 
``tainted'' property or brownfields, and toward our greenfields.
    Yet, despite this record before the Congress and this Committee, 
and the acknowledgement by so many policy-makers of the effects of 
brownfields on the nation, we continue to search for ways to break out 
of the Congressional impasse. We are very hopeful that the House 
Transportation and Infrastructure Committee's agreement on H.R. 1300 
will demonstrate that there is a way out of this impasse.
    Mr. Chairman, we know that you and the Members of this Subcommittee 
are well attuned to these issues, as evidenced by the very important 
provisions included in the legislation before you today. We believe it 
is crucial that you act, and act in a bipartisan way, to help change 
the way we use land in America.
    We must adopt these reforms, and do so this year, to provide more 
parity for decisions affecting how our land resources are used. Such 
reforms will help us to grow smarter in the future.
    These reasons explain why the nation's mayors are so strongly in 
support of bipartisan legislative efforts to redirect federal policies 
and further engage with our communities in tackling the brownfields 
problem.
   new information on scope of brownfields problems and benefits of 
                        positive policy reforms
    Mr. Chairman, I am pleased to report to you and this Subcommittee 
on the findings of the Conference's Second Annual Brownfields Survey. 
Information from this report supports many of our statements about why 
legislation is needed. It also substantiates many of the key provisions 
of the pending legislation, be it H.R. 1300, H.R. 1750 or H.R. 2580, 
before the Subcommittee today.
    Mr. Chairman, let me now provide you with some of the key findings 
to amplify further what we believe are some of the key issues before 
this Subcommittee today as you prepare for action on pending 
legislation.
    First, the findings confirm that brownfields are a national problem 
and broad in scope. Our results are drawn from more than 220 cities, a 
sample of cities, both large and small, in 39 states and Puerto Rico.
    In our survey, 180 cities, collectively, reported more than 19,000 
brownfields sites totaling more than 178,000 acres, a land area that is 
larger than the cities of Seattle, San Francisco and Atlanta combined. 
This sample size represents a relatively small universe of the nation's 
more than 28,000 municipalities, suggesting a scale to the problem that 
is disturbing at best.
    Cities were asked to identify obstacles to redeveloping brownfields 
in their communities. Of the top three responses, the need for cleanup 
funds was identified as the number one obstacle, followed by liability 
issues and the need for environmental assessments. The relative ranking 
of obstacles is the same as last year's survey of about 140 cities.
    Mr. Chairman, we note that the pending legislation deals directly 
with the top three issues that were identified in our survey. Each of 
the bills address a range of liability issues affecting innocent public 
and private parties and they also authorize funding for assessment of 
these sites and to clean up brownfields.
    We also found that three out of every four cities expressed the 
view that their communities will need additional resources beyond 
cleanup funds and assessment funds in support of their efforts to 
redevelop brownfields. This finding underscores earlier points in our 
testimony about the need to look at the tax code and incentives here as 
well as how infrastructure investment dollars are being deployed.
    The survey also documented the substantial benefits that can be 
realized for cities and the nation through the redevelopment of these 
sites. About two-thirds of the respondents provided estimates of local 
revenue gains which could be realized through redevelopment of 
brownfields. Collectively, they estimated the potential local revenue 
gains of nearly $1 billion annually under a conservative estimate and 
about $2.7 billion annually under an optimistic estimate.
    In a related area of inquiry, cities were asked to provide 
estimates of how many new people they could absorb without adding 
appreciably to their existing infrastructure. While 180 of the 
respondents indicated they could absorb more people, only 115 provided 
actual numbers.
    Astoundingly, these 115 cities reported that they could absorb more 
than 3.4 million without adding appreciably to their infrastructure, a 
population about equal to the City of Los Angeles, our nation's second 
largest city. To put these numbers in context, this capacity is equal 
to about 16 months of the nation's population growth.
    In a relatively small sample of municipalities nationwide, albeit 
generally larger ones, the survey provides clear evidence of the 
substantial, incumbent carrying capacity of existing communities. If we 
can find ways to tap these capacities, and we believe that brownfields 
redevelopment is a key piece to this equation, we can realize 
substantial savings for all of the nation's taxpayers. Consider the 
potential savings to the nation if we can minimize the public and 
private costs of building the equivalent of one new Los Angeles City 
every 16 months over the next decade.
    And, consider the implications of this in terms of our consumption 
of land. If we pursue policies, like an expanded commitment to 
brownfields redevelopment and other means to reinforce existing 
communities, we can slow the nation's consumption of farmlands and open 
spaces. Today, the nation is growing in ways that uses more and more 
land to serve fewer and fewer people.
    In the area of job creation, 168 cities estimated that reuse of 
these brownfields could generate more than 675,000 jobs. This supports 
our claims that there are vast opportunities to develop jobs in 
existing urban areas and neighborhoods, a particularly important 
finding as we continue to implement welfare reforms emphasizing welfare 
to work.
    Finally, in our findings on the status of state voluntary cleanup 
programs, cities reported that where such programs were in effect, a 
sizable majority indicated that these programs were at least 
satisfactory, if not better.
    Alternatively, you can describe these results more negatively by 
combining cities that indicated the questions on state voluntary 
programs were not applicable with those giving their state a ``not very 
good'' or ``poor'' ranking. Under this method, more than one-half of 
the respondents indicated that voluntary cleanup programs didn't apply 
or they were ranked poorly. This assessment suggests the need for 
further investment in state voluntary cleanup programs, as provided in 
the pending legislation before you.
      perspectives on banking and lenders support for brownfields
    Mr. Chairman, as you know, the Conference has been working 
extensively with bankers and other financial interests to explore ways 
to increase investment in brownfields redevelopment.
    Last year the Conference formed a Mayors and Bankers Task Force to 
work with representatives of the Federal Home Bank System and others to 
examine ways to facilitate investment by member banks in brownfields.
    We have learned that liability under Superfund is their dominant 
concern. Despite progress in securing ``comfort letters'' at many 
sites, lender liability reforms and growing confidence in state program 
efforts, there is real anxiety, and we would wish otherwise, among 
bankers and other lenders on these issues. The specter of Superfund 
liability severely limits their ability to increase the flow of private 
capital into these projects.
    We have heard repeatedly--in our work with members of the Federal 
Home Loan Bank System through our Task Force and in our other efforts 
with financial interests--that lenders are not willing to move 
aggressively on brownfields until there are legislative reforms to 
Superfund. They have told us that the private sector is prepared to 
substantially increase capital flows to projects on brownfield sites as 
soon as Congress enacts legislation that explicitly shields innocent 
parties from Superfund's liability scheme.
    Today, we are enjoying the benefits of one of the longest economic 
expansions in our nation's history. If there is a time to enact changes 
to stimulate private sector investment in these sites, it is now. This 
is the time to demonstrate to investors and others--when private 
capital is plentiful and available for new investment opportunities--
that brownfields redevelopment can be successful. Such successes will 
help carry our future efforts to attract investment in brownfields 
during the leaner times which will inevitable come as the economy moves 
to other cycles.
    Mr. Chairman, when mayors talk about brownfields, our federal 
partners sometimes only hear us asking for federal partnership 
resources in support of brownfields redevelopment, as if mayors are 
suggesting that public resources alone will solve the brownfields 
problem. As you know, mayors are fairly attuned to the realities of our 
market economy. We know that the private sector is the dominant 
investor and the pivotal actor in determining how successful we, as a 
nation, will be in recycling brownfields. It also explains the 
particular priority we place on ensuring that any legislation include 
liability protections for innocent third parties.
    However, conversely, we also know that a market economy, fueled by 
liability reforms, doesn't respond fully to the problem either. There 
are many types of brownfields in all circumstances and locations. For 
these reasons, we also know that public investment is crucial in 
defining our success in recycling these sites. Again, Mr. Chairman, the 
bills before you account for these realities by providing resources 
directly to communities to help us assess and clean up these sites, 
providing us with added resources and capacities to partner with the 
private sector.
                    perspectives on the legislation
    Mr. Chairman, finally, we want to amplify further some of our views 
on specific provisions of the legislation before this Committee.
    We have described throughout this testimony why legislative action 
is needed. The following further describes some of the priority issues 
of concern to the mayors in acting on legislation affecting 
brownfields.
    First, we want to reemphasize the importance of liability reforms, 
an area that was just discussed in this statement. These provisions 
address a number of circumstances where cities and other public 
agencies unfairly find themselves subject potentially to Superfund's 
strict liability standards.
    In addition to the prospective purchaser provisions, which is a 
common element in each of the pending bills and an absolutely critical 
element of any package of reforms, we also strongly support liability 
reforms contained in H.R. 1300 and H.R. 2580 to address the many 
circumstances whereby cities and other local governments have acquired 
brownfield properties in the past. Under these provisions, cities and 
other public agencies are rightly afforded innocent party relief in the 
performance of local government functions.
    Local governments routinely acquire such properties through 
condemnation proceedings to protect public health and safety or in 
settling tax disputes. There are also circumstances whereby their 
economic development functions result in taking title to these 
properties. These are important provisions that should be included in 
any legislation you adopt.
    The pending bills also authorize funding for both assessment 
efforts and local cleanup programs, providing criteria to help U.S. EPA 
determine how to provide these funds in support of local programs. 
Provisions of H.R. 1300, which we support, place no limit on future 
federal funding for either purpose, providing Congressional 
appropriators with flexibility in future years to increase commitments 
to these activities.
    We are pleased that each of the bills authorize resources to help 
states further strengthen their voluntary cleanup programs. We hope 
that the legislation that is adopted by this Committee, as provided in 
H.R. 2580, will encourage states to use these funds to place more 
priority on efforts to bolster state programs in support of brownfield 
cleanups. Considering the many thousands of such sites all across the 
country, we are hopeful that these funds will help states move to 
address brownfields more responsively.
    We are also pleased that this legislation clarifies the balance 
between state and federal program authority, providing more certainty 
for the private sector and local officials about the state's authority 
to make final decisions affecting brownfields. We need to concentrate 
U.S. EPA's efforts on sites where the level of contamination rises to a 
federal interest. Without this certainty on state authority, we can't 
hope ever to provide the necessary assurances sought by private 
investors in brownfield sites, let alone secure final decisions on the 
hundreds of thousands of brownfields sites we are seeking to clean up 
and redevelop.
    This issue, known as ``finality,'' is particularly important to 
local officials seeking to redevelop these sites. The mayors and others 
continue to emphasize that for virtually every non-NPL site, there is 
no real federal presence today, other than the perceived ``potential'' 
of federal interest or action. In taking action on legislation to deal 
with finality, these provisions must be clear and decisive so that the 
private investors, local officials and others understand that the state 
can act. This was among the most challenging issues for the 
Transportation and Infrastructure Committee in structuring its broad, 
bipartisan agreement on H.R. 1300. We would encourage panel members to 
examine how this Committee balanced state and federal authority in this 
area, providing a balanced and bipartisan approach to this issue.
    Mr. Chairman, we also want to indicate our interest in seeing 
provisions that would help accomplish more cooperation and integration 
of applicable federal laws and standards. One of the areas that H.R. 
1300 does not address is the applicability of RCRA and LUST 
specifically at brownfield sites. Mayors have been very consistent in 
urging more attention in federal policies to a ``one-stop'' brownfields 
regulatory program at the state level, where states, which are vested 
with delegated authority, can provide more coordinated and integrated 
programs. Such an approach would respond to the realities of the 
contaminants and types of problems that localities encounter at these 
sites.
    I would note that H.R. 2580 provides authority for RCRA waivers to 
allow states to integrate this law's permit requirements with cleanups 
of brownfields. I understand that this provision does not diminish or 
alter RCRA requirements, but is intended to give states some 
flexibility in delivering a more responsive and coordinated regulatory 
program in addressing brownfields. This or some variant of this 
provision would be very helpful to those of us at the local level who 
often find ourselves confronting increased complexity at specific sites 
as we work to return them to productive use.
    While the focus of this hearing is on brownfields-related 
provisions, I wanted to note particularly our support for liability 
reforms that limit municipal liability at Superfund sites where 
municipal solid waste was disposed and for transporters and generators 
of municipal solid waste (MSW). We also have an interest in securing 
liability relief for wastewater treatment operations.
    Finally, we want to note our support for provisions in H.R. 1300 
that extend the Superfund taxes as part of the legislation. Meaningful 
reform is dependent upon a reliable revenue stream to ensure that 
highly contaminated sites are cleaned up and the land is restored to 
productive uses.
                            closing comments
    Mr. Chairman, we want to express again our thanks to you and 
Members of this Subcommittee for holding this hearing today and your 
continuing efforts to move this important legislation during the First 
Session of the 106th Congress.
    The nation's mayors believe that the time has come for bipartisan 
action on brownfields and selected Superfund reforms. In moving broad 
bipartisan legislation forward, you can count on the support of the 
nation's mayors in this regard.
    On behalf of The U.S. Conference of Mayors, we appreciate this 
opportunity to share the view of the nation's mayors on these important 
issues.

    Mr. Greenwood [presiding]. Thank you very much.
    Mr. Stypula.

                 STATEMENT OF DONALD J. STYPULA

    Mr. Stypula. Representative Greenwood and Representative 
Towns, my name is Donald Stypula. I am the Manager of 
Environmental Affairs for the Michigan Municipal League which 
represents all 534 cities and villages in the State of 
Michigan. One of my prime responsibilities in that capacity is 
to help communities across the State deal with the brownfields 
issues, and we have done that quite successfully.
    I am pleased to testify here today on behalf of the 
National Association of Local Government Environmental 
Professionals, or NALGEP. We represent city and county 
environmental managers and more than 120 local government 
entities across the country. NALGEP members include many of the 
leading brownfields communities, including many that are 
represented by members of this subcommittee, such as Baltimore; 
Chicago; Lima, Ohio; San Diego; Des Moines, Dade County, 
Florida; Milwaukee; Boston; and Los Angeles.
    NALGEP has been working actively with local governments 
since 1995 when we began a project which led to the publication 
of our first report which was referenced earlier. It was 
entitled ``Building a Brownfields Partnership from the Ground 
Up: Local Government Views on the Value and Promise of National 
Brownfields Initiatives.'' and the organization continues to 
work on brownfields, Smart Growth and other environmental 
projects.
    Today I will offer comments about how local governments 
need Federal brownfields legislation and additional Federal 
funding for the assessment, cleanup, and development of 
brownfields across the Nation. The cleanup and redevelopment of 
brownfields is one of the most exciting and challenging 
opportunities facing the Nation, and I would like to compliment 
the members of this subcommittee and the full committee for 
their leadership in promoting legislative solutions to this 
important issue.
    Virtually every community in this Nation faces a 
brownfields challenge. There has also been tremendous progress 
at the State and local level to remove the barriers to 
brownfields revitalization. My own State of Michigan provides 
an example of how State leadership, in cooperation with Federal 
incentives and local coordination, can make a difference in 
brownfields redevelopment.
    Michigan has one of the Nation's best voluntary cleanup 
programs, and in cities--like my hometown of Lansing--Marquette 
and Detroit, brownfields projects have revitalized entire 
sections of those communities. A survey of just 33 of our 
communities across the State shows that our brownfields program 
in Michigan has already resulted in more than $1 billion of 
private investment and the creation of more than 5,000 new jobs 
across the State.
    However, despite countless examples of brownfields success, 
local communities across the Nation still need Federal 
legislation to clarify the continuing spectrum of Superfund 
liability, to authorize more State leadership on voluntary 
brownfields cleanup in cooperation with the Federal Government, 
and to provide additional Federal resources for the assessment, 
remediation and redevelopment of these blighted sites.
    Certainly, brownfields leaders in this Congress, including 
a member of this subcommittee, have reached a consensus on most 
of the important brownfields issues. NALGEP and its local 
government members hope that the remaining bridges can be 
gapped and that progress can be made on this critical issue in 
this Congress.
    There are two points that I wish to emphasize. First, local 
communities badly need additional Federal resources to support 
the assessment, cleanup and redevelopment of brownfields. 
Brownfields are a smart investment by the Federal Government in 
partnership with local and State governments and the private 
sector. Brownfields investment can yield a bountiful harvest of 
revitalized neighborhoods, new jobs, economic development, 
increased tax base, the protection of public health and the 
avoidance of sprawling development on the fringe of our cities, 
as the mayor noted.
    NALGEP has found a need for Federal resources to continue 
local site assessment activities, to support the capitalization 
of local brownfields remediation revolving loan funds, to bring 
Federal agencies together to support infrastructure and 
economic development in brownfields, and to provide remediation 
grants to local governments for brownfields cleanup. NALGEP 
emphasizes the need for brownfields remediation grants to local 
governments to help fill the well-known gap in remediation 
funding at the local level.
    We emphasize that in the Senate, both Republicans and 
Democrats have developed solid, much-needed proposals for 
cleanup grants.
    Second, there is a clear need for Federal legislation to 
clarify and promote the critical role that States play in the 
voluntary remediation of brownfields properties. NALGEP has 
found that States with effective voluntary cleanup programs, 
like my own, and the ability to resolve liability issues at 
these sites is necessary to give confidence to purchasers, 
lenders, developers, and municipalities in brownfields 
revitalization. Thus, we believe there is a need for Congress 
to further clarify and limit liability for nonresponsible 
parties such as innocent landowners, prospective purchasers and 
owners of contiguous properties.
    There is also a need for Congress to allow qualified States 
that meet minimum requirements to take the lead in clarifying 
brownfields liability and issuing no further action decisions 
for local or for non-NPL sites, and we believe that there is a 
need for Congress to provide a continued safety net of Federal 
authority for those exceptional circumstances in which a 
voluntary cleanup is not sufficient to protect public health 
and the environment, and the State is not willing nor is it 
able to ensure adequate remediation. EPA would----
    Mr. Greenwood. I am going to have to ask you to summarize.
    Mr. Stypula. We also believe that EPA should have the 
ability to retain its ability to reopen its involvement in a 
particular brownfields site under some very exceptional 
circumstances. Anyone who has watched this program, who has 
followed the program of the brownfields issue in this Nation, 
knows that the opportunity for us to achieve great 
environmental economic and community benefits from 
revitalization of brownfields exists, and the time is now in 
this Congress to get the work done.
    NALGEP and local governments across the Nation thank you 
for the opportunity to talk with this subcommittee on this 
important issue. Together we should be able to help things get 
better in our Nation's brownfields in a manner consistent with 
the goals of this committee and this Congress. I will be happy 
to answer any questions.
    [The prepared statement of Donald J. Stypula follows:]
   Prepared Statement of Donald J. Stypula, Manager of Environmental 
     Affairs, Michigan Municipal League, on Behalf of the National 
      Association of Local Government Environmental Professionals
    Mr. Chairman and distinguished members of the Subcommittee, my name 
is Donald Stypula, and I am the Manager of Environmental Affairs for 
the Michigan Municipal League, which proudly represents 534 cities and 
villages across the State of Michigan. I am here today to testify on 
behalf of the National Association of Local Government Environmental 
Professionals. or ``NALGEP.'' NALGEP appreciates the opportunity to 
present this testimony on the views of local government officials from 
across the nation on the need for additional federal incentives to 
promote the cleanup, redevelopment and productive reuse of brownfields 
sites in local communities.
    NALGEP represents local government officials responsible for 
ensuring environmental compliance, and developing and implementing 
environmental policies and programs. NALGEP's membership consists of 
more than 120 local government entities located throughout the United 
States, and includes environmental managers, solid waste coordinators, 
public works directors and attorneys, all working on behalf of cities, 
towns, counties and municipal associations. Our members include many of 
the leading brownfields communities in the country such as Portland, 
Salt Lake City, Dallas, Cuyahoga County and others. NALGEP members also 
include communities represented by distinguished members of this 
Subcommittee that are engaged in brownfields revitalization 
initiatives, including Baltimore; Chicago; Lima, Ohio; San Diego; Des 
Moines; Dade County, Florida; Denver; Milwaukee; Boston; and Los 
Angeles. In Michigan, NALGEP members include 12 municipalities, 
including Bangor, Bay City, Detroit, Escanaba, Farmington Hills, Grand 
Rapids, Hudsonville, Ionia, Lansing, Troy, Washtenaw County and Wayne 
County.
    In 1995, NALGEP initiated a brownfields project to determine local 
government views on national brownfields initiatives such as the EPA 
Brownfields Action Agenda. The NALGEP Brownfields Project culminated in 
a report entitled Building a Brownfields Partnership from the Ground 
Up: Local Government Views on the Value and Promise of National 
Brownfields Initiatives, which was issued in February, 1997. Since that 
time, NALGEP has testified on brownfields issues to this Committee as 
well as to the House Transportation and Infrastructure Committee and 
the Senate Environment and Public Works Committee.
    During the past two years, NALGEP has continued its work on 
brownfields through coordinating work groups of local officials to 
address the following issues: (1) Brownfields Cleanup Revolving Loan 
Funds; (2) use of HUD Community Development Block Grants for 
Brownfields; (3) building partnerships between business and local 
government officials to reduce spill and promote smart growth; and (4) 
implementing the Administration's Brownfields Showcase Community 
initiative. As a result of these efforts, NALGEP is well qualified to 
provide the Committee with a representative view of how local 
governments, and their environmental and development professionals, 
believe the nation must move ahead to create long-term success in the 
revitalization of brownfields properties.
    NALGEP's testimony today will focus on the following areas: (1) the 
continued need for federal funding to support the cleanup and 
redevelopment of brownfields sites across the country; (2) the need for 
further liability clarification, including for State leadership on the 
voluntary remediation of brownfields, to encourage the private sector 
to step forward and revitalize more sites; and (3) the need to 
facilitate the participation of other federal agencies (e.g., Army 
Corps of Engineers, Department of Transportation, HUD) in supporting 
local brownfields initiatives.
    The cleanup and revitalization of brownfields represents one of the 
most exciting, and most challenging, environmental and economic 
initiatives in the nation. Brownfields are abandoned, idled, or under-
used industrial and commercial properties where expansion or 
redevelopment is hindered by real or perceived contamination. The 
brownfields challenge faces virtually every community; experts estimate 
that there may be as many as 500,000 brownfields sites throughout the 
country.
    The brownfields issue illustrates the connection among 
environmental, economic and community goals that can be simultaneously 
fostered through a combination of national leadership, state 
incentives, and the innovation of local and private sector leaders. 
Cleaning up and redeveloping brownfields provides many environmental, 
economic and community benefits including:

 expediting the cleanup of thousands of contaminated sites;
 renewing local economies by stimulating redevelopment, 
        creating jobs and enhancing the vitality of communities; and
 limiting sprawl and its associated environmental problems such 
        as air pollution, traffic and the development of rapidly 
        disappearing open spaces.
                   michigan's brownfields initiatives
    The Michigan brownfields program is one of the most active and 
successful in the nation, demonstrating the value of coordinated state, 
local and federal regulatory incentives. In 1995, at the request of the 
Michigan Municipal League and the state's mayors, the Michigan 
Legislature adopted sweeping amendments to the state's contaminated 
site cleanup law that have accelerated the identification, assessment 
and cleanup of environmentally impacted properties and fostered the 
reuse and redevelopment of those parcels for job-producing enterprises.
    The new Part 201 of our state environmental code clarifies 
liability to ensure that those responsible for contamination are liable 
for its cleanup. The 1995 amendments also yielded a more common sense 
approach to cleanup criteria and gave municipalities and redevelopers 
an expanded menu of cleanup remedies that tailor site cleanups to 
zoning and land uses.
    The results of these changes to Michigan's law were stunning and 
immediate. Within hours of the Governor's signature on the package of 
bills, the City of Ionia, Michigan signed an agreement to remediate and 
redevelop a parcel of abandoned industrial property considered the 
``gateway'' to the city. Where once visitors were greeted by a 
contaminated and rusting industrial eyesore, they now lodge at a new 
hotel and dine at new restaurants.
    In 1996, again at the urging of the state's mayors, the Legislature 
enacted a unique brownfields financing mechanism that allows 
municipalities to create brownfields redevelopment authorities to 
``capture'' property tax revenues on targeted parcels for up to five 
years and use that revenue to finance remediation and redevelopment 
activities. Finally, in November, 1998, Michigan voters overwhelmingly 
approved a $675 million, six-year bonding program that funnels more 
than $300 million into brownfields remediation and redevelopment 
activities.
    Over the past four years, a large number of Michigan's 534 cities 
and villages and 83 counties have taken advantage of one of more of 
these new tools to identify, investigate, remediate and spur the 
redevelopment of abandoned industrial complexes, auto repair shops and 
dry cleaners. For example, in 1996, the City of Lansing used the new 
Michigan law to investigate and remediate a collection of contaminated 
parcels and developed a new minor league baseball stadium that draws 
more than 6,000 spectators to nightly games. Earlier this year, the 
City of Marquette partnered with redevelopers to convert a long-
abandoned and contaminated industrial complex into new upscale housing, 
shops and restaurants on the shores of Lake Superior. And, as I present 
this testimony, the City of Detroit is using Michigan's Part 201 
cleanup program to remediate a large parcel of property in the heart of 
downtown that will soon be home to more than 6,000 new, highly-paid 
employees of a global computer software firm relocating from the 
western suburbs.
    According to survey data from just 33 Michigan cities, compiled by 
the Michigan Department of Environmental Quality (MDEQ), the state's 
brownfields program has channeled significant levels of private 
investment into Michigan's core cities. Projected development in the 33 
cities surveyed in 1999 totaled $1,024,988,000 in private investment, 
an increase of 223 percent over 1997. More importantly, this private 
investment on brownfields sites led to the creation of 4,796 jobs, an 
increase of 40 percent over the projected 1997 job creation numbers.
    Despite these dramatic gains, however, some urban redevelopment 
projects ranging from large factory sites in Detroit to corner gas 
stations in small Upper Peninsula towns, are still hampered by a lack 
of financial resources and the fear of Superfund liability.
    As a founding member of NALGEP, the Michigan Municipal League 
strongly supports NALGEP's view on the need to clarify Superfund 
liability for state-administered brownfields programs, facilitate 
participation of and coordination with other federal agencies in 
brownfields revitalization efforts, and provide federal financial 
resources to communities across the nation that seek to remediate and 
encourage redevelopment of brownfields sites.
                     brownfields legislative needs
I. Ensuring Adequate Resources for Brownfields Revitalization
    NALGEP finds that to ensure long-term success on brownfields, local 
governments need additional federal funding for site assessment, 
remediation and economic redevelopment. The costs of site assessment 
and remediation can create a significant barrier to the redevelopment 
of brownfields sites. In particular, the costs of site assessment can 
pose an initial barrier that drives development away from brownfields 
sites. With this initial barrier removed, localities are much better 
able to put sites into a development track. In addition, the allocation 
of public resources for site assessment can provide a signal to the 
development community that the public sector is serious about resolving 
liability issues at a site and putting it back into productive reuse.
    The use of public funds for the assessment and cleanup of 
brownfields sites is a smart investment. Public funding can be 
leveraged into substantial private sector resources. Investments in 
brownfields yield the economic fruit of increased jobs, expanded tax 
bases for cities, and urban revitalization. And the investment of 
public resources in brownfields areas will help defer the environmental 
and economic costs that can result from unwise, sprawling development 
outside of our urban centers.
    The following types of federal funding would go a long way toward 
helping local communities continue to make progress in revitalizing our 
brownfields sites:

 Grants for Site Assessments and Investigation: EPA's 
        Brownfields Assessment Pilot grants have been extremely 
        effective in helping localities to establish local brownfields 
        programs, inventory sites in their communities, investigate the 
        potential contamination at specific sites, and educate key 
        stakeholders and the general public about overcoming the 
        obstacles to brownfields redevelopment. Additional funding for 
        site assessments and investigation is needed to help more 
        communities establish local brownfields programs and begin the 
        process of revitalizing these sites in their communities.
 Grants for Cleanup of Brownfields Sites: There is a strong 
        need for federal grants to support the cleanup of brownfields 
        sites across the country. The U.S. Conference of Mayors' recent 
        report on the status of brownfields sites in 223 cities 
        nationwide indicates that the lack of cleanup funds is the 
        major obstacle to reusing these properties. For many 
        brownfields sites, a modest grant targeted for cleanup can make 
        the critical difference in determining whether a site is 
        redeveloped, creating new jobs and tax revenues, or whether the 
        site remains polluted, dangerous and abandoned.
 Grants to Capitalize Brownfields Cleanup Revolving Loan Funds: 
        In addition to grants, federal funding to help localities and 
        states to establish revolving loan funds (RLFs) for brownfields 
        cleanup is another effective mechanism to leverage public and 
        private resources for redevelopment. EPA deserves credit for 
        championing brownfields RLFs as a mechanism for helping 
        communities fill a critical gap in cleanup funding. 
        Unfortunately, the effectiveness of the EPA's current 
        brownfields cleanup RLF program is severely undermined by the 
        lack of new federal brownfields legislation. Under current law, 
        localities are required to jump through and over numerous 
        National Contingency Plan (NCP) bureaucratic hoops and hurdles 
        to establish their local RLFs. These NCP requirements were 
        originally established for Superfund NPL sites and not for 
        brownfields sites. Consequently, we strongly recommend that any 
        new legislation make it clear that local brownfields RLFs are 
        not required to meet the NCP requirements established for 
        Superfund sites.
II. State Leadership on Liability Clarification at Brownfields Sites
    On the issue of federal Superfund liability associated with 
brownfields sites, NALGEP has found that the Environmental Protection 
Agency's overall leadership and its package of liability clarification 
policies have helped establish a climate conducive to brownfields 
renewal, and have contributed to the cleanup of specific sites 
throughout the nation. It is clear that these EPA policies, and 
brownfields redevelopment in general, are most effective in states with 
effective voluntary cleanup programs. Congress can enhance these 
liability reforms by further clarifying in legislation that Superfund 
liability does not apply to certain ``non-responsible'' parties such as 
innocent landowners, prospective purchasers and contiguous property 
owners.
    NALGEP has also found that States are playing a critical lead role 
in promoting the revitalization of brownfields. More than forty states, 
like Michigan, have established voluntary or independent cleanup 
programs that have been a primary factor in successful brownfields 
cleanup. The federal government should further encourage States to take 
the lead at brownfields sites. States are more familiar with the 
circumstances and needs at individual sites. Moreover, it is clear that 
U.S. EPA lacks the resources or ability to provide the assistance 
necessary to remediate and redevelopment the hundreds of thousands of 
brownfields sites in our communities.
    The effectiveness of state leadership in brownfields is 
demonstrated by those states that have taken primary responsibility for 
brownfields liability clarification pursuant to ``Superfund Memoranda 
of Agreement'' (MOAs) with U.S. EPA. These MOAs defer liability 
clarification authority to those states. In order to further facilitate 
brownfields cleanups across the country, NALGEP finds that Congress 
should create clear legal standards under which States that meet 
minimum criteria can assume the primary role for resolving liability 
and issuing no further action decisions for brownfield sites.
    Legal authority for qualified states to play the primary role in 
liability clarification is critical to the effective redevelopment of 
local brownfields sites. A state lead will increase local flexibility 
and provide confidence to developers, lenders, prospective purchasers 
and other parties that brownfields sites can be revitalized without the 
specter of Superfund liability or the involvement of federal 
enforcement personnel. Parties developing brownfields want to know that 
the state can provide the last word on liability, and that there will 
be only one ``policeman,'' barring exceptional circumstances.
    At the same time, local officials are also concerned about too much 
cleanup authority too fast to states that have not clearly demonstrated 
the ability to play a primary role. States vary widely in the technical 
expertise, resources, staffing, statutory authority and commitment 
necessary to ensure that brownfields cleanups are adequately protective 
of public health and the environment. If brownfields sites are 
improperly assessed, remediated or put into reuse, it is most likely 
that the local government will bear the largest impact from any public 
health emergency or contamination of the environment. NALGEP believes 
that the U.S. EPA has a role to play in ensuring that liability 
authority over brownfields sites should only be delegated to states 
that demonstrate an ability and commitment to ensure protection of 
public health and the environment in the brownfields redevelopment 
process.
    To foster expanded redevelopment of brownfields sites while 
ensuring the protection of public health and the environment, NALGEP 
finds that there should be three components to federal law giving 
States the ability to play the lead role in brownfields liability 
clarification. First, the law should clearly distinguish between 
Superfund NPL sites and other sites subject to enforcement under CERCLA 
or RCRA on one hand, and the remaining sites that can be put on a 
``brownfields track.'' The delegation of liability authority to states 
should focus on these ``brownfields track'' sites. Putting sites on a 
brownfields track will allow the application of policy tools 
specifically designed to foster expedited, cost-effective brownfields 
redevelopment.
    Second, NALGEP finds that liability authority over brownfields 
sites should be granted only to state cleanup programs that can ensure 
protection of public health and the environment. NALGEP suggests the 
following types of criteria that should be demonstrated by states 
desiring to play the lead role in brownfields liability clarification:

1. Mechanisms to ensure adequate site assessments early in the process. 
        Good site assessments will help prevent unanticipated problems 
        from surfacing, and facilitate efforts to direct particular 
        sites into a ``brownfields track.''
2. Adequate state technical expertise, staff and enforcement authority 
        to ensure effective implementation of cleanup activities.
3. Use of risk-based cleanup standards, that can be tied to reasonably 
        anticipated land use, established through an adequate public 
        approval process.
4. Institutional controls such as deed restrictions, zoning 
        requirements or other mechanisms that are enforceable over time 
        to ensure that future land uses tied to certain cleanup 
        standards are maintained.
5. Commitment to establish community information and involvement 
        processes.
6. Commitment to build the capacity, through training and technical 
        assistance, of local government health and environmental 
        agencies to effectively participate in the brownfields 
        development process and ensure protection of public health and 
        environment.
7. Adequate mechanisms to address unanticipated cleanups or orphaned 
        sites where liability has been eliminated.
NALGEP believes that it is appropriate for legislation to require U.S. 
EPA to review and approve the certification of qualified states for 
lead brownfields authority. However, such an EPA approval process 
should not have the effect of delaying qualified states from stepping 
forward, nor impose ``one-size-fits-all'' requirements on states with 
different needs and different effective approaches to brownfields 
redevelopment.
    Finally, NALGEP believes that EPA's ability to reopen its 
involvement at a particular brownfields site in a certified state 
should be limited to situations where there are exceptional 
circumstances and the state is not effectively addressing the problem. 
An EPA reopener for particular sites is necessary to ensure that EPA 
can become involved at any sites at which the state is unable or 
unwilling to adequately respond to a substantial and imminent threat to 
public health or the environment. At the same time, the reopener must 
be sufficiently limited to permit the state to take the lead role at 
brownfields sites, and to give confidence to developers, prospective 
purchasers, lenders and local governments that EPA will not improperly 
hinder or interfere in state liability decisions.
    Therefore, in delegating brownfields authority for non-NPL caliber 
sites to the states, NALGEP proposes that: EPA should provide that it 
will not plan or anticipate further action at any sites unless, at a 
particular site, there is: (1) an imminent and substantial threat to 
public health or the environment; and (2) either the state response is 
not adequate or the state requests US EPA assistance.
III. Facilitating the Participation of Other Federal Agencies in 
        Brownfields Revitalization
    The cleanup and redevelopment of a brownfields site is often a 
challenging task that requires coordinated efforts among different 
government agencies at the local, state and national levels, public-
private partnerships, the leveraging of financial resources from 
diverse sources, and the participation of many different stakeholders. 
Many different federal agencies can play a valuable role in providing 
funding, technical expertise, regulatory flexibility, and incentives to 
facilitate brownfields revitalization. For example, HUD, the Economic 
Development Administration, the Department of Transportation, and the 
Army Corps of Engineers have all contributed important resources to 
expedite local brownfields projects. The U.S. EPA and the 
Administration have provided strong leadership through the Brownfields 
Showcase Community project that is demonstrating how the federal 
government can coordinate and leverage resources from many different 
federal agencies to help localities solve their brownfields problems.
    Congress can help strengthen the national brownfields partnership 
by further clarifying that the various federal partners play a critical 
role in redeveloping brownfields and by encouraging the agencies to 
work cooperatively to meet local needs. For example, Congress should be 
commended for legislation passed last year to clarify that HUD 
Community Development Block Grant funds can be used for all aspects of 
brownfields projects including site assessments, cleanup and 
redevelopment. This simple step has cleared the way for communities 
across the country to use these funds in a flexible fashion to meet 
their specific local needs. Similarly, Congress should consider 
clarifying that it is appropriate and desirable for the Army Corps of 
Engineers to use its resources and substantial technical expertise for 
local brownfields projects. In addition, Congress should consider 
clarifying that Department of Transportation funds can be used for 
cleanup activities associated with various transportation projects. 
Congress also should work with EPA to determine how other agencies can 
help facilitate more brownfields revitalization. By taking these steps, 
Congress can give communities additional tools, resources, and 
flexibility to overcome the many obstacles to brownfields 
redevelopment.
                               conclusion
    In conclusion, local governments are excited to work with the 
federal government to promote the revitalization of brownfields, 
through a combination of increased federal investment in community 
revitalization, further liability clarification and authority for 
qualified States, and other mechanisms to strengthen the national 
partnership to cleanup and redevelop our communities. It is clear that 
there is substantial agreement among the parties and the many 
stakeholders seeking further brownfields revitalization in our 
communities. NALGEP thanks the Committee for this opportunity to 
testify, and looks forward to working with you as the process moves 
forward.

    Mr. Greenwood. Thank you, Mr. Stypula.
    Ms. Kerbawy, please proceed.

                  STATEMENT OF CLAUDIA KERBAWY

    Ms. Kerbawy. Good morning, members of the subcommittee. I 
am Claudia Kerbawy. I am chief of the Michigan Superfund 
program, and I am also primary spokesperson for reauthorization 
issues for ASTSWMO. I am here today representing both ASTSWMO 
and NGA.
    State regulatory agencies have the primary responsibility 
for ensuring the remediation of the vast majority of 
brownfields. Our goal here today is to ensure that Federal 
legislation is enacted which will help facilitate, not 
complicate or impede the cleanup of non-NPL universe of sites.
    We believe this goal can be achieved by clearly defining 
the role of the Federal Superfund program in the future, 
clearly defining which governmental agency will be given the 
responsibility for determining when a site is fully remediated 
and providing the means for State agencies to maintain the role 
of primacy of brownfields sites.
    It is ASTSWMO and the NGA's position that Governors should 
be given the statutory right to concur with any new NPL listing 
in their State. A recent ASTSWMO survey found that more than 90 
percent of an identified universe of over 27,000 sites were 
being addressed under 33 State programs. States today employ a 
triage system whereby the worst sites are addressed first, and 
most sites that could qualify for listing on the NPL are 
already being worked on.
    The question before the subcommittee is what should be the 
appropriate role of the Federal Superfund program in the 
future. Although more than 40 States have State Superfund or 
voluntary cleanup programs, Federal Government assistance will 
still be warranted in situations where States choose not to 
develop a program or where there are sites that, due to either 
technical or legal complexity or cost, a State cannot or would 
prefer to have the Federal Government address. In addition, 
there will always be the need for the Federal Government to 
serve as the gorilla in the closet.
    With the current status of State programs, the choice as to 
whether a site is addressed by the Federal Government or the 
State government should be determined by the State. While it is 
current U.S. EPA policy to routinely seek concurrence from the 
Governor before a site is listed on the NPL, it is not 
mandatory that that concurrence be received. Although it is 
rare when a dispute does occur, cleanup of the site gets 
delayed and both the State and Federal Government can lose 
credibility.
    H.R. 2580 succinctly mandates that U.S. EPA must receive a 
Governors' concurrence prior to listing a facility on the NPL. 
We support this provision as it is clear, unambiguous, and 
satisfies our goal of clarifying the role of the Federal 
Superfund program in the future.
    On the other hand, ASTSWMO and NGA do not support the NPL 
listing provisions of H.R. 1300 and 1750, which both contain 
more cumbersome and intrusive mechanisms for addressing this 
issue that do not accommodate the variety of successful State 
cleanup program provisions.
    Today the Federal Superfund statute technically applies to 
any site where a release occurs. However, the reality is that 
the States are responsible for ensuring the remediation of all 
the sites that do not score above 28.5 under the hazard ranking 
system. Congress needs to decide definitely whether U.S. EPA 
should retain a role in the remediation of non-NPL sites. 
Although the majority of these typically brownfields sites will 
never be placed on the NPL, they are still subject to CERCLA 
liability even after a site has been cleaned to State 
standards. States should be able to be released from both 
Federal and State liability once a site has been cleaned to 
State standards. Emergency actions should be the only 
exceptions from any releases from Federal liability.
    It appears to States that both H.R. 1300 and H.R. 2580 
satisfy the goal of clarifying which governmental entity is and 
should be responsible for deciding when a cleanup is complete 
and when a party is released from liability. H.R. 1750's 
provisions regarding finality are not satisfactory to the 
States. ASTSWMO and NGA do not support the provisions requiring 
State voluntary cleanup programs to be approved by the U.S. 
EPA. In addition, the exceptions provided for by the language 
in 1750 are not clear or precise.
    If a State agency can effectively address the contamination 
from a non-NPL site, that is one less site that will require 
Federal resources. The results of a recent ASTSWMO survey 
indicate that 33 responding States alone have completed 6,768 
sites in just the last 4 years, and that they are working on 
approximately 4,700 sites at any given time. Clearly, providing 
Federal resources to State agencies to maintain their 
infrastructure will ultimately save Federal resources and 
ensure that sites are returned to productive use in an 
efficient manner.
    Both H.R. 1300 and 2580 provide grants to States for 
brownfields site assessments and for establishing revolving 
loan funds for response actions. H.R. 1750 does award grants to 
States, but only if the administrator determines that a grant 
to the State is necessary in order to facilitate receipt of 
funds by one or more local units of government. We do agree 
that local units of government should be allowed funding. That 
should be provided. However, we don't think that Congress 
should overlook the efficiency factor in using well-established 
programs at the State level.
    ASTSWMO and NGA appreciate the opportunity to testify today 
on a topic of extreme importance to the States. We are 
encouraged that the subcommittee is examining these issues and 
look forward to working with you as you continue in the process 
of developing brownfields legislation. I would be happy to 
answer any questions you may have.
    [The prepared statement of Claudia Kerbawy follows:]
 Prepared Statement of Claudia Kerbawy, Chief, Environmental Response 
Division, Michigan Department of Environmental Quality on Behalf of the 
 Association of State and Territorial Solid Waste Management Officials
    Good morning Mr. Chairman and members of the Subcommittee. I am 
Claudia Kerbawy and I am the Chief of the Michigan Superfund program. I 
am also the primary spokesperson on reauthorization issues for the 
Association of State and Territorial Solid Waste Management Officials 
(ASTSWMO) and am here today representing both ASTSWMO and the National 
Governors' Association (NGA) with whom this statement was jointly 
prepared. ASTSWMO is a non-profit association which represents the 
collective interests of waste program directors of the nation's States 
and Territories. Besides the State cleanup and remedial program 
managers, ASTSWMO's membership also includes the State regulatory 
program managers for solid waste, hazardous waste, underground storage 
tanks, and waste minimization and recycling programs. Our membership is 
drawn exclusively from State employees who deal daily with the many 
management and resource implications of the State waste management 
programs they direct. As the day-to-day implementors of the State and 
Federal cleanup programs, we believe we can offer a unique perspective 
to this dialogue and thank you for recognizing the importance of the 
State perspective.
    We understand that the subject of today's hearing is Brownfields. 
State regulatory agencies are responsible for ensuring the remediation 
of the vast majority of Brownfield sites, therefore, our primary goal 
is to ensure that federal legislation is enacted which will help 
facilitate the cleanup of the non-NPL universe of sites. We believe 
this goal can be achieved by 1) clearly defining the role of the 
federal Superfund program in the future; 2) clearly defining which 
governmental entity will be given the responsibility for determining 
when a site is fully remediated; and 3) providing the means for State 
agencies to maintain a role of primacy at brownfield sites. I will 
focus my testimony on these three issues and examine how they are 
addressed in H.R. 2580, ``The Land Recycling Act''; H.R. 1300, `` 
Recycle America''s Land Act of 1999''; and H.R. 1750, ``The Community 
Revitalization and Brownfield Cleanup Act of 1999.''
The Future Role of the Federal Superfund Program:
    ASTSWMO supports the National Governors' Association position that 
Governors should be given the statutory right to concur with any new 
National Priority Listing (NPL) in their State. We believe the facts 
support that position. States today employ a triage system whereby the 
worst sites are addressed first. For example, only 8.9 percent (2,426) 
of the total sites (27,235) identified by a recent ASTSWMO survey were 
classified as inactive. (Summary of results contained in Attachment A). 
It is, therefore, the strong belief of the ASTSWMO membership that most 
sites that have been identified within a State that could qualify for 
listing on the NPL are already being worked on by the State.
    We believe the views of our membership were also validated by the 
recent U.S. General Accounting Office (GAO) Report entitled, 
``Hazardous Waste: Unaddressed Risks at Many Potential Superfund 
Sites.'' In this report the GAO reviewed the status of 3,036 sites that 
had pre-scored above 28.5 but for a variety of reasons, had not been 
placed on the NPL. Out of a total of 3,036, sites only 7.6 percent 
(232) were estimated by both the U.S. Environmental Protection Agency 
(U.S. EPA) and State officials to potentially warrant listing on the 
NPL. This confirms that the U.S. EPA regional staff had utilized good 
judgment in not placing the vast majority of these sites on the NPL; it 
also confirms that the hazard ranking system could be improved.
    Therefore, the question before this Subcommittee is what should be 
the appropriate role of the federal Superfund program in the future? 
While there may be forty-plus States with State Superfund programs and 
Voluntary Cleanup programs, there will always be States that choose not 
to develop a program and federal government assistance may be 
warranted. There will also be sites that due to either technical or 
legal complexity or cost, a State either cannot address or may prefer 
to have the federal government address, and there will always be the 
need for the federal government to serve as the ``gorilla in the 
closet.'' The point I wish to stress is that with the current status of 
State programs the choice as to whether a site is addressed by the 
federal government or State government should be determined by the 
State. A Governor should be able to make the determination of whether a 
site will be listed on the NPL. While it is U.S. EPA policy to 
routinely seek concurrence from the Governor before a site is listed on 
the NPL, it is not mandatory that the concurrence be received. If a 
dispute should arise between U.S. EPA and a Governor, the process 
within U.S. EPA is to have the Assistant Administrator for OSWER make 
the final determination. Frankly, that is not a satisfactory policy.
    Fortunately, there are very few sites where the States and U.S. EPA 
disagree; however, when a dispute does occur the site quickly becomes 
high profile and both the State and federal government can lose 
credibility. As indicated by the ASTSWMO survey and GAO survey, the 
States have clearly become the primary regulators for overseeing site 
remediation. The NPL should be reserved for those sites that both the 
State and federal governments believe warrant expenditure of federal 
resources. The NPL is no longer reserved for the ``worst of the worst'' 
sites; rather the NPL has shifted to a venue for remediating sites 
which require federal resources. The criteria for listing sites on the 
NPL may quickly shift from one based solely on risk determinations to 
one that considers resource needs.
    H.R. 2580: H.R. 2580 succinctly mandates that U.S. EPA must receive 
a Governor's concurrence prior to listing a facility on the National 
Priorities List. We support this provision as it is clear, unambiguous 
and satisfies our goal of clarifying the role of the federal Superfund 
program in the future.
    H.R. 1300: H.R. 1300 requires the President to generally defer 
listing on the National Priorities List facilities at which a cleanup 
that provides ``long-term protection of human health and the 
environment is underway at that facility under a State response 
program.'' H.R. 1300 also allows the President to defer listing of ``a 
facility on the National Priorities List if the State is attempting to 
obtain an agreement from a person or persons to perform a remedial 
action that will provide long-term protection . . .'' Unlike the 
language in H.R. 2580, this provision does not clearly address the 
future role of the federal Superfund program. For example, we question 
what the terms ``underway'' and ``attempting'' actually mean? Must the 
``agreement'' in the State Voluntary Cleanup program be enforceable? 
Many State Voluntary Cleanup programs enter into agreements that are 
non-binding on either party; in other words, either the State or 
voluntary party can exit the site from the State voluntary cleanup 
program and the site will then be subject to traditional State 
Superfund enforcement. H.R. 1300 also allows the President to place the 
site on the NPL if, after a one-year time deferral, the State has not 
made reasonable progress in obtaining an ``agreement''. States 
routinely perform work on a site, including completion of the remedial 
investigation/feasibility study, without responsible party involvement. 
States are reimbursed for their costs once the responsible party enters 
into an agreement with the State. This arbitrary one year period does 
not account for work completed by the State, and we cannot support this 
provision.
    H.R. 1750: H.R. 1750 states the President shall not list ``a 
portion of a facility subject to a response action plan approved under 
a State program qualified under subsection (i)'' while ``substantial 
and continuous voluntary response actions are being conducted in 
compliance with the plan at that portion of the facility; or after 
response activities conducted in compliance with the plan at that 
portion of the facility have been certified by the State as complete.'' 
Again, this provision is not as clear as H.R. 2580. For example, this 
provision states that States must approve a response action plan. Many 
States approve response action plans prior to commencement of work, and 
many merely review the plans but provide certifications upon 
completion. As we read this language, only a site at which a response 
action plan has been approved could be remediated free of U.S. EPA 
interference. A State that only certifies a cleanup is complete could 
be subject to having its sites listed on the NPL during remediation 
activities. Also, this provision is only available to States that have 
had their voluntary cleanup programs approved by the U.S. EPA. Both the 
National Governors' Association and ASTSWMO oppose provisions which 
allow the U.S. EPA to review and approve existing, established State 
voluntary cleanup programs. There is no comparable voluntary cleanup 
program model at the federal level and we question why programs which 
were developed without federal government interference and with local 
stakeholder involvement should be subject to federal approval? We 
cannot support this provision.
The Issue of ``Finality''
    Today the federal Superfund statute technically applies to any site 
where a release occurs. However, the reality is that States are 
responsible for ensuring the remediation of all sites that do not score 
above 28.5 using U.S. EPA's Hazard Ranking System (HRS)--the cutoff for 
federal listing on the NPL. The U.S. EPA removal program is able to 
address some sites that are not listed on the NPL, but the program is 
designed to stabilize a site, not to ensure its full remediation. The 
U.S. EPA can not expend fund money for remediating a site not listed on 
the NPL. Consequently, the State is often still responsible for 
completing the remediation of a site even after an U.S. EPA removal 
action has been performed at a site.
    It is our belief that Congress needs to decide definitively whether 
U.S. EPA should retain a role in the remediation of non-NPL sites. 
While in practicality U.S. EPA has little or no role at these sites and 
as our survey indicated, the States are addressing the large universe 
of non-NPL sites, the statute still maintains a role for U.S. EPA in 
theory. Although the majority of these sites (typically brownfield 
sites) will never be placed on the NPL, they are still subject to 
CERCLA liability even after the site has been cleaned up to State 
standards. It is our belief that we can no longer afford to foster the 
illusion that State authorized cleanups may somehow not be adequate to 
satisfy federal requirements. The potential for U.S. EPA overfile and 
for third-party lawsuits under CERCLA is beginning to cause many owners 
of potential Brownfields sites to simply ``mothball'' the properties. 
We believe it is imperative that Congress seek to clarify the State-
Federal roles and potential liability consequences under the federal 
Superfund program. States should be able to release sites from both 
federal and State liability once a site has been cleaned up to State 
standards. In situations that are deemed emergencies and in which the 
State requests assistance, we believe the federal government should be 
able to address the site and, if necessary, hold the responsible party 
liable consistent with liability assigned under State cleanup law. 
Emergency actions should be the only exceptions to such releases from 
federal liability.
    This has been a very contentious issue and we understand that 
objections have been raised to provisions of this nature. We do not 
agree with the basis for these objections for several reasons. First, 
U.S. EPA does not have the ability to compel parties to take remedial 
actions at sites not listed on the NPL, except for removal actions. 
Second, the majority of these sites will never be listed on the NPL; 
therefore, U.S. EPA does not have authority to spend fund money at 
these sites to perform the necessary remedial actions. Third, if a 
State should release a site from State liability (of course, all States 
have standard reopener provisions contained in their liability 
releases), and a situation should develop that warrants federal 
attention, the State can be trusted to act responsibly and contact U.S. 
EPA. It is in the State's financial interest to contact U.S. EPA should 
a situation develop that exceeds the State's financial or technical 
capabilities. While it is clear in emergency situations that U.S. EPA 
should have the ability to enter a site, we believe the second prong of 
the condition must also be met, i.e., the State must concur, similar to 
our recommendation for listing sites on the NPL. We wish to avoid 
duplication as much as possible and therefore believe that if a State 
is capable of addressing the emergency then there is no need to utilize 
U.S. EPA's resources. The States have proven they act responsibly in 
these situations, and it is to the State's advantage to notify U.S. EPA 
when either the State's financial, legal or technical resources are not 
sufficient to adequately address the problem.
    We believe the universe of sites to be addressed by State Cleanup 
(State Superfund and State Voluntary Cleanup) programs and the sites 
eligible for releases from federal liability is the non-NPL universe of 
sites. It seems only practical to officially exclude proposed and 
listed NPL sites simply for the fact that much work has already ensued 
in order to place these sites on the NPL. Some suggest that the non-NPL 
universe can be divided into two categories, NPL-caliber and low risk 
sites. We are the primary regulators for non-NPL sites and we can 
assure you that there is no clear line that differentiates such 
categories of sites. Many would suggest the bright line should be a 
score of 28.5 (as determined by the HRS), but there are two problems 
with using this arbitrary cutoff. First, 28.5 is the quantitative 
scoring factor used to determine if a site qualifies for placement on 
the NPL. However, this figure is based on an arcane hazard ranking 
system which many U.S. EPA and State managers admit is flawed, so much 
so, that U.S. EPA and State managers in the GAO study identified only 
7.9 percent of the 3036 pre-scored universe of sites for potential 
listing on the NPL. Second, in order to use the quantitative NPL-
caliber designation, States would have to score sites prior to 
admitting them to a voluntary cleanup program (a suggestion we 
understand one U.S. EPA Region has made to a State). Clearly, the pre-
scoring of a site as a condition for entering a State Voluntary Cleanup 
program would be a huge disincentive for marketing a State Voluntary 
Cleanup program and would not serve to move this large universe of 
sites to cleanup nor to facilitate economic redevelopment of 
brownfields. Essentially, the program has operated for years on a ``you 
know it when you see it basis'' in identifying NPL-caliber sites. This 
is bad public policy and should not be acceptable for differentiating 
State and U.S. EPA roles and for providing certainty to the process. If 
a site is not to be listed or proposed for listing on the NPL, then the 
State should be free to address the site without U.S. EPA interference 
and the site should be eligible for the same benefits as any other 
site, such as liability releases. We believe legislation is needed and 
hope that Congress chooses to recognize the benefits of State programs 
which have had over 18 years to grow and mature and which clearly have 
become the leaders in site remediation today.
    H.R. 2580: It appears to States that H.R. 2580 satisfies the goal 
of clarifying which governmental entity is and should be responsible 
for deciding when a cleanup is complete and when a party is released 
from liability.
    H.R. 1300: It appears to States that H.R. 1300 satisfies the goal 
of clarifying which governmental entity is and should be responsible 
for deciding when a cleanup is complete and when a party is release 
from liability.
    H.R. 1750: H.R. 1750's provisions regarding ``finality'' are not 
satisfactory to States for the following reasons. First, as indicated 
in our previous comment, ASTSWMO and NGA do not support any provision 
requiring State Voluntary Cleanup programs to be approved by the U.S. 
EPA. Second, the exceptions provided for by this language are not clear 
or precise. For example, in both exceptions (C) and (D), either the 
Administrator or the State may determine that, due to the conditions, 
the response action does not protect human health or the environment. 
Our goal is to achieve finality and to expressly decide once and for 
all which governmental entity will be vested with the authority to 
determine a cleanup is complete. The language in H.R. 1750 will not 
resolve this issue or achieve true finality. For example, what will 
happen in situations in which the State and U.S. EPA disagree? Lastly, 
H.R. 1750 will exclude ``NPL-Caliber'' facilities from being eligible 
to receive finality determinations. In this case, NPL-Caliber is 
defined as ``a facility for which the President, in consultation with 
the State concerned, has prepared or is preparing a hazardous ranking 
system scoring package or that satisfies such other definition as the 
Administrator may promulgate by regulation.'' In 1997, U.S. EPA 
proposed federal guidance on developing memorandum of agreements 
between State Voluntary Cleanup programs and the U.S. EPA. To determine 
NPL-Caliber sites, the Agency proposed a tiering system for sites. 
ASTSWMO, the Environmental Council of States and the National Governors 
Association strongly opposed the provisions in this guidance, 
particularly the proposed tiering system of categorizing sites and the 
guidance was ultimately withdrawn. We have no reason to believe that 
under the language provided for in H.R. 1750 that U.S. EPA would not 
seek to repropose the same language.
Funding for State Programs addressing Brownfields:
    From our perspective as State Waste Managers and Governors, we view 
State programs as effective ``NPL prevention'' programs. If a State 
agency can effectively address the contamination from a non-NPL site, 
that is one less site that will require federal resources. The results 
of a recent ASTSWMO survey of 33 States indicated that States have 
completed 6,768 sites in the last four years alone (1993-1997) and that 
they are working on approximately 4,700 sites at any given time. We 
conclude from these results that providing federal resources to State 
agencies to maintain their infrastructures will ultimately save federal 
resources and ensure that sites are returned to productive use in an 
efficient manner.
    H.R. 2580: H.R. 2580 provides grants to States for Brownfield site 
assessments and for establishing revolving loan funds for response 
actions. We concur with these provisions.
    H.R. 1300: H.R. 1300 provides grants to States for Brownfield site 
assessments and for establishing revolving loan funds for response 
actions. We concur with these provisions.
    H.R. 1750: H.R. 1750 only awards grants to State governments for 
site assessments if ``the Administrator determines that a grant to the 
State is necessary in order to facilitate the receipt of funds by one 
or more local governments that otherwise do not have the capabilities, 
such as personnel and other resources, to manage grants under the 
program.'' U.S. EPA should receive credit for assisting the majority of 
States (40+) in establishing effective site assessment programs. These 
programs are limited in their ability to perform work only by a lack of 
resources. It does not make sense that Congress would propose to fund 
States for site assessments only if a local unit of government could 
not perform the task. State programs have been established and should 
be utilized to their maximum potential. We agree that local units of 
government should be provided funding, but Congress should not overlook 
the efficiency factor in using well established programs. For these 
reasons, we do not support the funding provisions contained in H.R. 
1750.
                              conclusion:
    ASTSWMO and NGA appreciate the opportunity to testify today on a 
topic of extreme importance to States. We are encouraged that the 
Subcommittee is examining these issues and look forward to working with 
you as you continue the process of developing Brownfields legislation.

    Mr. Greenwood. Thank you for your testimony.
    Mr. Towns said he is beginning to see the wisdom of my 
legislation.
    For the benefit of the members, I think we can allow Ms. 
Mills to complete her testimony, and then we will break for the 
vote and return as soon as the vote is over. Ms. Mills, please 
proceed.

                    STATEMENT OF TERESA MILLS

    Ms. Mills. Thank you to the committee for the opportunity 
given to me today. My name is Teresa Mills. I represent the 
Buckeye Environmental Network. We are a network of grassroots 
groups across the State of Ohio working with other citizens to 
address their environmental concerns.
    Our experience with the Ohio Voluntary Action Program has 
been very discouraging for the citizens of Ohio. I am here to 
ask that you maintain a strong Federal oversight role in these 
programs to prevent the breakdown in the public confidence that 
the citizens of Ohio have had to endure.
    Ohio's VAP program is completely unbalanced in favor of 
corporations hoping to avoid their cleanup responsibilities as 
cheaply and as secretly as possible. It is a nightmare program 
for the neighborhoods around these facilities, with their 
dubious cleanup options, lack cleanup standards, negligible 
State oversight, lack of public notice and participation, and 
extensive secrecy provisions provide no reasonable confidence 
that a site addressed by these programs will not continue to be 
a health or environmental danger. The program is dangerous and 
badly needs to be overhauled from top to bottom.
    The Ohio program authorizes private contractors working 
solely for the polluters to design and implement both the site 
investigation and the remedy, with no involvement by the State. 
To keep the secrecy privilege, the facts discovered must be 
kept secret from both the government and the neighborhood. At 
the conclusion of the site work, the contractor is simply to 
file a brief document with the State, certifying that he has 
followed the State's broad regulations on the site and that no 
further action is needed. Based only on this letter, the Ohio 
EPA is then required to issue an order granting a covenant not 
to sue to the contractor's employer within 30 days. The only 
oversight of this program is a random audit system where the 
Ohio EPA is to review 1 site out of 4. There IS minimal funding 
for this oversight and, at best, it is a review of the 
contractor's paperwork.
    There is no provision whatsoever for the community 
surrounding the site to be made aware of the cleanup or its 
long-term impact on their neighborhood. There is no public 
notice, no provision for a public hearing, and no provision for 
comment from local governments, health professional or 
individual citizens. The affected citizens are left out of this 
process.
    Over the past 7 years, I have asked both the Ohio EPA and 
the U.S. EPA the same question on several occasions. My 
question has been: Name me one site in the State of Ohio that 
has been cleaned up that was not prompted by a citizen. To 
date, my question remains unanswered. The Ohio program gives 
the party conducting the cleanup a right to keep all 
information and documents generated completely secret even in 
court proceedings. This is true even if the ``no further action 
letter or covenant'' are not issued. The surrounding community 
will never know what contaminants were at the site, the extent 
of the contamination, or the amount of contamination that 
remains after the remedy is complete.
    In short, the Ohio program purposely keeps the public in 
the dark about critical issues regarding their own health, and 
their rights as State citizens are voided. I do not remember 
ever giving up my right to know what was in my community or 
what my family was exposed to. When did this happen? You can 
see why some citizens in the State of Ohio consider this 
program to be sinister and ethically perverse.
    In 1989 the Ohio EPA created the Division of Emergency and 
Remedial Response. Our State lawmakers agreed to add a $1 tax 
per every ton of waste generated in the State of Ohio. This was 
to go into a quick cleanup fund. Our State legislature took $11 
million from the fund and never replaced it. The citizens of 
Ohio know all too well when a good idea goes bad. When State 
agencies put the interest of the polluter over the interest of 
the public, it is the same as a law enforcement officer taking 
the word of a mugger over the word of a victim.
    I still have more of my testimony, but I see my time is 
running short.
    Scores of sites in Ohio have now received release of 
liability under the State law. You have it in your power to 
protect the families who live around these sites by ensuring 
that Federal law will stay securely in place, not only for 
protecting the public health from environmental contamination, 
but also to ensure that the right of Americans to participate 
in the public decisions where they have a vital personal 
interest will be honored by the State legislatures.
    I believe that Ohio's sorry experience with VAP proves that 
minimum Federal standards for public participation, openness of 
information, protective cleanup standards, reliability of 
remedy, adequacy of Federal and State oversight, must be 
guaranteed to all Americans. We do not support the restrictions 
on citizens or the Federal Government's enforcement authority 
that are contained in any of the bills being considered by the 
subcommittee. We pray that the Members of Congress will keep 
our health and welfare in mind when considering legislation. 
Thank you.
    [The prepared statement of Teresa Mills follows:]
  Prepared Statement of Teresa B. Mills, Buckeye Environmental Network
    Thank you Mr. Chairman for the opportunity to address this 
committee. My name is Teresa Mills, I represent the Buckeye 
Environmental Network. We are a network of grassroots groups across the 
state of Ohio working to assist citizens with their environmental 
concerns.
    Our experience with the Ohio Voluntary Action Program (VAP) has 
been very discouraging for citizens of Ohio. I am here to ask that you 
maintain a strong federal oversight role in these programs to prevent 
the breakdown in public confidence that the citizens of Ohio have had 
to endure.
    Ohio's VAP program is completely unbalanced in favor of 
corporations hoping to avoid their clean up responsibilities as cheaply 
and as secretly as possible. It is a nightmare program for the 
neighborhoods around these facilities as its dubious cleanup options, 
lack clean up standards, negligible state oversight, lack of public 
notice and participation, and extensive secrecy provisions provide no 
reasonable confidence that a site addressed by the program will not 
continue to be a health or environmental danger. This program is 
dangerous and badly needs to be overhauled from top to bottom.
    The Ohio program authorizes private contractors working solely for 
the polluter to design and implement both the site investigation and 
the remedy with no involvement by the state. To keep the Secrecy 
Privilege, the facts discovered must be kept secret from both the 
government and the neighborhood. At the conclusion of the site work, 
this contractor simply is to file a brief document with the state 
certifying that he has followed the state's broad regulations on the 
site and that no further action is needed. Based only on this letter 
the Ohio EPA is then required to issue an order granting a covenant not 
to sue to the contractor's employer within thirty days. The only 
oversight of this program is a random audit system which the Ohio EPA 
is to review one site in every four. There is minimal funding for this 
oversight so at best the review is only a review of the contractor's 
paperwork.
    There is no provisions whatsoever for the community surrounding the 
site to be made aware of the cleanup or its long term impact on their 
neighborhood. There is no public notice, no provision for a public 
hearing, and no provision for comment for local governments, health 
professionals, or individual citizens, the effected citizens are left 
out of the process. Over the past seven years I have asked both the 
Ohio EPA and the US EPA the same question on several occasions. My 
question is, can you name me one site in Ohio that has been cleaned up 
that has not been prompted by a local citizen? My question remains 
unanswered.
    The Ohio program gives the party conducting the cleanup a right to 
keep all information and documents generated completely secret, even in 
court proceedings. This is true even if the ``no further action letter 
or covenant'' are never issued. The surrounding neighborhood will never 
know what contaminants were at the site, the extent of the 
contamination or the amount of contamination that remains when the site 
``remedy'' is complete.
    In short, the Ohio program purposely keeps the public in the dark 
about critical issues regarding their own health while their rights as 
state citizens are voided. I don't remember giving up my right to know 
what was in my community or what my family is exposed to. When did this 
happen? You can see why many Ohio citizens consider the program to be 
sinister and ethically perverse.
    In 1989 the Ohio EPA created the Division of Emergency and Remedial 
Response. One of the goals of this division was to clean up 
contaminated sites faster. State lawmakers agreed to a $1 per ton tax 
on all solid waste generated in Ohio. Up to $14 million a year was to 
be placed in a cleanup fund. While this might sound like a lot of 
money, in the 10 years that this tax has been in place only 10 sites 
have been cleaned. In 1992, in order to avoid a budget shortage the 
General Assembly took $11 million from the fund never replacing it. 
Little by little the people of Ohio see the fund dwindle. The fund is 
used for programs that have very little to do with cleaning up Ohio's 
1,192 contaminated sites. Last October, the Columbus dispatch conducted 
an extensive investigation and the headlines of one article read, 
``Ohio's toxic tally: 10 cleaned up 1,192 to go''. (see attached) The 
Ohio EPA has acknowledged publicly that its clean up program failed to 
meet expectations.
    Citizens of Ohio know all too well what happens when a good idea 
goes bad. When state agencies put the interest of the polluter above 
the interest of the public it is the same as a law enforcement officer 
taking the word of a mugger over the word of the victim. I'm sure these 
laws can work well, but only if they maintain a balance between 
corporate and community interests and produce reliable and adequate 
results. We've missed an excellent opportunity for real environmental 
progress in Ohio because our program serves only a narrow economic 
interest while the broad public interest is excluded. Ohio's weak VAP 
program can promote deceit within the corporate community while giving 
no peace of mind to Ohio's mothers and fathers that a contaminated site 
is no longer a source of the worst sort of anxiety they should ever 
have to bear. A traditional VAP would be welcomed by Ohio's citizens. 
This would apply to sites with low-level contamination, offer the 
benefits of a streamlined bureaucracy (but with some oversite), the 
benefits would be given in exchange for redevelopment (under Ohio's Law 
there is no quid pro quo required).
    Scores of sites in Ohio have now received a release of all 
liability under state law for contamination that is likely still there. 
You have it in your power to protect the families who live around these 
sites by insuring that federal law will stay securely in place, not 
only for protecting the public health from environmental contamination, 
but also to insure that the right of Americans to participate in public 
decisions where they have a vital personal interest will also be 
honored by state legislature. I believe that Ohio's sorry experience 
with the VAP proves that minimum federal standards for public 
participation, openness of information, protective clean up standard, 
reliability of remedy and adequacy of state and federal oversight must 
be guaranteed to all Americans.
    Citizens who live around these sites oppose any restricting or 
weakening of existing federal enforcement authority. Later this week a 
report titled ``Hidden from the Public'', the distortion of the Ohio 
EPA's mission will be released. Part of this report is testimony taken 
from a citizens public hearing on their dealings with different 
programs in Ohio EPA. I will forward a copy of this report when it is 
released.
    We do not support the restrictions on citizens or the federal 
governments enforcement authority that are contained in any of the 
bills that are being considered by the Subcommittee. We pray that the 
members of Congress will keep our health and welfare in mind when they 
consider this legislation.
    Thank you for your time, I will be happy to answer any question you 
might have.

    Mr. Greenwood. Thank you for your testimony, Ms. Mills.
    The subcommittee will recess for the vote and return at 
approximately 10 to 1.
    [Brief recess.]
    Mr. Oxley. The subcommittee will reconvene.
    Mr. Curtis, I understand that you are the next witness.
    Mr. Curtis. Yes, sir.
    Mr. Oxley. You may proceed.

                STATEMENT OF JONATHAN G. CURTIS

    Mr. Curtis. Mr. Chairman, members of the subcommittee, my 
name is Jonathan Curtis. I am president and CEO of CDM Federal 
Programs Corporation in Fairfax, Virginia. I am here today in 
my capacity as president of the Environmental Business Action 
Coalition, EBAC, formerly known as HWAC.
    EBAC is a national business trade organization whose 
mission is to serve and promote the interests of firms 
practicing in multi-media environmental management. Our firms 
employ over 60,000 professionals trained in all aspects of the 
environmental field, and have extensive experience and 
knowledge in hazardous waste cleanup.
    Let me clarify the position from which we speak. We are the 
implementers of the hazardous waste laws and regulations. Let 
there be no misunderstanding on anybody's part: We are not 
polluters. We typically do not own or operate the sites where 
Superfund or brownfields cleanups are to be performed. We were 
not involved in the generation of the waste. We are the firms 
hired to perform cleanup actions at sites across the country, 
and our clients are interested in hazardous waste cleanup and 
environmental protection.
    We commend this subcommittee and its chairman and the full 
Commerce Committee for the tireless efforts undertaken to 
examine ways to make the Superfund program more readily 
implementable and to seek enactment of comprehensive and 
workable Superfund reform legislation.
    Turning now to the purpose of this hearing, brownfields 
redevelopment is one area, I hope all agree on a bipartisan 
basis, where more needs to be done to spur reuse of abandoned 
and underutilized properties throughout this country. This 
testimony focuses on the brownfields provisions of H.R. 2580, 
Congressman Greenwood's Land Recycling Act of 1999. EBAC is 
already on record as strongly supporting H.R. 1300, which also 
contains strong brownfields provisions as well as overall 
reforms to Superfund.
    The other brownfields bill that is under consideration by 
this committee is H.R. 1750. While my testimony only addresses 
2580, I am prepared to answer questions regarding components of 
all three bills.
    Mr. Chairman, as you referred to in our written testimony, 
our clients fear that EPA will second-guess State-approved 
brownfields cleanups. Moreover, there remains the potential 
downstream liability associated with reuse that further retards 
the process. Willingness by EPA to negotiate prospective 
purchaser agreements on a case-by-case basis is not enough.
    H.R. 2580's provisions in section 3 provide the finality in 
brownfields decisions that are truly needed if this market and 
the actual cleanups are to accelerate. Decisions made by 
certified States would not be subject to second-guessing by 
EPA. We believe this provision is very important to spurring 
increased voluntary cleanup actions at brownfields sites across 
the country and reducing possible risks to nearby populations 
that are currently not addressed, expressly because of the fear 
of Federal liability.
    The permit waiver for onsite response actions that is 
contained in H.R. 2580 would remove the barriers to actual 
onsite cleanup posed by the often-conflicting provisions of 
RCRA and Superfund. I must go on record with EBAC's strong 
disagreement with the requirement of H.R. 2580 for innocent 
landowners to undertake environmental site assessment in 
accordance with the standards set forth in the ASTM Standard 
E1527-94 titled ``Standard Practice for Environmental Site 
Assessments Phase 1 Environmental Site Assessment Process.''
    We do not believe that this is an appropriate standard for 
the brownfields situation. We recommend that you drop the 
requirement for using ASTM Standard E1527-94. We urge that the 
legislation require EPA to undertake a rulemaking, using an 
open, transparent process and incorporating substantial input 
from the professionals who practice in this field to identify 
the professional judgment required for qualification as an 
innocent landowner within a limited specific period of time 
after passage of the bill.
    In terms of the liability net of Superfund, EBAC 
understands the need for any brownfields legislation to define 
innocent landowners and bona fide prospective purchasers as 
well as provide liability relief. However, letting everyone off 
the hook for liability relief can have the unintended 
consequence of only leaving one entity responsible for site 
liabilities, and that is the cleanup firm. We know Superfund's 
harsh liability consequences, and the provisions that have been 
presented in H.R. 1300 are vital for encouraging and 
accelerating brownfields cleanups and Superfund cleanups.
    We continue to support the provision of financial and 
technical assistance to States to develop and administer 
brownfields programs and grants. Although remedy selection is 
not the subject of this hearing, EBAC is convinced that reform 
and remedy selection provisions in Superfund is critical to 
accelerating any program, including brownfields. We hope to be 
invited back to a subsequent hearing to discuss why the remedy 
reform provisions of H.R. 2580 will accelerate cleanups while 
ensuring protection of human health and the environment and 
should be adopted by this committee.
    In conclusion, EBAC appreciates the opportunity to testify 
before your subcommittee today. We believe that the time to 
legislate on brownfields and overall Superfund reform is now, 
before the program funding that remains in the Superfund trust 
fund is exhausted and the total burden of the Superfund program 
falls to the States. The health, safety, and economic well-
being of the country are more important than politics.
    I remain available to answer any questions you may have. 
Thank you.
    [The prepared statement of Jonathan G. Curtis follows:]
  Prepared Statement of Jonathan G. Curtis, President, Environmental 
                       Business Action Coalition
    Mr. Chairman, members of the Subcommittee, my name is Jonathan 
Curtis. I am President and Chief Executive Officer of CDM Federal 
Programs Corporation in Fairfax, Virginia. I am here today in my 
capacity as President of the Environmental Business Action Coalition 
(EBAC), formerly known as the Hazardous Waste Action Coalition (HWAC). 
As you know, EBAC is a national, Washington, D.C. based not-for-profit 
business trade organization whose mission is to serve and promote the 
interests of engineering, science and construction firms practicing in 
multimedia environmental management and remediation. EBAC operates as a 
coalition of the 5,000 firm American Consulting Engineers Council.
    The multimedia environmental industry employs more than 1.3 million 
Americans and generates $181 billion annually in products and services. 
EBAC members include many of Engineering News-Record Magazine's Top 200 
environmental firms, who alone generate $24.1 billion of that revenue. 
EBAC members employ over 60,000 engineers, hydrologists, geologists, 
chemists, and other specialists trained in all aspects of the 
environmental field. Our members have vast experience and extensive 
knowledge in hazardous waste cleanup. We have pioneered improved 
methods of waste management and remediation in this country, and today 
we are developing and implementing tomorrow's solutions for 
environmental problems worldwide.
    Let me clarify the position from which we speak. We are the 
implementers of the hazardous waste laws that you enact and the 
regulations that EPA develops. Let there be no misunderstanding on 
anyone's part--we are not the polluters. We typically do not own or 
operate the sites where Superfund or Brownfields cleanups are to be 
performed. We were not involved in the original generation of the waste 
that has resulted in the need for a site investigation or cleanup. We 
are the firms hired to perform cleanup actions at sites across the 
country--from the highly complex sites on the National Priorities List, 
to the high level waste and mixed waste sites operated by the 
Department of Energy, to the former and current military bases and 
facilities operated by the Department of Defense, to state-listed 
sites, to manufacturing and commercial facilities, landfills, and other 
environmental projects. Our clients are the federal government, state 
governments, private commercial and industrial customers, local 
governments, citizens groups, and others interested in hazardous waste 
cleanup and overall environmental protection.
    We commend this Subcommittee and its Chairman, as well as Chairman 
Bliley of the full Commerce Committee, for the tireless efforts 
undertaken to examine ways to make the Superfund program more readily 
implementable from an engineering, scientific, and construction 
viewpoint, and to seek enactment of much-needed, comprehensive, and 
workable Superfund reform legislation. We appreciate being called back 
to testify this year after testifying last year in favor of Chairman 
Oxley's comprehensive Superfund reform legislation, H.R. 3000. In our 
testimony last year, we stated that H.R. 3000 ``will ensure that 
innovations are applied to cleanups, will provide incentives for new 
technologies at hazardous waste sites, and will spur essential state 
and local voluntary cleanup programs that sometimes languish due to the 
shadow of potential CERCLA liability that runs from the Beltway to 
every Brownfields site in this country.'' Mr. Chairman, last year you 
quoted directly from our testimony in your opening statement. Your 
opening statement indicated that the cleanup contractors believe that 
``from a technical, scientific, and engineering perspective, this bill 
will do more to spur environmental cleanup in a safe and protective 
manner than could possibly be accomplished under current law.''
    We are proud to be here and able to provide our technical 
engineering expertise to the complex, and often emotional, debate 
regarding hazardous waste cleanup. Our overriding concern is protection 
of human health and the environment. We believe that the federal 
Superfund law and related cleanup activities, including Brownfields 
activities, should focus primarily on cleanups. All too often, the 
debate becomes lost amid the ``who pays'' rhetoric. As the CEO of one 
of our largest members said most eloquently several years ago, 
``Superfund is not designed to fix problems, it is a program designed 
to fix blame.''
    Turning now to the purpose of this hearing, which is Brownfields 
redevelopment. Brownfields is one area I hope all agree, on a 
bipartisan basis, where more needs to be done to spur reuse of 
abandoned or underutilized properties throughout this country. This 
testimony focuses on the Brownfields provisions of H.R. 2580, 
Congressman Greenwood's Land Recycling Act of 1999. EBAC is already on 
the public record as strongly supporting H.R. 1300, the bipartisan 
Recycle America's Land Act of 1999 introduced by Chairman Sherwood 
Boehlert containing over 60 cosponsors. It also contains strong 
Brownfields provisions as well as other, much-needed overall reforms to 
the Superfund program (including remedy and liability reforms) that 
would significantly improve the program's operations. The other 
Brownfields bill that is being considered by this Committee is H.R. 
1750, the Community Revitalization and Brownfields Cleanup Act of 1999. 
While this written testimony only addresses H.R. 2580, I am prepared to 
answer your question regarding the Brownfields components of all three 
bills.
    The U.S. Conference of Mayors, who you will also be hearing from 
today, has been compiling Brownfields statistics for the past several 
years. Their most recent Brownfields report 1 indicates that 
180 cities alone estimated that they have over 19,000 Brownfields 
sites. The report points out that the largest obstacles to Brownfields 
cleanups are (1) funding problems, (2) liability concerns associated 
with redevelopment, and (3) the need to determine the extent of 
contamination at the sites identified.
---------------------------------------------------------------------------
    \1\ A National Report on Brownfields Redevelopment, Volume II 
(April 1999), published by the U.S. Conference of Mayors.
---------------------------------------------------------------------------
    Our members have been analyzing the Brownfields marketplace for the 
past several years. In 1998, EBAC released the ``Environmental Market 
Report and Market Survey.'' The survey results indicated that survey 
respondents anticipate an average 27% growth in Brownfields cleanups in 
the next five years. State clients identified the highest expectations 
for Brownfields cleanups in the next five years, indicating that the 
market is likely to grow by 57% in that time period.
    I am here to tell you that, in actuality, the true Brownfields 
market has not kept pace with expectations. Why? We have been asking 
our clients just that. Our clients' responses are fairly unanimous. 
They fear that EPA will ``second-guess'' Brownfields cleanups, and 
require costly site rework at a later date to reach a different site 
cleanup standard so they ``hold onto'' lightly contaminated parcels 
instead of turning them over to beneficial reuse. Moreover, there 
remains the potential down-stream liability associated with reuse that 
further retards the process. These concerns result in owners of such 
properties not undertaking redevelopment efforts at viable Brownfields 
sites. While EPA has indicated a willingness to enter into, on a case-
by-case basis, prospective purchaser agreements at Brownfields sites, 
the process to enter into those agreements is quite time consuming and 
there is no certainty in the end that EPA will agree to a prospective 
purchaser agreement.
    H.R. 2580's provisions in Section 3 provide the finality in 
Brownfields decisions that are truly needed if this market, and the 
actual cleanups, are to accelerate. Under the bill, states self-certify 
that they have enacted a Brownfields program that is adequately funded 
and appropriately staffed, and will result in cleanups that are 
protective of human health and the environment. Brownfields decisions 
made by certified states would not be subject to second-guessing by EPA 
under the authority of either the federal Superfund law or the federal 
RCRA law. This provision is very important to spurring increased 
voluntary cleanup actions at Brownfields sites across the country and 
reducing possible risks to nearby populations that are currently not 
addressed, expressly because of the fear of federal liability.
    Another significant problem associated with cleanup activities is 
the often conflicting provisions of RCRA and Superfund during site 
cleanup activities. Of particular note is the need to obtain permits 
for management of remediation waste during cleanup activities. 
Remediation waste management is the subject of RCRA reform discussions 
that your staff and EBAC have been involved in for some time. The 
permit waiver for on-site response actions that is contained in H.R. 
2580 would remove the barriers to actual on-site cleanup and 
significantly increase the pace of Brownfields cleanups. Cleanup 
actions would still be protective of human health and the environment 
and subject to regulatory review and approval, of course, under such a 
scenario.
    I must go on record with EBAC's strong disagreement with the 
requirement of H.R. 2580 for ``innocent landowners'' to undertake 
environmental site assessments ``in accordance with the standards set 
forth in the American Society for Testing and Materials (ASTM) Standard 
E1527-94, titled `Standard Practice for Environmental Site Assessments: 
Phase I Environmental Site Assessment Process.' '' Please note that 
this standard is also proposed to be codified in Chairman Boehlert's 
bill, H.R. 1300, and in H.R. 1750. EBAC, ACEC, and other professional 
organizations strongly disagree with the premise that the so-called 
ASTM Phase I ``standard'' is actually a ``standard.'' A practice 
labeled as a ``standard'' implies that it is a ``tried and true'' 
practice which, if followed, yields reliable and trustworthy results 
and is endorsed by the professionals who use it. Nothing could be 
further from the truth. The scientists and engineers who, for the last 
several decades, have investigated contaminated sites know that it is 
foolish, even dangerous, to assume that using ``cookbook'' assessment 
procedures will uncover all significant contamination. Except for a few 
simple sites, the technology required to peer underground and locate 
all significant sources of contamination has not been invented.
    Left with these uncertainties, the right thing to do is let the 
practitioners apply professional judgement to what is truly needed for 
responsible site cleanup. We recommend that you drop the requirement 
for using ASTM Standard E1527-94. If some kind of assessment guidelines 
are deemed necessary, then we ask that they be developed by EPA, using 
an open, transparent process, and incorporating substantial input from 
the licensed engineers who practice in this field.
    The legislation allows EPA to set up an ``alternative standard'' 
through a formal rulemaking process. However, as long as the 
legislation identifies the specific ASTM standard that qualifies for 
``innocent landowner'' status, we believe that EPA will never get to 
the rulemaking stage to create an alternative standard. We urge that 
the legislation delete the ASTM standard, and require EPA to undertake 
a rulemaking to identify the professional judgment required for 
qualification as an ``innocent owner'' within a limited, specific 
period of time after passage of this bill.
    In terms of the liability net of Superfund, EBAC understands the 
need for any Brownfields legislation to define ``innocent landowners,'' 
and ``bona fide prospective purchasers,'' as well as to provide 
liability relief for contiguous property owners and state and local 
governments. Letting everyone off the hook for liability for site 
cleanup is good public policy for it will enable reuse of these 
valuable properties and revitalization of urban areas. However, letting 
everyone off the hook for liability for site cleanup could have the 
unintended consequence of leaving only one involved participant with 
any potential responsible for site liabilities--the cleanup firms. We 
would be remiss in this testimony by not adding here, briefly, that the 
federal Superfund law's harsh liability consequences have resulted in 
imposition of unfair liability on cleanup contractors merely because of 
their involvement in site cleanups. Last year's H.R. 3000, and this 
year's Superfund legislation sponsored by Chairman Boehlert of the 
Water Resources and Environment Subcommittee (H.R. 1300), thankfully 
included provisions that would address contractor liability issues. 
These protections are vital for encouraging and accelerating 
Brownfields cleanups and Superfund cleanups. We look forward to 
robustly addressing contractor liability and remedy selection issues 
with you in further detail at a subsequent hearing, and discussing why 
addressing these issues will help spur Brownfields cleanups and other 
environmental remediation activities.
    H.R. 2580 requires EPA to provide financial and technical 
assistance to states to develop and Administer Brownfields programs, as 
well as continues the funding of Brownfields grants. EBAC strongly 
supports both of these initiatives. State assistance and Brownfields 
grants will help ensure that strong Brownfields programs continue to 
operate across this country. While we recognize that tax matters are 
not the responsibility of this Committee, EBAC urges the Congress to 
explore maximum use of economic and other incentives to assure that 
developers will become eagerly engaged in the process of transforming 
currently wasted and under-utilized urban properties into productive 
ones. Please note, however, that we expect that the proposed lien on 
facilities in the amount of the unrecovered response costs could pose a 
continued obstacle to Brownfields cleanup efforts.
    Finally, please note that the fact that we have not addressed 
Section 9 of H.R. 2580--the Remedy Selection portion of the bill--in 
this testimony is not an oversight. Remedy selection is not the subject 
of this hearing. However, as our testimony last year on H.R. 3000 
demonstrates, EBAC is convinced that reforming key remedy selection 
provisions in Superfund is critical to accelerating any cleanup 
program, whether it be Brownfields cleanups, voluntary cleanups, or 
Superfund cleanups. We hope to be invited back to a subsequent hearing 
to be able to inform this Subcommittee, in detail, why Section 9's 
remedy reform provisions should be adopted by this Committee and the 
full Commerce Committee, and why these provisions will accelerate 
cleanups while ensuring protection of human health and the environment.
    In conclusion, EBAC greatly appreciates the ability to testify 
before your Subcommittee today on H.R. 2580. We believe that the time 
to legislate on Brownfields and overall Superfund reform is now, before 
the program funding that remains in the Superfund Trust Fund is 
exhausted, and the total burden of the Superfund program falls to the 
states. The health, safety, and economic well-being of the country are 
more important than politics. I remain available to answer any 
questions that you may have.

    Mr. Oxley. Thank you.
    Ms. Florini.

                   STATEMENT OF KAREN FLORINI

    Ms. Florini. On behalf of the Environmental Defense Fund 
and its 300,000 members, thank you for this opportunity to 
testify.
    Mr. Oxley, I would like to ask if perhaps rather than 
hearing from me, you might wish to hear from Ms. Mills, as you 
were not in the room, or at least you were not in the chair 
when she presented her testimony. I can summarize my remarks in 
about 30 seconds and I would--I think it is extraordinarily 
important that you personally hear her remarks.
    Mr. Oxley. I read her testimony, so if you would proceed.
    Ms. Florini. All right.
    Before turning to the specific bills under discussion 
today, I would like to make four general points:
    First, the Environmental Defense Fund and all members of 
the environmental community think that proper reutilization of 
brownfields is a very good idea, for the reasons stated a 
number of times. It not only improves the quality of life and 
communities otherwise that have these underutilized properties, 
but also, of course, prevents the redevelopment or the 
development in greenfield sites.
    But the lessons of history make plain that Superfund is not 
the sole cause or even the primary cause of urban blight. Slums 
existed long before Superfund did. It is axiomatic in real 
estate that the three most important factors are location, 
location, location. Everything else, including preexisting 
contamination, comes a distant fourth.
    Third, the term ``brownfields'' means different things to 
different people, and we have already observed that today. To 
some, it means every formerly used property, regardless of 
whether the property is grossly contaminated or virtually 
pristine. To others. Brownfields properties are only those that 
have low levels of contamination. Whichever way the term is 
used, it is essential to the protection of public health and 
the environment that we not wind up with policies that are 
suitable only for low-contaminationsites also being applied to 
more highly contaminated sites.
    Fourth, State programs vary significantly in quality. In a 
study released by the Conference of Mayors just 3 months ago, 
nearly one-third of the responding cities gave a low rating to 
their State's voluntary cleanup program; 23 percent rated it as 
not very good, and 6 percent as poor. Another 44 percent rated 
their State's program as merely satisfactory. In short, the 
mere existence of a State program is no guarantee of a trouble-
free outcome.
    This leads to my most important point. Brownfields 
redevelopment must not be used as an excuse to roll back 
protections and safeguards provided under Federal law. In 
particular, the Environmental Protection Agency, local 
governments, and citizens must retain their ability to respond 
to an imminent and substantial endangerment as provided by 
existing law. It is a necessary Federal safety net in those 
instances where cleanups under State programs don't work. Where 
they do work, there will not be any imminent substantial 
endangerment and the question will not arise.
    With those general points, I will turn to the three bills 
under discussion today. First, we strongly oppose H.R. 2580. We 
regard it as an extreme bill. It would dramatically limit the 
ability to use Federal statutory authorities at sites subject 
to cleanup under a State program. This approach eviscerates the 
Federal safety net. It says that federalism is more important 
than public health. This is a values question and one where the 
Environmental Defense fund believes that it is essential to 
come down squarely on the side of saying public health and 
environmental protection is more important than federalism, not 
vice versa.
    In addition, H.R. 2580 would effectively repeal portions of 
other environmental authorities, including key provisions 
relating to cleanup, or corrective action, as it is known at 
hazardous waste treatment, storage and disposal facilities. It 
also eliminates permanent requirements for onsite activities 
occurring under State cleanup programs, thus eviscerating 
public participation.
    And as we have heard from Ms. Mills in Ohio, there is no 
other mechanism for public participation under a State cleanup 
program. Lack of permits also turns compliance with substantive 
requirements under these programs into a ``trust but don't 
verify'' situation in many instances.
    The supposed protections built into H.R. 2580 are 
profoundly inadequate. There is no review of the State 
programs, just a requirement that States provide a one-time 
self-certification. EPA cannot reject the certification either 
initially or at a later time, even if the State program is 
entirely defunded.
    And as indicated in my written testimony, a participant in 
the Ohio brownfields program at the local government level 
testified before the Ohio legislature, indicating that already 
due to inadequate funding, there has been substantial attrition 
in the State program.
    Finally, we oppose the requirement for Governors' 
concurrence. We believe this is a solution in search of a 
problem, as EPA already routinely consults with Governors. 
Making Governors' concurrence mandatory, we regard simply as a 
further erosion of the Federal safety net.
    We have also got serious concerns with a number of H.R. 
1300 brownfields-related provisions. Chief among our concerns 
are the inadequate reopeners, which again cut holes in the 
Federal safety net. It also has got innocent party provisions 
which are far more sweeping than those in 2580 or in 1750.
    Finally, we think that H.R. 1750 is much more focused and 
contains sensible criteria for approving State programs and 
appropriate reopeners and avoids the sins of commission and 
omission in the other bills. Thank you.
    [The prepared statement of Karen Florini follows:]
  Prepared Statement of Karen Florini, Senior Attorney, Environmental 
                              Defense Fund
    On behalf of Environmental Defense Fund (EDF) and its more than 
300,000 members, I appreciate this opportunity to testify regarding the 
brownfields provisions of H.R. 2580, H.R. 1300, and H.R. 1750. Most of 
my testimony focuses on the relationship between brownfields 
legislation and other federal environmental statutes, including 
Superfund and the Resource Conservation and Recovery Act (RCRA). EDF 
has been actively involved in the Superfund reauthorization process, 
serving on EPA's NACEPT Committee on Superfund and on the National 
Commission on Superfund, and testifying repeatedly on Superfund during 
the last three Congresses. We have also long participated actively in 
matters affecting RCRA, the nation's hazardous waste statute.
i. introduction: brownfields--causes, effects, and the context of state 
                           cleanup programs.
    In the last several years, the term ``brownfields'' has become 
widely used to mean abandoned or under-utilized urban areas with known 
or suspected contamination from prior industrial or commercial use. 
(There is considerable confusion about whether this term refers to 
sites with only minor contamination, or to the full range of 
contaminated sites.) In some circles, it is fashionable to assert or 
imply that, but for Superfund and other federal laws, these properties 
would be restored to productive use forthwith.
    Such an assertion is nonsense. Urban properties become abandoned or 
under-utilized for a variety of complex reasons, of which environmental 
contamination--real or perceived--is only one, and typically a minor 
one at that. Anyone familiar with the writings of Charles Dickens, not 
to mention American history, is well aware that slums existed long 
before Superfund did. It is axiomatic that there are three things that 
matter in real estate: location, location, and location. Crime 
patterns, availability of transportation and other infrastructure, and 
contamination concerns follow along behind.
    That said, however, carefully crafted legislation may provide some 
incremental benefit in promoting brownfields redevelopment--an 
objective we support for many important reasons. First and foremost, 
abandoned and under-utilized urban properties impair quality of life 
for urban communities. Getting those sites back into beneficial use can 
provide jobs, services, or recreational opportunities to local 
residents (though siting polluting facilities near residences can be 
far worse than leaving the site unoccupied).
    In addition, failure to redevelop in existing urban areas also 
creates greater pressure for development on new ``greenfield'' sites in 
rural areas. Doing so disrupts farmland and wildlife habitat (habitat 
loss is the primary threat to biodiversity, including endangered 
species). It also contributes to sprawl, which in turn means more 
traffic, which means more tailpipe emissions of global warming gases, 
smog precursors, and toxic air pollutants. Indeed, on a national basis, 
about half of the health risk from air toxics comes from mobile 
sources.1
---------------------------------------------------------------------------
    \1\ See the Hazardous Air Pollutants section of EDF's Scorecard web 
site, www.scorecard.org. Scorecard is a free public information service 
based on more than 250 electronic data sets, including data from the 
Environmental Protection Agency's Cumulative Exposure Project (CEP), 
which provides localized estimates of exposures to 148 air toxics. 
Scorecard multiples the exposure levels by chemical-specific potency 
values based on authoritative sources to present county-specific health 
risks from mobile, area, and point sources of air toxics. (CEP is based 
on a 1990 emissions inventory, but comparison of the CEP exposure 
levels with available monitoring data for the late 1990s shows close 
agreement. See http://www.scorecard.org/env-releases/def/hap--
compare.html.)
---------------------------------------------------------------------------
    In short, redeveloping brownfields--if done well and with 
meaningful community involvement--provides a host of community, public 
health, and environmental benefits.
    At the same time, however, it is important to note that the word 
``brownfield'' is just that: a word. Calling a site a ``brownfield'' 
does not lessen its toxicity by one iota. You can't fool Mother Nature; 
ignoring contamination does not detoxify it. Indeed, if brownfields 
programs result in more-intensive utilization of still-contaminated 
properties, they can result in increased exposure to toxics.
    With land, as with lead-acid batteries and many other materials, 
bad recycling is worse than no recycling. What's needed are good 
recycling programs for land--ones that (i) assure adequate cleanups 
before the site is put into use, (ii) build in safeguards because 
cleanups sometimes don't work as expected, and (iii) fully involve the 
affected community.
    The Committee is to be commended for having a hearing on the right 
topic: brownfields, as opposed to Superfund reauthorization. The 
Environmental Defense Fund concurs with the Administration and with the 
U.S. Chamber of Commerce that the time for comprehensive 
reauthorization has come and gone. Rather than continuing to hold 
brownfields legislation hostage to the chimera of Superfund 
reauthorization, it is time to move forward with legislation that 
serves the legitimate needs of the public, business, and all levels of 
government.
    But while the brownfields problem warrants Congress's attention, it 
cannot become an excuse for rollbacks of important environmental 
safeguards and evisceration of the polluter-pays principle. 
Unfortunately, one of the bills under consideration in this hearing, 
H.R. 2580, would have just such an effect. H.R. 1300, though less 
draconian, would also have serious adverse consequences. By contrast, 
H.R. 1750 is a sensibly tailored approach to the specific issues. All 
three bills are discussed in more detail below.
    Before turning to those bills, it is useful to remind ourselves 
that state voluntary programs differ substantially in their quality. 
Indeed, in a study released by the Conference of Mayors just three 
months ago, nearly one-third of the responding cities gave a low rating 
to their state's voluntary cleanup program (23% rate it as ``not very 
good'' and 6% as ``poor'').2 Another 44% rates their states 
program as merely ``satisfactory''. In short, cities themselves are 
less than ecstatic about most state brownfields programs, making clear 
the continuing need for a federal safety net.
---------------------------------------------------------------------------
    \2\ U.S. Conference of Mayors (April 1999). Recycling America's 
Land: A National Report on Brownfields Redevelopment, Volume II, p. 12.
---------------------------------------------------------------------------
    Further illustration of this point comes from a recent study of 
voluntary programs by the General Accounting Office. 3 
Although the majority of 17 states surveyed typically use standards 
based on industrial-use scenarios in cleaning up sites, only two 
monitor the land-use restrictions that must be concomitantly imposed on 
such sites to keep non-industrial uses from occurring.4 
Likewise, in 8 of the 17 states, most cleanups use non-permanent 
cleanup methods but received only limited monitoring, primarily in the 
form of periodic reports by the facility owners.
---------------------------------------------------------------------------
    \3\ U.S. General Accounting Office (April 1997). Superfund: State 
Voluntary Programs Provide Incentives to Encourage Cleanups. GAO/RCED-
97-66.
    \4\ Id. p. 39.
---------------------------------------------------------------------------
    In addition, resource constraints can pose serious problems. Just 
two months ago, the manager of the Brownfields Redevelopment Project 
for Ohio's Cuyahoga County Planning Commission testified that the 
pending budget for Ohio's voluntary cleanup program ``reflects no 
commitment to staff the program''. Since the beginning of the year, the 
[voluntary program] has been in a mode of attrition. As of this week 
staff has been cut--reducing its size from 25 to 16 FTEs statewide.'' 
5
---------------------------------------------------------------------------
    \5\ Testimony of Virginia Aveni Before the Senate Finance and 
Financial Institutions Committee, May 26, 1999, p. 3.
---------------------------------------------------------------------------
    In short, the existence of a state cleanup program is no guarantee 
that cleanups under that program will prove effective. When they 
aren't, federal authorities must be available to provide a safety net 
for communities.
   ii. h.r. 2580: undercutting the federal safety net for brownfield 
                                cleanups
    Unfortunately, H.R. 2580 eviscerates the federal safety net. 
Sections 3 and 4 are particularly objectionable.6 Our 
opposition to these provisions dramatically outweighs our longstanding 
support for the concept of bona fide prospective purchaser protections 
such as those in section 6. Likewise, while we support protection of 
innocent parties, section 5 of H.R. 2580 should be strengthened by 
adding requirements (such as those in H.R. 1750) that the purchaser 
take reasonable steps to prevent ongoing or future releases, and 
cooperate with parties conducting a cleanup at the site.7
---------------------------------------------------------------------------
    \6\ In addition, section 1's ``Findings'' contain a number of 
seriously erroneous and misleading statements, and fail entirely to 
acknowledge the dangers of improperly conducted brownfields cleanups 
for both current and future generations. Likewise, Section 8's 
provisions on contiguous properties suffers from several important sins 
of omission, such as failure to require (i) use of appropriate care in 
stopping ongoing releases and exposures, (ii) provision of notice, 
(iii) no exacerbation of release, and (iv) appropriate inquiry at the 
time of acquisition.
    \7\ While we do not oppose liability protections for contiguous-
property owners, we prefer the provisions in H.R. 1750 to those in H.R. 
2580, since the former are less susceptible to abuse.
---------------------------------------------------------------------------
    Our major concerns with sections 3 and 4 are set forth below.
a. H.R. 2580's Inappropriate Limitations on Federal Authority at State 
        Voluntary Cleanup Sites.
    Section 3 bars EPA, citizens, and local governments from bringing 
an action under Superfund and parts of RCRA with regard to a release at 
a facility that is or has been the subject of a response action under a 
state program.
    Such restrictions go far beyond the Superfund liability protection 
for bona fide prospective purchasers, a concept which EDF has long 
supported as noted above. Those provisions allow parties that have no 
prior connection to the site, and that meet certain common-sense 
requirements, to be assured that they will not become liable as an 
owner/operator under Superfund for pre-existing contamination at the 
site. This provision should help further spur brownfield redevelopment.
    Unfortunately, Section 3 of H.R. 2580 goes much further. It not 
only limits all Superfund enforcement authorities, but also key RCRA 
enforcement authorities--ones that enable both EPA and citizens to take 
action against parties that are mismanaging solid or hazardous wastes 
to the extent of presenting an ``imminent and substantial 
endangerment.''
    At the same time, it is far from clear what ``release at a facility 
that is, or has been, the subject of a response action pursuant to a 
State program'' actually means. Does the prohibition apply even if the 
State response action covered a completely different release at a 
facility (i.e., does ``subject'' modify ``release,'' or does it modify 
``facility'')?
    Likewise, what does ``the subject of'' mean? What if the response 
action was planned years ago, but no steps to implement it were ever 
taken? Or if action stopped after initial studies were completed? Or if 
a cleanup was carried out, but failed to achieve required cleanup 
levels? Or wasn't maintained as required by the state cleanup plan? 
These questions will also require years of litigation to resolve.
    Polluters will seek the broadest possible construction of these 
phrases to escape liability under Superfund and RCRA. As discussed 
below, these concerns are particularly acute in light of the breadth of 
Section 3's scope, as well as the profound weakness of its 
certification and re-opener provisions.
1. Letting Federalism Trump Public Health
    Remarkably, Section 3 limits EPA from taking any action at all--
even at its own expense--at sites where action under a state program 
has proven ineffective.
    This provision is based on a fundamentally flawed premise: that 
contaminated sites addressed under state cleanup programs should be 
above the law, immune from all Superfund and some RCRA enforcement 
authorities, unless certain limited conditions are met. The result is 
that private cleanups with no governmental oversight can completely bar 
use of RCRA and CERCLA safeguards--no matter how serious a threat the 
site poses.
    This approach undercuts the federal safety net for cleanups and 
elevates principles of federalism above protection of public health and 
the environment. If cleanups under state programs don't work, the 
federal government should be able to act, under the same standard that 
applies across the board. There is not a shred of evidence that, 
following action under a state program, EPA has insisted on post-
cleanup cleanups that serve no purpose to protect health and 
environment. Indeed, EPA has seldom if ever required additional action 
following completion of a cleanup under a state program, except where 
the state itself has requested EPA intervention.
    Simply put, it is not acceptable to restrict the ability of federal 
and local governments and citizens to respond to imminent and 
substantial endangerments at sites where cleanups under State programs 
have occurred. By definition, those cleanups didn't work--if they had, 
the site would not be presenting an imminent and substantial 
endangerment.
2. Undercutting Incentives for Effective Voluntary Programs
    Under current law, the authority of EPA, local governments, and 
citizens to act following an unsuccessful state cleanup itself creates 
an important incentive for more-rigorous cleanups, and for minimizing 
abuses within state cleanup programs. The very fact that this authority 
now exists decreases the likelihood it will be needed. Conversely, 
removing or limiting that authority makes it more likely that problems 
will arise--and be harder to deal with.
    Superfund clearly creates powerful incentives for action. The 
Cleveland Plain Dealer recently ran a story about the Ashtabula River 
Partnership, a group working to avoid a potential Superfund listing by 
creating what they regarded as ``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.'' 8 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.'' 9
---------------------------------------------------------------------------
    \8\ ``Toxic Cleanup: Ohioans Aim to Skirt Superfund Listing,'' 
Greenwire (electronic newsletter), June 14, 1995 (synopsis of story 
from June 11 Cleveland Plain Dealer).
    \9\ GAO, p. 3.
---------------------------------------------------------------------------
    Just as Superfund creates incentives for voluntary action, so 
continued applicability of Superfund reinforces incentives for high-
quality voluntary action. These incentives should not be discarded.
3. Granting Windfall Waivers of Liability.
    In addition, Section 3 provides a windfall waiver of Superfund 
liability for current and past owners and operators of the site, as 
well as all generators and transporters, who would otherwise be liable 
for cleanup costs at the site. Even if one accepts the argument that 
current site owners will be reluctant to re-develop or sell their 
property unless States can relieve them of liability under federal 
law--an argument we find singularly unpersuasive--there is no 
justification whatsoever for extending the waiver of liability to past 
owners, or to generators or transporters.
    Relieving current owners of liability is itself highly 
objectionable, since in many instances it is these very parties who are 
most responsible for conditions at the site. In EDF's view, the only 
liability limitations that are warranted are those for bona fide 
prospective purchasers. Even without prospective-purchaser limitations, 
the private market is increasingly providing mechanisms for moving 
forward with brownfield redevelopment today.10 Until and 
unless objective evidence demonstrates that liability relief for bona 
fide prospective purchasers is insufficient to promote adequate 
brownfields redevelopment, this provision can only be regarded as a 
give-away to parties who have known they were potentially liable for 
two decades.
---------------------------------------------------------------------------
    \10\ See for example, Coffey, ``Environmental Firms Assume Cleanup 
Risks,'' Seattle Daily Journal of Commerce, 02/11/97 [Retrieved from 
ttp://www.djc.com/data/news/19970211/10020180.htm 2/27/97]. The article 
describes a ``radically different approach to soil and groundwater 
cleanups that is slowly catching on in the environmental industry. A 
handful of firms are guaranteeing cleanup costs for their clients and, 
in some cases, providing definite dates for when the cleanup work will 
be finished.'' The article continues, ``Not only are these companies 
promising to bring sites up to [Washington] Department of Ecology 
standards within a certain amount of time, they also are assuming the 
financial risks involved if the schedules for site closures can't be 
met. This new approach is being hailed as the missing link needed to 
get the state's hundreds of abandoned contaminated properties, or 
`brownfields,' cleaned up and redeveloped.'' Similarly, conferences 
with titles such as ``Realizing Profits in Brownfields,'' which 
advertise a ``unique opportunity for all parties involved with 
Brownfields properties to locate and initiate their next profit making 
real estate deal,'' are increasingly common. [Flier for conference 
scheduled for April 10-11, 1997, Philadelphia PA].
---------------------------------------------------------------------------
    Finally, it must be noted that the approach taken in Section 3 
substantially undercuts the prospective-purchaser provisions in Section 
6 of H.R. 2580, since liability is blocked even if Section 6's 
requirements are not met.
b. H.R. 2580's Implicit Repeals of Other Environmental Authorities.
    Unlike other brownfields bills, H.R. 2580's limitations on 
Superfund and RCRA enforcement authorities apply to a wide range of 
sites at which there is a clear pre-existing federal interest. For 
example, H.R. 2580 fails to provide that sites cannot be diverted into 
state programs once they have been proposed for listing on the National 
Priorities List, providing opportunities for gaming the system.
    In addition, the bill fails to preserve the applicability of a host 
of other federal environmental important laws that may affect 
contaminated sites:

 RCRA authorities, e.g., relating to corrective action and 
        closure of land-disposal units (such as liners, leachate 
        collector systems, and landfill covers);
 TSCA authorities, e.g., for cleanup of PCB contamination;
 Clean Water Act authorities, e.g., relating to wetlands; and
 Safe Drinking Water Act authorities, e.g., relating to 
        underground injection.
    These glaring omissions means that state voluntary programs which 
may completely lack public participation and substantive standards to 
trump provisions of other major federal environmental laws--each of 
which has evolved specific implementing regulations, with extensive 
public participation, over many years.
    Most egregiously, H.R. 2580 undercuts the RCRA corrective action 
program. Since enactment of the 1984 amendments to RCRA, owners and 
operators of hazardous waste facilities have known that they have a 
legal obligation to clean up existing messes at their facilities in 
conjunction with getting their facility permit. Under H.R. 2580, these 
15-year-old requirements arguably could be circumvented by a far weaker 
voluntary cleanup with no public participation. Such a rollback of 
existing federal requirements is completely unacceptable.
    The scope of this issue is significant, as approximately 3,700 RCRA 
sites may require corrective action.11 EPA recently 
designated 1,712 corrective action sites for priority attention through 
2005.12 A state that wants primacy in directing action at 
these sites (and other RCRA corrective action sites) has a clear means 
of obtaining it: become authorized to administer the corrective action 
program, as 30-plus states have done already.
---------------------------------------------------------------------------
    \11\ See http://www.epa.gov/epaoswer/osw/cleanup.htm#ca program.
    \12\ See http://www.epa.gov/epaoswer/osw/cleanup.htm#baseline.
---------------------------------------------------------------------------
    Exacerbating all these problems, H.R. 2580 contains a sweeping 
exemption to permitting for all on-site activities conducted under a 
voluntary response plan [Sec. 3(e), p.7]. This provision offers a 
massive loophole for evading requirements of RCRA, the Clean Air and 
Clean Water Acts, and a variety of other federal protections.
    In many instances, eliminating permit requirements eliminates 
public participation--and H.R. 2580 conspicuously fails to require that 
state programs provide meaningful participation (or indeed any at 
all).13
---------------------------------------------------------------------------
    \13\ Nor does H.R. 2580 have any mechanism for assuring the 
adequacy of a state's public participation program, even if it the 
state nominally has one.
---------------------------------------------------------------------------
    Although the bill purports to require that the substantive 
standards be met, this is meaningless since the only way the public (or 
state or federal regulators) are likely to be able to tell if the 
standards are met are through inclusion of specific standards in the 
permit. Under many of the affected statutes, the substantive regulatory 
standards have been promulgated in relatively general form, so that 
they may be applied in a site-specific manner through the permit (or 
provides for site-specific exceptions to generally-applicable 
standards). Obviating the permit will often leave site owners with 
unfettered discretion to pick a numerical standard that allows them to 
minimize the cost of cleanup. At the same time, H.R. 2580 fails to 
require any active state oversight. This is a recipe for disaster.
    This provision is by no means analogous to Superfund's exemption 
for permitting for on-site activities. Under Superfund, there is a high 
level of active governmental oversight and public participation, making 
the Superfund remedy-selection process at least the equal of federal 
permitting processes other environmental programs (indeed, Superfund 
exceeds all other programs inasmuch as it allows citizens to obtain 
Technical Assistance Grants.) By contrast, H.R. 2580 conspicuously 
fails to assure any level of public participation in state voluntary 
programs, just as it fails to require any level of active state 
supervision of the cleanup. Moreover, under Superfund it is EPA that 
makes cleanup determinations--the same body that develops the 
substantive standards underlying the waived permits. In the brownfields 
context, it is States or site owners that make cleanup determinations--
groups that may have little interest in assuring that the underlying 
substantive standards are indeed met.
    In short, even if one assumes that federal Superfund authorities 
should be limited at some sites in order to promote brownfield 
redevelopment (an assumption we do not share), that constitutes no 
justification for indirectly repealing significant portions of other 
major federal laws. Any limitations on Superfund authorities must be 
accompanied by explicit preservation of authority under these other 
major federal environmental programs, as well as by adequate 
certification and re-opener provisions as discussed in the next 
section, and retention of existing permit requirements.
c. H.R. 2580's Inadequate Certification and Re-opener Provisions
1. Weak Self-Certification Provisions
    Although Section 3's reach is purportedly limited by provisions 
that set both preconditions (State certification) and criteria for re-
openers, both sets of provisions are seriously flawed.
    The State certification requirements are almost meaningless. The 
state need only submit a three-part self-certification: that a 
voluntary response program has been enacted; the State has committed 
financial and personnel needed to carry it out; and such program will 
be implemented in a manner protective of human health and the 
environment (Sec. 3(b), p.4). For all the bill says to the contrary, 
the Governor could write these phrases on a post card and mail it to 
Administrator Browner--and achieve automatic, irrevocable, permanent 
designation as a State response program for purposes of barring EPA, 
citizen, and local government action under Superfund and RCRA's 
imminent-hazard provisions.
    EPA has no authority to reject the self-certification, no matter 
how inaccurate. Moreover, there is no requirement for public 
participation of any kind in the State program (much less provision of 
technical assistance resources), nor is there any opportunity for the 
public to provide EPA with comment on the adequacy of the state 
program. Nor is there any requirement that the state provide any 
oversight of private parties' cleanup activities. And even if the State 
has committed adequate resources at the time of the certification, 
there is no requirement for regular re-certification, or notifying EPA 
if resources cease to be adequate (e.g., due to dramatic budget cuts).
2. Inadequate Re-openers.
    The appropriateness of the re-openers is one of the most vital 
aspects of any ``finality'' provision--and an area where H.R. 2580 is 
particularly flawed (Sec. 3(d), p.5). The finality provision (which 
applies even to sites already proposed for listing under Superfund) is 
limited only where:

 The site has been listed under Superfund (but unlike all other 
        brownfields bills, not for sites already proposed to be 
        listed);
 The Governor requests EPA action;
 The site is a federal facility;
 Prior to commencement of action under a state program, a 
        federal administrative or judicial order was issued under 
        Superfund, RCRA, the Clean Water Act, TSCA, or the Safe 
        Drinking Water Act; or
 ``response actions are immediately required to prevent or 
        mitigate a public health emergency and . . . the State is not 
        responding in a timely manner.''
    This last proviso is a plum ripe for corporate litigators to pluck, 
again and again, first as to its general meaning, and then as to its 
applicability in specific factual settings whenever their clients want 
to circumvent attention by EPA, citizens, or local governments. What 
does ``immediately'' mean? What is a ``public health emergency''? Why 
is there no consideration of the environment? What is a state 
``response''? What is a ``timely manner''?
    All this fodder for the litigation mill is unnecessary. EPA should 
be able to act without restriction at voluntary cleanup sites, just as 
it can anywhere else. Where a voluntary cleanup is efficacious, EPA 
will have no need (or motive) to act--but where the cleanup doesn't 
work, a federal safety net should be readily available, under the 
familiar ``imminent and substantial'' standard (which is also found in 
numerous state cleanup laws 14 and in Memoranda of Agreement 
between EPA and several states regarding state voluntary programs 
15). In addition, prior testimony to this committee by the 
National Association of Local Government Environmental Professionals 
has also endorsed the inclusion of a reopener based on the ``imminent 
and substantial'' standard.16
---------------------------------------------------------------------------
    \14\ See, e.g., Arizona (Arizona Statutes Sec. 49-287(E)); Arkansas 
(Arkansas Statutes Sec. 8-7-409(a)); California (California Superfund 
act, Sec. 25358.3(a)); Colorado (Colorado Statutes Sec. 25-15-
301(4)(a)); Hawaii (Hawaii Statutes Sec. 128(D)-4(2)); Louisiana 
(Louisiana Revised Statutes 30:2275(A)); Maryland (MD Environmental 
Statutes Sec. 7-222 (2)(iii)); Michigan (Michigan Statutes 
Sec. 324.20119(1)); Minnesota (Minnesota Statutes 115B.18 Subdivision 
2); Montana (Montana Statutes 75-10-711(1)(a)); New Hampshire (New 
Hampshire Statues Annotated Sec. 147-A:13); New Mexico (New Mexico 
Statutes Annotated Sec. 74-4-13(A)); Oregon (Oregon Statutes 
Sec. 465.260(5)(b)); Pennsylvania (Pennsylvania Statutes 35, 
Sec. 6020.501(g)); South Carolina (South Carolina Statutes Annotated 
Sec. 44-56-50); Texas (Solid Waste Disposal Act Sec. 361-272(a)); West 
Virginia (West Virginia Statutes Sec. 22-18-18)a)).
    \15\ E.g., Memorandum of Agreement Between the Texas Natural 
Resource Conservation Commission and the U.S. EPA, Region 6; and 
similar agreements in Colorado, Illinois, Michigan, Minnesota, 
Missouri, Wisconsin.
    \16\ Statement of David Levy before the Subcommittee on Commerce 
and Finance of the House Commerce Committee, Committee Print p. 114.
---------------------------------------------------------------------------
d. Disempowering the Public: Governor's Concurrence
    In another highly objectionable feature of the bill, new sites can 
be added to the Superfund list only upon the concurrence of the 
Governor of the State in which the site is located [Sec. 4, adding 
CERCLA Sec. 105(h), p.8].
    While it may be appropriate to give states ``first dibs'' on 
cleanups at sites that will be appropriately addressed through state 
action, this provision goes much too far. A state could, through simple 
inaction, bar action under Superfund even though the site will not 
otherwise be cleaned up. This invites potential abuses (if, for 
example, a major potentially responsible party at the site also 
happened to be a campaign contributor to a high-ranking State 
official).
    This provision effectively repeals section 105(d) of CERCLA, under 
which citizens and local governments can petition EPA to list sites on 
the NPL. Where prompt state action has been forthcoming, no such 
petition is needed. But where it is lacking, Governors should not be 
able to cut a hole in the federal safety net. Notably, the majority of 
NPL sites in Louisiana have resulted from citizen petitions, 
highlighting the importance of this mechanism.
    As above, EPA's authority to list absent the Governor's concurrence 
serves as a useful incentive, and makes it less likely that EPA will 
actually have to do so. In 1995, EPA established a formal policy for 
coordinating with states in deciding whether to list. Since that time, 
no site has been listed over a Governor's objection. However, if EPA 
were unable to list absent concurrence, states would find themselves 
under much greater political pressure to object to NPL listing--even if 
the state's program was indeed strapped for resources.
    In short, the requirement for the Governor's concurrence is a 
solution in search of a problem--and one that will itself create a 
number of problems.
    iii. h.r. 1300: another set of holes in the federal safety net.
    Though the brownfields-related provisions of H.R. 1300 are less 
extremist than those of H.R. 2580, they are still far from acceptable. 
Our most serious concerns involve the limitation on use of Superfund 
authorities found in section 104 [adding CERCLA Sec. 129, p.17], in 
tandem with the inadequate re-opener provisions. As discussed above 
with regard to H.R. 2580, we oppose creating a more-restrictive 
standard for action under Superfund, which will delay further action at 
sites with ineffectual voluntary cleanups and also prompt litigation 
over this new terminology (i.e., action is ``immediately required'' to 
address ``an emergency'' and ``there is an immediate risk to public 
health or welfare or the environment'' (p.19)).
    These concerns are exacerbated by the fact that H.R. 1300 applies 
its limitations on Superfund cost-recovery authorities to state 
programs sight unseen. Those limits apply to any state law ``that 
specifically governs response actions for the protection of public 
health and the environment'' [p.18], regardless of whether those 
programs actually achieve their objectives, have adequate resources, or 
provide for any public participation at all. There is no opportunity 
for EPA to review those programs, or gather communities' views on their 
adequacy. As noted above, almost one-third of cities responding to a 
survey for the U.S. Conference of Mayors rated their state voluntary 
cleanup programs as less than satisfactory, so the blanket approval 
awarded by H.R. 1300 is plainly unwarranted.
    In addition, section 105's requirement for a one-year delay in 
finalizing an NPL list is not desirable, since more-rapid listing may 
be appropriate in some cases. (Sec. 105, adding CERCLA Sec. 105(h), p. 
19]. We concur with the National Association of Attorneys General that 
such provisions allow potentially responsible parties ``too many easy 
routes to avoid enforcement or listing.'' 17
---------------------------------------------------------------------------
    \17\ Comments of the National Association of Attorneys General on 
H.R. 1300, as transmitted by Lynne M. Ross, Deputy Director, NAAG, by 
letter of May 24, 1999, to Chairman Sherwood Boehlert of the Water 
Resources and Environment Subcommittee, p. 2.
---------------------------------------------------------------------------
    In addition, we strongly oppose portions of the innocent-party 
provisions of H.R. 1300, found in section 303. EDF has long supported 
tailored provisions, such as those in section 202(a) of H.R. 1750 and 
section 5(a) of H.R. 2580, that provide liability relief for truly 
innocent parties, though we strongly prefer H.R. 1750 because it 
appropriately requires that parties take reasonable steps to stop 
ongoing and prevent future releases and exposures, and to provide 
cooperation and access for the cleanup. By contrast, Section 303 of 
H.R. 1300 changes Superfund's basic defenses to liability to include 
consideration of ``generally accepted good commercial and customary 
standards and practices at the time''--a sure-fire way to expand 
litigation while everyone argues about what that means, and to shift 
cleanup costs to the general taxpayer--and also contains an unworkable 
site-specific basis for assessing whether the party made all 
appropriate inquiry [section 303(a), amending CERCLA 107(b)(4), p.64].
    In sum, while H.R. 1300 is less draconian than H.R. 2580, it is 
still far from acceptable.
              iv. h.r. 1750: a moderate and tailored bill
    By contrast, H.R. 1750 takes a measured approach. Unlike H.R. 2580, 
it places no restrictions on RCRA authorities; with regard to 
Superfund, it limits only Superfund's cost-recovery provisions, but not 
EPA's authority to take direct action. In addition, H.R. 1750 has much 
more reasonable re-opener provisions. These include (among others) the 
existing standard for action, namely ``imminent and substantial 
endangerment,'' as well as new conditions that result in a lack of 
protection of the environment.
    Likewise, H.R. 1750 has far more robust criteria for state 
programs. Rather than the one-time self-certification provided by H.R. 
2580 (which blocks all use of Superfund and some RCRA authorities), 
H.R. 1750's limitations on cost-recovery authority apply only if a 
program is approved. Criteria for program approval include public 
participation and technical assistance, protective site assessment and 
cleanups, adequate oversight and enforcement, prior approval of cleanup 
plans, and certification of completion of the cleanup.
    In addition, H.R. 1750 provides that a previously-approved program 
can be disapproved if changed circumstances warrant, a sharp 
distinction to H.R. 2580's once-and-forevermore approach. In short, 
H.R. 1750 avoids both the sins of omission, and the sins of commission, 
found in H.R. 2580 and H.R. 1300.
                             v. conclusion
    We appreciate this opportunity to testify.

    Mr. Oxley. Mr. Garczynski.

                  STATEMENT OF GARY GARCZYNSKI

    Mr. Garczynski. Mr. Chairman, my name is Gary Garczynski. I 
am the Vice President and Secretary of the National Association 
of Home Builders and the senior officer with oversight over the 
Smart Growth Initiative. I speak to you today on behalf of 
President Roma, who could not be here due to other business 
concerns, and he apologizes to you and promises you a round of 
golf, but watch his handicap.
    Redeveloping brownfields revitalizes economically depressed 
areas, and cleans up the environment as well. That is why we as 
home builders have made brownfields redevelopment one of the 
key components of our Smart Growth strategy. In fact earlier 
this year, the Home Builders joined in an initiative with the 
U.S. Conference of Mayors and HUD to produce 1 million homes in 
the inner cities over the next decade. Fixing our brownfields 
problem will go a long way toward promoting Smart Growth 
initiatives throughout this country.
    Last month, your House Real Estate Caucus hosted the 
national real estate organization's Annual Conference on Smart 
Growth. I strongly suggest you review that transcript. The last 
hour of that meeting did nothing more than talk about the need 
for legislative reform so that real estate companies and the 
community can engage in cleaning up and redeveloping 
brownfields sites. Taking advantage of brownfields would ease 
pressure to develop on the fringes of the suburbs, thus slowing 
the rate of suburban expansion.
    We appreciate the opportunity to discuss the three bills 
before you as well as some of our proposals that focus 
exclusively on brownfields redevelopment.
    First, legislation to promote brownfields redevelopment 
does not necessarily need to be linked to legislation that 
reauthorizes Superfund. Most Superfund bills, including the 
ones before your subcommittee, are, by and large, aimed at 
providing protection for a person who already owns or is 
otherwise connected to a contaminated site through no fault of 
his or her own. That is an important reform.
    But as builders we don't look at brownfields purely in 
terms of escaping liability. Indeed, we see brownfields as an 
opportunity to get involved and turn unproductive land into 
livable communities, promoting urban renewal, improving the 
environment and giving communities more options in growth 
smart.
    It makes no sense for us to become involved in a site when 
we face the added cost of cleanup and the legal uncertainties 
of Superfund, not to mention a host of other Federal laws and 
regulations. If Congress is genuinely interested in involving 
us in the cleanup and reuse of sites, then it should take a 
look at incentives and guarantees to make up for the risk 
inherent in developing contaminated sites.
    One principle which we can all agree upon is that State-run 
programs are the most effective means for bringing about 
brownfields cleanup. To date, over 35 States have adopted 
legislation or promulgated regulations that use innovative 
risk-based cleanup standards that drive down the cost of 
cleanup while protecting public health and the environment. 
These programs also give the necessary liability protections 
and assurances to attract us builders. More States are creating 
voluntary cleanup plans each year.
    In encouraging the use of State programs, EPA's role must 
be clearly defined in terms of its ability to interfere with 
the cleanup that is underway, or reenter a completed plan. Any 
developer's top priority before beginning a project is to 
define. All potential costs or delays in a project. To that 
end, the more certainty a builder has, the better he or she can 
plan a project and the more likely he or she will engage in a 
project.
    With this in mind, we find Congressman Greenwood's and 
Congressman Boehlert's bills the most useful. While all three 
bills provide some certainty as to EPA's role in State 
programs, both of these bills provide more certainty as to 
exactly what circumstances allow EPA to get involved in a 
particular State program.
    Certainly we understand Congressman Towns would like EPA to 
have oversight over State brownfields programs. However, we 
worry that this will exact from States concessions that will 
ultimately rob them of the advantages of their--that their 
programs would offer.
    It has been our experience that the EPA has been very 
reluctant to give States the kind of guarantees that would 
empower their voluntary cleanup programs to the extent 
necessary to make them viable. We believe that EPA's role in 
brownfields should be dependent upon the level of contamination 
present on a site. It should retain authority over the most 
contaminated sites, but less contaminated sites should simply 
be removed from their authority all together.
    In reality, few builders have the money or the technical 
expertise to take on truly contaminated sites. These sites 
require the expertise and deep pockets of a government agency 
for remediation. But less contaminated sites can be effectively 
remediated by developers or other interested parties by working 
through a State program.
    The National Priorities List, as created by Superfund, is 
an excellent way of rating these sites and clarifying which 
belong under the care of Superfund and which should not be part 
of EPA's authority. Both Congressman Towns' and Congressman 
Greenwood's bills implicitly acknowledge this principle.
    If Congress truly wants to promote brownfields 
redevelopment to its fullest extent, it should consider a 
definition of brownfields that covers other contaminants not 
covered by Superfund.
    Foremost among these are contaminants that come from 
petroleum products. Our estimation suggests that nearly half 
the redevelopment brownfields sites in this country are 
contaminated not with Superfund-related toxins but rather 
petroleum-related toxins.
    Unfortunately, none of the legislative proposals you are 
considering address these sites. Indeed, to be thorough, 
Congress should address not only petroleum contaminants----
    Mr. Oxley. Could you summarize, please?
    Mr. Garczynski. [continuing] but all federally covered 
contaminants.
    I am suggesting ultimately that Congress should recognize 
that EPA does have a legitimate role in protecting the public 
health and the environment, and it should not be hamstrung when 
generally attacking these hazards for public safety. The most 
hazardous sites should still be supervised by the agency since 
it has the resources and expertise to make sure the cleanup is 
done right, but those that actually cause the contamination 
contribute their fair share to the cleanup.
    But, in conclusion, brownfields redevelopment is a win-win 
situation for everybody, and it is unfortunate that we have 
not, as a Congress and administration and a community, been 
able to channel our resources for solving this problem. I hope 
that we are going to do that here and now.
    Thank you. I am ready to answer any questions, Mr. 
Chairman.
    [The prepared statement of Gary Garczynski follows:]
Prepared Statement of Gary Garczynski, NAHB Vice President/Treasurer on 
          Behalf of the National Association of Home Builders
    Mr. Chairman and members of the Subcommittee, I am pleased to 
represent the 197,000 members of the National Association of Home 
Builders today and talk about brownfields legislation.
Importance of Brownfields and Smart Growth
    As you know, redeveloping brownfields not only revitalizes 
economically depressed areas but cleans up the environment as well. 
That is why the homebuilders have made brownfields redevelopment one of 
the key components of our smart growth strategy. In fact, earlier this 
year the homebuilders joined in an initiative with the U.S. Conference 
of Mayors and the Department of Housing and Urban Development that will 
produce one million new homes in cities and inner suburban rings over 
the next decade. Solving our nation's brownfields problem would greatly 
facilitate this effort by opening up to redevelopment areas that 
desperately need economic revitalization.
    In fact, fixing our brownfields problem would go a long way toward 
promoting smart growth initiatives throughout the country. Last month 
the House Real Estate Caucus hosted the National Real Estate 
Organization's annual conference on Smart Growth. We spent most of the 
last hour of that meeting talking about the need for legislative reform 
so that the real estate community can engage in cleaning up and 
redeveloping these sites. Taking advantage of brownfields would ease 
pressure to develop on the fringes of our suburbs, thus slowing the 
rate of suburban expansion.
Addressing H.R. 1300, H.R. 1750 and H.R. 2580
    You have indicated today that you would like us to testify on three 
bills your subcommittee will soon take up. H.R. 1300, sponsored by 
Congressman Boehlert (R-NY); H.R. 1750, sponsored by Congressman Towns 
(D-NY); and H.R. 2580, sponsored by Congressman Greenwood (R-PA). We 
appreciate the opportunity to discuss these bills with the Subcommittee 
as well as present our own proposal that focuses exclusively on 
brownfields redevelopment.
    NAHB has devoted significant time and resources toward finding the 
best way to bring about brownfields redevelopment. Our first 
observation is that legislation to promote brownfields redevelopment 
does not necessarily need to be linked to legislation that reauthorizes 
Superfund. Most Superfund bills, including the ones before your 
subcommittee, are by and large aimed at providing protection for a 
person who already owns or is otherwise connected to a contaminated 
site through no fault of his or her own. This is important reform.
    But our builders do not look at brownfields purely in terms of 
escaping liability. Instead, we see brownfields as an opportunity to 
get involved and turn unproductive land into livable communities. This 
is something we want to do for all the right reasons: to promote urban 
renewal, to improve the environment, and to give communities more 
options in growing smart. But it makes no sense for us to become 
involved in a site when we face the added costs of cleanup and the 
legal uncertainties of Superfund, not to mention a host of other 
federal laws and regulations. If Congress is genuinely interested in 
involving us in the cleanup and reuse of these sites, then it should 
look for incentives and guarantees to make up for the risks inherent in 
developing contaminated sites. Fortunately, all three bills we are 
discussing today acknowledge that fact to one degree or another.
The Importance of State Voluntary Cleanup Programs
    One principle I which we can all agree upon is that state run 
programs are the most effective means for bringing about brownfields 
cleanup. To date over 35 states have adopted legislation or promulgated 
regulations that use innovative risk-based clean-up standards that 
drive down the costs of cleanup while protecting public health and the 
environment. These programs also give the necessary liability 
protections and assurances to attract builders. More states are 
creating voluntary cleanup plans each year.
    In encouraging the use of state programs, EPA's role must be 
clearly defined in terms of its ability to interfere with a cleanup 
plan that is underway or re-enter a completed plan. Any developers' top 
priority before beginning a project is defining as best possible all 
potential costs or delays in a project. To that end, the more certainty 
the builder has, the better he or she can plan a project and the more 
likely he or she will engage in a project.
    With this in mind, we find Congressmen Greenwood and Boehlert's 
bills the most useful. While all three bills provide some certainty as 
to EPA's role in state programs, both the Greenwood and Boehlert bills 
provide more certainty as to exactly what circumstances allow EPA to 
get involved in a particular cleanup project sponsored by a state 
program.
    Certainly, we understand why Congressman Towns would like EPA to 
have oversight over state brownfields programs--much as it exercises 
this oversight in state Clean Water programs; however, we worry that 
this will exact from the states concessions that will ultimately rob 
them of the advantages their programs offer. It has been our experience 
that EPA has been very reluctant to give states the kind of guarantees 
that would empower their voluntary cleanup programs to the extent 
necessary to make them truly viable.
EPA's Role in Cleanups
    This brings us to another important principle that is implicit, to 
varying degrees, in all three proposals before you today. We believe 
that EPA's role in brownfields should be dependent upon the level of 
contamination present on the site; it should retain authority over the 
most contaminated sites but the less contaminated sites should simply 
be removed from its authority altogether.
    In reality, few builders have the money and technical expertise to 
take on truly contaminated sites. These sites require the expertise and 
deep pockets of a government agency for remediation. But the less 
contaminated sites can effectively be remediated by developers or other 
interested parties by working through a state program. The National 
Priorities List, as created under Superfund, is an excellent way of 
rating these sites and clarifying which belong under the care of 
Superfund and which should not be a part of EPA's authority. Both 
Congressmen Towns and Greenwood implicitly acknowledge this principle 
in their bills.
A Definition of Brownfields that Includes Petroleum Contaminants
    And finally, I want to discuss the definition of a brownfield. 
Here, again, we see a distinction between legislation to reform 
Superfund and legislation to encourage the development of brownfields. 
Under both Congressmen Boehlert's and Towns' bills we find a definition 
of brownfields based largely on the presence of toxins covered under 
Superfund. However, these are not the only toxins that create the type 
of uncertainty and liability risks that make a site unattractive for 
redevelopment.
    If Congress truly wants to promote brownfields redevelopment to the 
fullest extent, it should consider a definition of brownfields that 
covers other contaminants not covered by Superfund. Foremost among 
these are contaminants that come from petroleum products. Our 
estimations suggest that nearly half the redevelopable brownfields 
sites in this country are contaminated not with Superfund related 
toxins, but rather petroleum related toxins. Unfortunately, none of the 
legislative proposals you are considering address these sites. Indeed, 
to be thorough, Congress should address not only petroleum 
contaminants, but any federally covered contaminant.
    In addressing these other contaminants in a brownfields 
redevelopment bill, Congress should follow the same principles I have 
already mentioned. EPA should maintain authority over the more 
contaminated areas. But in lesser contaminated areas, EPA should have 
no authority, leaving the states to develop innovative and flexible 
approaches to remediate these sites and make them productive. EPA's 
resources would remain focused on finding and cleaning up the most 
dangerous sites, and the agency would only be limited when it cannot 
find severe contamination on a site.
    In this regard, the approach I am suggesting is very close to 
Congressman Greenwood's bill. While his bill does not cover all of the 
contaminants we would like to see covered, it does establish in section 
three a clear delineation of authority between EPA and the states based 
primarily upon the level of contamination a site contains. His bill 
also does not limit itself in defining brownfields under Superfund. 
This simple approach leaves intact EPA's legitimate need to protect 
human health and the environment while freeing states and developers to 
tackle those sites that have much less contamination.
Finding a Political Compromise
    Ultimately, if Congress and the Administration are serious about 
promoting Smart Growth and, as part of that goal, cleaning up 
brownfields, then we need to get past the rhetoric that has stood in 
the place of reform. I think we all know the truth about promoting 
brownfields redevelopment. Eventually, EPA will have to recognize that 
just because it has not interfered with a state's voluntary cleanup 
program in the past does not mean it will not get involved in the 
future. Comfort letters and other promises cannot give us the certainty 
we need before engaging in brownfields redevelopment, and it makes no 
sense to get involved when we can build elsewhere without the cost or 
risk that brownfields present. In fact, EPA's opposition to the legal 
certainty we need is tantamount to telling the redevelopment community 
that, indeed, our fears are legitimate.
    At the same time, Congress should ultimately recognize that EPA has 
a legitimate role in protecting the public health and environment, and 
it should not be hamstrung when genuine hazards threaten public safety. 
The most hazardous sites should still be supervised by the agency since 
it has the resources and expertise to make sure the cleanup is done 
right and those who actually caused the contamination contribute their 
fair share to the cleanup.
Conclusion
    In conclusion, let me reiterate our commitment to solving the 
problems associated with brownfields and our desire to promote smart 
growth. Brownfields redevelopment presents a win-win, and it is 
unfortunate that we have not been able to get from Congress and the 
administration the reforms homebuilders need so as to devote our 
resources toward solving this problem.
    I am grateful to speak to you today on this important issue, and I 
await any questions you might have.

    Mr. Oxley. Thank you, Mr. Garczynski.
    The Chair would recognize himself for a round of questions.
    Ms. Mills, I wasn't here for your testimony, but I did have 
an opportunity to review it, and the charges that you made 
against the Ohio cleanup program, from my perspective, simply 
don't ring true. For those of us who have served at the Federal 
and State level, my experience has been that our agencies and 
our legislators have a core mission of public health protection 
and, in fact, they take that very seriously. Do you actually 
believe that Ohio's legislators and environmental agencies 
have, quote, sinister motivations and want to cause intentional 
harm?
    Ms. Mills. Yes.
    Mr. Oxley. And what do you have to back that up?
    Ms. Mills. Mr. Oxley, my original environmental endeavors 
when I started in Ohio was with the Columbus Trash Burning 
Power Plant, the largest known single source of dioxin in the 
country. The Ohio EPA did a risk assessment of our trash plant 
that showed the trash plant only impacted one in a million 
residents. We had to turn to the U.S. EPA. The U.S. EPA did the 
same risk assessment and showed that the risk from the trash 
burning power plant was 450 out of a million would actually be 
impacted by the trash plant. I have worked with citizens across 
the State of Ohio. We had generally almost always, on any 
situation, not just brownfields but in our air division, always 
had to rely on the U.S. EPA.
    Mr. Oxley. So that there was a difference of opinion. As a 
matter of fact, that trash burning power plant was closed down, 
was it not?
    Ms. Mills. Yes, sir, it was closed by a unilateral order by 
the U.S. EPA.
    Mr. Oxley. Was that the only example that you have? That 
was a difference of opinion between the Ohio EPA and the 
Federal EPA you believe that was somehow sinister?
    Ms. Mills. Well, I don't know if I can answer if it was a 
difference of opinion between Ohio and the U.S. What I am 
saying----
    Mr. Oxley. Are you saying the Ohio EPA deliberately misled 
based on their study?
    Ms. Mills. I don't think that the Ohio EPA necessarily 
lied, but I don't think they necessarily gave us all of the 
information that----
    Mr. Oxley. How many years does that go back?
    Ms. Mills. The plant itself or my involvement?
    Mr. Oxley. Your involvement.
    Ms. Mills. My involvement, 1993, but there were many other 
issues. There is the Marion issue where there is a lack of 
citizen trust in the Ohio EPA. There is Elyria, Ohio, with 
chemical----
    Mr. Oxley. Let us talk about Marion, Ohio. What is that all 
about?
    Ms. Mills. That is a former military site.
    Mr. Oxley. I am aware of that.
    Ms. Mills. Right.
    Mr. Oxley. Do you live in Marion?
    Ms. Mills. No, I do not, but I have worked with the 
citizens in Marion.
    Mr. Oxley. And so have I.
    Ms. Mills. Okay.
    Mr. Oxley. And there is a problem there, but it is being 
dealt with.
    Ms. Mills. It is being--well, I question how it is being 
dealt with.
    Mr. Oxley. You obviously have a right to your opinion.
    Ms. Mills. Sure.
    Mr. Oxley. But to come into this committee and say that the 
Ohio EPA or the Ohio General Assembly has sinister motives or 
that they want to cause intentional harm is frankly outrageous 
and not backed up by any facts.
    Let me ask you this.
    Ms. Mills. That is my opinion. I am entitled to my opinion.
    Mr. Oxley. You are entitled to that opinion. As wrong as it 
may be, you are entitled to your opinion.
    According to Ohio EPA, no further action letters were 
submitted for 83 sites, of which 38 have resulted in covenants, 
2 were denied, 8 with withdrawn and 35 are pending. This 
appears to contrast with your testimony that only 10 sites have 
been addressed by Ohio EPA under the voluntary action program. 
The reality is that prior to the Ohio program, these sites 
weren't being cleaned up at all; isn't that correct?
    Ms. Mills. The 10 sites that were cleaned up were not 
necessarily through the----
    Mr. Oxley. None of these sites have been cleaned up before 
the voluntary action program have been put into effect; isn't 
that correct?
    Ms. Mills. The 10?
    Mr. Oxley. Any of them. Isn't it a fact that before the 
voluntary action program was set up none of these sites had 
ever been addressed?
    Ms. Mills. Sites that I know--that I am aware of such as 
Bakerwoods in Marion, such as the Stickles property in 
Columbus, such as several other sites, the Ohio EPA has asked 
the U.S. EPA to come in and do the cleanup, do the initial 
cleanup.
    Mr. Oxley. What happened before the voluntary action 
program? What happened with these sites? Or were they just in 
the middle of neighborhoods and were unattended and didn't have 
any----
    Ms. Mills. Possibly, I know of a couple that the company 
took it upon themselves to go ahead and clean it up.
    Mr. Oxley. So the question is, is it better to do nothing 
as what happened for years or is it better to get these sites 
cleaned up under well-accepted standards and put to productive 
use as a new industrial site?
    I visited one of these sites under a voluntary action 
program in Columbus a couple of years ago.
    Ms. Mills. Columbus Auto?
    Mr. Oxley. Columbus, Ohio. Contaminated site, just north of 
downtown.
    Ms. Mills. Is that Columbus Auto? I was just clarifying, is 
it Columbus Auto?
    Mr. Oxley. It was an old copper smelting operation, and we 
visited it. It had been cleaned up under the voluntary program 
in Ohio. The employees I talked to were very pleased to have a 
job and work in a safe environment, and the mayor was there and 
other officials who went through the entire process of how this 
was able to be cleaned up. I was very impressed, as well as the 
other members of the committee who attended that hearing and 
the site visitation. So I am a little concerned that----
    Ms. Mills. May I clarify just one thing, Mr. Chairman? 
Please do not misunderstand me that I do not think that these 
sites should be cleaned up. Indeed, they must be cleaned up. 
What I am so concerned of with the Ohio program is the lack of 
public knowledge and public participation.
    Mr. Oxley. Let me address that, if I can, because in your 
statement you state that the Ohio program is shrouded in 
secrecy and prevents the public from participating effectively. 
The information about the sites in the program is not available 
to the public.
    However, based on information provided by the Ohio EPA, 
that appears to be in error. According to information submitted 
by Ohio EPA--which I offer for the record and without objection 
is so ordered--information about Ohio's sites under the 
voluntary action program is not secret.
    [The information referred to follows:]

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    Mr. Oxley. In fact, when Ohio EPA receives a no further 
action letter, the letter and all supporting documentations 
becomes part of the public record. This includes an 
environmental site assessment and information regarding 
remediation of site contamination.
    As a matter of fact, when we visited that site in Columbus, 
we saw a lot of that paperwork because they were trying to 
explain to us how the program worked. And so I would suggest 
you might want to go back and do your homework and that this 
information is available to the public, to your group, to you 
individually, to me as a Member of Congress or anybody else, 
and I think it is important to point that out for the record.
    My time has expired. Let me recognize the gentleman from 
New York.
    Mr. Towns. Thank you very much, Mr. Chairman.
    Let me just ask Ms. Mills. Ms. Mills, are you saying that 
U.S. EPA is more responsive to your calls and concerns than the 
State of Ohio?
    Ms. Mills. That would be correct, yes. The U.S. EPA has 
been more responsive.
    Mr. Towns. Why would you say that? I mean, could you 
expound on it just a little?
    Ms. Mills. I would have to go back again to my first 
original issue with the Columbus power plant, Columbus Trash 
Burning Power Plant. The remarks that I received when I first 
approached the Ohio EPA with my concerns was--one EPA official 
said, I don't understand, I don't drive by the trash plant and 
see people falling over dead.
    To me that was an insult to my intelligence. Of course, you 
don't see people driving by dead. But that was the type of 
response that we or I as a citizen received. Dioxin was no more 
toxic than peanut butter. Well, I as a citizen know that that 
was an insult to me.
    However, when we approached the U.S. EPA, they were much 
more receptive of our concerns on the trash plant. The U.S. EPA 
was much more receptive on our concern on the Stickles property 
which was an old junk yard that had quite a bit of 
contamination on it. They were more receptive on Marion. They 
were more receptive on a site that I had been working on in 
Elyria, Ohio.
    So I guess maybe the Ohio EPA doesn't like me for some 
reason, but in any issue that I have been involved with, I have 
always had much better reception from the U.S. EPA than from 
the Ohio EPA.
    Mr. Towns. Let me just ask you this, and then I am going to 
leave that alone because that is Ohio, and the chairman 
certainly will take care of Ohio. I am not even worried about 
that. But, Ms. Mills, could you respond to the chairman's 
statement that Ohio has adequate public participation? Could 
you respond to that? He said that Ohio has adequate public 
participation. Very briefly, if you could respond to that.
    Ms. Mills. Do you mean in regards to the brownfields 
program?
    Mr. Towns. In the cleanup, in terms--he just used the 
statement that Ohio has----
    Ms. Mills. The one site that I am most well aware of is the 
Nationwide Arena site which was the old State pen site. When we 
contacted the VAP program in Ohio, we said we have known for 
years that the pen site was highly contaminated. So we 
immediately began to contact the VAP program coordinator 
saying, you know, what is going to happen at the pen site? You 
know, what is going to happen with the contamination? What kind 
of contamination is there?
    The response from the Ohio EPA says, we don't know, we 
don't know if they are going to enter the voluntary action 
program or not.
    So you have citizens that knew that this site was 
contaminated but could not get any information on it because 
the Ohio EPA at that time didn't have any information on it.
    My understanding from the voluntary action program in Ohio 
is, yes, there is certain information that is available after 
it is given to the Ohio EPA, but a company can go clear through 
the process prior to giving that information to the EPA.
    Mr. Towns. Thank you very much.
    Let me just--Mr. Garczynski, let me say that my 
legislation, H.R. 1750, covers more contaminants than the 
others and also to say to you that I am willing to put 
petroleum in, you know, now. So I want to let you know I have 
no problem with that at all.
    Mr. Garczynski. I appreciate that, Mr. Towns--or 
Congressman Towns, because we find that petroleum-related 
contaminants are on quite a number of sites that aren't highly 
contaminated, but we feel that kind of goes back to if we can 
define brownfields and expand the listing of contaminants, you 
know, we can go a long way to revitalizing our cities, which is 
our goal.
    Mr. Towns. Mr. Curtis, very quickly, the light is on, so 
ASTM, why do you oppose it?
    Mr. Curtis. The ASTM, quote, standard was developed with a 
prescriptive approach to site investigations and was originally 
intended to be for real estate property transactions. We do not 
believe that you can take one prescriptive approach and say it 
fits sites of varying complexity, varying contaminants and that 
professional judgment needs to be applied to the array of sites 
rather than a prescriptive standard.
    And we took great exception with ASTM in the development of 
that standard. They have agreed with us that they would insert 
some caveats, making it clear that this was not to be 
universally applied without professional judgment. Yet those 
caveats have not yet been inserted in the standard. So we have 
very real concerns, as the professionals involved with 
hazardous waste sites, that that standard was not appropriately 
developed.
    Mr. Towns. Could I have 30 seconds? I just want to ask Mr. 
Stypula quickly, within the legislative recommendations 
contained in your testimony, you recommended several types of 
Federal funding for local communities seeking to assess and 
clean up brownfields sites: A clear distinction between 
Superfund, NPL sites and other sites subject to enforcement 
under RCRA or CERCLA, and the remaining sites that can be put 
on a brownfields track; also, the criteria for State cleanup 
programs that should be demonstrated by the States and reviewed 
and approved by the EPA and an assurance by the EPA that it 
will not plan further action at a site unless there is an 
imminent and substantial threat to public health or the 
environment, and, No. 2, either the State response is not 
adequate or the States request EPA's assistance.
    Among the three bills that we are looking at today, which 
bill most closely tracks your recommendations?
    Mr. Stypula. Congressman, NALGEP normally doesn't take a 
position on a piece of legislation, but we have reviewed all 
three pieces of legislation and feel that our basic concerns 
and the needs and desires of that have been identified by our 
membership are addressed in one form or another in all three 
bills, and that would include your piece of legislation, H.R. 
1750.
    Mr. Towns. I yield back Mr. Chairman. I definitely yield 
back.
    Mr. Oxley. The gentleman from Pennsylvania, Mr. Greenwood.
    Mr. Greenwood. Thank you, Mr. Chairman.
    We have heard testimony from--I would like to address this 
question to Ms. Kerbawy. Mills is easy.
    We heard testimony from other witnesses about the current 
use of memorandums of agreement, MOAs, to establish deferral of 
cleanup authorities to States, and I would like to submit for 
the record correspondence between the Association of State and 
Territorial Solid Waste Management officials and EPA, Mr. 
Chairman, without objection.
    Mr. Oxley. Without objection.
    [The information referred to follows:]

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    Mr. Greenwood. I would like to ask if you could elaborate 
on the problems that you see with that system as the primary 
mechanism for redevelopment of the hundreds of thousands of 
non-NPL brownfields.
    Ms. Kerbawy. The memorandum of agreement process is being 
utilized to try to fix a problem that is created by the current 
law. The States have not been extremely satisfied with what 
they can accomplish in the memorandum of agreement. We do have 
one with Region 5 EPA. It is better than most States can get 
now, but it still doesn't do what we would have liked to have 
been able to, and I think that there still is a need to really 
fix the law in dealing with who has authority at what sites.
    The non-NPL universe isn't going to be addressed by EPA in 
most situations. The removal program can do some work but 
generally doesn't take a site for cleanup, and we are dealing 
with a situation where we tried to reach closure with people 
but if there is still a specter of EPA being able to come in at 
some point in time, can we really cut the full deal? I think 
that is a really big issue.
    The MOA helps. We have been able to do more with it in 
place than we were able to without it, but it doesn't do what 
is really necessary.
    Mr. Greenwood. And I take it you assume that the 
legislation that I have introduced, Mr. Boehlert introduced, 
enables you to get that finality----
    Ms. Kerbawy. Yes, it does.
    Mr. Greenwood [continuing] and to move forward.
    If I could turn to Ms. Florini. You set up a duality which 
was we have to somehow choose between federalism or public 
health, that that is a choice, that somehow they are mutually 
exclusive. Well, you did say that, as a matter of fact, that we 
have to----
    Ms. Florini. No. Actually, what I intended to say was if 
there is a conflict, then public health should win.
    Mr. Greenwood. Well, it presumes that there is a conflict, 
and it seems to me to be an extraordinary choice. Because when 
I think of my State and I think of the thousands of ways, as we 
speak, that the State of Pennsylvania is protecting, is 
responsible exclusively in a whole variety of arenas for the 
protection of public health, hygienic standards at restaurants, 
the health care of seniors in nursing homes, the quality of 
care delivered in hospitals, variety of State regimes with 
regard to solid waste and air and water, we are not making a 
choice in Pennsylvania.
    The State--we have federalism in place in more ways than 
not and a very good record on protection in public health, and 
it seems to me that the alternative here is we either allow 
these 500,000 sites to sit with whatever contamination is 
there, continuing to permeate into the water table, being 
released into the atmosphere, because EPA will never get to 
them, never get to them.
    Ms. Florini. On the other hand, it is very clear from a 
number of other witnesses' testimony today that, in point of 
fact, in many other locations around the country under current 
law brownfields redevelopment is indeed happening to a 
significant degree.
    The only point that I am making is we should not change the 
law to take away the Federal safety net that now exists. I do 
not believe it is necessary or appropriate to go that far. We 
have supported and we continue to support provisions on bona 
fide prospective purchasers, including the provisions that are 
in your bill, provisions on innocent landowners, although we 
think that there need to be some modest modifications to what 
is in your bill, and the provisions on innocent landowners. We 
are objecting strongly to two particular provisions of your 
bill: section 3, which we think goes way too far in 
undercutting the Federal safety net that now exists; and 
section 4, which makes Governor's concurrence mandatory.
    We think that there are things that can and should be done 
with respect to other changes under existing law that would, in 
fact, further facilitate brownfields, but we do not think it is 
necessary or appropriate to take away the Federal safety net as 
part of that.
    Mr. Greenwood. The Federal safety net implies Federal 
reopener, and it implies that that can happen at virtually any 
time. If you believe any of the other witnesses who have 
testified today, they said that is a chilling factor in their 
ability to develop these brownfields site and clean them and 
reclaim them. And that is the bottom line, and that is what the 
disagreement is all about, and I don't know if we can bridge 
it, but we will try.
    My time has expired.
    Thank you, Mr. Chairman.
    Mr. Oxley. The gentleman's time has expired.
    We want to thank all of you for your excellent testimony 
and for sitting through some floor votes and some other 
inconveniences, but we appreciate it very much.
    And the Chair notes that some members may have additional 
questions of this panel which they may wish to submit in 
writing. Without objection, the hearing record will remain open 
for 60-days for members to submit written questions to these 
witnesses and to place their responses in the record and to 
provide extraneous material for the record. So ordered.
    Again, thank you; and this subcommittee is adjourned.
    [Whereupon, at 1:40 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

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   LEGISLATION TO IMPROVE THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, 
                     COMPENSATION AND LIABILITY ACT

                              ----------                              


                     WEDNESDAY, SEPTEMBER 22, 1999

                  House of Representatives,
                             Committee on Commerce,
           Subcommittee on Finance and Hazardous Materials,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:10 a.m., in 
room 2123, Rayburn House Office Building, Hon. Michael G. Oxley 
(chairman) presiding.
    Members present: Representatives Oxley, Gillmor, Greenwood, 
Largent, Bilbray, Ganske, Shimkus, Wilson, Fossella, Blunt, 
Ehrlich, Towns, Stupak, Engel, DeGette, Barrett, Luther, 
Markey, and Pallone.
    Staff present: Nandan Kenkeremath, majority counsel; Amit 
Sachdev, majority counsel; Kristi Gillis, legislative clerk; 
and Richard Frandsen, minority counsel.
    Mr. Oxley. The subcommittee will come to order.
    The Chair will begin with an opening statement.
    Welcome to yet another legislative hearing on Superfund. 
The difference is that I hope that this will be the last 
legislative hearing we will need to hold in the Commerce 
Committee after four Congresses.
    We have seen many good proposals to reform this badly 
broken program, and the House and Senate have held hearings on 
these proposals. We know what needs to be done. We know that 
there are members on both sides of the aisle who want to get 
something done. So it is time for Congress to fulfill its 
responsibility through bipartisan legislation.
    The bills we continue to review today are strongly 
bipartisan. The Greenwood-Hall bill has nine Democrat and seven 
Republican cosponsors. The Boehlert-Dooley bill has 60 Democrat 
and 60 Republican cosponsors. It was reported out of the 
Transportation Committee with a 69-2 vote. Last Congress Mr. 
Condit and I introduced strong bipartisan Superfund reform 
legislation with 19 Democrats and 19 Republicans.
    It is unfortunate that after 5 years of extensive process 
and numerous opportunities of negotiation, the administration 
has not been able to find agreement with any bipartisan 
Superfund bill in any committee in either body of Congress. 
Even today we find some of the unfortunate rhetoric about bills 
that have attracted strong bipartisan support and only provide 
incremental reforms.
    Whether it is the Conference of Mayors, the Governors, the 
State cleanup agencies, cleanup contractors, small businesses, 
and many, many others, all support provisions in bipartisan 
legislation to significantly reform Superfund. These groups can 
tell us from firsthand experience that the current Superfund 
program is wasteful and unfair. But what distinguishes these 
groups is that they are willing to work to find constructive 
solutions. The time has long since past when you can claim to 
be for Superfund reform but against all bipartisan efforts.
    Superfund continues to haunt individuals, small businesses, 
and communities across the country. We must provide liability 
relief and not unfairly shift costs to other parties at the 
site. H.R. 3000 did this primarily by limiting liability to 
those generators or transporters who provide significant 
contributions of waste. Their overall amount would be picked up 
by the Federal orphan share. Under this model, EPA would issue 
orders to the significant parties, but neither those parties 
nor EPA would have incentive to pursue further endless waves of 
litigation. It was a practical and fair approach.
    H.R. 1300 looks more at specific circumstances and 
contexts. Nonetheless, it meets important criteria by getting 
numerous parties out of the system and not unfairly shifting 
responsibility to other parties at the site.
    H.R. 1300, H.R. 2580, and H.R. 3000 from last Congress 
focus on sound science, reasonably anticipated land use, and 
site-specific risk management. H.R. 2580 and H.R. 3000 ensure 
that the preference for treatment is guided by practicality, 
and that it never overrides concerns to the health and safety 
of the local community and workers. All of these bills 
eliminate the needlessly bureaucratic and so-called relevant 
and appropriate requirements and provide for reasonable points 
of compliance.
    These are important and reasonable changes that have been 
supported by States, cleanup contractors, and many others. 
These changes will streamline and improve remedy selection for 
new sites added to the NPL for site cleanup secured under 
section 104 or 106 and for sites that use contribution 
authority under the liability provision of section 107. Unless 
you are prepared to terminate funding under section 104, 
administrative orders under section 106, or the liability 
provisions of section 107, you cannot legitimately argue that 
remedy selection does not need repair.
    I note that we have a relatively short final hearing today. 
Over the course of 7 years, however, we have had over 27 
hearings and 275 witnesses appearing in the subcommittee, some 
of them multiple times, like our friend from EPA today, Mr. 
Fields. Moreover, numerous parties have submitted statements 
for the record.
    The basic point is that this has been an extraordinarily 
open process that I am basing my position and efforts on, the 
record taken as a whole. While my door has been open for 
negotiations for nearly three consecutive Congresses, some 5 
years, and I am getting old in the process, I believe we are at 
this point where the major proposals out there to reform the 
program are eminently modest and reasonable.
    It is time that we moved past the rhetoric and right at 
least a few of the Superfund wrongs. I look forward to hearing 
from today's witnesses, particularly those who have or support 
specific changes for significant reform.
    The Chair's opening statements are completed. I now turn to 
our distinguished ranking member, the gentleman from New York, 
Mr. Towns.
    Mr. Towns. Thank you very much, Mr. Chairman. And I want to 
take that thank you back, really. What I would like to do is 
applaud you for your determination and commitment. You know, I 
am not sure after 27 hearings, you know, I am not certain that 
I want to thank you for more hearings.
    First of all, I would like to welcome our witnesses today 
to our hearings on reauthorization of the Superfund program.
    Mr. Chairman, as I have indicated previously, I believe it 
would be unwise and counterproductive to make comprehensive 
changes to the Superfund program at this point. Such changes 
would also slow Superfund cleanups. This is a concern that we 
will probably hear from some of our witnesses. This is a result 
I hope none of us want.
    Even though delay may suit the interests of some of those 
responsible for contamination of certain sites, we should not 
subscribe to it or support it. I hope the subcommittee members 
can agree that where possible we should be treating or 
eliminating the most toxic or mobile hazardous wastes at these 
sites, and doing our utmost to provide permanent cleanups so 
that our citizens and particularly our children do not have to 
fear for their health.
    According to the former head of the Agency for Toxic 
Substances and Disease Registry, Dr. Barry Johnson, 
approximately 1.3 million children under the age of 6 live 
within 1 mile of a Superfund site. Cleanups will also assist 
redeveloping these properties for the full economic benefit of 
our communities, which I think is extremely important.
    Just last week the General Accounting Office released a 
report on their survey of all the non-Federal Superfund sites. 
According to the GAO, half of all the sites have completed all 
cleanup construction activities. The GAO results are consistent 
with the U.S. Chamber of Commerce position that I now quote:
    ``The Federal hazardous site program established by the 
Comprehensive Environmental Response, Compensation and 
Liability Act of 1980 is expected to achieve its goal of 
restoring the highest-priority cleanup sites to environmental 
health within the next 3 to 5 years.'' With the significant 
progress occurring in the Superfund program, I hope we can put 
our forces on the Brownfields issue that were the subject of 
our August hearing. Mr. Greenwood and I have agreed to try to 
work out our differences in our two bills, H.R. 1750 and H.R. 
2580. I hope that after this hearing we can again refocus on 
our efforts to do that.
    Mr. Chairman, I look forward to hearing from the witnesses, 
and I am extremely pleased today that we have a witness from 
Brooklyn, New York, who happens to be employed by the attorney 
general's office and will be representing the attorney generals 
across this country, Mr. George Johnson. I am anxious and eager 
to hear from him, because he happens to reside in my district.
    Thank you, Mr. Chairman. I yield back.
    Mr. Oxley. The gentleman yields back.
    The gentleman from Pennsylvania, and one of the authors of 
the legislation we are dealing with.
    Mr. Greenwood. Thank you, Mr. Chairman. I would first like 
to thank you for holding today's hearing on the remedy 
selection and the liability provisions in my bipartisan land 
recycling act, H.R. 2580, as well as Mr. Boehlert's 
legislation, H.R. 1300.
    While I believe the legislation that I have introduced 
represents a well-balanced approach to the issues at hand, I 
still look forward to continuing to work in a bipartisan manner 
toward an overall improvement in the Comprehensive 
Environmental Response, Compensation and Liability Act, better 
known as Superfund.
    The Land Recycling Act represents an important first step 
toward that goal. Mr. Chairman, as you know, last Congress the 
remedy selection provisions in H.R. 3000, which was your 
bipartisan Superfund reform bill, were based on extensive work 
and the support of the National Governors Association, the 
State cleanup agencies, and the trade association for cleanup 
contractors. In fact, the Governors stated that the remedy 
title would ``enhance the efficiency and quickness of 
cleanups.'' The State cleanup agencies stated that the remedy 
title ``seeks to promote a commonsense, streamlined approach to 
remediating sites,'' and that ``we believe this title most 
adequately reflects the lessons learned over the last 18 
years.''
    In addition, the Commission on Risk Assessment and Risk 
Management stated that the risk principles would move us toward 
a ``remedy selection process that is based on objective 
science-based risk characterization.''
    Finally, the cleanup contractors stated that H.R. 3000 
would ``do more to spur environmental cleanup in a safe and 
protective manner than could possibly be accomplished under 
current law.''
    As you may recall, the cleanup contractors specifically 
supported provisions on scientifically objective risk-
assessment consideration of future land use, and modification 
of the preference for permanence and treatment.
    Mr. Chairman, based on aforementioned recommendations and 
your work with all stakeholders, I have produced an important 
subset of bipartisan remedy selection changes in H.R. 2580. 
These changes are aimed at improving the cleanup process for 
all manner of sites.
    However, it is worth mentioning that any remedial action 
under CERCLA must comply with section 121, regardless of 
whether or not a site is on the National Priorities List. 
Furthermore, under section 107, any non-Federal party cleaning 
up a site and seeking to use CERCLA to obtain contributions 
from potentially responsible parties must show that the 
remedial action costs are ``consistent with the national 
contingency plan.''
    Therefore, even in the universe of voluntary cleanups, 
CERCLA's remedy selection requirements can have legal relevance 
in court.
    Overall I firmly believe that H.R. 2580 will streamline the 
Federal cleanup process by ensuring that regulators require 
treatment to the extent practicable, consider future land use, 
consider risks to the community and workers' health, require 
compliance with drinking water standards at reasonable points 
of compliance, are not hampered by needless bureaucratic 
relevant and appropriate standards, and employ sound and 
objective assessment practices.
    While I am confident that the Land Recycling Act will go a 
very long way, we in Congress have a larger task in hand, 
improving the Superfund program in a way that is protective of 
human health and the environment, reduces litigation, 
unfairness, and waste, and removes the Federal barriers to 
toxic waste cleanup. The Land Recycling Act of 1999 is only a 
piece of the puzzle.
    Once again, Mr. Chairman, I thank you for holding this 
hearing, and I look forward to continuing to working in a 
bipartisan committee on the issue, and, Mr. Towns, you and I 
keep saying that we want to work this out together. When we get 
our staff to come to the same level of agreement that you and I 
have agreed to, I think we will get this done.
    Mr. Oxley. The gentleman's time has expired.
    The gentleman from New Jersey, Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman.
    We are here again of course with many of the same witnesses 
and members as at prior Superfund, and I just want to say that 
my attitude about Superfund remains the same. I think the 
Superfund program is now one of our most successful 
environmental programs, particularly as a result of the efforts 
of the Clinton administration, and therefore I believe we 
should not be making substantial changes at this time that 
could interfere with the progress that is well under way. That 
is why 175 members have signed on to Mr. Towns' bill, H.R. 
1705, the Brownfields bill, and I want to mention also Diana 
DeGette's involvement in efforts on that, and that bill 
addresses a combined set of issues that would facilitate 
environmental cleanup and industrial development and that 
enjoys widespread support here in the House.
    However, if we are to make any changes to the Superfund 
law, we must strengthen the program, not roll back years of 
progress, and that is why just a few moments ago some of my 
colleagues and myself held a press conference outside the room 
to announce the impending introduction of the Children's 
Protection and Community Cleanup Act of 1999, a pro-community 
Superfund reform measure. Our bill would truly strengthen 
current law by requiring real cleanups, making polluters pay, 
ensuring environmental justice, and protecting children's 
health. If this subcommittee insists on taking up broader 
Superfund issues, we will insist on measures that uphold the 
fundamental principles on which the Superfund was based, and 
that is protection of human health and the environment.
    Nearly a fourfold increase has occurred in the number of 
Superfund sites that have been cleaned up--in other words, 
where construction has been complete--since 1992, 592 sites, 
including Federal facilities. A large number of the sites in my 
home State of New Jersey at which work has been completed may 
not have been deleted from the NPL only because long-term 
monitoring is still ongoing or because long-term treatment of 
groundwater is still under way. But such efforts are critical 
to protect human health and resources for current and future 
generations.
    Remedial measures undertaken now will help minimize the 
extent and cost of future remedial actions. Moreover, many 
State officials have informed me and other Congress members 
that the Federal framework with its liability and enforcement 
mechanisms now provide important incentives for private 
entities to voluntarily clean up these sites.
    Particularly, Mr. Chairman, we have noticed in the 
aftermath on the east coast of Hurricane Floyd, we are reminded 
that we must be vigilant in ensuring that Superfund cleanup 
efforts remain strong. Following the hurricane, officials are 
confronting floating chemical containers, and we are still 
waiting for officials to determine whether flood waters that 
washed over hazardous waste sites carried contamination to 
nearby land and subsequently into water pathways.
    My point is that we can't allow Superfund site cleanup to 
be held hostage to special interest groups, nor can we permit 
sham Superfund reform legislation. Families need real cleanups 
so that sites in their communities can be reused and 
redeveloped, not simply capped and fenced off.
    I wanted to say briefly that the legislation being 
considered today by this subcommittee is opposed by nearly 60 
groups--the Sierra Club, the Environmental Defense Fund, U.S. 
PIRG--the list goes on. H.R. 1300 claims to be a Brownfields 
bill, but only 18 pages of the bill's 166 pages fall within the 
Brownfields title. Moreover, H.R. 1300 would seriously undercut 
the ``polluter pays'' principle, increase litigation, slow the 
pace of current cleanups, and weaken Brownfields provisions.
    More specifically, H.R. 1300 would eliminate State maximum 
contaminant levels, MCL's, for groundwater, that are more 
stringent than Federal MCL's, and would eliminate State MCL's 
where no Federal MCL exists when determining the standard for 
ground water cleanup. The bill would eliminate the ability of 
the Federal and local governments and citizens to bring 
enforcement actions after any action has occurred under a State 
voluntary cleanup program, even in situations that continue to 
present an imminent and substantial endangerment.
    Another important issue which was incorporated in a letter 
initiated by Congressman Markey, DeGette, and myself to the EPA 
sought clarification on the preference of treatment of the most 
toxic or mobile hazardous substances as part of a remedy at 
Superfund sites. Selection of treatment as part of a remedy has 
dropped from 70 percent in the early nineties to 32 percent of 
the sites in 1997.
    The Greenwood bill would reduce the options available to 
local communities for reuse and redevelopment. The preference 
for treatment found in current law is supported by the EPA, the 
Association of Metropolitan Water Agencies, and other 
organizations and community representatives.
    And finally, Mr. Chairman, my point is simply that we 
cannot tolerate these rollbacks. We must support H.R. 1750, the 
Towns bill, that provides real Brownfields cleanup and 
community redevelopment provisions. If we are going to continue 
to discuss the so-called Superfund reforms, we must ensure true 
protection of children's health, inform communities about 
exposure to toxic chemicals, encourage their participation in 
the cleanup process, and make sure polluters pay for cleanups 
and not the taxpayers.
    Thank you, Mr. Chairman.
    Mr. Oxley. The gentleman's time has expired.
    The gentleman from Illinois, Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman. So many issues, so 
little time on this Superfund debate, and most people know I 
focused on the small business liability. So today I am pleased 
to see that the committee has extended an invitation to Mr. 
Mike Nobis of JK Creative Printers in Quincy, Illinois.
    For those who have been following this issue in this 
Congress, Quincy now is a community that is being well known 
based upon the EPA's involvement with a site there, and I have 
come to know Mike since the EPA went into Quincy earlier this 
year and announced that 149 companies in this small town were 
big polluters.
    Mike, thanks for coming to Washington for this hearing. 
Your testimony is important today, and it is good to see you 
again. I hope that the EPA will stay around to hear your 
testimony. I know that your written testimony is inserted in 
the record, but also hearing the testimony is very important, 
because by hearing, you really understand the emotive 
background that the small businesses have had to fight in the 
Quincy situation.
    We will hear from Mike that most if not all the trash that 
was contributed to the municipal landfill was legally deposited 
and that the EPA cannot even tell my constituents exactly how 
much of the trash they deposited was harmful.
    But they have done zero to promote that issue. Thank you.
    Mr. Oxley. Thank you.
    Mr. Shimkus. Mr. Chairman, I think it should be an 
interesting hearing. I yield back my time.
    Mr. Oxley. The gentleman yields back. The gentleman from 
Massachusetts, Mr. Markey.
    Mr. Markey. Thank you, Mr. Chairman, very much, and I as 
well am glad--you know, with the end of the baseball season 
what they are able to do is begin to compare statistics for how 
this season and the things that happened this season compared 
with past seasons and with the lifetime statistics as well. I 
always kind of enjoy that right at the end of the baseball 
season, so I was trying to figure out if we have had more 
lifetime hearings on electricity restructuring, Glass-Steagall 
restructuring, or Superfund restructuring in the committee, and 
it is tough because we are basically hitting that ``sixty 
barrier'' on each one of the areas, but I don't think the 
Superfund quite matches up to electricity restructuring, 
unfortunately. It is kind of like the Sammy Sosa of this year, 
you know?--just a little bit behind.
    I want to thank you for taking up the Recycle America's 
Land Act and without question I am all in favor of recycling 
including recycling America's land by cleaning up and 
redeveloping Brownfields sites, but H.R. 1300 merely recycles 
provisions from old, failed Republican Superfund proposals.
    It will leave toxic waste sites contaminated but clean up 
polluters' regulatory rap sheets with a wide array of expensive 
liability exemptions and limitations. These measures should be 
dumped, not recycled. They have no further use.
    Let us look at just what would happen if H.R. 1300 became 
law. Suppose you discover dioxin-laden black sludge in your 
basement, as at Love Canal. Or you realize your children and 
your neighbors' children are dying of cancer, as happened in 
Woburn--in my district in Massachusetts. You look across to the 
malodorous cesspool next door and want to get the mess cleaned 
up and make your children safe, so you go to the EPA, and after 
the site is surveyed they declare it a Superfund site.
    Now you think it is ready for cleanup, but you are wrong. 
H.R. 1300 reduces incentives for polluters to settle, and for 
many sites it requires a new and untested allocation process, 
so while more ooze seeps into your basement, you may have to 
wait for EPA to issue a cleanup order, or wait for polluters to 
play ``hot potato'' over liabilities in the new process.
    When financial arrangements are settled, it is finally time 
to select a remedy, but does this mean that the waste actually 
will be cleaned up? Despite the preference for treatment in the 
Superfund law, the percentage of sites using treatment has 
declined from 70 percent at the beginning of the decade down to 
32 percent in 1997. H.R. 1300 would make it easier to avoid 
treatment even if that would make the groundwater in the 
neighborhood undrinkable, for relevant and appropriate 
standards and would no longer apply.
    So under H.R. 1300 they may decide just to cap that 
cesspool and to leave it in place. Well, let us say that 
against the odds the cesspool next door is cleaned up. Who will 
pay? Of course, the polluter should, but under H.R. 1300 the 
polluter is exempt if it is one of the vast majority of 
businesses that are under the cutoff of 75 employees or $3 
million in revenue, even if this small business left a large 
mess.
    The polluter is exempt if it is a used oil generator or 
transporter even if it is as large as Exxon.
    In addition, an owner that bought land it knew was 
contaminated and would have to be cleaned up, that got a 
bargain deal because the land was contaminated, is exempted 
from any responsibility for the cleanup--a nice windfall for 
owners that may have sat on toxic waste sites for a couple of 
decades.
    Under Superfund when the actual polluter cannot be held 
liable, other polluters are supposed to pay through a pollution 
tax, but this tax expired in 1995 and H.R. 1300 does not renew 
it, so while the polluters are given a tax holiday other 
taxpayers will be stuck with the bill. In other words, the 
victims will have to pay for part of the cleanup of that toxic 
black sludge in their basements.
    We need a targeted bill to foster Brownfield cleanups and 
help truly innocent parties reuse these sites, but H.R. 1300 
will delay or prevent cleanups of Brownfields and Superfund 
sites, let polluters off the hook and stick that hook in the 
side of taxpayers.
    I hope that after hearing about Superfund today that we 
will return to the subject of a previous hearing and focus our 
efforts on legislation to clean up Brownfields without making 
taxpayers pay for the mess Superfund polluters have made.
    I thank you, Mr. Chairman.
    Mr. Oxley. The gentleman's time has expired. The gentlelady 
from New Mexico.
    Mrs. Wilson. I have no opening statement, Mr. Chairman.
    Mr. Oxley. The gentleman from Ohio, Mr. Gillmor.
    Mr. Gillmor. Thank you very much, Mr. Chairman, and I 
appreciate you calling this hearing on a subject that has 
plagued us now for nearly 20 years, and that is the operation 
and the ramifications of Superfund, and this is not the first 
time our panel has sought to take some action to reform the 
program, and I am hopeful at some point the other end of 
Pennsylvania Avenue will wake up to the need for real reform in 
a failed program.
    Superfund is the archetypical government program in that it 
spends too much and it achieves too little. The program was 
created in 1980 to clean up the worst hazardous waste sites in 
the country. That is 19 years ago and the record is a program 
that has (1) failed to achieve its purpose, (2) consumed 
billions of dollars in the process of that failure, and (3) 
spent less than half of those billions of dollars to cleaning 
up the environment, with the rest going for regulatory costs 
and attorney fees.
    Today the plan is to focus on the core Superfund issues of 
liability, remedy selection, and I believe these are two areas 
that call out for legislative reform.
    For example, I have long been a supporter of repealing 
retroactive liability and as someone who cares about the 
environment I think that is a very responsible position. After 
listening to 8 years of testimony before this panel I have no 
feeling other than to see this punitive system eliminated.
    Our current system is designed to punish the innocent party 
who followed the law at the time the material was disposed of.
    I have introduced a bill in the past to create a standard 
in which only those entities which caused the release would be 
held liable. I first introduced that bill, as well as a bill to 
require that more money be spent on actual cleanup, 2 years 
ago, and I asked both the U.S. EPA and the Justice Department 
for their input. I am still waiting.
    The administration's approach has basically been to defend 
the status quo and not to reform a failed program.
    In regard to remedy selection, this again is an area where 
Superfund has failed. Most of us had breakfast this morning. I 
am a big fan of ``Shredded Wheat'' and I thought I would bring 
in a box. From all that I have read and seen, this stuff is 
supposed to be good for you. Well, you know, a simple reading 
of the ingredients list on this box shows that if we dumped it 
on the ground and we dropped a lot of boxes on the ground we 
could participate in the designation of a Superfund site.
    I have long supported science-backed, risk-based criteria 
for determining what constitutes a danger and which methods 
ought to be used to clean it. We do not need gold-plated 
solutions to problems that can be safely solved for much less.
    So Mr. Chairman, I again thank you for calling this 
hearing. I think making Superfund work requires a person to ask 
two simple questions, do I want to see hazardous waste 
remediated, and the answer is yes, and the second question is 
is the current system working, and the answer is clearly no.
    Thank you, Mr. Chairman.
    Mr. Oxley. The gentleman's time has expired. The gentlelady 
from Colorado, Ms. DeGette.
    Ms. DeGette. Thank you, Mr. Chairman.
    Mr. Chairman, I am pleased that we are having this hearing 
today to talk about the liability and remedy selections of H.R. 
1300. I am concerned that, as we heard from Mr. Markey and 
others, the provisions fail to adequately address some of the 
needs in current law. We should find ways to make the Superfund 
run more efficiently and effectively rather than undercut the 
things that have made it successful.
    For example, by the end of the year 2000 four times as many 
sites will have finished construction in the 8 years of the 
Clinton administration as compared to the first 12 years of the 
program. I am particularly concerned that the bill seeks to 
capitalize on the success of the Brownfields program by gutting 
the Superfund in the name of Brownfields legislation.
    Brownfields programs are successful in part because they 
pick up where the Superfund leaves off, and they complement the 
program. I do not think that it makes sense to gut one program 
in favor of another one. As I have said in many of these 
hearings, I don't think we need Superfund legislation, which 
will be very difficult to pass on a bipartisan basis, to pass 
successful Brownfields legislation.
    We should not gut Superfund to pass Brownfields. I have 
talked some to Mr. Greenwood and others. I think we can come up 
with a bipartisan Brownfields bill. Our business communities 
want it, our citizens want it, and we should do it.
    I have got to say I think that we want to encourage the 
successful aspects of Brownfields that promote cleanup of 
previously ignored sites like inner city industrial sites, but 
I do not think that by initiating cleanups we should absolve 
polluters of all liability. Current liability provisions that 
target polluters work and fewer Superfund sites have been 
created since these provisions were enacted.
    We should protect the people who want to do the right thing 
and clean up polluted sites for reuse, like prospective 
purchasers or innocent land owners, but we also need to ensure, 
as Mr. Markey said, that polluters will clean up their mess 
without leaving the taxpayers with the bill.
    I don't think H.R. 1300 does enough to strike this balance.
    I am also deeply concerned by H.R. 1300's alterations to 
remedy selection provisions, particularly its attempt to 
eliminate the relevant and appropriate provisions of CERCLA. 
The relevant and appropriate definitions have proved useful in 
avoiding disputes about applicability of solutions and provided 
standards that ensure that remedies are protective. Relevant 
and appropriate is by its nature site-specific, a critical 
component to a successful remedy.
    I point to the Shattuck Superfund site in my district as an 
egregious example of a site where the ARARs were not met. As a 
result, the remedy has completely failed the community. At 
Shattuck the constituents contained within the contaminated 
soils and waste materials were never adequately characterized 
nor were groundwater ARARs ever attained as required. The 
entire onsite disposal could be seen as a violation of cleanup 
laws because of its failure to comply.
    Now new reports indicate that even the EPA is beginning to 
believe that the remedy at Shattuck is inadequate. I am sure 
there are few people in this room who agree that leaving 
radioactive waste capped with clay and stone in the middle of a 
residential neighborhood in a large metropolitan area was 
either a relevant or appropriate remedy for the people of the 
Overland Park community.
    The problem is because of that initial failure to follow 
standards, the cleanup is going to be extra expensive mainly 
for the taxpayers because now that this stuff has been scraped 
onto a football field and covered up with some concrete it is 
now going to have to be moved at a cost maybe twice what the 
original cost was. That is why we need to get these statutes 
right the first time, and that is why we need to enforce them 
adequately.
    I hope today's hearing is going to lead to a better 
understanding of what works for Superfund today and that this 
committee can work together to ensure that all of these pieces 
of legislation, not just H.R. 1300, can adequately address the 
real needs of environmental cleanup standards.
    Thank you, Mr. Chairman. Oh, Mr. Chairman, by the way, 
there is another hearing going on and I know many of our 
colleagues would like to stay for this important hearing. I, 
myself, am going to have to leave for this hearing after the 
questioning and I just want to apologize in advance to the 
witnesses, because I know this is very important.
    Mr. Oxley. The gentlelady's time has expired.
    The Chair would ask unanimous consent that all of the 
members' opening statements be made part of the record. Without 
objection, so ordered.
    [Additional statements submitted for the record follow:]
 Prepared Statement of Hon. Billy Tauzin, a Representative in Congress 
                      from the State of Louisiana
    Mr. Chairman, I am very pleased that you are holding this hearing 
today on an issue that many of us have been grappling with for almost a 
decade. Clearly, Superfund needs to be reformed, and it needs to be 
reformed now. I am pleased to see that several Superfund initiatives 
this Congress include legislative language that I have introduced in 
the past to ensure that certain small businesses are no longer burdened 
by litigation under Superfund's draconian liability scheme.
    Unfortunately, however, both H.R. 1300 and H.R. 2580 fail to 
address the current inadequacies of the Natural Resource Damage (NRD) 
program under CERCLA. Failing to address the current inadequacies of 
the NRD program will, in my opinion, amount to replacing one litigation 
nightmare with another. Let me explain.
    No one, including the business community, opposes expeditious 
restoration of natural resources. Unfortunately, trustees have been 
more interested in maximizing damage claims than restoring resources. 
Trustees have asserted claims for hundreds of millions of dollars and, 
in a few cases, over a billion dollars based on theories that there was 
necessarily compensable damage to the ``public psyche.'' These so-
called ``Non-use'' damages are simply unfair to named ``Potentially 
Responsible Parties (PRPs)'' in that they impose a degree of liability 
which, in most cases, exceeds the actual harm done. Mr. Chairman, the 
result is a program mired in excessive litigation with few if any 
success stories.
    This problem has recently manifested itself in my home state of 
Louisiana, where concerns over very low levels of pollutants in the 
Sediments of the Calcasieu River have led to a near paralysis of 
critical navigation projects, as well as essential environmental 
restoration efforts to protect the marshes of South Louisiana. Efforts 
by industry to step up to the plate and do the right thing have been 
rebuffed in favor of a bureaucratic, litigious approach that will at 
best leave the Calcasieu River-bed unrestored for a decade or more. 
This is not the proper approach to the restoration of our critical 
resources or a way to promote the nation's economic vitality.
    We all know that the federal government, particularly the 
Departments' of Defense and Energy, is liable for more contaminated 
sites than any private party. An unreformed NRD program therefore also 
poses a significant threat to the federal treasury and to national 
security. This threat is already becoming a reality. One state, Mr. 
Chairman, recently notified the Departments of Defense and Energy that 
it intends to file a $260 million NRD claim against them at one site 
for contaminated groundwater that these Departments are already paying 
to clean up under Superfund. The total NRD liability could be very 
large--as much as $20.5 billion for DOE alone according to GAO--and 
GAO's estimate does not include DOE's largest and most expensive sites.
    Given this threat to our nation's environmental and fiscal health I 
believe that reform of the NRD program, in addition to more general 
Section 107 reforms, is essential to any meaningful Superfund 
legislation.
    Thank you Mr. Chairman.
                                 ______
                                 
 Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
    Thank you, Mr. Chairman. Let me first commend you for your 
continued diligence and persistence in continuing our long-standing 
effort to reform Superfund.
    I've said this many times--perhaps one of the hardest tasks in 
politics is fixing a broken environmental program. The Superfund law is 
a prime example of such a program. It is unjust, costly, slow, 
unrealistic, and poses barriers to cleanups all across the Nation. Its 
liability scheme has created a litigation nightmare which has hurt 
individuals, small businesses, and communities, and has delayed the 
cleanup of toxic waste sites. Superfund has created barriers to 
voluntary cleanups and redevelopment of brownfields across the country. 
Mr. Chairman, you only have to review the extensive record that your 
Subcommittee has compiled over the past five years to know that 
Superfund has been a public policy embarrassment.
    I've said this too many times before, but I'll say it once again--
it is time to get on with the business of cleaning up America's toxic 
waste sites. We have bipartisan legislation before the Subcommittee 
that will go a long way towards making the federal program more fair, 
effective and efficient, and that eliminates many of the barriers to 
redevelopment and cleanup.
    But unfortunately we are still at odds with the Administration. 
Where I see a program that takes too long to identify and cleanup 
hazardous waste sites, the Administration, and some of my colleagues, 
see a program moving at a satisfactory pace. Where I see waves and 
waves of unjust litigation, the Administration sees its ``polluter 
pays'' principle in action. Where I see needless uncertainty and 
counterproductive Federal rules, the Administration and the national 
environmental groups see unprotective State cleanup programs.
    The fact is that today there is simply no reason for politics to 
continue to stand in the way of meaningful Superfund reform. Thanks to 
the efforts on both sides of the aisle, there is already significant 
bipartisan support in Congress for Superfund legislation. H.R. 1300, 
the Recycle America's Land Act of 1999, introduced by our colleague 
Sherry Boehlert, currently has 60 Democrat and 60 Republican 
cosponsors. It was reported last month from the Transportation and 
Infrastructure Committee by a vote of 69-2. H.R. 2580, The Land 
Recycling Act of 1999, introduced by Mr. Greenwood, also enjoys strong 
bipartisan support with 9 Democrat and 7 Republican cosponsors. States, 
local governments, cleanup engineers, dozens of experts, and 
Republicans and Democrats alike agree on the need for substantial 
reform.
    Today, we will be completing our legislative hearings on these two 
bills. They contain provisions addressing the major components of the 
Superfund program, including brownfields, the liability scheme, remedy 
selection, public participation, and grant programs. These bills 
represent the product of years of negotiating to achieve a workable 
compromise. I look forward to hearing from today's witnesses, and to 
moving forward with legislation to fix this broken program and save 
countless others from the litigation nightmare that has befallen so 
many of our constituents.
                                 ______
                                 
Prepared Statement of Eliot L. Engel, a Representative in Congress from 
                         the State of New York
    The Superfund has experienced many changes since it was created in 
1980. The Congress has modified this important program a number of 
times and is continuing in that tradition. Superfund is not a perfect 
program; determining the party responsible for contamination is a slow 
process, and the actual cleanup of a contaminated site takes even 
longer. I, too, believe we must continue to streamline the Superfund 
and make it as efficient as possible, but the proper structure is 
already in place.
    Targeted reforms, as proposed in Congressman Towns' bill, are the 
appropriate means of refining the Superfund. The unnecessary reforms, 
before the committee today, change Superfund's basic structure and will 
diminish its ability to conduct cleanups.
    Although off to a slow start through the 1980's, the Superfund has 
experienced a tremendous increase in the number of construction 
completions in the last six years. We must continue to move forward 
with this program, not backwards. Unfortunately, the comprehensive 
reforms proposed in H.R. 1300 will reverse the progress made over the 
past 19 years. Many of the sites that would be cleaned under the 
existing provisions, may be left untouched for many years. H.R. 1300 is 
a regressive piece of legislation that overreaches and undercuts 
Superfund's ability to effectively clean up contaminated sites. This 
committee should be focusing on H.R. 1750, Congressman Towns' 
legislation, which concentrates on brownfields cleanups.
    H.R. 1750, institutes the brownfield assessment grants and 
revolving loan fund grants programs, which help local governments 
conduct inventory and make site assessments of brownfields. This 
legislation also adds liability protection to innocent parties, such as 
landowners who did not contribute to contamination of the site, as well 
as prospective purchasers. Targeted reforms will make the Superfund 
more efficient by providing better assessment and reduce litigation by 
providing liability protection to innocent parties. These are the types 
of reforms needed to make the Superfund a more effective program in the 
future. Therefore, I urge this Committee to focus on the targeted 
reforms in the Towns bill.
                                 ______
                                 
  Prepared Statement of Hon. Lois Capps, a Representative in Congress 
                      from the State of California
    Thank you Mr. Chairman for holding this important hearing to 
improve the Superfund program.
    During hearings held by the Committee both in March and August, a 
common theme emerged on brownfields. There appeared to be bipartisan 
consensus for the Committee to act on targeted legislation on the issue 
of brownfields. However, unfortunately, the legislation that we are 
debating today goes further than merely addressing the issue of 
brownfields, and in some instances threatens important provisions in 
our nation's Superfund law to protect public health and the 
environment. As you will hear today, the Administration and 
environmental groups also share these concerns.
    There is no question that the current Superfund program is in need 
of reform and historically there has been frustration at the pace of 
Superfund cleanup. Reform is needed to save in the cost and time of 
cleanup of Superfund sites. There also exists a need in our country to 
provide important incentives to redevelop brownfield sites, bringing 
economic revitalization of neighborhoods across the nation. However, 
this reform should be a targeted one. We have an opportunity to pass 
consensus legislation in this Committee as long as we keep it focused 
on brownfields.
    I am proud to be a cosponsor of H.R. 1750, the Community 
Revitalization and Brownfield Cleanup Act of 1999, along with a number 
of my colleagues here on the Committee and urge other members on the 
Committee to work together in a bipartisan fashion and move forward 
with brownfields legislation.
    I think it is safe to say that we all share the same goal of 
cleaning up our nation's waste sites as quickly and cost effectively as 
possibly. We should pass legislation to provide incentives for 
prospective redevelopment of Superfund sites, particularly as it 
relates to brownfields. But let's not weaken our nation's laws to 
protect public health and the environment in the process.
    I look forward to working with my colleagues in the Committee to 
pass important brownfields legislation.

    Mr. Oxley. The gentleman from Oklahoma, Mr. Largent.
    Mr. Largent. No.
    Mr. Oxley. The gentleman from Wisconsin, Mr. Barrett.
    Mr. Barrett. No opening statement.
    Mr. Oxley. We will then turn to our witness, Mr. Tim 
Fields, Assistant Administrator for the Office of Solid Waste 
and Emergency Response, from U.S. EPA. Mr. Fields, welcome back 
and you may begin.

       STATEMENTS OF HON. TIMOTHY FIELDS, JR., ASSISTANT 
 ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, 
  U.S. ENVIRONMENTAL PROTECTION AGENCY; ACCOMPANIED BY STEVE 
  HERMAN, ASSISTANT ADMINISTRATOR, OFFICE OF ENFORCEMENT AND 
                      COMPLIANCE ASSURANCE

    Mr. Fields. Thank you, Mr. Chairman. I have with me 
Assistant Administrator Steve Herman from the Office of 
Enforcement and Compliance Assurance at EPA. We will both make 
brief opening statements, if you don't mind.
    Mr. Oxley. Without objection.
    Mr. Fields. Thank you.
    We would like also to enter into the record our written 
statement but we also have letters commenting on the subject 
before us today from the Department of Justice, the Department 
of Agriculture, and the Department of Interior. We would like 
to have these letters into the record as well.
    Mr. Oxley. Without objection, so ordered.
    [The letters follow:]

                          Department of Agriculture
                                    Office of the Secretary
                                                     August 4, 1999
The Honorable James L. Oberstar
Ranking Democratic Member
Committee on Transportation and Infrastructure
U.S. House of Representatives
2165 Rayburn House Office Building
Washington, D.C. 20515-6256
    Dear Congressman Oberstar: In light of the Committee on 
Transportation and Infrastructure markup scheduled for tomorrow on H.R. 
1300, the Recycle America's Land Act of 1999, we would like to provide 
you with an overview of the concerns of the U.S. Department of 
Agriculture (USDA) and the U.S. Department of the Interior (DOI) with 
this bill, as well as with the proposed Amendment in the Nature of a 
Substitute to be offered by Subcommittee Chairman Sherwood L. Boehlert 
and Subcommittee Ranking Member Robert A. Borski. We appreciate your 
efforts to move the Superfund reauthorization process forward. However, 
the USDA and DOI strongly oppose the bill for the reasons discussed 
below.
    USDA and DOI are seriously concerened by the loss of enforcement 
authority on Federal lands that would result from H.R. 1300 and the 
Substitute. In particular, Section 104 limits Federal authority when 
there is State action; this provision would effectively undermine the 
Federal Government's ability to manage and set priorities for 
Federally-managed lands, and restrict the ability of the Federal land-
management agencies to respond effectively and efficiently to 
environmental hazards.
    As you may know, decisions about appropriate environmental response 
activities must be coordinated with the full range of land-management 
decisions that the Federal land-management agencies are charged with 
making. It is critical that we have the ability to integrate 
environmental response with the Agencies' overall mission. Although it 
certainly makes sense to coordinate our response activities with those 
of State authorities, the Federal land-management agencies must retain 
their lead-agency enforcement authority under CERCLA with respect to 
hazardous releases affecting Federal lands to ensure that appropriate 
response activities are carried out effectively along with other land-
management responsibilities. Given the limited amount of appropriated 
agency funds that are available to perform environmental response 
activities on Federal lands, it is essential that the Federal land-
management agencies retain enforcement authority under CERCLA in order 
to induce the responsible parties to either undertake or pay for the 
site cleanups for which they are responsible. Without adequate 
enforcement authority we will be unable to maintain the current pace of 
cleanup on Federal lands, and the ``polluter pays'' principle will be 
undermined.
    In addition, we strongly oppose Section 301 of the bill and the 
Substitute, which would prevent an agency from using its delegated 
authority under Section 106 of CERCLA to address a release or 
threatened release of hazardous substances at a site where the agency 
may be a potentially responsible party (PRP) under CERCLA. The Federal 
land-management agencies' ability to address serious threats to human 
health and the environment is enhanced by this authority.
    At the same time, there are a number of significant existing 
safeguards which ensure that the Federal land managers' enforcement 
authority under CERCLA Section 106 is exercised in a prudent and 
reasonable manner. In 1998, the Federal land managers entered into a 
Memorandum of Understanding (MOU) with the Environmental Protection 
Agency (EPA), the Coast Guard and the Department of Justice. The MOU 
ensures that the Federal land managers' authority under CERCLA Section 
106 may only be used with EPA or Coast Guard concurrence. Federal land 
managers may not issue unilateral orders to avoid responsibility for 
their own share of response costs. Where there may be the potential for 
any claim of this nature, Justice Department concurrence also is 
required. Section 301 of H.R. 1300 and the Substitute are thus both 
counterproductive and unnecessary.
    Finally, we have significant concerns about several other 
provisions of this bill and the Substitute, including but not limited 
to those relating to certain key cleanup requirements and the States' 
role at Federal facilities. For example, we believe that the provisions 
significantly expanding the role of States at Federal facilities lack 
essential safeguards to ensure there would be no disruption of ongoing 
cleanup activities. This could undermine the ability of agencies to 
continue to use risk-based prioritization systems for allocating 
increasingly scarce cleanup funds. In addition, the liability 
exemptions, as drafted, would undermine the ``polluter pays'' 
principle.
    For all of the above reasons, we strongly oppose not only H.R. 1300 
as currently written but also the Boehlert-Borski Amendment in the 
Nature of a Substitute.
    The Office of Management and Budget has advised that there is no 
objection to the submission of this letter from the standpoint of the 
Administration's program.
            Sincerely,
                                    Dan Glickman, Secretary
                                     U.S. Department of Agriculture
                                  Bruce Babbitt, Secretary,
                                    U.S. Department of the Interior
cc: The Honorable Sherwood L. Boehlert, Chairman
   Subcommittee on Water Resources and Environment,
   Committee on Transportation and Infrastructure
   U.S. House of Representatives
   Washington, D.C. 20515

   The Honorable Robert A. Borski
   Ranking Democratic Member
   Subcommittee on Transportation and Infrastructure
   U.S. House of Representatives
   Washington, D.C. 20515
                                 ______
                                 
                          Department of Agriculture
                                    Office of the Secretary
                                                     August 4, 1999
The Honorable Bud Shuster
Chairman
Committee on Transportation and Infrastructure
U.S. House of Representatives
2165 Rayburn House Office Building
Washington, D.C. 20515-6256
    Dear Mr. Chairman: In light of the Committee on Transportation and 
Infrastructure markup scheduled for tomorrow on H.R. 1300, the Recycle 
America's Land Act of 1999, we would like to provide you with an 
overview of the concerns of the U.S. Department of Agriculture (USDA) 
and the U.S. Department of the Interior (DOI) with this bill, as well 
as with the proposed Amendment in the Nature of a Substitute to be 
offered by Subcommittee Chairman Sherwood L. Boehlert and Subcommittee 
Ranking Member Robert A. Borski. We appreciate your efforts to move the 
Superfund reauthorization process forward. However, the USDA and DOI 
strongly oppose the bill for the reasons discussed below.
    USDA and DOI are seriously concerened by the loss of enforcement 
authority on Federal lands that would result from H.R. 1300 and the 
Substitute. In particular, Section 104 limits Federal authority when 
there is State action; this provision would effectively undermine the 
Federal Government's ability to manage and set priorities for 
Federally-managed lands, and restrict the ability of the Federal land-
management agencies to respond effectively and efficiently to 
environmental hazards.
    As you may know, decisions about appropriate environmental response 
activities must be coordinated with the full range of land-management 
decisions that the Federal land-management agencies are charged with 
making. It is critical that we have the ability to integrate 
environmental response with the Agencies' overall mission. Although it 
certainly makes sense to coordinate our response activities with those 
of State authorities, the Federal land-management agencies must retain 
their lead-agency enforcement authority under CERCLA with respect to 
hazardous releases affecting Federal lands to ensure that appropriate 
response activities are carried out effectively along with other land-
management responsibilities. Given the limited amount of appropriated 
agency funds that are available to perform environmental response 
activities on Federal lands, it is essential that the Federal land-
management agencies retain enforcement authority under CERCLA in order 
to induce the responsible parties to either undertake or pay for the 
site cleanups for which they are responsible. Without adequate 
enforcement authority we will be unable to maintain the current pace of 
cleanup on Federal lands, and the ``polluter pays'' principle will be 
undermined.
    In addition, we strongly oppose Section 301 of the bill and the 
Substitute, which would prevent an agency from using its delegated 
authority under Section 106 of CERCLA to address a release or 
threatened release of hazardous substances at a site where the agency 
may be a potentially responsible party (PRP) under CERCLA. The Federal 
land-management agencies' ability to address serious threats to human 
health and the environment is enhanced by this authority.
    At the same time, there are a number of significant existing 
safeguards which ensure that the Federal land managers' enforcement 
authority under CERCLA Section 106 is exercised in a prudent and 
reasonable manner. In 1998, the Federal land managers entered into a 
Memorandum of Understanding (MOU) with the Environmental Protection 
Agency (EPA), the Coast Guard and the Department of Justice. The MOU 
ensures that the Federal land managers' authority under CERCLA Section 
106 may only be used with EPA or Coast Guard concurrence. Federal land 
managers may not issue unilateral orders to avoid responsibility for 
their own share of response costs. Where there may be the potential for 
any claim of this nature, Justice Department concurrence also is 
required. Section 301 of H.R. 1300 and the Substitute are thus both 
counterproductive and unnecessary.
    Finally, we have significant concerns about several other 
provisions of this bill and the Substitute, including but not limited 
to those relating to certain key cleanup requirements and the States' 
role at Federal facilities. For example, we believe that the provisions 
significantly expanding the role of States at Federal facilities lack 
essential safeguards to ensure there would be no disruption of ongoing 
cleanup activities. This could undermine the ability of agencies to 
continue to use risk-based prioritization systems for allocating 
increasingly scarce cleanup funds. In addition, the liability 
exemptions, as drafted, would undermine the ``polluter pays'' 
principle.
    For all of the above reasons, we strongly oppose not only H.R. 1300 
as currently written but also the Boehlert-Borski Amendment in the 
Nature of a Substitute.
    The Office of Management and Budget has advised that there is no 
objection to the submission of this letter from the standpoint of the 
Administration's program.
            Sincerely,
                                    Dan Glickman, Secretary
                                     U.S. Department of Agriculture
                                  Bruce Babbitt, Secretary,
                                    U.S. Department of the Interior
cc: The Honorable Sherwood L. Boehlert, Chairman
   Subcommittee on Water Resources and Environment,
   Committee on Transportation and Infrastructure
   U.S. House of Representatives
   Washington, D.C. 20515

   The Honorable Robert A. Borski
   Ranking Democratic Member
   Subcommittee on Transportation and Infrastructure
   U.S. House of Representatives
   Washington, D.C. 20515
                                 ______
                                 
                         U.S. Department of Justice
                   Office of the Assistant Attorney General
                                                 September 23, 1999
Honorable Edolphous Towns
Ranking Minority Member
Subcommittee on Finance and Hazardous Materials
Committee on Commerce
U.S. House of Representatives
Washington, D.C. 20515
    Dear Congressman Towns: This letter is to provide the views of the 
Department of Justice on H.R. 1300, the ``Recycle America's Land Act of 
1999,'' as ordered reported by the Committee on Transportation and 
Infrastructure on August 5, 1999. The Department of Justice previously 
expressed strong opposition to H.R. 1300, as introduced, in a letter of 
May 11, 1999 to the Honorable Sherwood L. Boehlert. Although minor 
changes were made to the bill subsequent to its introduction, these 
changes did not address the Department's fundamental concerns with the 
bill and thus, the Department of Justice remains strongly opposed to 
H.R. 1300.
    We believe the approach in this bill would not improve the federal 
Superfund program and will only serve to undercut the significant 
improvements achieved by EPA through its administrative reforms over 
the past few years. Furthermore, we believe comprehensive 
reauthorization legislation is not needed and would be 
counterproductive. Instead, we support a narrow approach that would 
address brownfields issues and provide targeted liability relief for 
certain innocent parties. However, even on these more limited issues, 
H.R. 1300 goes too far.
    Below is a brief summary of the major reasons the Department of 
Justice strongly opposes H.R. 1300. Our comments here address five 
primary areas: the allocation process, bars on federal enforcement 
authorities, new liability exemptions and expanded defenses, the impact 
on litigation, and the shift of major new costs to the Fund. While this 
letter provides only the main concerns we have identified, we would be 
happy to share a more detailed analysis with you and your staff.
The New Allocation Process Will Discourage Settlements and Slow 
        Cleanups
    Section 310 of H.R. 1300 would add a new section to the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(``CERCLA'' or ``Superfund'') establishing a prescriptive, mandatory 
allocation process. We believe this new section is not needed, in light 
of the significant improvements we have made in adopting a more 
equitable enforcement approach over the past four years. Just one 
example of this is the expanded use of ``orphan share'' settlements. 
Since issuance of EPA's ``orphan share'' policy in 1996, more than 85 
settlement offers have been made that would include a government 
contribution to the ``orphan share,'' amounting to more than $160 
million.
    If enacted, H.R. 1300's allocation system will generate litigation, 
not settlements, pulling lawyers back into the process and miring 
cleanup in litigation and transaction costs. It will also drag exempt 
and already-settled parties (including the smallest parties) through 
the allocation process and greatly increase their transaction costs. 
Finally, it would slow down or stop ongoing response actions, and could 
force the federal government to rely primarily on Fund-lead cleanups to 
avoid disruptions in the remediation process.
    Under current law, the United States resolves most of its CERCLA 
claims through settlement, not litigation. Approximately 70% of all 
cleanups are performed by potentially responsible parties (PRPs) 
through such settlements. Under these settlements, PRPs generally agree 
to perform the cleanup and determine an allocation of cleanup costs 
among themselves. H.R. 1300's allocation provisions, however, would 
change the landscape by requiring that an allocator first quantify the 
PRPs' liability. This will slow the pace of cleanup.
    H.R. 1300 also will slow cleanups because it will remove incentives 
for PRPs to promptly enter into settlements to perform work. We believe 
a PRP will rarely, if ever, agree to perform the entire cleanup under a 
settlement when it could wait for an allocation and only be required to 
perform or pay for its assigned share of cleanup. Even then, a 
settlement to clean up a site will be difficult, if not impossible, to 
obtain if even one party refuses to settle, since there is no incentive 
for any party to pick up another's allocated share. Instead parties 
will, seek ``cash out'' settlements for their assigned share of cleanup 
costs rather than agree to perform the entire cleanup. H. R. 1300 would 
further discourage settlements by rewarding parties that refuse to 
settle. The bill would entitle parties that have declined to settle and 
are performing under a Unilateral Administrative Order (UAO) to full 
reimbursement for costs in excess of their allocated share.\1\ Our 
previous experience in the Superfund program indicates that response 
actions proceeding under an adversarial UAO approach will not produce 
quick, high-quality cleanups. Moreover, under H.R. 1300 parties that 
choose to perform under a UAO preserve the right to challenge EPA's 
remedy, undercutting the current bar on preenforcement review. As a 
result, to get complete cleanups done'' in a timely manner, the Fund 
may well have to pay for the entire cleanup in the first instance.
---------------------------------------------------------------------------
    \1\ Further, parties who maintain their right to challenge a remedy 
get only a little less reimbursement than parties who have settled all 
outstanding claims. Sec. 131(o)(4), p. 129, 9. Again, this places 
nonsettlers in the drivers' seat and encourages them to continue to 
litigate.
---------------------------------------------------------------------------
    Another way H.R. 1300 would discourage cleanup settlements is by 
undermining joint and several liability. Despite language apparently 
intended to avoid this result, PRPs would certainly attempt to convince 
courts that in light of the new statutory allocation provision, the 
allocator's report provides a basis for finding that environmental 
contamination at a site is ``divisible'' and thus that defendants 
cannot be held jointly and severally liable. Without the threat of 
facing joint and several liability if they end up in court, parties 
would have little incentive to settle prior to an allocation (or 
perhaps even after the allocator's report is issued).\2\
---------------------------------------------------------------------------
    \2\ As both Republican and Democratic Administrations have 
repeatedly testified, as well as individual states and the National 
Association of Attorneys General, joint and several liability is 
critical to getting settlements, to getting cleanups done and to 
ensuring that the public is made whole. Given a choice for settling for 
an approximation of a share now and for paying a share after years of 
allocation and litigation, parties will elect to wait. If joint and 
several liability is undermined, we will obtain many fewer settlements 
and many fewer cleanup settlements in the first instance--let alone 
after allocation. Instead, we will be forced to litigate in many more 
cases.
---------------------------------------------------------------------------
    In addition to undermining settlements, H.R. 1300 penalizes small 
parties and settlers by dragging them through the allocation process. 
The bill vests the allocator with authority to determine who qualifies 
for an exemption as a small business, a recycler, a service station 
dealer, or a generator or transporter of municipal solid waste (MSW) or 
municipal sewage sludge (MSS), and leaves these parties ``in'' the 
process until the allocator acts. Because these parties' shares must be 
assumed by the Fund,\3\ remaining PRPs have a strong incentive to 
identify as many additional parties as possible. Even if the small 
parties are ultimately exempt from liability, these parties will 
nevertheless be forced to spend substantial time and money hiring 
lawyers to respond to information requests and subpoenas.
---------------------------------------------------------------------------
    \3\ Under the bill, however, an allocator would not attribute any 
response costs to include homeowners, certain small businesses, and 
small non-profits who disposed only MSW/MSS; see Sec. 131(j).
---------------------------------------------------------------------------
H.R. 1300 Would Restrict the U.S.'s Ability to Respond to Imminent and 
        Substantial Endangerments
    We clearly want to encourage well-qualified states to take the lead 
in getting sites cleaned up and to establish good cleanup programs. At 
the same time, however, we believe that there is a need to preserve 
federal authority at sites where states are administering the cleanup 
program so that we can ensure adequate protection of human health and 
the environment for everyone in this country. In that respect, 
Superfund should remain consistent with every other major federal 
environmental law and preserve federal authority to keep the safety net 
intact for everyone. This is especially important because every state 
is different and their cleanup program abilities vary considerably.
    We believe the federal enforcement bar in section 104 of this bill 
fails to protect human health and the environment for a number of 
reasons. First, the reopeners in section 104 are simply inadequate to 
protect human health and the environment. Under the bill, the U.S. 
could only respond where it determines that action is ``immediately 
required to prevent, limit, or mitigate an emergency.'' Rather than 
preventing harm to the public or the environment in the first place, as 
current law would provide, the U.S. would be forced to wait for harm to 
occur before it could take action. Even then, the U.S. must first 
determine whether the state intends to respond. Thus, as a practical 
matter, the U.S. would not be able to take an enforcement action unless 
there is a state request--even if the State is a PRP or if it ignores a 
community expressing serious concern. Second, this new ``emergency'' 
standard differs from imminent and substantial endangerment, ignoring 
nearly twenty years of established case law. The bill will bring on a 
new round of litigation to interpret the new standard and in the 
process will delay federal intervention, putting public health at risk. 
Third, section 104 would delay cleanups and waste resources by cutting 
off federal enforcement authority as soon as ``response action'' 
commences. Finally, the enforcement bar is exacerbated by the total 
absence of criteria for EPA to evaluate and approve state response 
programs, including any requirement for meaningful public involvement 
in the process. Overall, the bill radically departs from the usual 
mechanisms for establishing federal/state partnerships under all other 
federal environmental laws.
New Liability Exemptions and Expanded Defenses Are Over Broad
    H.R. 1300 contains a number of new exemptions and defenses from 
CERCLA liability. While we support some narrow, targeted liability 
relief, the bill would provide exemptions that are far too broad. 
Several of the more troubling provisions are discussed below.
    For example, section 303 of the bill would create a new defense to 
liability for certain current owners or operators, even those that 
bought with knowledge of the contamination at a substantially reduced 
purchase price to account for this. Such relief would undermine 
longstanding principles of common law which recognize that owners often 
are in the best position to address hazards on their property, even if 
not created by them. Minor changes made in H.R. 1300's owner/operator 
provision that address development, redevelopment, or expansion at 
property that an owner bought after 1980 with knowledge that it was 
contaminated do little to relieve this problem.
    In addition, the bill would grant an exemption to a larger group of 
small businesses, which could include businesses that contributed large 
amounts of highly toxic wastes. The only ability to restrict this 
exemption is for the U.S. to prove that the small business contributes 
or contributed significantly to the cost of the cleanup. Given the 
complexities found at many sites, it will be difficult for the U.S. to 
satisfy this standard with certainly. Even where possible, this 
provision will, at a minimum, lead to extensive litigation and 
transactions costs.
    Furthermore, the municipal solid waste (MSW) exemption is not 
consistent with EPA's recently issued MSW settlement policy and would 
provide inappropriate relief to large waste generators and commercial 
haulers. Among other things, it would exempt from liability all past 
contributors of MSW or MSS to a landfill. The only exception would be 
for large commercial waste haulers transporting material containing 
hazardous substances that contributes significantly to overall response 
costs, whose costs would be arbitrarily capped at 10% of response 
costs. Post enactment, the liability of all persons who arranged for 
the disposal or transportation of MSW or MSS, even large commercial 
haulers, is capped at an aggregate 10% of response costs.
    Finally, we have concerns with the reach of the bill's recycling 
provision. Among other things, it extends coverage to generators and 
transporters of used oil and byproducts of copper productions, and 
would shift the share of cleanup up costs attributable to exempt 
recycling parties to the Fund.
H.R. 1300 Would Result in a Significant Increase in Litigation
    We have worked hard over the past few years to reduce the amount of 
litigation associated with the Superfund program. We have implemented a 
more equitable enforcement program and emphasized settlements instead 
of lawsuits. It is disappointing, therefore, to see a Superfund 
reauthorization bill that would put the lawyers back into the forefront 
by creating numerous new standards and terms that will guarantee 
extensive new litigation.
    The bill introduces many new terms and concepts--from affirmative 
defenses to exemptions, from changes to remedy selection provisions to 
risk assessments provisions--and will invite a new round of expensive 
litigation over what is meant by all of them. In addition, the bill's 
changes to existing remedy selection provisions in CERCLA will require 
revisions to the National Contingency Plan (NCP). The last round of NCP 
revisions resulted in extensive litigation. During the revision process 
and litigation, uncertainty over the ultimate outcome of cleanup 
requirements will further chill settlements with private parties, as it 
did during the last round of revisions after the 1986 Superfund 
amendments. Furthermore, nothing in the bill would make the changes 
prospective only in application. Private parties (especially those 
covered by the new allocation process) will be free to seek to re-open 
already-signed RODs or modify not-yet-signed RODs, and will be free to 
challenge the remedies selected in those RODs. The bill would create 
new terms and criteria for making remedy selection decisions, all of 
which would require judicial interpretation.
    Each of these changes (and many more I have not described in this 
letter) would invite litigation over how the new law should be 
interpreted. This process would substantially increase transaction 
costs as courts would be asked to revise eighteen years of established 
case law in response to significant changes to the current law. I fail 
to see the value in this approach, especially where we have strived to 
reduce litigation and where we have seen such dramatic improvements in 
the cleanup program over the past few years.
The Bill Would Shift Major New Costs to the Fund
    Congress has failed to reinstate the Superfund tax authority which 
expired on December 31, 1995. Since that date, industry has benefitted 
from a windfall of approximately $4 million a day in unpaid taxes.
    At the same time, H.R. 1300 shifts major new costs to the Fund. 
Under the new allocation scheme, the Fund must assume the costs of all 
of the following: insolvent and defunct parties, newly exempt parties 
(including small businesses, most MSW/MSS generators and transporters, 
service station dealers, and recyclers), the differential between what 
ability-to-pay parties are assigned and actually pay, as well as the 
differential between what MSW/MSS parties pay and their actual share of 
liability. In addition, the Trust Fund would assume a pro rata share of 
responsibility, with site PRPs, for materials for which no 
responsibility can be attributed.
    In summary, we believe H.R. 1300 would not result in improvements 
to the federal Superfund program. To the contrary, the bill would 
increase litigation, slow down cleanups, and disrupt the progress we 
have made through administrative reforms. I hope our analysis of this 
bill is helpful, and would be pleased to discuss our concerns with you 
further.
    The Office of Management and Budget has advised that there is no 
objection to the submission of this letter from the standpoint of the 
Administration's program.
            Sincerely,
                                            Jon P. Jennings
                                  Acting Assistant Attorney General
                                 ______
                                 
                         U.S. Department of Justice
                   Office of the Assistant Attorney General
                                                 September 23, 1999
Honorable Michael G. Oxley
Chairman
Subcommittee on Finance and Hazardous Materials
Committee on Commerce
U.S. House of Representatives
Washington, D.C. 20515
    Dear Mr. Chairman: This letter is to provide the views of the 
Department of Justice on H.R. 1300, the ``Recycle America's Land Act of 
1999,'' as ordered reported by the Committee on Transportation and 
Infrastructure on August 5, 1999. The Department of Justice previously 
expressed strong opposition to H.R. 1300, as introduced, in a letter of 
May 11, 1999 to the Honorable Sherwood L. Boehlert. Although minor 
changes were made to the bill subsequent to its introduction, these 
changes did not address the Department's fundamental concerns with the 
bill and thus, the Department of Justice remains strongly opposed to 
H.R. 1300.
    We believe the approach in this bill would not improve the federal 
Superfund program and will only serve to undercut the significant 
improvements achieved by EPA through its administrative reforms over 
the past few years. Furthermore, we believe comprehensive 
reauthorization legislation is not needed and would be 
counterproductive. Instead, we support a narrow approach that would 
address brownfields issues and provide targeted liability relief for 
certain innocent parties. However, even on these more limited issues, 
H.R. 1300 goes too far.
    Below is a brief summary of the major reasons the Department of 
Justice strongly opposes H.R. 1300. Our comments here address five 
primary areas: the allocation process, bars on federal enforcement 
authorities, new liability exemptions and expanded defenses, the impact 
on litigation, and the shift of major new costs to the Fund. While this 
letter provides only the main concerns we have identified, we would be 
happy to share a more detailed analysis with you and your staff.
The New Allocation Process Will Discourage Settlements and Slow 
        Cleanups
    Section 310 of H.R. 1300 would add a new section to the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(``CERCLA'' or ``Superfund'') establishing a prescriptive, mandatory 
allocation process. We believe this new section is not needed, in light 
of the significant improvements we have made in adopting a more 
equitable enforcement approach over the past four years. Just one 
example of this is the expanded use of ``orphan share'' settlements. 
Since issuance of EPA's ``orphan share'' policy in 1996, more than 85 
settlement offers have been made that would include a government 
contribution to the ``orphan share,'' amounting to more than $160 
million.
    If enacted, H.R. 1300's allocation system will generate litigation, 
not settlements, pulling lawyers back into the process and miring 
cleanup in litigation and transaction costs. It will also drag exempt 
and already-settled parties (including the smallest parties) through 
the allocation process and greatly increase their transaction costs. 
Finally, it would slow down or stop ongoing response actions, and could 
force the federal government to rely primarily on Fund-lead cleanups to 
avoid disruptions in the remediation process.
    Under current law, the United States resolves most of its CERCLA 
claims through settlement, not litigation. Approximately 70% of all 
cleanups are performed by potentially responsible parties (PRPs) 
through such settlements. Under these settlements, PRPs generally agree 
to perform the cleanup and determine an allocation of cleanup costs 
among themselves. H.R. 1300's allocation provisions, however, would 
change the landscape by requiring that an allocator first quantify the 
PRPs' liability. This will slow the pace of cleanup.
    H.R. 1300 also will slow cleanups because it will remove incentives 
for PRPs to promptly enter into settlements to perform work. We believe 
a PRP will rarely, if ever, agree to perform the entire cleanup under a 
settlement when it could wait for an allocation and only be required to 
perform or pay for its assigned share of cleanup. Even then, a 
settlement to clean up a site will be difficult, if not impossible, to 
obtain if even one party refuses to settle, since there is no incentive 
for any party to pick up another's allocated share. Instead parties 
will, seek ``cash out'' settlements for their assigned share of cleanup 
costs rather than agree to perform the entire cleanup. H. R. 1300 would 
further discourage settlements by rewarding parties that refuse to 
settle. The bill would entitle parties that have declined to settle and 
are performing under a Unilateral Administrative Order (UAO) to full 
reimbursement for costs in excess of their allocated share.\1\ Our 
previous experience in the Superfund program indicates that response 
actions proceeding under an adversarial UAO approach will not produce 
quick, high-quality cleanups. Moreover, under H.R. 1300 parties that 
choose to perform under a UAO preserve the right to challenge EPA's 
remedy, undercutting the current bar on preenforcement review. As a 
result, to get complete cleanups done'' in a timely manner, the Fund 
may well have to pay for the entire cleanup in the first instance.
---------------------------------------------------------------------------
    \1\ Further, parties who maintain their right to challenge a remedy 
get only a little less reimbursement than parties who have settled all 
outstanding claims. Sec. 131(o)(4), p. 129, 9. Again, this places 
nonsettlers in the drivers' seat and encourages them to continue to 
litigate.
---------------------------------------------------------------------------
    Another way H.R. 1300 would discourage cleanup settlements is by 
undermining joint and several liability. Despite language apparently 
intended to avoid this result, PRPs would certainly attempt to convince 
courts that in light of the new statutory allocation provision, the 
allocator's report provides a basis for finding that environmental 
contamination at a site is ``divisible'' and thus that defendants 
cannot be held jointly and severally liable. Without the threat of 
facing joint and several liability if they end up in court, parties 
would have little incentive to settle prior to an allocation (or 
perhaps even after the allocator's report is issued).\2\
---------------------------------------------------------------------------
    \2\ As both Republican and Democratic Administrations have 
repeatedly testified, as well as individual states and the National 
Association of Attorneys General, joint and several liability is 
critical to getting settlements, to getting cleanups done and to 
ensuring that the public is made whole. Given a choice for settling for 
an approximation of a share now and for paying a share after years of 
allocation and litigation, parties will elect to wait. If joint and 
several liability is undermined, we will obtain many fewer settlements 
and many fewer cleanup settlements in the first instance--let alone 
after allocation. Instead, we will be forced to litigate in many more 
cases.
---------------------------------------------------------------------------
    In addition to undermining settlements, H.R. 1300 penalizes small 
parties and settlers by dragging them through the allocation process. 
The bill vests the allocator with authority to determine who qualifies 
for an exemption as a small business, a recycler, a service station 
dealer, or a generator or transporter of municipal solid waste (MSW) or 
municipal sewage sludge (MSS), and leaves these parties ``in'' the 
process until the allocator acts. Because these parties' shares must be 
assumed by the Fund,\3\ remaining PRPs have a strong incentive to 
identify as many additional parties as possible. Even if the small 
parties are ultimately exempt from liability, these parties will 
nevertheless be forced to spend substantial time and money hiring 
lawyers to respond to information requests and subpoenas.
---------------------------------------------------------------------------
    \3\ Under the bill, however, an allocator would not attribute any 
response costs to include homeowners, certain small businesses, and 
small non-profits who disposed only MSW/MSS; see Sec. 131(j).
---------------------------------------------------------------------------
H.R. 1300 Would Restrict the U.S.'s Ability to Respond to Imminent and 
        Substantial Endangerments
    We clearly want to encourage well-qualified states to take the lead 
in getting sites cleaned up and to establish good cleanup programs. At 
the same time, however, we believe that there is a need to preserve 
federal authority at sites where states are administering the cleanup 
program so that we can ensure adequate protection of human health and 
the environment for everyone in this country. In that respect, 
Superfund should remain consistent with every other major federal 
environmental law and preserve federal authority to keep the safety net 
intact for everyone. This is especially important because every state 
is different and their cleanup program abilities vary considerably.
    We believe the federal enforcement bar in section 104 of this bill 
fails to protect human health and the environment for a number of 
reasons. First, the reopeners in section 104 are simply inadequate to 
protect human health and the environment. Under the bill, the U.S. 
could only respond where it determines that action is ``immediately 
required to prevent, limit, or mitigate an emergency.'' Rather than 
preventing harm to the public or the environment in the first place, as 
current law would provide, the U.S. would be forced to wait for harm to 
occur before it could take action. Even then, the U.S. must first 
determine whether the state intends to respond. Thus, as a practical 
matter, the U.S. would not be able to take an enforcement action unless 
there is a state request--even if the State is a PRP or if it ignores a 
community expressing serious concern. Second, this new ``emergency'' 
standard differs from imminent and substantial endangerment, ignoring 
nearly twenty years of established case law. The bill will bring on a 
new round of litigation to interpret the new standard and in the 
process will delay federal intervention, putting public health at risk. 
Third, section 104 would delay cleanups and waste resources by cutting 
off federal enforcement authority as soon as ``response action'' 
commences. Finally, the enforcement bar is exacerbated by the total 
absence of criteria for EPA to evaluate and approve state response 
programs, including any requirement for meaningful public involvement 
in the process. Overall, the bill radically departs from the usual 
mechanisms for establishing federal/state partnerships under all other 
federal environmental laws.
New Liability Exemptions and Expanded Defenses Are Over Broad
    H.R. 1300 contains a number of new exemptions and defenses from 
CERCLA liability. While we support some narrow, targeted liability 
relief, the bill would provide exemptions that are far too broad. 
Several of the more troubling provisions are discussed below.
    For example, section 303 of the bill would create a new defense to 
liability for certain current owners or operators, even those that 
bought with knowledge of the contamination at a substantially reduced 
purchase price to account for this. Such relief would undermine 
longstanding principles of common law which recognize that owners often 
are in the best position to address hazards on their property, even if 
not created by them. Minor changes made in H.R. 1300's owner/operator 
provision that address development, redevelopment, or expansion at 
property that an owner bought after 1980 with knowledge that it was 
contaminated do little to relieve this problem.
    In addition, the bill would grant an exemption to a larger group of 
small businesses, which could include businesses that contributed large 
amounts of highly toxic wastes. The only ability to restrict this 
exemption is for the U.S. to prove that the small business contributes 
or contributed significantly to the cost of the cleanup. Given the 
complexities found at many sites, it will be difficult for the U.S. to 
satisfy this standard with certainly. Even where possible, this 
provision will, at a minimum, lead to extensive litigation and 
transactions costs.
    Furthermore, the municipal solid waste (MSW) exemption is not 
consistent with EPA's recently issued MSW settlement policy and would 
provide inappropriate relief to large waste generators and commercial 
haulers. Among other things, it would exempt from liability all past 
contributors of MSW or MSS to a landfill. The only exception would be 
for large commercial waste haulers transporting material containing 
hazardous substances that contributes significantly to overall response 
costs, whose costs would be arbitrarily capped at 10% of response 
costs. Post enactment, the liability of all persons who arranged for 
the disposal or transportation of MSW or MSS, even large commercial 
haulers, is capped at an aggregate 10% of response costs.
    Finally, we have concerns with the reach of the bill's recycling 
provision. Among other things, it extends coverage to generators and 
transporters of used oil and byproducts of copper productions, and 
would shift the share of cleanup up costs attributable to exempt 
recycling parties to the Fund.
H.R. 1300 Would Result in a Significant Increase in Litigation
    We have worked hard over the past few years to reduce the amount of 
litigation associated with the Superfund program. We have implemented a 
more equitable enforcement program and emphasized settlements instead 
of lawsuits. It is disappointing, therefore, to see a Superfund 
reauthorization bill that would put the lawyers back into the forefront 
by creating numerous new standards and terms that will guarantee 
extensive new litigation.
    The bill introduces many new terms and concepts--from affirmative 
defenses to exemptions, from changes to remedy selection provisions to 
risk assessments provisions--and will invite a new round of expensive 
litigation over what is meant by all of them. In addition, the bill's 
changes to existing remedy selection provisions in CERCLA will require 
revisions to the National Contingency Plan (NCP). The last round of NCP 
revisions resulted in extensive litigation. During the revision process 
and litigation, uncertainty over the ultimate outcome of cleanup 
requirements will further chill settlements with private parties, as it 
did during the last round of revisions after the 1986 Superfund 
amendments. Furthermore, nothing in the bill would make the changes 
prospective only in application. Private parties (especially those 
covered by the new allocation process) will be free to seek to re-open 
already-signed RODs or modify not-yet-signed RODs, and will be free to 
challenge the remedies selected in those RODs. The bill would create 
new terms and criteria for making remedy selection decisions, all of 
which would require judicial interpretation.
    Each of these changes (and many more I have not described in this 
letter) would invite litigation over how the new law should be 
interpreted. This process would substantially increase transaction 
costs as courts would be asked to revise eighteen years of established 
case law in response to significant changes to the current law. I fail 
to see the value in this approach, especially where we have strived to 
reduce litigation and where we have seen such dramatic improvements in 
the cleanup program over the past few years.
The Bill Would Shift Major New Costs to the Fund
    Congress has failed to reinstate the Superfund tax authority which 
expired on December 31, 1995. Since that date, industry has benefitted 
from a windfall of approximately $4 million a day in unpaid taxes.
    At the same time, H.R. 1300 shifts major new costs to the Fund. 
Under the new allocation scheme, the Fund must assume the costs of all 
of the following: insolvent and defunct parties, newly exempt parties 
(including small businesses, most MSW/MSS generators and transporters, 
service station dealers, and recyclers), the differential between what 
ability-to-pay parties are assigned and actually pay, as well as the 
differential between what MSW/MSS parties pay and their actual share of 
liability. In addition, the Trust Fund would assume a pro rata share of 
responsibility, with site PRPs, for materials for which no 
responsibility can be attributed.
    In summary, we believe H.R. 1300 would not result in improvements 
to the federal Superfund program. To the contrary, the bill would 
increase litigation, slow down cleanups, and disrupt the progress we 
have made through administrative reforms. I hope our analysis of this 
bill is helpful, and would be pleased to discuss our concerns with you 
further.
    The Office of Management and Budget has advised that there is no 
objection to the submission of this letter from the standpoint of the 
Administration's program.
            Sincerely,
                                            Jon P. Jennings
                                  Acting Assistant Attorney General

    Mr. Fields. Thank you very much.
    Mr. Chairman and members of the subcommittee, we thank you 
so much for being here. It is a pleasure again to be here at 
another Superfund hearing. We are pleased to have the 
opportunity to be here with you to discuss the current progress 
of the Superfund program and to give the administration's views 
on H.R. 1300, H.R. 2580 as well as Congressman Shimkus's bill. 
We would be happy to discuss these small business elements at 
well of his bill, a plan to discuss remedy and several other 
provisions, and Assistant Administrator Herman will discuss 
liability and allocation issues.
    We believe, Mr. Chairman and members of the subcommittee, 
that Superfund is a fundamentally different program after three 
rounds of administrative reforms to that program. Since 1996 we 
have increased the pace of cleanup to 85 construction 
completions per year, as compared to 65 sites a year more than 
3 years ago. Today Superfund has 629 sites where construction 
is complete, another 459 sites where construction is underway, 
214 sites where removal construction has occurred, so therefore 
more than 90 percent of the current Superfund sites have 
cleanup construction completed or underway. Both the time and 
cost has been reduced by 20 percent.
    So given the significant progress that is going on in 
cleaning up toxic waste sites, the last thing we need is 
legislation that would undermine our current cleanup progress. 
I am convinced that comprehensive Superfund legislative reform 
like the bills before us today, even if well-intentioned, would 
halt or delay the cleanup progress we see in the program today.
    That result is simply unacceptable to the Clinton 
administration and would be a disservice to the American people 
who live around these toxic waste sites.
    The remedy provisions in H.R. 1300 and H.R. 2580 would 
undermine the current level of human health and environmental 
protection in the Superfund program. I am sure that is not the 
intent of the subcommittee members, however I am afraid that 
that would be the result. Both bills would replace the current 
cleanup goal to restore contaminated groundwater to beneficial 
uses with a lower standard. Both bills would eliminate the 
current statutory need for Superfund cleanups to meet Federal 
and State relevant and appropriate regulatory requirements. 
These requirements often result in a cleanup remedy that is 
tailored to the particular conditions at a site, thereby adding 
an additional level of protection.
    The Clinton administration also opposes provisions that 
limit the authority of EPA to list toxic waste sites on the 
Superfund National Priorities List. H.R. 2580 prevents the EPA 
from listing toxic waste sites on the NPL without a Governor's 
concurrence even when the State is a liable party, even when 
toxic waste has crossed State lines or even when toxic waste 
has contaminated tribal lands.
    EPA currently works well with States when proposing sites 
for the listing on the NPL. Statutory NPL limitations are 
unnecessary and could weaken protection of human health and the 
environment.
    I would refer the members to EPA's written statement for a 
more detailed discussion of the impacts of the remedy 
selection, the listing, and other elements of our program.
    I would now refer the remainder of our testimony to 
Assistant Administrator Herman.
    Mr. Herman. Thank you. Good morning, Mr. Chairman and 
members of the committee. I am pleased to appear here today to 
identify some of the concerns that the administration has with 
the liability and allocation provisions of H.R. 1300 and the 
liability provisions of H.R. 2247.
    The Superfund liability system is the engine that drives 70 
percent of Superfund long-term cleanups. EPA has continued its 
use of an enforcement first strategy in securing commitments 
from responsible parties for the cleanup of Superfund toxic 
waste sites. Through fiscal year 1998 responsible parties have 
committed more than $15.5 billion to clean up response and cost 
recovery. That is $15.5 billion that did not have to be 
collected from the taxpayers or appropriated by Congress.
    While EPA and the Justice Department continue to secure 
cleanup funding from responsible parties, we do not ignore the 
effect Superfund liability may have on small parties. The 
agency has aggressively sought to promote fairness in the 
liability system by reaching settlements with more than 18,000 
small volume waste contributors, more than 65 percent of these 
settlements occurring in the last 4 years.
    To date we have also offered more than $170 million in 
Orphan Share Compensation by forgiving past costs and oversight 
costs at more than 90 Superfund sites. The President's fiscal 
year 2000 budget request asks for $200 million for Orphan Share 
funding at Superfund sites and the administration supports the 
enactment of legislation that would authorize EPA to use those 
dedicated funds without reducing the pace of cleanups.
    Turning to liability and allocation issues, the 
administration continues to have very serious concerns with 
provisions in H.R. 1300 and the small business exemption in 
H.R. 2247. Some of the liability exemptions would do more harm 
than good. The so-called Innocent Landowner Exemption in H.R. 
1300 is both misnamed and bad policy in that it effectively 
repeals Superfund liability by exempting owners of contaminated 
property who purchased the property knowing it was 
contaminated. EPA's written statement goes into much greater 
detail about our specific concerns with liability exemptions in 
the bills.
    The administration also has serious concerns with the 
allocation provisions in H.R. 1300. These provisions would 
undermine the Superfund settlement process, a process that as I 
said has generated billions of dollars in cleanup funding. 
EPA's experience with allocation pilots has given us on-the-
ground experience and has taught us that a prescriptive, 
mandatory allocation process does not promote timely 
settlements and may encourage recalcitrant parties to delay 
performing cleanup work while waiting for an allocation.
    Parties will inevitably dispute their fair share of cleanup 
costs, requiring EPA to issue many more cleanup orders to 
maintain the current pace of cleanup. Issuing cleanup orders is 
a far more adversarial process than reaching settlements and 
will undoubtedly lead to an increase in litigation and 
transaction costs, the very result the administration and the 
Congress has sought to avoid. It will particularly be harmful 
to the small parties whom we are trying to exclude from this 
process.
    Finally, I want to stress that the administration does 
support responsible legislative provisions on Superfund 
liability. We support vigorous Brownfields development through 
provisions directed toward prospective purchasers, legitimately 
innocent landowners and contiguous property owners. We also 
support a liability exemptions for small businesses that 
generated and transported trash and small amounts of hazardous 
waste. The targeted provisions that the administration supports 
have generated consistent bipartisan support and have appeared 
in one form or another in Superfund legislation for the past 
three Congresses.
    The provisions the administration supports build upon the 
success of EPA's administrative reforms without delaying 
cleanups and without unfairly shifting cleanup costs to 
Federal, State or local governments or the taxpayers. The 
targeted, focused provisions we support could garner bipartisan 
support quickly.
    In closing, Mr. Chairman, the administration stands ready 
to work with Congress to enact responsible Brownfield and 
Superfund legislation that builds upon the administrative 
reforms, recognizes the current status of the program and does 
not undermine the current cleanup progress. Unfortunately, as 
currently written, the administration must strongly oppose H.R. 
1300, 2580, and 2247.
    Thank you, Mr. Chairman. Assistant Administrator Fields and 
I will be happy to answer any of your questions.
    [The prepared statement of Timothy Fields, Jr. and Steven 
A. Herman follows:]
       Prepared Statement of Hon. Timothy Fields, Jr., Assistant 
Administrator, Office of Solid Waste and Emergency Response, and Steven 
   A. Herman, Assistant Administrator for Enforcement and Compliance 
            Assurance, U.S. Environmental Protection Agency
                              introduction
    Good morning, Mr. Chairman, and Members of the Committee. We are 
pleased to have this opportunity to appear before you today to discuss 
H.R. 1300, the ``Recycle America's Land Act of 1999,'' as well as the 
Agency's record of accomplishments over the past several years in 
fundamentally improving the Superfund program. The Superfund program 
plays a key role in the Administration's goal of building strong and 
healthy communities for the 21st Century.
                           superfund progress
    The Superfund program continues to make significant progress in 
cleaning up hazardous waste sites and protecting public health and the 
environment. EPA has significantly changed how the Superfund program 
operates through three rounds of administrative reforms which have made 
Superfund a fairer, more effective, and more efficient program. As of 
September, 1999, 90% of the sites on the final NPL are either 
undergoing cleanup construction (remedial or removal) or are completed:

 623 Superfund sites have reached construction completion.
 459 Superfund sites have cleanup construction underway;
 An additional 214 sites have had or are undergoing a removal 
        cleanup action.
     Nearly 31,000 sites have been removed from the Superfund inventory 
of potentially hazardous waste sites to help promote the economic 
redevelopment of these properties.
    EPA's ``Enforcement First'' strategy has resulted in responsible 
parties performing or paying for approximately 70% of long-term 
cleanups, thereby conserving the Superfund Trust Fund for sites for 
which there are no viable or liable responsible parties. This approach 
has saved taxpayers more than $15.5 billion to date--more than $13 
billion in response settlements, and nearly $2.5 billion in cost 
recovery settlements.
    Through the commitment of EPA, State, and Tribal site managers, 
other Federal agencies, private sector representatives, and involved 
communities, EPA has made Superfund faster, fairer, and more efficient 
through three rounds of administrative reforms. Several years of 
stakeholder response indicates that EPA's Superfund Reforms have 
already addressed the primary areas of the program that they believe 
needed improvement. EPA remains committed to fully implementing the 
administrative reforms and refining or improving them where necessary.
                            reauthorization
    As stated on March 23, 1999 in testimony before this committee, the 
success of EPA's administrative reforms and the resulting improvements 
in the Superfund program have fundamentally altered the need for 
Superfund reauthorization legislation. Many of the provisions in the 
bills under discussion today are designed to fix problems that have 
been addressed through the Superfund Administrative Reforms.
    As the result of the progress made in cleaning up Superfund sites 
in recent years, and the program improvements resulting from 
administrative reforms, there is no longer a need for comprehensive 
legislation. Comprehensive legislation could actually delay clean ups, 
create uncertainty and litigation, and undermine the current progress 
of the program. As a result, the Clinton Administration believes only 
provisions that provide narrow, targeted liability relief for qualified 
parties that builds upon the current success of the Superfund program 
are appropriate. Let me reiterate the provisions the Clinton 
Administration would support. In addition to legislation to reinstate 
the Superfund taxes, and provide EPA with access to mandatory spending 
for orphan shares, Superfund reauthorizing legislation should be 
limited to provisions dealing with:

 prospective purchasers of contaminated property
 innocent landowners
 contiguous property owners, and
 the liability of small parties
        hr 1300, hr 2580, and hr 2247 weaken the current program
    The Administration has reviewed H.R. 1300--the ``Recycle America's 
Land Act'' as reported out of the House Transportation and 
Infrastructure Committee, H.R.2580--the ``Land Recycling Act of 1999,'' 
and H.R. 2247--the ``Small Business Superfund Fairness Act.'' Each of 
these bills would undermine the current progress being achieved in the 
Superfund program. As a result, the Clinton Administration is opposed 
to these bills. After several years of administrative reforms, 
Superfund has been fundamentally improved. Overhauling Superfund at 
this stage of the program with a significantly changed statute will 
erode many of the improvements we have achieved. Superfund legislation 
should be narrowly targeted and build upon the success of Superfund 
Administrative Reforms. Legislation should focus on provisions that 
have generated broad Congressional and Superfund stakeholder consensus. 
Unfortunately, significant provisions in each of these bills lack this 
consensus. By contrast, the Administration strongly supports H.R. 1750, 
the Community Revitalization and Brownfields Cleanup Act of 1999.
                        cleanups less protective
    Superfund cleanups must be protective of human health and the 
environment over the long term. Unfortunately, a number of provisions 
in H.R. 1300 and H.R. 2580 weaken current law and could result in a 
Superfund program that would not adequately protect human health and 
the environment.
    H.R. 2580's remedy title weakens current law and could result in a 
Superfund program that would not adequately protect human health and 
the environment. Under the current statute remedies are required to 
``utilize permanent solutions and alternative treatment technologies or 
resource recovery technologies to the maximum extent practicable.'' 
Under H.R. 2580, the word ``maximum'' is stricken. This change 
effectively eliminates the importance of selecting permanent remedies 
and permanent protection for communities. Also, under H.R. 2580, the 
preference for treatment does not apply to treatment remedial 
alternatives ``that would increase risk to community or to worker's 
health''. Under the current law, protection of community and workers is 
already addressed under : (1) the National Contingency Plan (NCP) 
remedy selection criteria of protection of human health and the 
environment, and short-term effectiveness, (2) the ARAR waiver of 
greater risk to human health and the environment, and (3) worker 
protection standards. This imposition of a separate test for treatment 
remedies may weaken long term protection of remedies by reducing 
treatment, inviting additional litigation, and delaying cleanups.
                 relevant and appropriate requirements
    The provisions in H.R. 1300 and H.R. 2580 that eliminate the 
current statutory requirement to attain or waive Relevant and 
Appropriate requirements (RARs) represents an attempt to address a 
problem that does not exist. Dated Superfund reform legislation 
eliminated RARs in conjunction with States having the option of 
repromulgating State RARs as Applicable standards. Superfund 
Administrative reforms and further Agency and State experience 
selecting cleanup remedies have eliminated the need for legislative 
changes to remedy provisions in current law. Further, the use of RARs 
often result in remedies tailored to site specific conditions, 
providing an additional tool to ensure protection of human health and 
the environment.
                       groundwater not protected
    Contaminated ground water is a problem at more than 85 percent of 
Superfund sites. With roughly fifty percent of the U.S. population 
relying on ground water for their drinking water, the Administration 
strongly believes that this critical resource must be protected. The 
citizens of this nation want and deserve a safe and reliable supply of 
water for drinking and household use, industry and agriculture, 
recreation, and many other beneficial uses, and to know that they will 
continue to have such a supply available for future generations.
    For example, H.R. 1300 and H.R. 2580 replace the current Superfund 
program goal to restore contaminated ground water to beneficial uses, 
wherever practicable, with a much lower standard. Both HR. 1300 and HR 
2580 protect groundwater only for its ``reasonably anticipated use'', 
rather than its ``current or potential beneficial use.'' Reliance on 
this land use concept may create a perception of a bias against 
protecting uncontaminated ground water. Furthermore, under H.R. 2580 
there is no requirement to clean up ground water to beneficial use. 
Remedies selected under H.R. 2580 would not keep contaminated ground 
water from spreading to uncontaminated ground water. By including the 
term ``reasonable point of compliance,'' the bill invites disputes over 
whether drinking water standards should be met in the groundwater or at 
the tap--potentially delaying cleanup and leaving valuable groundwater 
resources unprotected. Superfund legislation should not weaken the goal 
of restoring ground water to beneficial uses, wherever practicable.
    Under the current program, EPA is using ``smart'' ground water 
remediation to provide appropriate levels of protection at lower cost. 
In the early days of the program, we relied almost solely on extraction 
and treatment of ground water to achieve cleanup objectives. In 1995, 
60% of our ground water 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% of Superfund ground water remedies included 
monitored natural attenuation of contamination.
                        cleanups may be delayed
    Under both H.R. 1300 and H.R. 2580 new and confusing provisions and 
terminology regarding ground water, and risk assessment will delay 
cleanups and generate costly new litigation. For example, new risk 
assessment terms and requirements may require EPA, States, and 
contractors to change the way a Superfund cleanup remedy is chosen. New 
risk provisions requiring consideration of information, regardless of 
reliability, quality, or whether the information is representative of 
site conditions, is unnecessary and will delay remedy selection 
decisions.
    New terminology could also cause time consuming and costly 
litigation as the meaning and relevance of new terms are fought over in 
the courts. For example, defining when data is ``reasonably 
obtainable'' or if the scientific and technical information is the 
``best available'' would be debated and litigated, leading to delayed 
cleanups.
   the liability provisions of h.r. 1300 and h.r. 2247 will increase 
     litigation and exempt many parties who should pay for cleanup
    Though changes were made to H.R. 1300 subsequent to its 
introduction, the bill passed by the Committee on Transportation and 
Infrastructure remains unacceptable and is strongly opposed by the 
Administration. The bill would roll back current cleanup progress and 
undermine the critical ``polluter pays principle. EPA, along with the 
Department of Justice, has already expressed strong concerns regarding 
the prohibitions on EPA's ability to provide protections to all 
communities, regardless of the State in which they are located, at the 
August 4, 1999 hearing before this Committee. Our concerns remain the 
same on those issues. In addition, the Administration remains concerned 
about the other liability provisions in the bill.
    Specifically, H.R. 1300 still requires mandatory allocations at 
many sites where they are unwarranted, thus significantly increasing 
transaction costs. In addition, while H.R. 1300 attempts to address the 
need for limitations on liability for prospective purchasers, innocent 
landowners and contiguous property owners, H.R. 1300 goes beyond these 
reforms needed to foster redevelopment, and includes a number of overly 
broad liability exemptions which may result in the transfer of 
responsibility for large cleanups to the Trust Fund. H.R. 2247 also 
suffers from this problem by promoting an overly broad exemption for 
moderately sized businesses, even if they sent hazardous waste to a 
site. As a result, the liability provisions of H.R. 1300 will increase 
transaction costs and litigation, and H.R. 1300 and H.R. 2247 will 
exempt many parties who should help pay for the costs of cleanup.
 h.r. 1300 would require costly time consuming allocations, and remove 
                       incentives for settlement
    Over the past 18 years, we have learned that settlements with 
responsible parties are the most effective way to achieve timely 
cleanups. A large measure of the program's progress derives from the 
fact that over two-thirds of the work is done by responsible parties, 
most of it through settlements. We want to continue that achievement. 
The current law provides significant incentives for parties to reach 
agreement at the negotiating table, and to move quickly to cleanup 
without resorting to adversarial, unilateral orders. As described 
below, we believe H.R. 1300 severely reduces or eliminates these 
incentives to step forward and agree to perform cleanups voluntarily.
    Lessons learned from EPA allocation pilots have shown that 
prescriptive, mandatory allocations can prevent reaching timely 
settlements. The Administration believes that the allocation process in 
H.R. 1300 remains overly burdensome and could discourage settlements, 
rather than promoting them. In addition, because of the broad nature of 
eligible response actions, EPA will be forced to expend considerable 
resources providing allocated ``fair share'' settlements and 
reimbursing parties that expended costs above their ``fair share,'' 
even for actions concluded in prior administrative settlements.
    Of greatest concern is the structure of the allocation and 
settlement processes. Within these processes, the concept of joint and 
several liability--which has been instrumental in bringing parties 
together at the negotiating table to conduct cleanups--could be 
severely weakened. As a result, if just one party decides not to 
settle, it is unlikely that any settlement will occur, as there is no 
incentive for any other party to pick up this share. Because parties 
will be unwilling to settle until they are allocated a ``share'' 
pursuant to a time-intensive allocation, EPA's only means of securing a 
timely cleanup, short of funding the cleanup itself, is to issue 
parties a cleanup order. This immediately places the Agency in an 
adversarial relationship with these parties, and has the added 
detriment of allowing parties to challenge the cleanups--effectively 
circumventing the current bar on pre-enforcement review. In addition, 
because parties are allowed under the bill to seek reimbursement for 
costs expended above their ``fair share,'' even when performing under a 
CERCLA section 106 cleanup order, parties would be discouraged from 
cleaning up sites through a settlement. Instead of resolving its 
outstanding costs up-front, as well as how future problems will be 
dealt with, EPA will be forced to resolve such disputes as they occur 
before a judge, and will also be required to file separate legal 
actions to collect its costs, resulting in both a loss of efficiency, 
as well as a significant increase in transaction costs and multiple 
delays in the cleanup process.
    H.R. 1300 attempts to address the Administration's concerns over 
reopening existing Superfund settlements and orders. However, we don't 
believe the language as written meets this intended purpose. In cases 
where an allocation may be required and a party has entered into a 
prior settlement for other response actions at the site, such as prior 
operable units, those parties may have an opportunity to argue before 
the allocator that their previous settlements were in excess of their 
share and request an adjustment in the settlement subject to the 
allocation based on the prior settlement amount. This revisiting of 
issues at sites with previous settlements will result in disputes among 
the same parties arguing over the same previously resolved issues. For 
example, after years of negotiations over Operable Unit 1 between EPA 
and 18 PRPs at the York Oil Superfund Site in Franklin County, NY that 
settled over $20 million in cleanup and past costs, a mandatory 
allocation for the second Operable Unit, valued at about $4 million, 
could undermine all of EPA and the parties' efforts to settle this 
site.
             pulling parties back into allocation disputes
    In addition to revisiting issues from prior settlements, the 
requirement to allocate shares for the response action will result in 
dragging exempt or settled parties back through the allocation process, 
even if they had previously settled. The intent of the Administration 
has always been to prevent these parties, such as the over 18,000 de 
minimis parties that have settled their liability, from being faced 
with Superfund again. H.R. 1300 reverses that objective. Because the 
Fund is responsible for the share of exempt parties, as well as 
insolvent, and defunct parties, H.R. 1300 places a premium on these 
parties, encouraging other responsible parties subject to the 
allocation to perform a ``witch hunt'' to identify such parties in 
order to reduce their share. Even though such parties may not be liable 
for the site costs, they will be forced to expend substantial time and 
money to hire lawyers to respond to information requests and subpoenas.
 over broad allocation provisions undermine ``polluter pays'' principle
    Though H.R. 1300 was revised to limit in some cases the types of 
sites to which the allocation provisions would apply, it will still 
require allocations at numerous other sites where an allocation is 
unwarranted or simply not necessary. For example, while the bill 
attempts to limit the number of ``chain of title'' sites where an 
allocation would be required, it creates a large loophole by bringing 
back into the process, sites where the current owner is insolvent or 
defunct, or where the current owner has a defense and the previous 
owner is insolvent and defunct. At a site such as the Copperhill mining 
site in Tennessee, an allocation could result in the transfer of a 
$100+ million cleanup to the Trust Fund if the current owner, 
Occidental Chemical, successfully claims an innocent owner defense, 
because the previous owner, Tennessee Chemical Company, is insolvent. 
Because many current owners would likely be exempt under H.R. 1300, and 
because many prior owners would likely be insolvent, these provisions 
would potentially bar very few owner/operator-only sites.
    Aside from the fact that issues at most chain-of-title sites are 
burdened not by questions of hazardous waste contributions, but instead 
by legal questions of corporate successorship, and thus not 
particularly suited for a traditional allocation, the requirement for 
an allocation at owner/operator sites could amount to a windfall for 
these parties at an enormous cost to the Superfund Trust Fund. At many 
of these sites, the owner acquired the property at a reduced purchase 
price to reflect the presence of contamination at the site and with the 
intent to continue the same or similar operations that gave rise to the 
contamination. It is consistent with long-standing principles of law 
and not unfair to hold landowners responsible for the hazardous 
conditions on their property.
    liability exemptions are over broad and will increase costs and 
                               litigation
    The Administration supports liability reform for small volume 
contributors and generators and transporters of household municipal 
solid waste. Such reform should take the form of clearly defined 
exemptions or limitations on liability to ensure that the transaction 
costs imposed on these parties is minimized. As amended, however, H.R. 
1300 will still be extremely difficult to implement, will generate 
substantial new litigation and will result in significant transaction 
costs. Further, many of the liability provisions are over broad, 
exempting parties that should remain responsible for the cost of 
cleanup.
                over broad innocent landowner exemption
    H.R. 1300 continues to provide a liability defense to current 
owners of contaminated sites if the current owner did not ``cause or 
contribute'' to the release, exercised ``appropriate care,'' and 
depending on when the property was purchased, performed some limited 
redevelopment. This provision effectively repeals strict, joint and 
several liability for these parties, and replaces it with a new 
causation and appropriate care standard. This new standard would be 
difficult, if not impossible, to determine because of the ``toxic 
soup'' of waste that exists at most Superfund sites, thus leading to 
expensive litigation. In many cases, this provision would exempt 
experienced and knowledgeable large parties, that acquired hazardous 
wastes sites with full knowledge of site conditions, as well as full 
knowledge of their responsibility to clean the sites up. In some cases, 
these may be the only parties available to conduct cleanups, which will 
place an enormous drain on the Trust Fund. At sites such as the San 
Fernando Valley Superfund sites in California, which are contaminated 
by VOC's from over fifty years of aerospace and defense manufacturing, 
a significant portion of liability at the site is borne by current 
owners who purchased contaminated property at depressed prices. If 
these parties are suddenly relieved from liability, the $220+ million 
cost of remediation could be passed to the Fund. In addition, relieving 
these parties of their liability places other similarly situated 
property owners that fulfilled their obligations under CERCLA by 
performing a cleanup at a competitive disadvantage. Instead of 
promoting redevelopment, such as through prospective purchaser 
provisions, these provisions affect only those parties who should be 
required to conduct a cleanup.
    over broad small business exemptions in h.r. 1300 and h.r. 2247
    While the Administration continues to support legislative 
provisions that address the liability of small parties, the 
Administration is concerned with the small business exemption in H.R. 
1300. The exemption in H.R. 1300 is available to a small business that 
contributed large amounts of highly toxic wastes. In order to hold such 
a business liable, EPA must show that the waste contributes or 
contributed significantly to the cost of cleanup. This language 
represents a change from several previous bills, which required only 
that the President determine that the waste may contribute 
significantly to the cost of cleanup. The absence of the word ``may'' 
represents an important shift in the burden of proof. Because of the 
``toxic soup'' of wastes at most sites, it will be difficult, if not 
impossible, to show that a party's waste actually contributes or 
contributed significantly to the cost of cleanup. As a result, it is 
unlikely that any business meeting the requirements of H.R. 1300's 
definition of a small business will be held accountable, even for 
highly toxic waste. Further, such a standard will result in increased 
litigation and transaction costs.
    While H.R. 2247 retains the same problematic ``contribute 
significantly'' language of H.R. 1300, it is particularly troublesome 
because it omits any restriction on the financial assets of the 
business claiming the exemption. H.R. 2247 exempts businesses based 
solely on their number of employees--in this case, 100 or less. 
Historically, the rationale touted in support of a small business 
exemption is that it would act as a surrogate for an ``ability-to-pay'' 
analysis. H.R. 2247 rejects this rationale by failing to include a 
revenue ceiling. For example, at the Laurel Park Site in Connecticut, 
EPA has identified a business with 75 employees, but with over $4 
billion in annual revenues.
    EPA has made significant efforts to administratively address the 
concerns of small businesses by offering ability to pay, de minimis and 
de micromis settlements, as well as developing a municipal solid waste 
settlement policy. To date, EPA has entered into de minimis settlements 
with more than 18,000 parties and continues to take into consideration 
a party's ability-to-pay in our settlement processes. In addition, the 
Administration's legislative proposals for innocent landowners, 
prospective purchasers, contiguous property owners and small quantity 
generators of household MSW would provide further liability protection 
for parties.
            over broad municipal solid waste (msw) exemption
    As a threshold issue, the MSW settlement policy is working. The 
Agency continues to support the policy because it is a fair and 
reasonable method to address the fact that MSW alone generally does not 
create Superfund sites, and will continue to defend it against any 
challenges. While the Administration sees no need to codify the policy, 
any attempt to codify the policy in legislation should properly do so. 
We will strongly oppose improper attempts to codify the policy, such as 
the provision in H.R. 1300.
    While H.R. 1300 has been amended to address the problematic 
definition of municipal solid waste in the introduced version, we 
believe that the provision is still flawed. The provision exempts past 
contributors of MSW, unless the President determines that the person is 
engaged in the business of transporting such waste, AND the 
contribution of MSW contributes or contributed significantly to the 
cost of cleanup. The first condition is overly limiting, in that it 
applies only to commercial municipal waste haulers, exempting large 
waste generators of the same type and volume of waste, but in a 
different business. The second condition is troublesome for the same 
reasons as described above. As a result of this high burden, it is 
unlikely that even commercial waste haulers could be held accountable 
for their contribution, beyond the 10% cap.
                     over broad recycling exemption
    Finally, while the Administration has supported exempting parties 
for legitimate recycling transactions, H.R. 1300 goes too far. In 
previous legislative proposals, the allocated shares of liability 
attributable to recyclers were not shifted to the Superfund Trust Fund 
but rather were borne by other responsible parties at the site. 
H.R.1300 would shift the share of cleanup responsibility attributable 
to these parties to the Trust Fund and/or the taxpayer, and in many 
cases, the remaining owners/operators are insolvent and defunct, which 
means the Trust Fund must cover the entire cost of cleanup. 
Additionally, the Administration continues to oppose exempting parties 
who disposed of used oil. There are fundamental differences between 
used oil and other materials addressed under the bill's recycling 
provisions. Used oil is toxic, and generally very mobile, and thus 
presents unique obstacles to cleanup. In addition, ``recycling'' of 
used oil commonly involves the burning the oil, which leaves large 
volumes of heavy metals and contaminants behind.
    Further, the bill's provisions extend the used oil exemption to 
essentially all petroleum products and could provide liability 
exemptions to large shipyards, ports and motor pools. Some used oil 
sites have been virtual pools of contamination that have been extremely 
harmful to the environment and difficult to clean up. Many of the 
parties at these Superfund sites should remain liable for the cleanup 
for which they are responsible. Targeted legislative provisions 
protecting small businesses, small volume parties, and parties with 
limited ability to pay should address the liability issues at these 
sites. Finally, the Administration has concerns regarding the scope and 
applicability of the newly-added provision addressing copper production 
byproducts, and believes that this language ventures far beyond the 
original intent of the recycling provision (e.g., to remove unnecessary 
obstacles to post-consumer use of recycling efforts).
           epa's ability to recover it's costs is restricted
    H.R. 1300 inserts a new cap on oversight costs EPA can collect, 
which will make it difficult for EPA to ensure cleanups are protective. 
If parties provide EPA with an accounting of the direct and indirect 
costs incurred at a site, EPA may only recover oversight costs up to 
10% of total cleanup costs. The amount of oversight necessary at a 
given site is in no way related to the cost of the cleanup, or the 
costs incurred by PRPs. In many cases, it is PRP expertise or community 
concern that dictates the amount of EPA oversight required. As a 
result, EPA's oversight costs should not be arbitrarily capped based 
upon what PRPs are spending at a site.
                       pre-emption of state laws
    Current law already affords favorable treatment for response action 
contractors (RACs). Under Superfund, RACs are subject only to a 
negligence standard. EPA is also authorized to indemnify contractors 
for liability arising out their negligent performance, unless the 
conduct was grossly negligent or constituted intentional misconduct. 
H.R. 1300 would change current law and pre-empt state negligence laws 
and statutes of repose. This provision is unnecessary and is not 
supported by the Administration.
                        other liability concerns
    As stated in previous testimony, the Administration remains 
concerned with the ``Brownfields'' provisions of some of these bills 
(H.R. 1300 and H.R. 2580) which limit EPA's authority to protect public 
health and the environment at certain sites. In addition, the 
Administration is concerned with additional provisions of the liability 
title in H.R. 1300, including, but not limited to, the inclusion of 
special interest exemptions for ``dipping vats,'' the limitations on 
enforcement of 106 orders, the requirement to provide final covenants, 
and the unreasonable time limits in the expedited settlement process.
                              npl listing
    The Clinton Administration continues to oppose provisions that 
restrict EPA's ability to list sites on the NPL without a Governor's 
approval. EPA has worked closely with States and seeks Governor 
concurrence before listing, but needs the ability to list otherwise 
eligible sites opposed by States--in the case of Natural Resource 
Trustee issues, tribal or interstate migration of contamination, or 
where the State is a PRP.
    While a Governor's concurrence is not mandatory under H.R. 1300, 
the bill does require a one year wait for final NPL listing upon 
request from a State that is attempting to obtain an agreement to 
perform remedial action. In addition, H.R. 1300 generally defers 
listing a facility on the National Priorities List if remedial action 
that will provide long term protection is underway at the facility 
under a State response program.
    H.R. 2580 requires State concurrence before EPA can list a site on 
the NPL. This approval requirements applies even in situations where 
Tribal, local community, or interstate impacts exist, or where the 
State is a PRP. In addition, HR 2580 prohibits listing of sites to the 
NPL if a Governor assures the site is being addressed or will be 
addressed in the future. The bill has no provision for when in the 
future a promised action to address contamination might occur.
                           expiration of tax
    The Superfund tax authority expired December 31, 1995. The 
President's fiscal year (FY) 2000 Budget requests reinstatement of all 
Superfund taxes (including excise taxes on petroleum and chemicals, and 
a corporate environmental tax). The Trust Fund balance (unappropriated 
balance) was roughly $2.1 billion at the end of fiscal year 1998. The 
Trust Fund balance will be approximately $1.3 billion at the end fiscal 
year 1999.
    In the absence of the taxes, we estimate a windfall of 
approximately $4 million per day for those parties that would normally 
pay the tax. To date, the Trust Fund has lost approximately $5 billion 
as a result of the failure of Congress to reinstate the taxes. This $5 
billion windfall has been passed on to those that would normally be 
funding cleanups. It is important that Congress reinstate the Superfund 
tax authority.
                               conclusion
    The Superfund program has been fundamentally improved through 
administrative reforms and is faster, fairer, and more efficient. The 
significant progress the Clinton Administration has achieved in 
protecting public health and the environment through the clean up of 
toxic waste sites must not be undermined by the passage of ill 
conceived Superfund legislation based upon outdated information and 
misconceptions about the current program. EPA's administrative reforms, 
and the resulting Superfund cleanup progress, have eliminated the need 
for comprehensive Superfund legislation. We look forward to working 
with Congress to reinstate the Superfund taxes and enact the narrowly 
targeted Superfund legislation that we described in our testimony that 
builds upon the success of administrative reforms.

    Mr. Oxley. Thank you, gentlemen, for your excellent 
testimony as usual.
    Let me begin the questioning Mr. Fields.
    I have heard your testimony and there is simply no evidence 
in my mind that any of the administration's actions in the 
106th Congress indicates that the administration is getting the 
message. Sixty Democrats from the House are sending you a 
message. They no longer want to pursue this strategy where the 
administration can only say nice things about purely Democrat 
bills and otherwise oppose meaningful bipartisan efforts. We 
should probably also add about 10 or so of the 19 Democrats 
that cosponsored H.R. 3000 with the last Congress to this list. 
That gets us to about 70 Democrats who are supporting 
bipartisan legislation. A strong bipartisan majority in the 
House wants meaningful Superfund reform and based on your 
testimony and that of your colleague, Mr. Herman, today, if I 
heard it correctly, you oppose all of the bipartisan bills and 
only support the Democrat alternative.
    Based on your testimony in August and today, the 
administration is out of touch with the Governors, out of touch 
with the Conference of Mayors, out of touch with the Conference 
of Black Mayors, out of touch with the cleanup agencies, out of 
touch with small businesses, out of touch with recyclers, out 
of touch with service station dealers, out of touch with the 
cleanup contractors, out of touch with realtors and 
homebuilders and out of touch with labor unions.
    If I read the Allied Signal case properly, the 
administration is out of touch with the courts in claiming to 
have solved problems that could only be solved by real 
statutory reform.
    Where the agency does seem to be in perfect synch is the 
national activist groups. What I read in your testimony is the 
unending movement of the goalposts. Provisions that were part 
of your Superfund reform principles last Congress are now the 
object of your criticism.
    Now Mr. Fields, can you name an area in the last 2 years 
that the administration has moved in our direction? Is there 
any area that you would cite that you have moved toward our 
efforts?
    Mr. Fields. I think there are several.
    I would cite the agreements around Brownfields cleanup and 
redevelopment where----
    Mr. Oxley. But you have opposed Mr. Greenwood's bill, is 
that correct?
    Mr. Fields. We said we could work with Congressman 
Greenwood and Congressman Towns and try to get some 
reconciliation among their bills. That is what we said at the 
last hearing, and there have been meetings that we have 
participated in with your staff and our staff, working together 
to see if there can be some agreement.
    We agreed that prospective purchasers, innocent landowners, 
and contiguous property owners ought to be given liability 
relief. We have indicated that we agree that small generators 
and transporters of municipal solid waste ought to be given 
liability relief. I think those are several examples where we, 
the administration, have agreed that we could benefit from 
targeted legislation in that regard and we have indicated at 
the last hearing that Congressman Towns' bill is a great start 
for the kind of legislation that we, the administration, would 
be for.
    Mr. Oxley. Can you name the areas in H.R. 1300 or H.R. 2580 
that you support without significant modification? What areas 
of commonality do we have in those two pieces of legislation?
    Mr. Fields. Well, we have some significant issues that we 
have discussed in our testimony with H.R. 1300----
    Mr. Oxley. I am looking at areas that you could agree to 
without modification.
    Mr. Fields. We could look at some of the elements of 
liability relief and look at accepting some of that.
    Mr. Oxley. Some of the liability relief?
    Mr. Fields. Yes. But we can't----
    Mr. Oxley. And what about the allocation?
    Mr. Fields. Allocation? No. We have serious problems with 
the mandatory allocation----
    Mr. Oxley. Isn't it a fact though that in the past you 
supported allocation?
    Mr. Fields. But Mr. Chairman, as we have indicated, we have 
learned a lot from the 103d Congress and allocation policy 
we've done. We found the prescriptive, one-size-fits-all 
allocation process does not work and now in the 106th Congress 
we believe that that type of allocation process described in 
H.R. 1300 is not the way to go. We have learned a lot in the 
last 6 years of implementing our administrative reforms.
    Mr. Oxley. What specific liability relief issues would you 
support?
    Mr. Fields. The ones that we have gone on record indicating 
that we support.
    Mr. Oxley. In 1300, in the legislation that has already 
passed the Transportation Committee, what can you support?
    Mr. Fields. Well, the types of liability relief that is 
provided for prospective purchasers, innocent landowners, 
contiguous property owners--we would look at working with you 
to try to carve out appropriate liability relief for those 
types of parties.
    Mr. Oxley. My time has expired. The gentleman from New 
York, Mr. Towns.
    Mr. Towns. Thank you very much, Mr. Chairman.
    Many of the provisions you have posed in 1300 look as if 
they are trying to fix problems the agency has already fixed. 
It seems that if the problems are fixed administratively we 
don't need sweeping Superfund reform.
    I have a two-part question. First, the statute need a lot 
of amending, No. 1, and the second one, what does the program 
need to further improve it?
    Mr. Fields. The first part of your question, Congressman 
Towns, we do not believe the statute needs a lot of amending. 
We no longer support comprehensive reform of the Superfund 
statute. We believe that narrowly targeted legislative reform 
is all we need at this time. We believe that the types of 
liability relief that are in your bill, H.R. 1750, is the type 
of liability relief we could support as well as the Brownfields 
grants and loans program that is provided there as well.
    Further, we would support liability relief for generators 
and transporters of municipal solid waste.
    Those are the types of legislative reform we think would 
further the program. We don't need changes to remedy, for 
example, as proposed in 2580 or H.R. 1300.
    Mr. Towns. All right, thank you. I wanted to first applaud 
you really for the improvements in the Superfund program, the 
progress made in the cleanups. You are to be commended.
    Given the progress currently going on in the Superfund 
program, what specific provisions would or could undermine the 
progress of the program?
    Mr. Fields. I just want to add one other thing to your 
previous question, and I would like Mr. Herman to add to this 
one as well. I would just add that an additional element that 
is probably most important for legislative change and that the 
administration really needs is a reinstatement of the Superfund 
taxes that expired on December 31, 1995. I would like Mr. 
Herman to address some of the areas of concern that would 
undermine the current program.
    Mr. Herman. If I may, Mr. Chairman, one of the primary 
objections that we have, Mr. Towns, is to the mandatory 
allocations process laid out in H.R. 1300. As mentioned before, 
we piloted an allocations process several years ago at sites, 
and what we found was prescribing one-size-fits-all to all 
sites results basically in a gridlock at the site.
    As written, the mandatory allocation scheme in 1300 does 
several other things. First of all, rather than getting small 
parties and small businesses out of the process, it inevitably 
will bring them into the process. Even if they are exempt, the 
parties who may be on the hook for a share will bring in the 
small parties to determine what share they should be allocated 
so that the other parties will not be charged for that share. 
This will involve them with lawyers, it will involve them with 
litigation. The allocations will eliminate the incentive to 
settle and get on with the cleanup. There will be no incentive 
to resolve things first. The allocations will be very, very 
time-consuming and resource-consuming.
    Allocations are provided for at all sites. There are some 
sites, owner-operator sites, some others, where an allocation 
system is totally inappropriate. What you have are some serious 
legal questions as to potential liability, but certainly not 
factual situations.
    Finally it will actually encourage litigation because 
everything will have to be done to get the allocation process--
it will have to be done under the auspices of a court, and to 
the extent that we have been able to drive the great majority 
of sites and speed cleanup through settlement and get PRP's to 
do the work, this will hinder and in some cases cripple that 
effort.
    Mr. Towns. Litigation. Could you sort of be specific in 
terms of ways that H.R. 1300, you know, would do that, increase 
litigation?
    Mr. Herman. Increase litigation?
    Mr. Towns. Yes.
    Mr. Herman. Yes, sir. Well, first of all, there is--there 
are several things. One is the allocation process, which 
basically does not reward people who settle; people who settle 
and people who litigate can wind up pretty much even. So you 
have an advantage in holding out and litigating. Second, there 
are new terms used in the legislation which have not been used 
before in the 20 years of Superfund. These will have to be 
defined further by the courts in litigation. It will open up a 
whole area that is basically settled now.
    Mr. Oxley. The gentleman's time has expired.
    Mr. Towns. Thank you, Mr. Chairman.
    Mr. Oxley. The gentleman from Illinois, Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman.
    Mr. Fields, in the testimony you mention 18,000 settlements 
with small business. What are the parameters of each of these 
settlements?
    Mr. Fields. These are de minimus settlements that we have 
entered into at a variety of sites across the country. We have 
entered into these settlements in more than 400 Superfund sites 
across the country.
    Mr. Shimkus. Let me----
    Mr. Fields. 18,000. And we have offered----
    Mr. Shimkus. Let me ask, if you have had 18,000 
settlements, why will not the administration come forward with 
legislation to codify the parameters of these exemptions and 
allow us to remove some small business liability? I mean, if 
you have the parameters because you have exempted 18,000, then 
just give us the parameters so that we have a basis to start on 
a legislative remedy for small business, because obviously you 
have the facts.
    Mr. Fields. Yes, I will start, and Mr. Herman should 
definitely add to this.
    We obviously have done a lot through our administrative 
reforms to address small businesses. We have come out very 
strongly in support of further legislative change that would 
also----
    Mr. Shimkus. Do you have the language for those further 
legislative changes?
    Mr. Fields. Small generators and----
    Mr. Shimkus. Mr. Fields, the language. I am involved in 
another legislative issue.
    Mr. Fields. Right.
    Mr. Shimkus. And you can--the administration can talk 
policy----
    Mr. Fields. Right.
    Mr. Shimkus. And how you have been in favor of small 
business liability protection from day 1.
    Mr. Fields. Right.
    Mr. Shimkus. But if you don't come to the table with 
language, we don't know where the starting point is to get some 
negotiation. So when you talk about you have been to the table 
and you have come to staff----
    Mr. Fields. Yes.
    Mr. Shimkus. And you haven't brought language, you have 
brought zero.
    Mr. Fields. No, no. I beg to differ, Mr. Congressman. We 
actually have discussed----
    Mr. Shimkus. Well, then give me----
    Mr. Fields. Since the 103d Congress.
    Mr. Shimkus. Okay, let me reclaim my time. Then what is the 
exact language for small business liability protections that 
this administration has brought to this committee?
    Give me one piece.
    Mr. Fields. During the 103d Congress we, the 
administration, supported 50 or fewer employees and $2 million 
in annual revenue as being a definition of what small 
business----
    Mr. Shimkus. So would the administration support that now?
    Mr. Fields. No, we are now--because there is a lot of 
disagreement. Your bill, for example, includes, as you know, 
less than 100 employees and no revenue cutoff.
    Mr. Shimkus. But you had 50 and $2 million.
    Mr. Fields. Some people have proposed $3 million, and----
    Mr. Shimkus. So will the administration support 25 and 
750,000?
    Mr. Fields. Well, that is something that is going to have 
to have a lot more discussion. We within the administration are 
not prepared to offer up a precise----
    Mr. Shimkus. Okay. Then let me ask this question.
    Mr. Fields. Number of----
    Mr. Shimkus. I know I am hot, but I have got businesses in 
Quincy that are going under. You all have 18,000 cases of 
documentation where you have absolved them of responsibility.
    Mr. Fields. Right.
    Mr. Shimkus. And you have settled with them.
    Mr. Fields. Right. We settled, yes.
    Mr. Shimkus. Now, that would tell me that you have some 
criteria by which you are exempting these small businesses. 
Draft legislation based upon that 18,000 caseload and get it up 
to our committee so that we can evaluate it. Because I am not--
if you don't codify this, the exemptions you have given to a 
small business in Gettysburg, how do I know that that's the 
same exemption that you have given to my small businesses in 
Quincy, Illinois? There is no assurance. It is in some little 
black box stowed away in the EPA that you only know.
    Mr. Fields. Many of these businesses would be exempted 
under what we proposed----
    Mr. Shimkus. We don't know that.
    Mr. Fields. No, no, many small businesses are included in 
those who send generators and transporters of municipal solid 
waste, we have proposed in our legislative reform agenda that 
those----
    Mr. Shimkus. Do you have language for your proposed 
legislative agenda?
    Mr. Fields. We have provided language on that to members of 
this committee.
    Mr. Shimkus. Have you presented it to me?
    Mr. Fields. We would be happy to share it with you 
personally. That language is something we support, and we 
believe many small businesses would be exempted by that type of 
legislative reform. That is one example of the benefits to 
small businesses.
    Yes, we have supported de minimus and de micromus liability 
relief. Those are elements of the small business liability 
relief question. There is some disagreement among Members of 
Congress and the administration as to how you precisely define 
a small business, but what we have proposed as an 
administration would provide liability relief for a lot of 
small businesses that are impacted by Superfund liability.
    Mr. Herman.
    Mr. Shimkus. I will spare--I will pause and I will yield 
back my time.
    Thank you, Mr. Chairman.
    Mr. Oxley. The gentleman's time has expired.
    The gentlelady from Colorado, Ms. DeGette.
    Ms. DeGette. Thank you, Mr. Chairman.
    Mr. Fields, you know that a lot of the elected officials 
and citizens of Denver and I have been worried for a long time 
that this Shattuck remedy is inadequate. Now we get these 
reports that the mound is sinking, that cap has cracked; 
contamination might have already seeped into both the 
groundwater and the Platte River.
    Last Thursday your emergency response team issued a summary 
of a report that said that the Shattuck site is susceptible to 
long-term degradation. It went on to say that this cap that is 
supposed to last 200 years ``will not survive more than 15 
unless a costly monitoring and maintenance system is 
installed.'' That was in the Denver Post this Saturday.
    And then the director of your ERT said to assume that it 
would last any longer is foolhardy. The newspaper said that the 
monitoring system will cost as much as the EPA estimated that 
it would cost to remove the waste in the report I asked for 
last spring.
    Now in response to this report, the Denver Post said that 
you said that this new information ``raises significant 
questions about the cleanup remedy at Shattuck,'' and then you 
went on to say, at least as quoted in the Denver Post, there 
will have to be ``at a minimum some significant changes to the 
current remedy or a complete alternative remedy as opposed to 
the option of letting the waste stay onsite.''
    So I guess my question to you today is do you have a 
concept of what those significant changes are, and does that 
mean that the EPA will now move this waste offsite as many of 
us believe should have been done.
    And by the way, I always point out this remedy was not a 
Clinton administration remedy. It was done in 1991, but the 
Region 8 EPA seems to have adopted this remedy as its own 
child, which I don't understand. But my question is, what do 
you mean when you say significant changes?
    Mr. Fields. Well, there has been a review, several reviews 
have been done of the current remedy. The U.S.----
    Ms. DeGette. I know what the reviews are----
    Mr. Fields. Geological survey----
    Ms. DeGette. Yes.
    Mr. Fields. The 5-year review----
    Mr. Greenwood. What do you mean----
    Mr. Fields. Those reviews are all going on, and those 
reviews indicate at a minimum you are going to need 17 more 
groundwater monitoring wells around the current remedy, because 
the groundwater monitoring system is not adequate----
    Ms. DeGette. Mr. Fields, I only have 5 minutes.
    Mr. Fields. All right, I am just trying to respond to your 
question.
    Ms. DeGette. I know what they have all done, yes, but if 
you can tell me what do you mean when you think you are going 
to have to look at an alternative remedy or a modification? Do 
you think you are going to move it?
    Mr. Fields. This is what I am referring to.
    Ms. DeGette. Okay.
    Mr. Fields. I am referring to the fact that in order to 
modify--in order to address the current remedy, you have to put 
at a minimum new groundwater monitoring systems in place, you 
are going to have to put in place a cap that has greater long-
term protection, because right now the 5-year-review contractor 
has raised concerns that the current cap would not comply with 
the UMTRCA regulations that require 200-to-1,000-year 
protections in the long term.
    The contractor has also raised issues about whether or not 
long-term groundwater protection would be provided with the 
current remedy. So there are two alternatives. Either you fix 
the current remedy in a way that allows you to comply with the 
UMTRCA 200-to-1000-year requirements, or you decide that the 
remedy is going to be so costly to fix that you move it to an 
alternative location.
    The contractor is going to be coming in on October 1 and 2 
to give us a detailed briefing on this, and then we will make a 
judgment after that as to which of those two alternatives we 
will be implementing. One of those two is where we are going to 
go. The issue is which one. That has not been decided. The 
further technical data coming in early and mid-October will let 
us decide whether or not we should--we can fix the current 
remedy, is that feasible, or do we have to move it in order to 
protect the citizens of Denver.
    Ms. DeGette. So when is it you are looking to make some 
kind of announcement as to which remedy you are going to be 
recommending?
    Mr. Fields. We will be making an announcement I would say 
the third or fourth week of October. All the information will 
be in by mid-October, and then we would be making a decision by 
the third or fourth week as to which of those alternatives is 
the one we select for that remedy.
    Ms. DeGette. Okay. Thank you.
    Now following up quickly on my opening statement, the issue 
of the relevant and appropriate standard. H.R. 1300 and 2580 
eliminate the use of State and Federal environmental standards 
that are both of these things.
    Mr. Chairman, may I have unanimous consent for another 1\1/
2\ minutes to ask this question?
    Mr. Oxley. Without objection.
    Ms. DeGette. Thank you.
    There is a change in current law in both of these bills 
that State officials and community representatives strongly 
oppose, and we are going to hear that from the second panel 
today.
    If you can quickly tell us, Mr. Fields, what effect this 
change to current law would have on EPA's ability to ensure 
that cleanups are protective of human health and the 
environment and things like Shattuck don't happen in the 
future.
    Mr. Fields. Dropping relevant and appropriate requirements 
would have a major impact we believe on the protectiveness of 
Superfund cleanups. There are many Superfund sites like the 
Shattuck remedy that you referred to, Glen Ridge, Montclair, 
which is another Superfund site in New Jersey, the J&L landfill 
site in Michigan. These are all sites where we have used 
relevant and appropriate requirements.
    There are sometimes State standards, there are sometimes 
Uranium Mill Tailing Control Act requirements. There are 
sometimes RCRA requirements that were relevant and appropriate. 
We would have to develop a whole new paradigm and new cleanup 
requirements for those many sites where we adopt relevant and 
appropriate requirements.
    So we think that dropping relevant and appropriate 
requirements would be a major mistake from current law. We 
worked very carefully and quite cooperatively with States over 
the last 6 years. We are implementing RAR's. We think State 
standards, we think other Federal agency requirements, RCRA 
requirements are very appropriate for cleanup at Superfund 
sites, and dropping RAR's would have a major impact we believe 
on defining appropriate cleanup requirements for many Superfund 
sites.
    Mr. Oxley. The gentlelady's time has expired.
    The gentleman from California, Mr. Bilbray.
    Mr. Bilbray. Thank you, Mr. Chairman.
    Mr. Fields, when we talk about the issue of appropriate 
mitigation or treatment, does your department consider at all 
the adverse impacts of the implementation of the existing law, 
adverse environmental impacts? I am not talking about economic.
    Mr. Fields. When we are evaluating alternatives for cleanup 
we do look at the impact of various remedies, of various 
alternatives when deciding on what remedy to select at a 
Superfund site. We work carefully with the health officials in 
Atlanta, the Agency for Toxic Substances and Disease Registry 
in looking at what impacts a remedy might have. Would an 
incineration option, for example, cause air emission impacts to 
that community? That is part of our consideration.
    Mr. Bilbray. I know from when I was serving on the State 
Air Resources Board in California, the remediation of a lot of 
sites ended up becoming such an identified problem in 
nonattainment areas that we specifically had to develop 
criteria and try to mitigate the adverse air pollution impacts 
of a lot of remediation. Not specifically to Superfund, but 
Superfund was part of that problem. And I think that one of the 
concerns that we had was how much of the Federal Government 
allowed a no-project option based on the fact that the best 
environmental health approach was not to do anything at that 
site except cap.
    One of the problems with that proposal of capping, and I 
think you have run into those, is then you end up creating a 
Brownfield. I mean, how much discussion is there about the huge 
environmental damage of creating a Brownfield? The fact is you 
destroy five-to-one ratio of Greenfields in lieu of utilizing a 
Brownfield. And how much is your department involved in this 
issue of saying we have got to stop mandating a lot of this 
sprawl because we have basically outlawed reuse of the inner 
city core?
    Mr. Fields. Well, that is a concern. We have certain types 
of sites that we have no alternative for but to leave it in 
place, the waste in place, and capping. There are 20 percent of 
the Superfund sites as you know are landfills, industrial, 
municipal waste landfills that we typically cap, put in place a 
groundwater monitoring system, containment, and you leave waste 
in place. There are mining sites where it is not feasible to 
remove the material. So in some cases we do not have an 
alternative.
    But we have implemented a major initiative using the 
Brownfields model over this past summer where we have 
discovered that more than 150 Superfund sites have had major 
reuse and redevelopment. And so now while we are cleaning up 
Superfund sites, we are applying the Brownfields model and we 
are looking at how we can find ways to reuse, recycle, 
redevelop for economic, ecological, or recreational uses many 
of these Superfund sites after the cleanup job is done, even in 
those cases where we have waste left in place, like the 
Anaconda Superfund site near Butte, Montana, where--I was there 
on Monday, and we created a world-class Jack Nicklaus golf 
course on top of contamination that existed at the ARCO 
Superfund site there.
    So just because sometimes wastes are left in place, it does 
not have to be a Brownfield that is not available for reuse. We 
have created metroplexes, you know, shopping centers on these 
former Superfund sites even in those cases where waste has been 
left in place.
    Mr. Bilbray. I can only imagine the challenge of trying to 
explain taking a Superfund site and then doing all the 
irrigation and putting all the water on top of it that it 
takes. One of the big reasons why landfills are no longer 
allowed to be converted to parks, at least in the West, is over 
that issue.
    Mr. Fields, you were talking about changing the liability 
aspect of it. My concern is that we had a situation in 
Clearwater, Florida, where you had a company, a small company, 
that was basically being held liable as a major contributor 
mostly because its 55-gallon drums of polyester which had been 
left out in the sun for over 2 years, and thus had solidified 
and did not constitute, should not have been considered as 
hazardous material, was held as a major, major contributor 
mostly because it was one of the few that they could find to 
that site, basically almost a joint and several liability 
issue. You are the only one that we can identify your material 
in here, we are going to nail you.
    What are you doing to stop that kind of abuse of the system 
where you have somebody that not only is not a major 
contributor, but from the data that we got from this individual 
really wasn't a contributor, was a contributor of metal and 
basically solidified polyester, which I think you and I would 
not constitute as hazardous, but because it was in the middle 
of hazardous materials, somebody in the Department decided the 
was a waste stream, and thus they were going to nail whoever 
they could?
    Mr. Fields. I will let Mr. Herman respond.
    Mr. Herman. Mr. Bilbray, several things. First of all, I am 
not familiar with that specific fact pattern, but will get, you 
know, more information on that site for you.
    However, let me say this. First, with regard to a 
contributor like yours, we do have the de minimus settlement 
policy which gets small contributors out. We have de micromus 
policy where we settle out for----
    Mr. Bilbray. Let me stop you right there.
    Mr. Herman. Yes.
    Mr. Bilbray. But the settlement policy that he was offered 
was to pay for cleanup, a portion of cleanup, and he was not--
his waste stream was not a problem. Any scientist would tell 
you that. But the problem was he was hit with a large hit, and 
one of the arguments was he was one of the few that we had to 
be able to go after.
    Go ahead.
    Mr. Herman. In terms of one of the few we had to go after, 
I don't know what, you know, what his--what the size was or 
what his ability to pay was. We have instituted ability to pay 
policies to take care of a situation like that. In terms of his 
being caught in the legislative web, somebody thought that he 
played a part in polluting that site, and that is what the 
process is supposed to do, is to get----
    Mr. Bilbray. I agree.
    Mr. Herman. And we are trying to kick those people out.
    Mr. Bilbray. I think the ability to pay was the problem. He 
had the ability to pay. And all I can say is I read the report 
and the recommendations from the Department of what he should 
have done with his waste stream, and what he should have done, 
according to them, is use, you know, acetone or MEK as a 
solvent and cleaned out those cans before he disposed of it.
    The fact is anyone who knows the qualities of polyester 
knows that 6 months to a year in the Florida sun kicked it off 
and solidified it to where it wasn't a waste stream. So what 
was recommended by the Department was more environmentally 
damaging than what the company did. But that didn't follow suit 
for them. They had a policy that if you don't handle this the 
way we think it should have been handled, we don't want to sit 
down and talk with you. And frankly, I thought it was 
outrageous that somebody who did the environmentally proper 
thing was being held up. But what I sense was it was the 
ability to pay. You go for the dollars.
    Mr. Oxley. The gentleman's time has expired.
    The gentleman from Wisconsin, Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman.
    I think today it was indicated that we may be acting on 
this piece of legislation or another piece of legislation in 
the next week or two, and I certainly understand Mr. Shimkus' 
frustration in not having the language that he would like to 
see from the administration. So to the extent that that exists, 
I would like a copy of that as well.
    But because H.R. 1300 at least seems to be a train with a 
lot of steam right now, I just want to take a look at a 
specific section in this bill that raises some concerns with me 
to get your read on it. And that is section 307, which I 
understand creates a new 6-year statute of repose, and it is 
established for the negligent conduct of cleanup contractors, 
and that this would preempt State law. My understanding is it 
does not apply to grossly negligent or wanton-type behavior. 
But it still raises some questions for me.
    According to the assistant attorney general of New York, 
who will appear on the second panel, the bill, ``carves out a 
radical and unfair new exemption for these parties and deprives 
potential victims of rightful compensation where due to a 
latency period that is often associated with exposure to 
hazardous substances or for other reasons, the injury is not 
discovered within the 6-year timeframe.'' I know Mr. Dingell 
also had concerns, and he contacted the Acting Administrator 
for the Agency of Toxic Substances and Disease Registry to ask 
which chemicals off the top 50 of that agency's list may fit 
within this category, and among those that were reported to him 
were vinyl chloride, benzene, PCB's, and lead. All these 
chemicals and others have latency periods for humans 
potentially developing cancer at least 6 years after exposure 
has ended. And that's what concerns me. If we are going to be 
letting negligent parties off the hook for causing damage that 
does not appear until 6 years later, yet their legal 
responsibility ends at 6 years, are we creating a huge new 
loophole?
    Mr. Fields. We are concerned about some of the elements of 
section 307, as you indicate, and for the reasons you indicate. 
I want to say that, you know, the contractor community is an 
integral part of our cleanup process, and they have done a very 
effective job in helping us clean up sites. We though are not 
clear as to why we need to expand response action contractor 
coverage to what these areas--that are in 307.
    We do not believe that it is appropriate to implement this 
statute of repose after 6 years. We think that that along with 
several other provisions in section 307 would preempt State 
law, the changes in RAC liability proposed in 307 would extend 
beyond Federal law to cover State laws. And we are concerned 
about broadening the negligence standard and preempting State 
action for this type of liability.
    We believe that the issue of negligence should be left to 
the States and remain a State responsibility. We believe that 
the current section 119 indemnification requirements of CERCLA 
have been implemented quite well. We have not had any new 
claims in the last 5 years. So we don't think we need major 
changes to response action contractor liability, and we would 
be opposed to several of the elements, including the element 
you just mentioned, about statute of repose, because of the 
impact on State laws and the preemption of State laws in many 
cases for several of these elements that are proposed in 
section 307 of this draft legislation.
    Mr. Barrett. Well, the section that I refer to does have a 
modifying clause that says that the section shall not apply in 
any State or political subdivision thereof if the State has 
enacted a statute of repose determining the liability of a 
response action contractor. So it would seem at least at my 
initial reading here that if the State has any type of statute 
of repose, whatever it is, that it is not going to be covered. 
But my concern is wrongful-death actions, personal injury 
actions----
    Mr. Fields. Yes.
    Mr. Barrett. And property damage actions, obviously more of 
the wrongful death and the personal injury actions. And I 
just--I want the record to be clear as to what this bill does 
with regard to this issue.
    Mr. Oxley. The gentleman's time has expired.
    The gentleman from Maryland, Mr. Ehrlich.
    Mr. Ehrlich. Obviously if there is a message here today, it 
is that there is bipartisan frustration with--to put it 
mildly--with the present statute and the way the present 
statute is being implemented.
    I understand fully, as most of the people in this room do, 
that part of this discussion is simply a philosophical 
disagreement that will never lend itself to a compromise 
because we simply view these issues in such a different way, 
and either we are going to lead or you are going to lead and 
that will be a big difference, so--however, sir, given that as 
someone who practiced in this area for a number of years, let 
me ask you a couple of things.
    You talked about contractor liability. You are familiar 
with case law, I am sure, where contractors, cleanup 
contractors have now been brought into Superfund litigation, 
sued for contribution by potentially responsible parties, not 
on the basis of negligent action by the contractor. These 
contractors, as you know, face a joint and several liability 
scheme, so you potentially have situations where non-negligent 
parties are facing significant actions to defend from other 
defendants in cross-claims where they have not been negligent. 
My question to you is how fair is that, particularly in the 
context of your previous statement that you see nothing 
particularly wrong with the present statute with regard to 
contractor liability.
    Mr. Fields. Well, we have agreed in the past that amending 
the statute in that area is an area that we could support----
    Mr. Ehrlich. Where is your language?
    Mr. Fields. We provided language during the 103d Congress 
and we would be happy to share it with you again.
    Mr. Ehrlich. We were not here in the 103d Congress, sir.
    Mr. Fields. We will be happy to give you that language, but 
the problem is that that is only one of seven elements of 
Section 307. I cannot say I support a section when there are 
several elements in the section that we have serious problems 
with.
    Mr. Ehrlich. I fully understand that, and we are all trying 
to break these issues down to separate, independent issue 
areas, as you know, and maybe that is one where we can come----
    Mr. Fields. That's one we----
    Mr. Ehrlich. [continuing] so I respectfully request 
language from the administration with respect to innocent party 
contractor cleanup and liability standards that in your view 
should pertain thereto.
    Mr. Fields. We would be happy to provide that language to 
you, sir.
    Mr. Ehrlich. With regard to statute of repose and State 
pre-emption, is it your position that, putting aside the issue 
of pre-emption, that there should not be a statute of repose 
given--what my friend from Wisconsin was alluding to with 
regard to potential long latency periods in some of these 
disease processes.
    I understand your point with regard to pre-emption and what 
State statutes and what State legislatures in their wisdom have 
done. Is it your position, however, that any statute of repose 
is inappropriate in that context?
    Mr. Fields. We would be opposed to a statute of repose.
    Mr. Ehrlich. At any--20 years?--25 years? You would just be 
opposed?
    Mr. Fields. We believe that element of 307 is unnecessary 
and we would be opposed to it.
    Mr. Ehrlich. Okay, thank you.
    With regard to an issue that--I have a lot of questions 
obviously. I have 5 minutes, but let me get into something I 
really have just recently been made aware of, and I do not have 
a great deal of knowledge about, with regard to the issue of 
recycling used oil.
    You are familiar I think with case law, the National 
Association of Auto Dealers and trucking associations and other 
parties have I know proffered testimony and have positions with 
regard to this issue, the issue obviously being liability 
relief for a party that arranges for used oil to be recycled 
rather than disposed of and then finds itself as the joint tort 
leasor and brought in as a cross-claim in Superfund litigation. 
Can you give me your present view of this situation?
    Mr. Fields. Well, your question, do we believe that used 
oil should be----
    Mr. Ehrlich. Yes, sir.
    Mr. Fields. [continuing] exempted?
    Mr. Ehrlich. Yes, sir.
    Mr. Fields. No. We do not believe that used oil should be 
included in any kind of recycling exemption. Used oil is a 
major problem in more than 130 Superfund sites, almost 10 
percent of the sites on the list. It contains a lot of 
hazardous substances that we are concerned about and we found a 
lot of mismanagement of that material, so we would be opposed 
to that type of exemption being included in a recycling 
exemption.
    Mr. Ehrlich. Well, if I could just have, you know, another 
minute, Administrator Browner testified before the Water 
Resources Subcommittee in 1999, the 106th Congress, that the 
administration was not opposed to such a narrow exemption for 
recycled oil, and my thought was that your testimony today 
would comport with that testimony.
    Mr. Fields. I am fully comportable with our Administrator, 
but I want to clarify something of what the Administrator said.
    There are various categories of recyclers of used oil. Some 
of those are large recyclers including motor pools, large 
shipyards and ports, which would be exempted under the 
legislation before us today, and we would be very concerned 
about that type of operation being included in a recycling 
exemption, so we would have to go back and look at precisely--
we have obviously supported a recycling exemption in the past, 
but we are concerned about making sure that the proper parties 
are included in a recycling exemption and we would want to look 
very carefully at used oil because of the problem that has 
occurred at, as I said, more than 10 percent of our Superfund 
sites associated with used oil operations.
    Mr. Greenwood. The time of the gentleman has expired. The 
gentleman from Michigan, Mr. Stupak, is recognized.
    Mr. Stupak. Thank you, Mr. Chairman. I apologize for being 
back and forth. I have been up at the radioactive plutonium one 
we have been doing up with the other committee--Investigation 
Oversight--so I have been back and forth.
    I did come in on some discussion. First, I would ask 
unanimous consent my opening statement be made part of the 
record.
    Mr. Greenwood. Without objection.
    Mr. Stupak. I did come in on some of the discussions going 
on here about small businesses being exempt and innocent 
landowner protection and prospective purchaser protection.
    I would just like to remind my colleagues at the last 
Congress we had H.R. 2485, which has been endorsed by the EPA 
publicly and everything else, and Mr. Goodling joined with me 
on this bill, the Common Sense Superfund Liability Reform Act, 
and it takes care of the small business exception that we need. 
As we define small business it refers to any business entity 
that employs no more than 100 employees and--and--is a small 
business concern as defined under the Small Business Act, 15 
U.S.C. 631.
    Mr. Shimkus' questions to you I felt was a little unfair 
because after I had that legislation last year, he came to us. 
We tried to negotiate and work together on a bill, but he 
wanted $3 million in revenue or 75 employees and our concern is 
you could have a company with 60 employees or 75 employees and 
have $3 billion in revenue, therefore they are not really a 
small business.
    So I think we have some common ground we could work from. 
H.R. 2485--it's really a fantastic bill when it takes care of 
your small business concerns, it takes care of the innocent 
landowner protection that Mr. Ehrlich brought up. It also takes 
care of prospective purchaser protection. Those are found in 
Section 3 and 4 of this great bill.
    I would suggest we take a look at it, and if we are going 
to move legislation on Superfund reform, if that is truly your 
concern, maybe we could then offer it as a bipartisan amendment 
and strengthen some legislation that we on this side at least 
have some very big concerns, so I am willing to work with Mr. 
Ehrlich or Mr. Shimkus to that, but I think publicly EPA has 
endorsed the small business exemption, the de minimis polluter 
and try to give him some relief underneath Superfund.
    My question though for Mr. Fields would be if we look at 
the big picture, GAO has recently found that half of all 
Superfund sites have all cleanup activities been completed and 
at the 600 or so remaining sites, two-thirds of the cleanup 
work is completed or underway.
    If we go to my own State of Michigan at the end of this 
Congress approximately 3 out of every 4, or three-fourths of 
them, will be completed. The Chamber of Commerce says the 
existing sites will be restored to environmental health within 
3 to 5 years up there, so my question, Mr. Fields, the 
administration and the States have criticized H.R. 1300 because 
it will have an effect of delaying cleanups.
    Can you provide me some specific ways which H.R. 1300 would 
delay the cleanups?
    Mr. Fields. Yes, Congressman. We believe that H.R. 1300 
would have some significant impacts on the cleanup of those 
remaining Superfund sites that still need to be construction 
completed.
    This particular bill has new terms on risk assessment and 
requirements that are putt into the remedy selection title. 
They, we believe, would open this remedies up for litigation 
because of having to define new terms associated with how you 
conduct and risk assessment would require revisions to the 
current national contingency plan that would take several years 
and we believe enter into further litigation.
    We think that H.R. 1300 codification of the administrative 
reforms that they have attempted to do is counter-productive. 
One of the key benefits of the current administrative reforms 
is the flexibility. We would rather not put them into law but 
rather have the ability to see how they work and improve them 
over time.
    Putting them into law would not allow us to implement 
further improvements to those reforms over time. We have 
learned from experiences that some administrative reforms have 
problems like allocation pilots we did several years ago which 
taught us that prescriptive, one-size-fits-all allocation 
processes are not appropriate, so those are the kinds of--H.R. 
1300 underprotects groundwater. It backs off of the current 
standard we use for restoring groundwater to beneficial uses--
so those are just a few examples of how H.R. 1300 would delay 
cleanup and weaken, we believe, environmental protection in 
cleanup of Superfund sites.
    Mr. Stupak. Are there some ways that we could--I know this 
administration has a good track record of cleaning up Superfund 
sites. At least in my own State of Michigan it has been going 
quite well.
    Is there some suggestion though that you need legislation 
that would further enhance or expedite cleanups? Are there some 
things that you would like to see--``you'' being the EPA--I 
mean besides my bill, anything else?
    Mr. Fields. We said earlier that obviously want--we need to 
have the tax reinstated. We want the Superfund tax reinstated 
to move this program forward.
    We talked about some liability relief that we would 
support, but in terms of the remedy provisions, the cleanup 
provisions of Superfund, we do not see a need for any changes, 
for Congress to enact any legislative changes to the current 
remedy provisions of the current law. We think those provisions 
that are there now are all we need to move forward on effective 
cleanup of Superfund sites.
    Mr. Oxley. The gentleman's time has expired. The gentleman 
from Pennsylvania.
    Mr. Greenwood. Thank you, Mr. Chairman, and my questions 
follow pretty precisely on your last comment.
    In June 1995 Carol Browner stated to Congress that, ``The 
administration supports the elimination of relevant and 
appropriate requirements because they have proven to be a 
source of delay and unnecessary expense in selecting remedies'' 
and I don't recall anybody calling that gutting Superfund or 
rolling back protection.
    In April, 1997, sir, you stated, ``We believe things like 
the future anticipated land use that everybody agrees to, it 
would really help to have that in law as opposed to just 
guidance.''
    You also stated at the time that we should drop the, 
``relevant and appropriate'' requirement. The administration's 
Superfund reform principles stated that we should use the MCLs, 
which are drinking water standards, instead of requiring 
cleanup below drinking water standards--and nobody accused you 
of gutting Superfund or rolling it back.
    In 1995 Patricia Williams of the National Wildlife 
Federation testified, ``NWF also recommends that future land 
use be considered in remedy selection. There should not be an 
unfair paradox between environmental protection and economic 
development. We believe that consideration of future land use 
will be a further catalyst in putting abandoned industrial 
waste sites back into economic reuse.''
    No one accused her of rolling back protections.
    In May, 1999 the National Association of Industrial and 
Office Properties testified, ``Cleanup standards that are site-
specific, risk-based, and which take into account future land 
use are important factors to unlocking the potential for 
Brownfields revitalization.''
    In August, 1999, the National Association of Local 
Government Environmental Professionals listed the, ``use of 
risk-based cleanup standards that can be tied to reasonably 
anticipated land use'' as important criteria for cleanup 
programs to help Brownfields redevelopment.
    The State Governors, cleanup agencies and cleanup 
contractors have supported these issues and more. They all have 
stated that the remedy selection provisions H.R. 3000 from last 
Congress would improve and speed up cleanups.
    Some of these changes are elements of Section 9 of my bill, 
H.R. 2580. Shouldn't we make these changes, such as reasonably 
anticipated land use and elimination of reasonable and 
appropriate remedies, which will improve remedy selection for 
those sites both on and off the National Priorities List? Why 
has the administration changed its position on issues like 
reasonably anticipated land use, RARs and drinking water 
standards? Aren't you just moving the goal posts on us year 
after year?
    Mr. Fields. Congressman Greenwood, I want to make clear 
that in the 103d Congress when we proposed to drop RARs it was 
in conjunction with the States having the option of 
repromulgating State relevant and appropriate requirements that 
are no longer required to be attained by Superfund. We did not 
propose to drop relevant and appropriate requirements without 
the States having the ability to repromulgate those as 
applicable standards, but bottom line is we are--we have 
changed, we have changed our position----
    Mr. Greenwood. Let me just insert something there.
    Mr. Fields. Yes.
    Mr. Greenwood. Under the legislation that we are 
considering under Mr. Boehlert's legislation and my legislation 
the States would still nonetheless have the legal authority to 
do that, would they not?
    Mr. Greenwood. We do not see that in your legislation. We 
see the dropping of relevant requirements but it does not 
provide for the States repromulgating RARs that would be 
dropped.
    Mr. Greenwood. We don't require the States in our 
legislation but we certainly don't prevent them from doing 
that.
    Mr. Fields. I do not know if your legislation would prevent 
them but you do not explicitly come out and say that, but 
bottom line I just want to clarify what our provision was in 
the 103d Congress--the bottom line is the reason we do not 
think we need changes to remedy now is where we are in this 
program.
    Half the sites have construction completion, 90 percent of 
the remedies have already been chosen for Superfund sites. That 
is where we are. That is the reality of where we are now. We 
don't see a need to change the remedy provisions of Superfund 
when 90 percent of the cleanup decisions have already been 
made, half of the sites have construction complete and many 
others have construction underway. Given where we are and given 
the success of the administrative reforms over the last 6 
years, we, the administration, are saying we no longer need 
comprehensive reform. We only need a narrow set of changes, and 
we believe it is not necessary to make changes to remedy now 
given where we are in this program.
    Therefore, we think we do not need to drop RARs. We don't 
need to put in place specific requirements regarding land use 
in remedy because of where we are with most--a lot of the job 
done and the cleanup progress having been significantly 
improved by the administrative reforms over the last 6 years to 
cut costs by 20 percent, cut time by 20 percent. We think 
remedy is not an area that Congress needs to focus on in terms 
of legislative change to Superfund.
    Mr. Greenwood. Mr. Chairman, I would ask unanimous consent 
for an additional minute.
    Mr. Oxley. Without objection.
    Mr. Greenwood. Mr. Fields, Section 121 of CERCLA begins by 
stating, ``The President shall select appropriate remedial 
actions determined to be necessary to be carried out under 
Section 104 or secured under Section 106 which are in 
accordance with this section.''
    Isn't it true, then, Mr. Fields, that any remedial action 
under CERCLA must comply with Section 121 regardless of whether 
the site is on the National Priorities List or not?
    In addition, under Section 107 any non-Federal party 
cleaning up a site and seeking to use CERCLA to obtain 
contribution from a potentially responsible party must show 
that the remedial action costs are, ``consistent with the 
National Contingency Plan''--thus even in the universe of 
voluntary cleanups CERCLA's remedy selection requirements can 
have legal relevance in court.
    Isn't it your reading that the remedy selection provisions 
of the National Contingency Plan are relevant legal standards 
for contribution actions under Section 107? As I understand it, 
last year EPA added approximately 43 sites to the National 
Priorities List. Is this number correct, and is EPA planning to 
add fewer and fewer sites or continue at the current pace?
    Mr. Fields. Mr. Congressman, we will get back to you with a 
more complete response for the record. We agree that 
contribution protection elements might apply, but we don't 
believe that the remedy selection requirements would apply to 
non-NPL sites. We will do further research with our counsel and 
get back to you on the record on that point, but we are not, I 
am not fully convinced right now that all the remedy elements 
would apply to sites that are not on the NPL and I think that 
is what you were indicating, that they would apply to non-NPL 
sites. I am not sure that is quite correct, but we will----
    Mr. Greenwood. In your written reply, I wish your staff or 
your attorneys would particularly pay attention to 107.4 which 
says, ``Any person who accepts or accepted any hazardous 
substances for transport to disposal or treatment facilities, 
incineration vessels, or sites selected by such person from 
which there is a release or a threatened release which causes 
the incurrence of response costs of a hazardous substance shall 
be liable for (a) all costs of removal or remedial action 
incurred by the U.S. Government or a State or an Indian tribe 
not inconsistent with the National Contingency Plan and (b) any 
other necessary cost of response incurred by any other person 
consistent with the National Contingency Plan.''
    Mr. Fields. We will review that, sir, and get back to you 
through the record.
    Mr. Oxley. The gentleman's time has expired. The gentleman 
from Massachusetts, Mr. Markey.
    Mr. Markey. Thank you, Mr. Chairman, very much.
    Mr. Fields, I would like to inquire about the costs of all 
of the many liability exemptions and initiatives, but I would 
like to ask one question first, which is am I correct that H.R. 
1300 creates mandatory spending for liability exemptions in the 
amount of $300 million for 5 years and $200 million for the 
next 3 years or $2.1 billion over the 8-year authorization 
period of the bill?
    Mr. Fields. That is correct, sir. That's right.
    Mr. Markey. Does this violate the Balanced Budget Act of 
1997?
    Mr. Fields. We believe it would in the sense that the Act 
provides for $200 million per year, expiring in the year 2002 
and we believe that some of these exemptions would cost up to 
$500 million, so we are concerned about that.
    Mr. Markey. Now would that violate the Balanced Budget Act 
of 1997?
    Mr. Fields. Yes.
    Mr. Markey. It would? Are there any offsets in H.R. 1300 
for the mandatory spending?
    Mr. Fields. We do not see offsets.
    Mr. Markey. Are they required to come up with offsets?
    Mr. Fields. I believe----
    Mr. Markey. Let's turn to costs. What is the cost of the 
small business generator-transporter exemption that they have?
    Mr. Fields. We have estimated preliminarily $75 to $85 
million per year.
    Mr. Markey. What is the cost of the municipal solid waste, 
municipal sewage sludge exemption for generator-transportors?
    Mr. Fields. We estimate $51 to $57 million per year for 
those costs.
    Mr. Markey. What is the cost of the municipal owner-
operator cap on liability?
    Mr. Fields. $25 to $28 million per year.
    Mr. Markey. What is the cost of the recyclers' exemption?
    Mr. Fields. Our cost estimate is $61 to $69 million 
annually.
    Mr. Markey. What is the cost of the ability to pay delta?
    Mr. Fields. We have estimated $19 to $22 million per year.
    Mr. Markey. What is the cost of the liability exemptions 
for current owners?
    Mr. Fields. $69 to $78 million per year.
    Mr. Markey. What is the cost of the nonvariable defunct 
party orphan share payment?
    Mr. Fields. $116 million to $131 million per year is our 
estimate.
    Mr. Markey. Then H.R. 1300 also requires the Fund to pay 
for the cost of private contribution claims against exempt 
parties. What does that cost?
    Mr. Fields. $69 to $96 million per year is the cost 
estimate we have.
    Mr. Markey. And these are just some of the exemptions in 
the cost shifts in H.R. 1300, but am I correct that for just 
the ones I mentioned the total cost of exemptions and 
contributions and claim payments is $397 million to $528 
million per year?
    Mr. Fields. That is consistent with our estimates.
    Mr. Markey. So at the same time this Congress is cutting 
funding for the Superfund program, H.R. 1300 is breaking the 
cleanup bank to pay for the liability of polluters, is that 
right?
    Mr. Fields. That is our reading, sir.
    Mr. Markey. Okay, so this Congress is saying no to a 
prescription drug benefit for seniors, no to increased funding 
for education, no to increased funding for veterans, no to 
increased funding for the environment--no, no, no--but in H.R. 
1300 it is saying they can scrape together $397 million to $528 
million a year, every year, in order to take the costs off of 
the backs of polluters who are responsible for leaving messes 
in hundreds of communities all over the country.
    That is the priorities as far as I--is that a correct 
analysis, Mr. Fields?
    Mr. Fields. Our cost analysis is consistent with your 
analysis.
    Mr. Shimkus. Will the gentleman yield?
    Mr. Markey. I will be glad to yield.
    Mr. Shimkus. What if they are not polluters?
    Mr. Markey. What if they are not polluters? Well, we are 
talking here--I am going----
    Mr. Shimkus. No, I am just, you know, what about the small 
business in the Gettysburg, Pennsylvania issue where it was a 
restaurant?
    Mr. Markey. See, the exemptions and waivers are for people 
who otherwise would have been identified as polluters 
responsible for cleaning up the sites.
    Mr. Shimkus. But there is no statutory language that 
defines who a polluter is, so the problem with this is that 
they go based upon trash haul to a site, not any standard or 
proof that there was materials, and we are talking about small 
businesses, and the other follow-up is how many businesses 
have--based upon all the businesses have been under Superfund, 
how many businesses have closed because they have gone bankrupt 
trying to make the settlement payment? And then how much income 
has no longer been generated by the Federal Government because 
of the loss of these businesses?
    If we are going to talk dollars and cents, we need to have 
those answers.
    Mr. Markey. Okay. I will reclaim my time just to say that 
we are all willing a la Mr. Stupak's good questions to exempt 
the household trash people, we are willing to go through and 
exempt all the people who should be exempt, but what you are 
talking about in your bill is you are exempting the people who 
are clearly liable under the law. We will look at all the 
innocent people, get them out of it, but that is not what you 
are doing.
    Do you understand, you are lumping the guilty and the 
innocent, okay?--so if you want to put together a list of 
people who you think should get out, I will work with you to 
get those people out, but you are endorsing a bill that lets 
out the guilty people too, so I am willing to work with you on 
getting out the innocent people if you are willing to work with 
us and nail the guilty people, and you are not willing to do 
that.
    Mr. Shimkus. Will the gentleman yield?
    Mr. Oxley. The gentleman's time has expired. We can save 
this debate for the markup.
    The gentleman's time has expired.
    Mr. Markey. Preview of coming attractions, thank you.
    Mr. Oxley. The gentleman from Iowa is recognized.
    Mr. Ganske. Thank you, Mr. Chairman, and I will be brief 
because, like Mr. Stupak, I am juggling a couple hearings and 
some other things too, and also I am battling a cold and a sore 
throat so earlier in the year I had thought in looking over the 
Superfund issue that maybe we just ought to move a more limited 
Brownfields type piece of legislation and try to get a large 
bipartisan consensus on that, because so many people have 
worked so hard for so long on doing it, and I think there is 
bipartisan concern about unintended consequences of CERCLA.
    You can see that from comments of both sides, members from 
both sides have made today, but I must admit that I am very 
impressed with the movement that Mr. Boehlert has been getting. 
I mean he was able to pass a pretty good bill through his 
committee with only two dissenting votes. I mean that is 
progress and I suppose I could spend my time debating Mr. 
Fields but after I went head-to-head with an official from HCFA 
last week in which he admitted that they clearly had made 
mistakes on a funding formula, clearly had made big mistakes, 
but, you know, they weren't going to go back and fix it, you 
only have so much psychic energy to use in a week, and so I am 
not going to try and score debating points.
    Mr. Chairman, let us move quickly to a markup. I think that 
we can develop a large bipartisan majority on a good bill. I 
think it has been clearly demonstrated that there has been a 
movement of the goalposts, so to speak, by the administration 
on this, but if you put together a big enough vote then it 
doesn't matter, and I thank you for your work on this issue and 
Mr. Greenwood and Mr. Towns and a whole bunch of people who 
have worked on this and I will yield back.
    Mr. Oxley. I thank the gentleman and I thank him for his 
comments and we are going to try to go along on this one and 
that is exactly what that is all about.
    The gentleman from New Jersey.
    Mr. Pallone. Thank you, Mr. Chairman. Mr. Fields, I was not 
here for your testimony but I understand that you basically 
suggest that both H.R. 2850 and H.R. 1300 lower the standard 
for restoration or cleanup of contaminated groundwater, 
something that concerns me.
    Both of these bills protect groundwater only for its 
reasonably anticipated use, a change from the current law, 
rather than current or potential beneficial use--which is the 
standard today.
    I wanted to ask how do these changes affect your ability, 
first, to clean up contaminated groundwater and, second, to 
prevent contaminated groundwater from spreading to 
uncontaminated groundwater.
    Mr. Fields. Well, these provisions would underprotect that. 
We have--85 percent of the Superfund sites have contaminated 
groundwater as a major problem and this bill would create a 
bias against protecting uncontaminated groundwater by only 
requiring groundwater to be protected, as you said, to 
reasonably anticipated future use. We believe that it ought to 
be current or potential beneficial uses that ought to be 
protected.
    We believe that that is a proper standard and this law 
would change that and cause some groundwater not to be 
protected and we believe that groundwater ought to be 
protected, beneficial reuse ought to be the goal, and we don't 
think we should back off of that--what is in the current 
statute--and these provisions in the current remedy provisions 
of H.R. 1300 would do that and we are very concerned about 
that.
    Mr. Pallone. Well, just so I understand, so you would then 
support a provision that affirmatively protects the groundwater 
that has not yet been contaminated? Is that part of what you 
propose? In other words, for that groundwater that has not yet 
been contaminated?
    Mr. Fields. No, we are proposing that the current statutory 
language be retained.
    Mr. Pallone. Okay.
    Mr. Fields. That provides all the flexibility we need to 
implement our approaches to groundwater. We have a dual 
approach to groundwater remediation which provides for 
containment of the groundwater plume and then treatment to 
prevent that contaminated groundwater from contaminating 
uncontaminated groundwater.
    All the flexibility we need for implementing that approach 
in Superfund is in the current statute.
    Mr. Pallone. Okay.
    Mr. Fields. We do not believe that the remedy provisions 
including the language that is in the current bill regarding 
protecting reasonably anticipated future uses of groundwater is 
necessary. We would be opposed to it because we think it is 
unnecessary and it would be a backing off of what we are doing 
in practice in Superfund cleanups.
    Mr. Pallone. Okay. Well, let me ask you another question.
    I have expressed concern that both H.R. 1300 and H.R. 2580 
are designed to undermine the requirement for permanent 
remedial solutions and the preference for treatment in current 
law, and, you know, this is something that I am not just 
opposed personally. My communities oppose it, and I think, you 
know, it is the polar opposite of the intent of the Superfund 
bill that I introduced today and that I talked about in my 
opening statement.
    But I wanted to know if you would comment on how H.R. 1300 
and H.R. 2580 change these provisions of current law and the 
effect these changes may have on your ability to select 
remedies which permanently eliminate the hazards in a 
community.
    Mr. Fields. We think those two bills would significantly 
change our preference for treatment and permanence. The current 
law requires the treatment of waste be permanently and designed 
to significantly reduce the volume, toxicity and mobility of 
hazardous substances.
    The preference for treatment in the current program 
reflects public concern that cleanups be protected over the 
long term and facilitate the return of previously contaminated 
material to beneficial uses.
    Treatment provides the only permanent protection for highly 
toxic or highly mobile hazardous waste. EPA is willing to 
recognize that treatment is not appropriate in all cases, but 
EPA focuses on treatment of principal threats--those that are 
most highly toxic or most highly mobile and we do not believe 
that those goals and those requirements ought to be backed off 
of, and both H.R. 2580, which changes the current preference 
for treatment, as well as H.R. 1300 could cause the backing off 
of both our permanence and preference for treatment goals and 
we would be opposed to that because we do believe that 
treatment is a critical element of assuring long-term 
protection at cleanup of Superfund sites.
    Mr. Oxley. The gentleman's time has expired.
    Mr. Pallone. Is the chairman--could I just ask for 30 
seconds to just----
    Mr. Oxley. Without objection.
    Mr. Pallone. You know, I just wanted to say I don't bring 
these things up just in an abstract sense. I mean to give you 
an example of the chemical insecticide site which is in Edison 
in my district. They produced Agent Orange and the residue of 
that is all over the place. A few years ago the community 
really was very much opposed to the idea of just capping and 
fencing the site, and they fought the battle and won. You know, 
there would be a permanent solution and that capping and 
fencing would only be temporary, but we would move to the 
permanent solution, and this is what the community people say, 
and that is why I have a problem with the legislation. Thank 
you.
    Mr. Oxley. The gentleman's time has expired. The gentleman 
from New York, Mr. Fossella.
    Mr. Fossella. Thank you, Mr. Chairman.
    Mr. Fields, H.R. 1300 would appropriate significant funding 
for the Superfund program and proposes to do so on a declining 
basis, starting out with $1.5 billion per year, decreasing to 
less than $1 billion per year in 2007.
    Mr. Fields. Right.
    Mr. Fossella. We have heard testimony at prior hearings 
this year from GAO and others that the Superfund program should 
begin to, ``ramp down''--are you familiar with that?
    Mr. Fields. Yes, sir.
    Mr. Fossella. Last year GAO estimated that no more than 232 
sites would likely require listing on the NPL in the future. 
Are you familiar with that?
    Mr. Fields. Yes.
    Mr. Fossella. Even more significantly, GAO also labelled 
the Superfund program as one that is at high risk for waste, 
fraud and abuse, specifically noting that EPA was paying 
overhead costs as high as 78 percent at some sites and 
continuing to pay contract overhead costs despite the fact that 
there is not enough work to keep them busy.
    Are you familiar with that?
    Mr. Fields. Yes, sir.
    Mr. Fossella. Given these findings, I am curious as to your 
response as to why shouldn't appropriations to the Superfund 
program be scaled back, and just as important, what is EPA 
doing to respond to these documented concerns by GAO that EPA's 
management of the Superfund program is exposing it to 
significant risk of waste, fraud and abuse?
    Mr. Fields. Thank you, Congressman Fossella.
    On the three points you raise, we obviously are very 
concerned about the funding level in the current H.R. 1300 We 
have gone on record saying that we believe that we need a $1.5 
billion budget a year for the next 5 years to allow us to 
achieve our goal of getting to 1180 construction completions by 
2005.
    We think it is premature now to estimate what the cost 
beyond that timeframe is. Both Congress, this House of 
Representatives and the Senate have both recommended in their 
appropriation bills that there be a 10-year study of the future 
funding needs for the Superfund program. We agree with that and 
we will be willing to work with Congress in projecting cost 
beyond that, but we are concerned that the current legislation 
would be a premature ramp-down of the Superfund levels--$1.4 
billion in 2004 and $1.3 billion in 2005, et cetera.
    We would be very concerned about that, and we really need 
the $1.5 billion to allow us to achieve the cleanup pace that 
we are operating in.
    Second, we are not in agreement with the General Accounting 
Office regarding their cleanup portions that go--in terms of 
their studies of cleanup of Superfund. They obviously have done 
several studies and we worked cooperatively with them, but we 
don't share the same agreements regarding how you define 
cleanup and what costs go to cleanup and we believe that there 
is still quite a bit yet to be done.
    We do agree with them on the 232--the estimate they did in 
terms of the universe of sites in the pipeline--we do agree. 
Our own internal estimates indicate that roughly 200 sites are 
in that queue of sites that might potentially be listed over 
the next several years. That is in the relative ball park of 
where we are as well in terms of how many sites might be listed 
on the NPL over the next several years.
    But the Superfund program needs a firm base of funding and 
we are concerned that the current legislation would not provide 
sufficient funding, particularly in the out years, to allow us 
to achieve our cleanup goals reflective of our administrative 
reforms.
    Mr. Fossella. I asked specifically about--that at some 
sites, the overhead cost was as high as 78 percent and that 
there was some contract over at COS that was being paid despite 
the fact that there was not enough work to keep them busy. Do 
dispute that portion of it? Do you disagree with it?
    Mr. Fields. I disagree with those numbers. We've had 
discussion with the General Accounting Office about that. We do 
agree we've had a goal for the last more than 5 years now of 
trying to achieve--make sure that oversight costs for Superfund 
contractors is in the 10 to 15 percent range. We recognize that 
in awarding new contracts, like we just--we just recently 
awarded new response action contracts, that the overhead rate 
is high when you initially award a contract. But once you start 
hiring some hiring staff and that contractor begins to conduct 
cleanup work in the field, those overhead costs go down.
    And we believe we've put in place proper controls to assure 
that overhead rates are maintained at a lower rate. We think in 
the 10 to 15 percent range, it is an appropriate goal. And we 
believe the rates right now are roughly, for those new 
contracts, in the 20 percent ballpark. And we think as more 
cleanup work is done, they will come back into the 10 to 15 
percent range and that's what we think is appropriate.
    Mr. Oxley. The gentleman's time has expired.
    Mr. Fossella. Mr. Chairman, 30 additional----
    Mr. Oxley. Without objection.
    Mr. Fossella. Mr. Fields, a couple--the last point, 
however, I don't think you answered. What is the EPA doing to 
address what the GAO determines as a significant risk of waste, 
fraud, and abuse with the Superfund program?
    Mr. Fields. We've implemented a set of administrative 
reforms. We've implemented controls on our contract processes, 
putting in place a process for independent government cost 
estimates, putting in place a program with--that program is 
being done, by the way, with the U.S. Army Corps of Engineers, 
who went to each of our 10 regions to look at how we can better 
improve cost controls and program management costs and develop 
better independent government cost estimates for what the cost 
of jobs would be, so we would not be relying on contractor 
estimates prior to initiating cleanup work. So, we've done a 
lot over the last several years to better control costs and 
make sure that we're properly managing our resources, including 
contract resources that we're so dependent on in Superfund.
    Mr. Fossella. But--okay, Mr. Chairman, thank you for your 
time, but these statements are this year. I know----
    Mr. Fields. Right, but those were the issues that the 
General Accounting Office addressed: program management costs 
and independent government estimates. And we have implemented 
programs to try to reduce program management costs and make 
sure that our staff are trained on preparing independent 
government cost estimates, which are the two areas that the 
General Accounting Office addressed in their report to us.
    Mr. Fossella. Thank you. My time has expired. Thank you, 
Mr. Chairman.
    Mr. Oxley. The gentleman's time has expired. The panel 
wants to thank you. The Chair wants to thank both of you for 
being here for the better part of 2 hours. And once again, Mr. 
Fields, it's always a pleasure to have you here. And this panel 
is dismissed.
    Mr. Fields. Thank you, very much, Mr. Chairman.
    Mr. Oxley. The Chair would like to recognize our second 
panel and will introduce each one of you. Our first witness, 
Mr. Chris Jeffers, is City Manager for Monterey Park--let me 
see, Monterey--is that Monterey Park, California?
    Mr. Jeffers. That's correct.
    Mr. Oxley. Okay, I guess we're supposed to know that, sorry 
about that--representing the National Association of Counties; 
Mr. Mike Nobis, JK Creative Printers, on behalf of the NFIB; 
Mr. Gordon Johnson, Deputy Bureau Chief of the Office of the 
Attorney General from New York State, and I understand one of 
Mr. Towns's constituents, although you may not admit that on 
the record; Ms. Jane Williams, Chair for the Waste Committee 
from the Sierra Club; and I guess we're waiting for Dr. 
Jackson.
    Mr. Daniel. He'll be back in the room shortly.
    Mr. Oxley. Okay. We'll begin with Mr. Jeffers. Mr. Jeffers?

STATEMENT OF CHRISTOPHER JEFFERS, CITY MANAGER, MONTEREY PARK, 
       ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES

    Mr. Jeffers. Thank you. Mr. Chairman, representatives, the 
distinguished members of this committee, thank you for allowing 
me to appear before you today. As stated, my name is Chris 
Jeffers. I'm the City Manager for Monterey Park, California. 
I'm pleased to be here today to testify regarding the need for 
local government--for municipal Superfund liability relief. I 
am here representing nine national municipal organizations that 
have worked together for many years to seek municipal Superfund 
relief, so that we can resolve our involvement in these toxic 
waste sites, reduce litigation, transaction costs, and to get 
on with the business of cleaning up and recycling these 
blighted sites into productive redevelopment parcels within our 
community.
    Local governments have a serious problem. We have been 
saddled with years of delay, millions of dollars of liability 
and legal costs under Superfund law, simply because we owned or 
operated municipal landfills or sent municipal solid waste or 
sewage sludge to landfills that also received industrial and 
hazardous waste. Local governments have faced costly and 
unwarranted contribution lawsuits from industrial Superfund 
polluters seeking to impose an unfair share of cost on parties 
that contributed no toxic waste to those so-called co-
disposable landfill sites.
    We've estimated that as many as 750 local governments and 
over 250 sites nationwide are affected by this co-disposable 
Superfund issue. In my case, the city of Monterey Park has felt 
the pain of Superfund issue. At the OII, Operating Industries, 
Inc., Superfund site in our city, 29 cities were sued by 
industrial PRPs, who contributed over 200 million gallons of 
hazardous industrial waste to that landfill. The industrial 
PRPs claimed that municipalities should pay 90 percent of the 
estimated $500 million cleanup, despite the fact that 
municipalities contributed only garbage and sewage sludge and 
no hazardous waste.
    More than 15 years later, the cities have spent more than 
$9 million in legal costs and more than $34 million in 
liability costs. The site still sits polluted and undeveloped. 
Local governments that contributed no toxic waste to Superfund 
sites believe the Superfund process can and should be better 
and less costly.
    Early in 1998, with our support, EPA finalized an 
administrative settlement policy to deal with those municipal 
Superfund issues. Policy sets a settlement amount of $5.30 per 
ton for municipal solid waste and sewage sludge for generators 
and transmitters and 20 percent overall site costs for 
municipal owners and operators at co-disposable landfills. 
However, as fair and appropriate as the administrative policy 
has been, we strongly believe that legislative action is needed 
to resolve municipal Superfund liability issue. The EPA policy 
is subject to continuing threats of litigation. Local 
governments have just not made much use of the policy, because 
the status is so uncertain.
    Indeed, just a month ago, a Federal district judge in New 
York ruled that EPA settlement figures should not be applied 
for--in relation to four very small localities involved in the 
Sidney landfill site, but the liability should be determined 
through trial. The estimated total liability of those 
localities is likely to be less than 100,000. The delay in 
transaction costs of rejecting municipal settlement just is not 
fair.
    For these reasons, we support legislative resolution of 
municipal Superfund problem. It is clear that there's broad and 
bipartisan consensus that the numbers set forth in the EPA 
municipal policy are fair, equitable, and workable. We believe 
that the time to enact these into law is now. Specifically, we 
support the liability caps for generators and transporters, the 
$5.30 per ton. We support the set liability caps for local 
government owners and operators of co-disposable landfills, 
based on a percentage apportionment of liability of 20 percent 
or less. We, also, support the provisions that provide for 
expedited settlement procedures and recognition of ability to 
pay factors and protection from contribution suits.
    I wish to conclude with some well-known words that convey 
the need for municipal Superfund legislation and our hope that 
the ability of Congress to move this ahead--these issues ahead 
now. And if I may, too, I sort of brought one of my child's 
books, called the Lorax. And what Dr. Suess sort of said in 
here is, ``Now that you're here, the word of the Lorax seems 
perfectly clear; unless someone like you cares a whole awful 
lot, nothing is going to get better, it's not.``
    We're at that point, now. Local governments across the 
Nation thank you for the opportunity to talk before the 
subcommittee on these important issues. We urge you to resolve 
the municipal Superfund problem this year. I'd be happy to 
answer any questions and, again, thank you, very much, for 
listening to us.
    [The prepared statement of Christopher Jeffers follows:]
   Prepared Statement of Christopher Jeffers, City Manager, City of 
    Monterey Park, California on Behalf of National Association of 
 Counties; National League of Cities; American Communities for Cleanup 
Equity; American Public Works Association; Association of Metropolitan 
 Sewerage Agencies; International City/County Management Association; 
 International Municipal Lawyers Association; National Association of 
   Towns and Townships; and Solid Waste Association of North America
    Chairman Oxley, Congressman Townes, and distinguished members of 
the committee, thank you and good morning. My name is Chris Jeffers. I 
am the City Manager of Monterey Park, California, a city of 65,000 on 
the coast of southern California that has experienced the problems of 
Superfund. I am also the chairman of American Communities for Cleanup 
Equity, or ``ACCE,'' which represents local governments across the 
nation who are dealing with Superfund. I am pleased to be here today to 
testify regarding the needs of local governments for municipal 
Superfund liability relief.
    I am here representing nine national local government organizations 
that have worked together for many years to seek municipal Superfund 
liability relief so that we can resolve our involvement at these toxic 
waste sites, reduce litigation and transaction costs, and get on with 
the business of cleaning up and recycling these blighted sites into 
productive redevelopments in our communities. These organizations 
include the National Association of Counties, the National League of 
Cities, American Communities for Cleanup Equity, the American Public 
Works Association, the Association of Metropolitan Sewerage Agencies, 
the International City/County Management Association, the International 
Municipal Lawyers Association, the National Association of Towns and 
Townships, and the Solid Waste Association of North America. 
Collectively, our organizations represent thousands of cities, towns, 
counties, and local agencies across the United States. We are 
responsible for the health, safety and vitality of our communities and, 
at the same time, for fulfilling the governmental duty to provide for 
municipal garbage and municipal sewage collection and disposal.
    The nation's local governments are calling upon the Congress to 
provide municipal Superfund liability relief now. There has been broad, 
bipartisan, multi-stakeholder consensus on this municipal Superfund 
relief issue for many years. EPA has developed a fair and equitable 
municipal Superfund policy that provides a basis for legislation. The 
Republicans and the Democrats in the Senate Environment and Public 
Works Committee have proposed municipal Superfund legislation. We 
believe that there is widespread, bipartisan agreement here in the 
House on fixing the municipal Superfund problem. We hope that the 
parties will continue to work to get this municipal Superfund issue 
resolved, this year.
    Local governments have a very serious problem. We have been saddled 
with years of delay, and millions of dollars of liability and legal 
costs under the Superfund law because we owned or operated municipal 
landfills or sent municipal solid waste or sewage sludge to landfills 
that also received industrial and hazardous wastes. Local governments 
have faced costly and unwarranted contribution suits from industrial 
Superfund polluters seeking to impose an unfair share of costs on 
parties that contributed only municipal solid waste to these so-called 
``co-disposal landfill'' sites. We estimate that as many as 750 local 
governments at 250 sites nationwide are affected by the co-disposal 
landfill issue. The costs that our citizens bear as a result are unfair 
and unnecessary.
    Local governments are in a unique situation at these co-disposal 
sites. First, municipal solid waste and sewage sludge collection and 
disposal is a governmental duty. It is a public responsibility to our 
communities that we cannot ignore, and we make no profit from it.
    Secondly, the toxicity of municipal solid waste and sewage sludge 
bears virtually no relationship to the toxicity of conventional 
hazardous wastes and, as such, represents only a small portion of the 
cleanup costs at co-disposal landfills. EPA has recognized the 
difference between MSW/MSS and the types of wastes that usually give 
rise to the environmental problems at NPL sites. MSW is defined by EPA 
as ``household waste and solid waste collected from non-residential 
sources that is essentially the same as household waste.'' MSW is 
generally composed of non-hazardous substances, such as yard waste, 
food waste, glass or aluminum, along with small amounts of other types 
of wastes. MSS, which is strictly regulated by Section 503 of the Clean 
Water Act, is any solid, semi-solid or liquid residue removed during 
the treatment of municipal waste water or domestic sewage sludge, but 
does not include sewage sludge containing residue removed during the 
treatment of wastewater from manufacturing or processing operations. 
Although MSW/MSS may contain small concentrations of hazardous 
substances, EPA has found that landfills at which MSW/MSS alone was 
disposed of do not typically pose environmental problems of sufficient 
magnitude to merit designation as NPL sites. With rare exceptions, only 
when other hazardous wastes--such as industrial wastes--are mixed with 
MSW/MSS, will landfills become Superfund sites.
    The City of Monterey Park has experienced many years of costly 
delay at a Superfund co-disposal site in our community. The Operating 
Industries Incorporated, or ``OII'' Superfund site was first listed on 
the National Priorities List in 1984. At this site, 29 cities were sued 
for up to 90 percent of an estimated $500 million in clean up costs at 
the site. In December, 1989 these 29 cities, the County of Los Angeles, 
five county municipal solid waste disposal districts, and the State of 
California Department of Transportation were sued for contribution by 
64 corporate PRPs on the claim that the municipalities were liable for 
the cleanup of the 190 acre site. The evidence in this case indicated 
that the industrial generators dumped more than 200 million gallons of 
liquid industrial hazardous waste on essentially non-hazardous garbage 
from nearby municipalities, and that the garbage absorbed this waste, 
creating a sodden mass of dangerous pollution. In many cases, the 
municipal PRPs had no more direct connection to the garbage disposal at 
the site than to issue business licenses and, in some instances, 
franchises to private haulers, who in turn picked up the trash. 
Claiming that municipal sites are expensive to clean up because of the 
large volumes of municipal garbage, the industries argued that the 
local governments should be made to bear a volumetric share of 
liability for clean up costs, which translated into 90 percent of $500 
million.
    Five cities were eventually dismissed from the suit. Ten cities 
arrived at de minimis settlements with EPA and the industrial waste 
generators, in part to avoid substantial future litigation costs. 
Fourteen other cities fought for several years, because each faced 
enormous liability and could not afford the initial settlement offers. 
For example, the City of Alahambra faced an initial settlement demand 
of $11.6 million. Yet its General Fund budget was only $26 million. 
After several years of hard-fought negotiations, those 14 cities 
settled in 1995. In total, the 24 involved cities assumed a total 
liability of $34 million, and the cities' waste haulers assumed an 
additional liability of $11 million. In the aggregate, the cities paid 
more than $5 million in legal costs for in-house and outside counsel. 
In a number of cities, quality and quantity of municipal services 
suffered because of the large costs associated with the Superfund site.
    Today, the OII site is still not cleaned up. It is still a drain on 
our community. We have not yet been able to redevelop the property as a 
productive part of our tax base and economy.
    I am here today because the organizations I represent believe that 
the process of resolving liability and cleaning up Superfund co-
disposal sites can and should be better for municipalities. We believe 
that legislative enactment of municipal co-disposal Superfund liability 
relief will spare millions of dollars in transaction costs and many 
years of delay for our local communities. That is why we support 
legislative enactment of a Superfund law that will provide a simple, 
expedited, and fair method for resolving local government liability 
associated with these co-disposal Superfund sites.
    Indeed, there is broad consensus that municipalities need and merit 
liability relief. For nearly a decade, our coalition has worked with 
you and other members of Congress, and with the U.S. Environmental 
Protection Agency, to formulate a reasonable solution to the problem. 
In February 1998, with our support, the EPA finalized an administrative 
settlement policy to limit liability under Superfund for generators and 
transporters of municipal solid waste and sewage sludge, and for 
municipal owners and operators of co-disposal landfills. We continue to 
support this reasonable and fair EPA policy.
    However, as fair and appropriate as the administrative policy is, 
we strongly believe that legislative action to resolve the municipal 
Superfund liability issue is necessary and justified. First, the EPA 
policy is only a policy, non-binding on the Agency and subject to 
change or challenge.
    Second, this policy has already been the subject of litigation, and 
the real threat of further litigation involving local governments in 
individual cases remains. Just a month ago, a federal district judge in 
New York rejected the use of the EPA municipal policy to settle the 
liability of four very small towns and villages involved in the Sidney 
Landfill site. The judge ruled that the unit cost for municipal solid 
waste set in the EPA policy should not be applied, but instead should 
be determined at trial. Litigation and the associated transaction costs 
are unnecessary when a fair, conservatively estimated settlement policy 
figure could be applied in a way to quickly resolve municipal 
involvement at these sites. While we will continue to defend the EPA 
policy in court, as we did in federal court in 1998, and to advocate 
its use by our members, we believe a change in the Superfund law to 
address this issue is necessary to reduce the costly litigation and 
delay that municipalities may continue to face at co-disposal sites.
    Third, we believe that legislative enactment of municipal Superfund 
liability provisions will give localities the certainty and confidence 
to make use of this settlement mechanism--much as the codification of 
lender liability Superfund provisions has provided certainty for the 
banking industry.
    For these reasons, we support a legislative resolution of the 
municipal co-disposal liability problem. We believe the numbers used in 
the EPA municipal Superfund settlement policy would accomplish that 
objective. We urge the members of this committee to enact legislation 
that codifies the figures used in the EPA policy, making those figures 
solid and certain for municipalities across the nation that need a 
settlement mechanism that provides more confidence than EPA's policy 
can provide.
    Specifically, we have following comments about the need for 
municipal Superfund liability clarification:

 We support set liability caps for generators and transporters 
        of municipal solid waste and sewage sludge, based on a per ton 
        assessment. We believe that local governments who delivered 
        municipal solid waste or sewage sludge to a landfill in good 
        faith should have the option to settle out their liability at a 
        reasonable and fair rate that is set by legislation. The $5.30 
        per ton assessment in the EPA settlement policy was determined 
        based on an analysis of post-closure costs at RCRA Subtitle D 
        landfills--in other words, the best estimate for what it would 
        have cost the local government to close the facility if the 
        facility were not a Superfund site contaminated with other 
        parties' toxic waste.
 We support set liability caps for local government owners and 
        operators of co-disposal landfills, based on a specified 
        percentage apportionment of liability. We believe that local 
        governments should have the option to settle out their 
        liability for 20 percent or less of the total cost of site 
        cleanup. In addition, the liability share borne by local 
        governments should be aggregated when two or more local 
        governments, who owned or operated the facility either 
        concurrently or sequentially, are identified as potentially 
        responsible parties.
 The Environmental Protection Agency should be required to 
        notify municipalities if they are eligible for the municipal 
        solid waste and sewage sludge settlement mechanisms outlined 
        above. Likewise, we support the approach of providing expedited 
        settlement mechanisms to eligible municipalities. Finally, we 
        support the approach of precluding third-party contribution 
        suits or administrative Superfund orders against eligible 
        municipal parties prior to their opportunity to settle their 
        liability, or after they have settled their liability.
 We believe the ability-to-pay provisions of the law should 
        apply to local government parties utilizing the municipal 
        liability caps.
 We support legislative language that protects from liability 
        those owners and operators of publicly owned treatment works or 
        ``POTWs'' that, at the time of a release or threatened release, 
        were in compliance with their Clean Water Act pretreatment 
        standards under Section 307 and were not otherwise negligent in 
        operating or maintaining their sewer system. Without specific 
        protection from liability, otherwise compliant POTWs can be 
        exposed to Superfund liability from industrial discharges into 
        the public sewer system.
    In summary, the local government organizations on whose behalf I am 
testifying today believe a legislative resolution of municipal co-
disposal Superfund liability is of critical importance. Thank you, Mr. 
Chairman, for the opportunity to testify. I would be happy to answer 
any questions you or other members of the committee might have.

    Mr. Oxley. Thank you, Mr. Jeffers. Mr. Nobis?

  STATEMENT OF MIKE NOBIS, JK CREATIVE PRINTERS, ON BEHALF OF 
          NATIONAL FEDERATION OF INDEPENDENT BUSINESS

    Mr. Nobis. Mr. Chairman and distinguished members of this 
committee, my name is Mike Nobis and I am from Quincy, Illinois 
and I'd like to thank you for allowing me to speak today and 
share my home town's experiences with a landfill that became a 
Superfund site.
    I'm the general manager and part owner of JK Creative 
Printers. My company, which our family has owned for almost 30 
years, employs 43 full-time people. We're proud to be members 
of the National Federation of Independent Business, the NFIB, 
and I am honored today to present this testimony on behalf of 
the NFIB's 600,000 small owner members.
    A few months ago, our town was hurt by a Superfund landfill 
settlement forced onto us by United States EPA. It was a 
terrible situation that was totally unfair and it held 149 
small businesses responsible for the cost of cleaning up a 
portion of a hazardous waste site at our landfill that we were 
not responsible for. The waste that was found to be polluting 
the surrounding area was linked to six large local 
manufacturers; yet, 149 small businesses were forced to pay for 
the cleanup of the site, even though what we put there over 20 
years ago was totally legal and not hazardous.
    For my company, it started in February 1999, when we 
received a letter in the mail from the EPA that stated that the 
six large local corporations and the city of Quincy were 
looking to recover some of their costs for the cleanup of that 
local landfill. And even though the majority of what we had 
hauled there was only trash and legally disposed of at the 
time, the EPA said that because our trash was sent to that 
site, we were potentially responsible for paying our 
proportional share of the cleanup.
    It's important to understand that most of the 149 companies 
forced to pay, they were widows, elderly people, retired small 
one-person waste haulers, and small businesses with less than 
five employees. The financial settlements forced onto us were 
harsh and made it very difficult for some of our businesses to 
continue. I'm confident that Congress did not intend for the 
Superfund law to hurt so many small businesses, but that's 
exactly what's happening at many of our Superfund sites today. 
The small businesses in Quincy are looking to leaders like you 
for help right the wrong on the Superfund law.
    Small business should not have to--small business should 
not have to face the threat of being dragged into Superfund for 
legally throwing away our garbage that was over 20 years ago, 
especially when the trash that is there is not what's driving 
the millions of dollars it cost to cleanup the site. The EPA is 
wasting the money that should be used to cleanup the Superfund 
sites by having its government lawyers track down small 
business owners, forcing us to hire attorneys and wasting more 
money, and then the large companies are paying lawyers to hunt 
down the small business and then forcing them into settlement. 
All of this money should be used to cleanup hazardous waste 
sites, but it isn't. Most of our money paid out in our 
settlements went to the lawyers. Getting small business out of 
Superfund is the right thing to do for fairness and for the 
environment.
    So, in conclusion, I say this: commend this committee for 
looking seriously at this problem and hope that this is going 
to be the year the small business owners will gain freedom from 
this unfair system. Small business needs your help now. Please 
change this law for the benefit of small business owners. 
Please help restore some common sense to the Superfund law. 
Thank you.
    [The prepared statement of Mike Nobis follows:]
Prepared Statement of Mike Nobis, JK Creative Printers on Behalf of the 
              National Federation of Independent Business
    Mr. Chairman and distinguished members of this committee, my name 
is Mike Nobis and I am from Quincy, Illinois. I would like to thank you 
for allowing me to speak to you today and to share my hometown's 
experiences with a landfill that became a Superfund site. I am the 
General Manager and part owner of JK Creative Printers. My company, 
which our family has owned for almost 30 years, employs 43 full time 
people. We are proud to be members of the National Federation of 
Independent Business (NFIB) and are honored to present this testimony 
on behalf of NFIB's 600,000 small business owner members.
    Quincy is a small community of 42,000 people, located on the banks 
of the Mississippi River just 150 miles north of St. Louis, MO. Our 
town is a great place to live and to raise a family. We have enjoyed 
years of good economic growth, good schools, strong community 
involvement and good city leadership. Of all the expectations we have 
for our town, having our local landfill declared a Superfund site was 
not one of them. In 1993, the Mississippi River reached its highest 
flood stages in history prompting our community to rally together and 
beat back the flood and its effects. Now, my community has been forced 
to band together again--to fight the unfairness of a Superfund law that 
is punishing us for legally disposing of our trash. Companies that once 
worked together to save our town from the flood, are now suing each 
other because of this Superfund landfill. Companies who have worked 
together for so many years are now suing one another.
    For my company, it started on February 10, 1999 when we received a 
letter in the mail from the EPA that stated 6 large local corporations 
and the city were looking to recover some of their cost for the cleanup 
of our local landfill. Even though the majority of what we had hauled 
there was only trash and legally disposed of at that time, the EPA said 
that because our trash was sent to that site, we were potentially 
responsible for paying our proportional share of the cleanup.
    When I read the letter, I felt sick. For me and the 148 other 
companies that received the letter, it was unexpected and without 
warning. At first, we had no idea of what the letter was telling us. It 
was asking us, as small companies, to ``contribute'' 3.1 million 
dollars. I laughed at the language they used, contribute. They weren't 
asking us to contribute; they were threatening us to pay. My company's 
designated amount to pay was $42,000, and I consider myself lucky. 
There were several other companies and individuals being asked to pay 
$70,000, $85,000 and some to pay over $100,000. As I read through the 
list, I saw Catholic grade schools, our local university, bowling 
allies, restaurants, small Mom and Pop trash haulers, furniture stores 
and our local McDonald's listed to pay. Most of the companies named 
only generated waste like plain office trash or food scraps. In the mid 
70's, when our company's trash began to be put in the landfill, I was 
in college. One of the owners of another company was only 7 when this 
landfill was in use. Yet we are being held responsible. The document 
made it sound as though we were major hazardous waste dumpers. Yet, 
nowhere in the document did it list what waste we were accused of 
dumping. It only said that our trash was hauled to the landfill during 
the time in question and we now have to help pay for the cleanup, 
regardless of the fact that there was no other place to dump our trash.
    On February 24, 1999, the EPA sent one of their attorneys to Quincy 
to help explain the letter and to answer questions. The meeting lasted 
for over two hours. The EPA attorney tried to answer questions and to 
comment on how the law was being applied. Many people stood up and 
pleaded their situations and how unfair and un-American this whole 
situation was. He admitted to everyone there that the law was probably 
unfair and very harsh. He said it was intended to be harsh, but he 
couldn't do anything about its unfairness. Even though the law seemed 
unfair, he said that it was all he had to work with.
    The EPA and the 6 major PRP's weren't concerned about the waste 
that was sent to the landfill as being hazardous. The make-up of what 
we sent there was irrelevant. It was the volume that we sent to the 
landfill that they cared about, even if the trash was not dangerous. 
They knew many of us didn't send hazardous waste and they knew we 
couldn't afford to fight them. We became an easy money source for them 
because of the real threat of litigation by the major PRP's. And when 
you think about it, what small company can take on 6 large corporations 
and the EPA alone and win? If we didn't accept the settlement offer, 
the major PRP's would sue us for the entire cleanup cost. We were 
stuck. Pay up or be wiped out. The attorney for the EPA admitted that 
it would cost us more to fight them in court to prove we didn't haul 
hazardous waste to the landfill than to just go ahead and settle. It 
all came down to money . . . and they had more than we did.
    Who were the small companies forced to pay this settlement? Most of 
the companies were individual people. Some were independent trash 
haulers; mom and dad hauling to help supplement their income to help 
raise their families. If you talk to them, you will notice they didn't 
make much money hauling trash. Others were small building contractors. 
Some are people in their retirement years. Some are widows whose 
husbands have passed away and they now have this settlement to deal 
with. Some are sons whose fathers once owned the business and now, 
years later, they have inherited the problem. We have business owners 
who bought businesses a few years ago who had nothing to do with this 
landfill, yet are being forced to pay up because they now own the 
assets and are the present money source. If they could have known this 
liability was going to be theirs in the future, they never would have 
bought the business. Mothers and fathers would have been reluctant to 
pass a family business--and its liability--to the next generation. We 
have some men in their late 70's and early 80's that could lose their 
life's savings when they should be enjoying their retirement years. 
They are spending their time and money paying the EPA for something 
they did 25 years ago that was legal. Are these the people Superfund 
was designed to collect from or has something gone wrong? It is 
needless business pressures like this that destroy small businesses and 
cause undue pain and hardship. Victimizing small businesses is not 
going to help speed the cleanup of Superfund sites.
    Most of the cost contributed by our companies to this site didn't 
clean one ounce of the landfill. The money went to attorneys. Of all 
the money spent, the attorneys received the most. Consider how much the 
EPA and the major PRP's paid attorneys in order to obtain a settlement 
with the 149 small companies. The EPA itself admits that a major 
portion of the money in the Superfund is spent on litigation, not 
cleaning up the hazardous sites. In a 60 Minute documentary on the 
Superfund problems in Gettysburg, PA, Mike Wallace from CBS reported 
that \2/3\ of the money from the Superfund is spent on litigation, not 
on clean-up costs. The estimate for the legal help that some of us 
received in Quincy (not including the settlement amounts) is close to 
$200,000. This is hard stuff. And for what? Who wins? The attorneys are 
the winners. It has been reported in our local newspaper that the EPA 
and the major PRP's are now suing many of those companies who didn't 
settle, resulting in more business for the attorneys. As I understand 
it, these companies will be allowed in later months to bring third 
party lawsuits. Where will it end? I do not think this law's intent is 
to place hardships on small business when the ultimate winners are the 
attorneys, not the environment.
    Today our country's leaders need to look again at the intent of 
this law called Superfund. I don't believe you intended for it to 
burden or destroy individuals and small businesses in order to clean up 
hazardous sites. We have a chance to help small businesses get out from 
under this problem by supporting the small business liability relief 
language in HR 1300, ``The Recycle America's Land Act,'' and HR 2247, 
``The Small Business Superfund Fairness Act of 1999,'' introduced by my 
friend, Representative John Shimkus who has helped all of us in Quincy 
get through this painful situation. A copy of the letter that I sent to 
Chairman Boehlert is attached to my testimony.
    I commend this Committee for looking seriously at this problem, and 
hope that this is the year small business owners will gain freedom from 
this unfair system. Small businesses need your help now. Please change 
this law for the benefit of small business owners and help restore some 
common sense to the Superfund law.

    Mr. Oxley. Thank you, Mr. Nobis. Mr. Johnson?

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

    Mr. Johnson. My name is Gordon Johnson. I'm the Deputy 
Bureau Chief of the Environmental Protection Bureau in the 
Office of New York Attorney General Eliot Spitzer. I'm 
appearing today on behalf of Attorney General Spitzer and on 
behalf of the National Association of Attorney's General. We 
very much appreciate the opportunity to appear before the 
committee and thank the committee and its members and staff for 
their consideration and assistance. The Association has been 
deeply involved in Superfund reauthorization for many years. At 
its summer meeting in 1997, the sole resolution adopted by NAAG 
addressed Superfund reauthorization. A copy is submitted with 
our written statement.
    While the State agencies that administer the cleanup 
programs are very knowledgeable about the engineering issues 
involved in the remedial process, it's the State Attorney's 
General, who can best evaluate the legal consequences of 
changes in the current statutory scheme, as how amendments are 
likely to be interpreted by the courts and their effect on 
enforcement, settlement, and cleanup. We're pleased to be able 
to bring this knowledge to the committee.
    Although there were significant problems in the Federal 
implementation of CERCLA during the 1980's, the current statute 
is now getting the job done. In New York, because of the powers 
provided in CERCLA, the State has obtained cleanups at over 600 
hazardous waste sites in New York. Responsible parties have 
contributed more than $2 billion to site cleanups and two-
thirds of the sites are being cleaned up by private parties. 
Most States have had similar results.
    On a Federal level, some $15 billion of public money have 
been saved, because 70 percent of remedial actions at Federal 
Superfund sites are being performed by responsible parties. A 
major reason for this success is the cleanup liability under 
CERCLA is now clearly understood. Most PRPs understand the 
statute and are now ready to settle their liability with 
government and perform cleanups. EPAs practices have also 
evolved, resulting in earlier settlements and quicker 
implementation of remedial decisions. State Superfund programs 
have matured, many of which are modeled on the Federal program 
and use the Federal statute to get appropriate cleanups at 
minimal taxpayer expense.
    The message to us is clear. We must avoid changes in CERCLA 
that will reignite courtroom battles over the meaning, scope, 
and implementations of the law. At the same time, we must not 
lose sight of our primary goal, clean up of sites and 
protection of the public and future generations. We are pleased 
the H.R. 1300, as reported for the Committee on Transportation, 
modified the bill as introduced and is beginning to reflect our 
conclusions on the direction for reauthorization. The bill 
contains one revision we've sought for use, the cap at 10 
percent for the State share of remedy operation and maintenance 
costs. H.R. 1300, as reported, is also more selective than its 
amendments. It doesn't amend the natural resource damage 
provision to CERCLA and some of the more extensive and we 
believe unnecessary and counterproductive amendments to remedy 
selection provisions and the portions of the liability 
provisions have now been removed. As a result, the defense bar 
will have fewer opportunities for legal challenges than under 
earlier bills.
    Unfortunately, other needed revisions we have been seeking 
for many years are still absent. One, we need clarification of 
the sovereign immunity waiver regarding Federal facilities and 
delegation to the States of EPA's authority over Federal 
facilities in appropriate situations. Two, the statute should 
make clear that remedies selected by States are reviewed on the 
administrative record. And three, States should be protected 
from counterclaims asserting liability on the basis of their 
ownership as sovereigns of stream beds, rivers, and other 
natural resources. One provision that was in H.R. 13, as 
introduced, was removed when it was reported out and we ask 
that it be restored. That was the portion authorizing the Fund 
to pay State natural resource trustees assessment costs.
    There are still serious problems with H.R. 1300's revisions 
to liability and allocation provisions of CERCLA. While NAAG 
supports limited exemptions from liability for truly micromus 
parties and a reasonable limitation on the liability of 
municipal solid waste disposal, many of the provisions of H.R. 
1300 now go too far. Cleanups need to comply with the relevant 
and appropriate State standards. The proposed mandatory 
allocation process is unwise and rather than making settlements 
easier and quicker, will complicate and delay settlements and 
cleanups. Cleanups should come first, not arguments. We go into 
greater detail in our written testimony.
    Thank you, for your attention.
    [The prepared statement of Gordon J. Johnson follow:]
 Prepared Statement of Gordon J. Johnson, Assistant Attorney General, 
                           State of New York
    My name is Gordon J. Johnson, and I am a Deputy Bureau Chief of the 
Environmental Protection Bureau in the office of New York Attorney 
General Eliot Spitzer. I am appearing today on behalf of Attorney 
General Spitzer and on behalf of the National Association of Attorneys 
General (NAAG). We very much appreciate the opportunity to appear 
before the Committee to comment on H.R. 1300, as reported out on August 
3, 1999, by the Committee on Transportation and Infrastructure 
(hereafter referred to as ``H.R. 1300, as reported'' or ``August 
amendment''), and section 9, regarding remedy selection, of H.R. 2580.
    The State Attorneys General have a major interest in Superfund 
reauthorization legislation. As chief legal officers of our respective 
states, we enforce state and federal laws in our states. We help 
protect the health and welfare of our citizens, our environment and 
natural resources. Because many steps in the Superfund cleanup process 
necessarily involve legal issues, we often are called upon to advise 
our client agencies--both response agencies and natural resource 
trustee agencies--on how the law should be interpreted and implemented 
to achieve the desired cleanup or restoration goals. We often are also 
responsible for negotiating cleanup and natural resource damages 
settlements, and when a settlement cannot be reached, it is our 
responsibility to commence and litigate an enforcement action. We also 
defend state agencies and authorities when Superfund claims are made by 
the United States Environmental Protection Agency (EPA) and other 
federal agencies against them.
    NAAG also has been deeply involved in the Superfund reauthorization 
process for many years. At its Summer meeting on June 22-26, 1997, the 
sole resolution adopted by the state Attorneys General addressed 
Superfund Reauthorization; a copy of this bipartisan Resolution is 
attached. The Resolution directly addresses many of the issues that are 
the subject of this hearing. The NAAG Resolution arose from the State 
Attorneys General's recognition of the critical importance of the 
Superfund program in assuring protection of public health and the 
environment from releases of hazardous substances at thousands of sites 
across the country. We want to make the tasks of cleanup and protecting 
the public less complicated and more efficient, and to reduce the 
amount of litigation and the attendant costs that result.
    While the state agencies that administer cleanup programs are very 
knowledgeable about the engineering issues involved in selecting 
remedies and the cleanup process, it is the state Attorneys General who 
can best evaluate the legal consequences of changes to the current 
statutory scheme, such as how amendments likely will be interpreted by 
the courts and the effect of the amendments on enforcement, settlement, 
and cleanup. We are pleased that we will be able to bring to this 
Committee our insights and experience in administering the Superfund 
statute.
                              introduction
    In New York, our office has been litigating Superfund cases since 
1981. A major impetus for the passage of the Comprehensive 
Environmental Response, Compensation and Liability Act of 1980 (CERCLA) 
was the chemical dumps exemplified by the infamous Love Canal and 
related Hooker Chemical Company sites in Niagara Falls, New York. 
CERCLA provided both the federal and state governments essential legal 
tools to address the dangers posed by those and thousands of other 
sites in New York and throughout the country.
    Although there were significant problems in the federal 
implementation of CERCLA during the 1980's, the current statute is now 
getting the job done as intended. As a result of CERCLA, our office and 
the State's Department of Environmental Conservation have been able to 
obtain cleanups at over 600 hazardous waste sites in New York. While 
state voters in New York approved bonding for and New York committed 
$1.1 billion for site cleanups, because of the powers provided in 
CERCLA, responsible parties have contributed more than $2.35 billion 
toward site remediation and two-thirds of sites are being cleaned by 
the private parties responsible for their creation. Most states have 
had similar results. On the federal level, some $10 billion of public 
money has been saved because 70% of all remedial actions at federal 
Superfund sites are being performed by responsible parties.
    A major reason for this success is that cleanup liability under 
CERCLA is now clearly understood by responsible parties and government. 
It was not always this way. In the 1980's, the meaning of numerous 
terms, the reach of the liability provisions, and the application of 
the remedy selection provisions were the subjects of contentious 
litigation. These lawsuits caused delays in cleanups, imposed 
substantial burdens placed on federal and state programs, and increased 
everyone's transaction and cleanup costs. Those days are now over: 
potentially responsible parties (PRPs) now know what the statute means 
and where they stand, and thus most are ready to settle their liability 
with the government. EPA's practices also have evolved, and it knows 
what it can require of PRPs. Moreover, EPA has developed practices that 
lead to earlier settlements and the quicker implementation of remedial 
decisions. Finally, the states' own Superfund programs have matured. 
Many of them are modeled on or mainly utilize the federal statute. 
State officials too understand what CERCLA means and how to use it, and 
can obtain appropriate cleanups at minimal taxpayer expense.
    The message is clear: we must avoid changes to CERCLA that will 
reignite the courtroom battles over the meaning, scope, and 
implications of the law. At the same time, we must not lose sight of 
our primary goal--cleanup of sites and protection of the public and 
future generations. We have no desire to replay the 1980's, even though 
we were generally successful in the courtrooms.
                  title i. brownfields revitalization
    As stated in the NAAG Resolution, the Attorneys General support the 
strengthening of state voluntary cleanup and brownfields redevelopment 
programs by providing technical and financial assistance to those 
programs, and by giving appropriate legal finality to cleanup decisions 
of qualified state voluntary cleanup programs and brownfield 
redevelopment programs. Therefore, we strongly support the provision in 
H.R. 1300, as reported, for assessment grants, remediation grants and 
technical and financial assistance to state voluntary cleanup programs. 
Federal statutory provisions should be flexible enough to accommodate 
different state voluntary cleanup laws. States should be able to self-
certify, subject to EPA's approval. After such approval, the state 
should be authorized to issue a release from federal liability when a 
volunteer complies with a federally-approved state brownfields program. 
In this fashion state brownfields and voluntary cleanup programs can 
work to their fullest potential.
    However, there are a number of provisions in H.R. 1300 which do not 
strengthen these state programs. For example, under the provisions of 
Sec. 104 of H.R. 1300, as reported, a PRP can largely shield any site 
against federal enforcement or cost recovery action just by commencing 
a response action in compliance with ``a State law that specifically 
governs response actions for the protection of public health and the 
environment.'' That clause is ill-defined, and could be construed 
easily beyond a typical brownfields redevelopment statute. Nor is there 
any requirement that the response action necessarily result in cleanups 
protective of the public health or environment. In contrast, we note 
that one criterion for grants under Title I is the ``ability of the 
eligible entity to ensure that a remedial action funded by the grant 
will be conducted under the authority of a State cleanup program that 
ensures that the remedial action is protective of human heath and the 
environment.'' (Emphasis supplied) We are concerned that the vague 
language in Sec. 104 of H.R. 1300, as reported, which varies from the 
language governing grants, may leave the public unprotected.
    In addition, there is no requirement for public participation in 
the state cleanup programs that can shield a PRP from liability. New 
York believes that public participation in the investigation, remedy 
selection, and cleanup of hazardous substance sites is a bedrock of 
CERCLA. H.R. 1300, as reported, undermines that bedrock.
           title ii. community participation and human health
    We support the public participation provisions of Title II which 
provide affected communities, local governments and the states further 
information, public meetings and the right to comment on various steps 
in CERCLA response actions. We also support the ``Technical Assistance 
Grants'' amendments, especially those making it easier for citizens to 
participate in the often complicated processes involving CERCLA 
cleanups.
    We are also pleased that the August amendment to H.R. 1300, as 
introduced, removed provisions in Sec. 202 directing the President to 
provide the public with what often can be confusing and misleading risk 
comparisons. However, it is important that a new provision requiring 
disclosure of information concerning releases before and during a 
removal action not cause delays in the initiation and completion of 
removal actions, particularly in emergency situations. As currently 
drafted, the language of proposed Sec. 117(b)(2)(i) regarding removal 
actions is confusing with respect to when information must be 
disclosed. We suggest that the provision be rewritten to excuse the 
disclosure of information before and during the removal action when its 
disclosure would delay the removal action or imperil public health or 
the environment, and in such circumstances the information be made 
available as soon as practicable after the initiation of the removal 
action.
                      title iii. liability reform
    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. They provide strong 
incentives for early cleanup settlements, and promote pollution 
prevention, improved management of hazardous wastes, and voluntary 
cleanups incident to property transfer and redevelopment. 
Unfortunately, H.R. 1300, as reported, still would make substantial and 
problematic changes to those core provisions. These changes will 
trigger another decade of litigation, with the attendant drain of 
government resources, escalation of private transaction costs, and 
delays in cleanup.
A. GENERAL PROVISIONS
1. Amendments to Section 106--Sufficient Cause
    Section 301(a) of H.R. 1300, as reported, provides that a liable 
party must comply with an administrative order even if another party is 
complying with the same or a similar order. This provision allows EPA 
to issue ``participation and cooperation'' orders. EPA currently uses 
such orders to require additional liable parties to contribute to a 
cleanup that is already underway. However, at least one court has ruled 
that such orders are unlawful after EPA has already obtained ``complete 
relief'' from other parties. United States v. Occidental Chem. Corp., 
29 Envtl. L. Rep. (ELI) 20,276 (M.D. Pa. 1998), appeal argued July 27, 
1999, No. 99-3084 (3d Cir. 1999).
    The proposed amendment in Sec. 301(a) would allow EPA to issue 
``participation and cooperation'' orders, effectively overruling the 
contrary case law. Such orders increase the fairness of the CERCLA 
liability scheme by helping ensure that all liable parties contribute 
to the cleanup. The Attorneys General therefore support this provision.
    The August amendment removed a provision formerly set out at 
Sec. 301(a) of H.R. 1300, as introduced, that would have placed 
inappropriate limitations on the issuance of administrative orders 
under section 106. However, a related provision that would have the 
same practical effect--Sec. 301(a)(4) of H.R. 1300, as reported, adding 
a new Sec. 106(b)(1)(B)--remains. This provision effectively prohibits 
enforcement of a Sec. 106 order pursuant to both Sec. Sec. 106(b)(1) 
and 107(c)(3) of CERCLA against any parties not liable for response 
costs under Sec. 107.
    Administrative orders under Sec. 106 are a very important tool that 
EPA has to compel cleanup actions and to protect public health and the 
environment. Sometimes, albeit infrequently, it becomes necessary to 
order a party not liable under Sec. 107 to take actions necessary to a 
cleanup. For instance, the South Valley Superfund site in Albuquerque, 
New Mexico, encompasses several square miles of industrial facilities 
in the Rio Grande valley which produced a number of distinct plumes of 
contamination in the aquifer that supplies the City of Albuquerque with 
its drinking water. Several municipal wells have been taken out of 
service because of the contamination. In 1990, EPA entered into a 
consent decree with Univar Corporation to clean up a plume of 
chlorinated solvents from Univar's Edmunds Street facility using 
extraction wells. After Univar Corporation constructed and began 
operating a system, the extraction wells began drawing a nearby plume 
of petroleum contamination towards the Univar system. Had the petroleum 
compounds entered the system, they would have ruined the Univar 
treatment system. Under the petroleum exclusion in Sec. 101(14) of 
CERCLA, the parties responsible for the petroleum plume were not liable 
under Sec. 107(a). Nevertheless, on February 8, 1991, EPA issued a 
unilateral administrative order (Docket No. CERCLA-VI-14-91) under 
Sec. 106 of CERCLA against the parties responsible for the petroleum 
plume, ordering them to take all necessary action to prevent the 
petroleum compounds from interfering with the Univar remedial action. 
The parties responsible for the petroleum plume, although not liable 
under CERCLA, complied with the Sec. 106 order. Under the bill's 
limitations on Sec. 106 orders, such an order could not be enforced 
because the good faith belief in the absence of liability would become 
a defense to the enforcement of such an order.
    We note that Sec. 106(b)(2) of CERCLA already provides that a 
person who complies with a Sec. 106 order but is not liable under 
Sec. 107 is entitled to reimbursement of its reasonable costs in 
complying with the order. It is important that, at a minimum, EPA be 
able to enforce a Sec. 106 order pursuant to Sec. 106(b)(1) of CERCLA 
under these and similar circumstances. Implementation of an order 
predicated on the existence of an imminent and substantial endangerment 
to public health, welfare, or the environment should not be stymied so 
parties can litigate their good faith belief or their ultimate CERCLA 
liability. To the extent that the federal government's current 
enforcement powers at hazardous substance sites are significantly 
curtailed, the states often are left with the costs of remediating and 
taking enforcement action at such sites, and the states do not have the 
resources to do so. We have seen no indication that EPA has abused the 
authority to issue such orders, and see no reason to limit that 
authority.
B. EXEMPTIONS AND LIMITATIONS TO LIABILITY
    NAAG is pleased that the August amendment removed proposed changes 
to Sec. 107(a) liability provisions of CERCLA. This deletion will save 
all interested parties substantial transaction costs and resources. 
Other problems remain, however.
1. Owners/Operators
    Section Sec. 302 of H.R. 1300, as reported, would make substantial 
modifications to the scope of defenses available to current owners 
under Sec. 107 of CERCLA. The existing ``innocent purchaser'' 
protections, created through the definition of ``contractual 
relationship'' in Sec. 101(35) of CERCLA, apply only to owners, while 
H.R. 1300, as reported, extends these protections to owners and 
operators.
    Under current law, the definition of ``contractual relationship'' 
implicates current owners if they are related to a PRP through the 
chain of title. In H.R. 1300, as reported, there is no definition for 
``contractual relationship,'' and, under new Sec. 107(b)(5), a current 
owner who is linked only by a chain of title is not liable.
    Under existing law, current owners can escape liability by proving 
they are ``innocent'' purchasers, i.e., they did not know or have 
reason to know that the property was contaminated before they bought it 
and complied with the ``due diligence'' requirements. Under H.R. 1300, 
as reported, a current owner which knew before purchase that the 
property was contaminated will escape all liability, even if the owner 
paid a reduced price for the land because of the contamination. 
Moreover, H.R. 1300, as reported, adds further protection for owners 
which acquired a facility after March 25, 1999, exempting such owners 
from any liability so long as they developed the commercial or 
industrial facility under certain federal, state or local redevelopment 
programs, even if such owners acquired the property fully knowing it 
was contaminated. What constitutes an applicable redevelopment program 
remains unaddressed, leaving a substantial hole for any current owner 
to bury its liability for cleaning up a hazardous substance site. 
Unless narrowed, this shifts to the taxpayers the costs and burdens of 
cleanup, thereby improving properties owned by knowing purchasers at 
governmental expense.
    Under H.R. 1300, as reported, current owners and operators are 
further insulated from any liability because of the new, substantially 
relaxed standard of ``appropriate care.'' For instance, as long as the 
government is conducting any ``response action,'' such as a Preliminary 
Site Assessment, the owner/operator can avoid any liability by simply 
letting the government onto the property and getting out of the way, 
which conduct would constitute ``appropriate care'' under H.R. 1300, as 
reported.
    The effect of all these protections for current owners/operators is 
to obliterate the current owner/operator category from CERCLA 
liability. This is contrary to one of the important tenets of the 
CERCLA liability scheme. In addressing an owner's liability, CERCLA was 
intended not only to hold responsible those whose activities created 
the contamination, but ``to provide incentives for private parties to 
investigate potential sources of contamination and to initiate 
remediation efforts.'' Foster v. United States, 922 F. Supp. 642, 656 
(D.D.C. 1996). Moreover, CERCLA's provision for current owners is 
modeled after common law tort liability rules that seek to address the 
social cost of hazardous waste contamination by controlling the 
behavior of landowners and other relevant actors. Indeed, landowners 
have long had a duty under common law to maintain their properties free 
of nuisances, such as chemical contamination, and upon learning of a 
nuisance are required to abate it even when they did not create the 
nuisance themselves. See, e.g., RESTATEMENT (SECOND) OF TORTS 
Sec. Sec. 351 et seq. and Sec. Sec. 822 et seq.; State of New York v. 
Shore Realty, 759 F.2d 1032, 1050-52 (2d Cir. 1985).
    For the reasons stated, we oppose these amendments.
2. Governmental Entities, Contiguous Property Owners and Others
    We support the intent of the changes to the long-standing 
``Innocent Governmental Entities'' exception to liability under new 
Sec. 107(b)(2)(D), Sec. 302(b)(1) of H.R. 1300, as reported, although 
it is drafted too narrowly to address current abuses where, for 
example, states are subject to counterclaims based on sovereign 
interests in groundwater, stream and river beds and banks. Also, the 
provision addressing Governmental Entities in H.R. 1300, as reported--
proposed Sec. 107(b)(2)(D)--was slightly changed from the similar 
provision in H.R. 1300, as introduced, resulting in a distortion of the 
meaning of the provision. We urge the Committee to return to the 
previous language. We also support the relief for ``Contiguous Property 
Owners'' amending Sec. 101(20) of CERCLA, Sec. 302(c) of H.R. 1300, as 
reported.
3. Livestock Treatment
    Section 304 of H.R. 1300, as reported, would amend Sec. 107(i) of 
CERCLA to expand the exemption for pesticide application to cover any 
release of a hazardous substance ``resulting from'' the application of 
a pesticide for the treatment of livestock.
    We believe this provision is overly broad. Pesticides are typically 
applied to livestock in large ``dipping'' vats; the vats are filled 
with water, pesticides, and solvents, and livestock are herded into the 
vats, one at a time, for treatment. Eventually the dipping solution 
becomes dirty or ``spent,'' and is replaced with fresh solution. The 
spent solution, which often contains highly toxic pesticides, must be 
disposed of, usually off-site. Under the bill's exemption, past 
disposal of such pesticide solution, unless shown to be contrary to 
law, would be exempted from CERCLA liability.
    Our concern is not a theoretical one. For example, the Oklahoma 
National Stock Yards Company arranged for the disposal of some 211,900 
gallons of cattle dipping waste at the Royal Hardage site in Criner, 
Oklahoma. Included in that waste was approximately 2,000 gallons of 
toxaphene, a highly toxic pesticide which is listed as an acutely 
hazardous waste under RCRA, 40 C.F.R. Sec. 261.33(e). Pursuant to a 
court order, the Stock Yards Company is currently helping pay for the 
clean up of the Hardage site. If this ``livestock treatment'' exemption 
were to be enacted in its current form, the Stock Yards Company's 
liability would be eliminated.
4. Small Businesses Exemption
    Section 107 of CERCLA would be amended by Sec. 305 of H.R. 1300 to 
include a new subsection (o), limiting liability at NPL sites for small 
businesses which are generators or transporters. ``Small'' is a 
business that had no more than 75 full-time employees, or equivalent, 
on the average, and had $3 million or less in ``gross revenues'' over 
the previous three years preceding the date of notification by the 
President that the entity is a PRP. If the company qualifies, it 
escapes liability for costs or damages, unless its hazardous substances 
contribute significantly to the costs of the response action.
    We oppose the proposed exemption in H.R. 1300 since the exemption 
is based on the status of the PRP and applies no matter what volume of 
waste was disposed. The exemption would eliminate many PRPs, especially 
at municipal-owned, co-disposal facilities, and the Fund and the states 
would have to make up for this share of liability. The states do not 
have the resources to absorb these shares. Also, experience shows us 
that it is often smaller companies that pay less attention to their 
environmental responsibilities than larger companies.
    As noted, H.R. 1300, as reported, provides that the exemption 
applies to such small businesses unless its hazardous substances 
contribute significantly to the costs of the response action. 
Introducing this new standard into CERCLA litigation would undermine 
the critically important strict liability provisions of existing law, 
increase litigation and all its attendant transaction costs, and 
undermine recovery of the public funds at CERCLA sites.
5. MSW Exemption
    Section 107 of CERCLA would be amended by Sec. 305 to include a new 
subsection (p), providing a liability exemption for generators and 
transporters of municipal solid waste (``MSW'') and municipal sewage 
sludge (``sludge'') at NPL sites, unless, in the case only of 
transporters, the transporter's wastes contribute significantly to the 
costs of the response action and the transporter is in the business of 
transporting waste. Even such transporters, which disposed of waste 
that significantly contributed to the cost, are provided further 
protection, as the liability at an NPL site for all MSW generators and 
transporters who are not exempt would be capped at ten percent.
    Under H.R. 1300, as reported, MSW includes all waste generated by 
households, hotels and motels, and by commercial, institutional and 
industrial sources to the extent (i) such materials are essentially the 
same as household waste, or (ii) the material is waste that is 
collected with MSW and contains hazardous substances that would qualify 
for de micromis exemption under Sec. 107(r). [110 gals. or 200 lbs.]. 
The term includes food, yard waste, paper, clothing, appliances, 
consumer product packaging, disposal diapers, office supplies, 
cosmetics, glass and metal food containers, wooden pallets, cardboard, 
grade and high school lab waste, and household hazardous waste 
(``HHW''). Exemption from liability is also provided for certain 
residential property owners and lessees, small businesses, and 
charitable organizations.
    NAAG supports reasonable limitations on liability for disposal of 
municipal solid waste. Unfortunately, the limitations provided under 
Sec. 107(p) of H.R. 1300, as reported, are much too broad. A 
substantial portion of PRPs would be relieved of liability if these 
changes were adopted because the exemption applies to not just 
households, but a wide, almost all-inclusive group of business, 
commercial, institutional and industrial sources. For instance, at a 
number of hazardous waste sites, cosmetic manufacturers have disposed 
of sometimes substantial quantities of their waste containing a variety 
of hazardous substances, e.g., acetone. Under H.R. 1300, as reported, 
such PRPs would escape liability because their wastes, at least 
arguably, are ``essentially the same'' as waste materials normally 
generated by households, i.e., cosmetics thrown away by households. Or, 
as another example, at municipal-owned co-disposal facilities, it is 
common to have a large volume of MSW and then a small volume of waste 
from commercial and industrial sources which is highly toxic. Many 
commercial, institutional and industrial facilities have used solvents 
in large quantities, and those wastes were often disposed in landfills 
over the years. PRPs could argue that their solvents are ``essentially 
the same as'' solvents used in households and, therefore, exempt.
    The exemption applies regardless of the volume of the MSW waste as 
long as the waste is essentially the same as household waste. While 
NAAG historically has supported liability reforms for small MSW 
generators, such broad-based exemptions, which would apply to major 
waste handling companies, go too far.
6. Municipal Owners/Operators
    Section 107 of CERCLA would be amended by Sec. 5 to include a new 
subsection (q), limiting liability for municipal owners/operators at 
NPL sites. With respect to facilities that are not subject to RCRA 
subtitle D criteria and proposed for listing before March 25, 1999, 
small municipalities (less than 100,000 in 1990 census) have an 
aggregate liability for response costs incurred after March 25, 1999, 
of the lesser of (i) 10% of total response costs at the facility, or 
(ii) the costs of compliance with subtitle D, if the facility continued 
to accept MSW through January 1, 1997. Large municipalities (100,000 or 
more), under the same conditions, are limited to 20% or costs of 
subtitle D, whichever is less.
    NAAG supports provisions that recognize the burden on local 
governments. However, it must be noted that to the extent that the 
other exemptions are applicable, and the exempt and limited liability 
parties avoid sharing in the costs of cleaning up these toxic waste 
sites, that burden will fall on municipalities and the states, even 
with the proposed limitations, should the Fund no longer be adequate to 
pay for cleanups because of its assumption of the costs of the new 
exemptions for generators of wastes. And the burden also will fall on 
the states which will be responsible for a portion of the operation and 
maintenance costs otherwise assumed by the Fund.
7. ``De micromis'' parties.
    NAAG supports reasonable liability exemptions for truly ``de 
micromis'' parties. However, it is important that these provisions be 
narrowly and carefully written to avoid inappropriate releases from 
liability. We note that CERCLA always allowed EPA to settle matters 
quickly and in recent years EPA has been aggressively entering into 
such settlements without any changes in the law.
    Section 305(c) of H.R. 1300, as reported, adds a proposed 
Sec. 107(r) which would exempt from liability ``de micromis'' parties 
that sent less than 110 gallons or 200 pounds of material containing 
hazardous substances to a NPL site. We support an exemption for truly 
de micromis parties, such as Elk Clubs, pizza parlors, and Girl Scout 
troops, that sent minimal amounts of low-concentration and low-toxicity 
mixtures to a site. However, depending on site-specific circumstances 
and the type of hazardous substances involved, 200 pounds of solid 
material or 110 gallons of liquid (which is more mobile than a solid 
material and will usually have a weight of approximately 880 pounds--
four times the weight exemption for solid materials) can constitute a 
substantial contribution to a release. For instance, 110 gallons of a 
spent solvent, such as trichloroethylene, could contaminate 10 billion 
gallons of drinking water to levels twice the drinking water standard 
for the solvent. We believe exempting such a party statutorily and 
presumptively would be unfair and inappropriate, particularly without 
full consideration of concentration or toxicity, and would lead to 
extensive litigation by parties near the specified weight or gallonage.
    While H.R. 1300, as reported, voids this liability exception when 
the President determines that the material ``has contributed, or 
contributes, significantly to the costs of response,'' the unfairness 
of an exception to liability that ignores concentration of a chemical 
and contains an exceedingly more favorable treatment of liquid wastes 
remains.
8. Response Action Contractors
    In Sec. 307 of H.R. 1300, as reported, the bill would limit the 
liability of response action contractors. We oppose these limitations. 
First, there is no evidence that contractors are reluctant to perform 
cleanup activities under current law, and therefore there is no 
compelling reason to radically rewrite the current law. Second, the 
bill supersedes existing limitations of actions that run from the time 
that an injury is discovered, and replaces it with a six year period 
that is triggered by completion of the work. Thus, the bill carves out 
a radical and unfair new exemption for these parties, and deprives 
potential victims of rightful compensation where, due to a latency 
period that is often associated with exposure to hazardous substances, 
or for other reasons, the injury is not discovered within the six year 
time frame. Because the amendment is not necessary, unfair, and 
preempts state law unless a state has specifically legislated the 
liability of response action contractors' liability, we oppose it.
9. Recyclers
    Under the new Sec. 130 added by Sec. 309 of H.R. 1300, as reported, 
there is no liability at any site for a person who arranges for the 
recycling of recyclable material. ``Recyclable material'' is defined to 
include (1) paper, plastic, glass, textiles, rubber (now including 
whole tires) and metal (now including certain copper and copper alloy 
operations byproducts), as well as minor amounts of material incident 
to or adhering to such scrap; (2) spent batteries; and, (3) used oil. 
Special rules are then provided for transactions involving these 
different kinds of recyclable materials. Section 130 of the bill is 
encaptioned a ``clarification of liability.'' It is not a 
clarification, but is rather a substantive change in the law.
    Preliminarily, it is unclear whether H.R. 1300, as reported, 
intends that this change in law be retroactive. While Sec. 305(e), 
which adds proposed Sec. 107(u), provides that the new limitations and 
exemptions for small businesses, municipal sold waste and sewage 
sludge, municipal owners and operators, and de micromis generators and 
transporters shall have not affect settlements and judgements approved 
by a court or any administrative action that has become effective not 
later than thirty days after enactment, the bill is silent on the 
recycling exemption. It would not be appropriate to reopen past 
settlements and judgments that parties entered into in good faith, 
particularly because that would require a wholesale shift and 
reallocation of costs among parties. We urge the Committee to avoid 
this possibility by amending proposed Sec. 107(u) to include recyclers.
    While we agree that recycling activities should be encouraged, we 
are nevertheless troubled by this exemption because it is too broad. 
For instance, the exemption is particularly inappropriate as it applies 
to spent lead-acid batteries. Such batteries contain large quantities 
of lead, an especially toxic substance. Much of the lead in these 
batteries is in the form of lead oxide and lead sulfate, compounds that 
are relatively mobile and bioavailable in the environment. Moreover, 
the sulfuric acid in these batteries (which has a pH approaching 0) 
greatly enhances the solubility and mobility of these metals.
     The secondary lead smelter industry has repeatedly argued that the 
RCRA regulations--under either federal or state authority--do not apply 
to spent batteries. These batteries, the industry argues, are raw 
material; they are not discarded, and thus not solid wastes and not 
subject to regulation under RCRA. See United States v. ILCO, Inc., 996 
F.2d 1126 (11th Cir. 1993). The lead components of spent lead-acid 
batteries would also fall within the definition of ``scrap metal.'' The 
limitations on the exemption for scrap metal are significantly less 
stringent than the limitations on the exemption for spent batteries. As 
the exemptions are currently drafted, a person recycling the lead from 
spent lead-acid batteries could take advantage of the less stringent 
limitation for scrap metal. At a minimum, these problems need to be 
addressed.
    In addition, used oil is included as a recyclable material, yet 
used oil often contains hazardous substances. The disposal of such 
material has created many hazardous waste sites subject to CERCLA 
enforcement action in the past, and was an activity often conducted by 
parties not particularly attentive to environmental concerns. The 
inclusion of waste oil, particularly waste oil intended to be burned, 
in the exemption from liability is unwise.
10. Oversight Costs
    Section 305(e) of H.R. 1300, as reported, would add an additional 
limitation of liability directly affecting every state: a cap on 
recoverable oversight costs incurred by any government at 10% of the 
costs of the response action. This cap is unfair, for the cost of 
appropriate oversight often does not bear a direct relationship to the 
cost of the response action. Some PRP's implementation of response 
actions requires very close monitoring, particularly when the PRP's 
prior activities have not been conducted well or when the PRP is less 
experienced. Oversight is needed to protect the public, and without 
oversight public confidence in cleanups conducted by private parties 
will be severely undermined. There should not be an artificial 
limitation on oversight costs based on cost percentages.
    Quite simply, state governments in particular do not have the 
personnel and other resources needed to inflate or perform unnecessary 
oversight. This provision will only encourage further litigation on 
oversight and efforts to reclassify government activities as oversight 
in order to fall within the cap, and might well result in some states 
foregoing needed oversight. The result could well be fraudulent or 
shoddy cleanups. This provision should be stricken.
C. ALLOCATION
     NAAG supports reasonable statutory changes that encourage early 
settlements with de minimis and de micromis parties that sent minimal 
quantities of waste to a site. However, H.R. 1300, as reported, still 
would create a mandatory process for allocating liability among 
responsible parties at any NPL site, except some ``chain of title 
sites,'' where the costs are estimated to exceed $2 million (likely 
most sites) and there is no consent decree or administrative order by 
March 25, 1999. While liability allocation can be worthwhile in some 
cases, the decision to conduct such an allocation, and the timing and 
procedure for allocation, should be left to agency discretion and 
should not be prescribed by statute. Historically, most allocations 
have been done by responsible party groups themselves, not by 
government agencies. Moreover, recent experience with administrative 
allocations conducted by EPA and by state agencies has demonstrated the 
need for flexibility. The governments should be allowed to structure 
allocation procedures to fit the particular facts of each case. While 
the August amendment to H.R. 1300, as introduced, eliminated some of 
the most serious obstacles to settlement created by the allocation 
process imposed by that version of the bill, there still are 
significant problems.
1. Delay of Cleanups
    By creating a mandatory process for allocating liability among 
responsible parties, H.R. 1300, as reported, will likely delay cleanups 
and substantially increase costs. Under current law, the governments 
are empowered to clean up first and protect the public, then allocate 
responsibility and costs. The August amendment sensibly removed the 
requirement that the President file a district court action to begin 
the allocation process at all NPL sites. However, H.R. 1300, as 
reported, still requires the President to ``ensure that a fair and 
equitable allocation of liability is undertaken at an appropriate 
time,'' language which is likely to lead to litigation when EPA fails 
to proceed on a timetable desired by a PRP. Thus, the bill may well 
require that liability disputes be resolved first, while cleanups wait 
until later. This ``argue first, clean up later'' approach turns the 
purpose of CERCLA on its head. In addition, the provisions are unfair 
to those who have settled and to the governments with which they 
settled, since the mandatory provisions could result in settling 
parties being forced to participate in the allocation demanded by those 
who refused to settle.
    Besides this fundamental flaw in the allocation provisions, there 
are a number of specific problems created by the bill. Our experience 
has been that conducting time-consuming and expensive allocations 
before cleanup delays the cleanup and discourages PRPs from 
participating in the cleanup, particularly when, as allowed by H.R. 
1300, as reported, parties which have accepted the allocation of 
liability may still challenge the remedy. We expect that PRPs will 
decline to perform cleanups and opt to wait for an allocation because 
the government's ability to impose joint and several liability on major 
PRPs is effectively eliminated by a mandatory allocation process.
    We are opposed to any provision that delays cleanups, or that 
impedes the mechanisms for enforcing cleanups, such as Sec. 106 orders, 
consent decrees, or notice letters. The states cannot allow any further 
delays in cleaning NPL sites given the risks they can pose for our 
citizenry.
2. Inappropriate Liability Determinations
    The provisions allow the allocator to make determinations of 
liability. It is inappropriate for someone who is not a judicial or 
adjudicatory officer to make legal determinations as to which parties 
are liable under the statute. This provision is particularly 
troublesome because, under the bill, the responsible parties 
participate in the selection of the allocator. Moreover, the many 
changes in the liability provisions will require a whole new set of 
rulings on who qualifies for which exemption, limitation, and 
clarification, and it would be a private party allocator making these 
determinations in the first instance. Further, the bill expressly 
provides that an allocation will apply to subsequent removal or 
remedial actions ``unless the allocator determines'' that the 
allocation should only address a limited number of response actions, 
even if additional information on parties' activities, conditions at 
the site, the identity of toxic substances, or additional costs caused 
by a particular PRP's waste becomes available after the initial 
allocation. In effect, the allocator becomes a judge in a setting 
lacking the procedural and appellate protections afforded parties in a 
courtroom.
    Allocation of the share of liability for each PRP at sites with 
multiple PRPs is possible because, and only because, the issue of who 
is liable has been settled through the past twenty years of litigation. 
Because H.R. 1300, as reported, significantly alters the liability 
sections, it will be difficult if not impossible to sort out shares of 
liability when the many questions about liability itself remain open. 
An allocator cannot assign shares to ``liable'' parties before it is 
determined who is ``liable.''
    Furthermore, NAAG opposes the provisions to the extent they impose 
a stay of any state enforcement action. The provisions on allocation 
also bind the hands of the states to long and involved allocation 
procedures without giving the state any influence or control over the 
effect of offers or settlements. For instance, only the United States 
can reject the allocator's report. Also, de micromis and exempt PRPs, 
and PRPs which have a limited ability to pay their fair share likely 
would be trapped in a complicated and time-consuming allocation.
3. Inappropriate Evidentiary Provisions
    H.R. 1300, as reported, wisely removed the provision allowing a 
court to use the allocation report as a basis for its allocation of 
liability in the legal action, even if the report had been rejected by 
the government. However, the bill should provide that the report may 
not be used by any party in a legal proceeding. This will eliminate 
likely efforts by PRPs (or the governments) to introduce the report 
into evidence and obtain court approval for the specific allocation. If 
an allocation report becomes a document that might be used in a legal 
proceeding when the allocation does not result in a settlement, the 
parties will turn the allocation into the very trial that allocation is 
supposed to avoid, together with a trial's attendant costs and delays.
    In sum, while we support the use of allocation in appropriate 
cases, we oppose the prescriptive approach of H.R. 1300, as reported. 
Especially when read with the liability changes, H.R. 1300's allocation 
process will substantially increase all parties' costs, bind smaller 
PRPs to a mandatory, unmanageable process, and delay both cleanups and 
costs recovery efforts.
D. MISCELLANEOUS PROVISIONS
1. Windfall Liens
    Only the United States gets the ``windfall'' lien to recover costs 
under proposed Sec. 107(b)(6), added by Sec. 302(a). As a result, an 
owner or operator could receive the protection against state 
enforcement and enhancement of its property's value at no cost, but the 
state would not get the lien's benefit allowing recovery of unrecovered 
response costs when the property is sold. The states, which play a role 
virtually identical to EPA's, also should be entitled to such liens.
2. Statutory Construction
     Section 303 of H.R. 1300, as reported, modifies the provisions for 
natural resources liability under Sec. 107(f) of CERCLA by adding a new 
Sec. 107(f)(3) on ``Unitary Executive.'' Under this subsection, any 
brief or motion filed by the United States defending against any action 
seeking recovery for natural resources shall be admissible and deemed 
the position of the United States with respect to the interpretation 
and construction of this subsection in any other action at other sites 
seeking recovery for natural resources damages.
    The unitary executive provision of the bill violates fundamental 
tenets of the doctrine of separation of powers as articulated by the 
Supreme Court in Morrison v. Olson, 487 U.S. 654, 101 L.Ed.2d 569 
(1988). It is inappropriate for Congress to dictate litigation 
positions to be taken by the executive branch. Furthermore, by 
requiring that environmental defense positions be deemed to be the 
position of the United States, Congress would put an unreasonable 
burden on states to either intervene in any federal natural resource 
damages litigation to create or preserve precedents favorable to 
trustees, or risk having an adverse body of case law. Assuming that the 
approach was constitutional, there is no justification for choosing the 
defense positions over the enforcement positions. Deeming enforcement 
provisions to be the position of the United States would similarly 
provide for a unitary federal position without harming the trustee 
interests of the states.
                       title iv. remedy selection
    As set forth in NAAG's Superfund Reauthorization Resolution, remedy 
selection in a Superfund statute should contain certain minimum 
requirements. Remedial actions should attain, at a minimum, applicable 
state and federal standards. Cost-effectiveness should continue to be a 
factor considered among other factors. While consideration of future 
land uses is proper when selecting remedial actions, land use should 
not be the controlling factor, and when remedial decisions are less 
stringent because they are based on future land use, there must be 
appropriate, enforceable institutional controls.
    H.R. 1300, as introduced, corrected some of the deficiencies of 
prior bills regarding remedy selection, for instance, foregoing 
provisions creating cumbersome remedy review boards and continuing to 
require that cleanups attain applicable state standards. We are pleased 
that the August amendment to H.R. 1300 went further by retaining most 
of the current provisions of Sec. 121 of CERCLA and approving certain 
EPA guidance. In this fashion, seemingly endless litigation over the 
meaning of new terms and the implications of the changes in remedy 
selection is less a likelihood should the bill be enacted, and the 
reforms undertaken administratively by EPA can continue. However, we 
are still concerned about the changes H.R. 1300, as reported, would 
bring in remedy selection.
A. ANTICIPATED USE OF LAND, WATER, AND OTHER RESOURCES
    NAAG supports the consideration of future land uses in selecting 
remedial actions, provided that future land use is not the controlling 
factor. We are concerned about the downgrading of cleanups from those 
accommodating all reasonably likely land uses, which is required under 
the current NCP, to an apparent emphasis on cleanups which accommodate 
existing uses. At sites where the existing use has been commercial and 
industrial but the municipality and nearby residents might want to 
convert the site to residential and recreational uses, it is important 
that the PRP not be able to implement an incomplete cleanup that 
thwarts future community objectives because the change in use had not 
been planned or received any approvals. Many other sites may be in 
their last years of industrial or commercial use, as indicated by clear 
trends in the region or the neighborhood, and to limit cleanups to a 
vestigial use is dangerous to public health, regressive for community 
development, or both.
    Thus, language in Sec. 401(c) H.R. 1300, as reported, which compels 
identification of ``the current and reasonably anticipated uses of 
land, water and other resources . . . and the timing of such uses'' 
must not be interpreted narrowly. By not cleaning property for any uses 
other than those currently existing, there will be no other uses in the 
future. Indeed, brownfields redevelopment often depends upon a 
departure from current and anticipated uses; under the proposed 
language, it is important that such redevelopment not be thwarted. We 
understand that under the EPA guidance approved in the bill, the 
reasonably potential uses of land also are identified when determining 
site remedies so a truly informed decision on cleanup can be reached. 
The provision should be read with that understanding.
    Proposed language in Sec. 9 of H.R. 2580, which adds the clause 
``to the extent practicable, considering the nature and timing of 
reasonably anticipated uses of land, water, and other resources'' to 
the first sentence of Sec. 121(b)(1) of CERCLA, is flawed and more 
limited than that of H.R. 1300. The quoted language from H.R. 2580, 
together with the elimination of the word ``maximum'' in the 
penultimate sentence of Sec. 121(b)(1), also inappropriately modify the 
current remedy selection process. H.R. 2580's proposed changes to 
CERCLA contained in Sec. 9 should be rejected.
    Under H.R. 1300, as reported, groundwater is protected only for its 
``current and reasonably anticipated future use,'' and there is no 
provision for protecting groundwater that has not yet been contaminated 
but is not used, or has not yet been planned to be used, for drinking 
water or otherwise. Such provisions fail to sufficiently protect future 
groundwater supplies. We prefer the EPA's current requirement that 
contaminated groundwater be restored to beneficial uses whenever 
practicable, and that uncontaminated groundwater be protected. This 
issue is particularly critical for the arid western states where 
groundwater resources are scarce.
    Moreover, we are concerned that the ``Special Rules for Ground 
Water'' set out in Sec. 401(c)(2) of H.R. 1300 will result in 
inappropriate federal oversight of state groundwater protection 
programs. Before EPA can adopt determinations of a state comprehensive 
groundwater protection program, the program must first receive ``a 
written endorsement by the President,'' and up to $3,000,000 of 
authorized funds may be spent per fiscal year on assistance to states 
by EPA. See Sec. 601(a)(2), adding a revised Sec. 111(d)(11). EPA is 
given no standards or criteria for making an ``endorsement,'' and 
effectively a new, ill-defined federal mandate is being imposed on the 
states. It would be more appropriate for the President to defer to 
state determinations unless EPA demonstrates that the state has failed 
to identify current and potential beneficial uses of its groundwater. 
However, we do note that the presumption that groundwater is drinking 
water is sound, and will help protect the quality of precious 
groundwater aquifers. See proposed Sec. 121(d)(3)(D)(ii), added by 
Sec. 401(c) of H.R. 1300, as reported.
B. PROTECTION OF PLANTS AND ANIMALS
    Section 401(c)(2) adds a new subparagraph governing the 
determination of the significance of impacts of a release on plants and 
animals. The mandate that the President base biological protectiveness 
determinations on the ``significance of impacts from a release or 
releases of hazardous substance from a facility to local populations'' 
of biota or ecosystems could seriously undermine ecological 
protections. For instance, if local populations of birds are high, PRPs 
might well argue the impacts of releases that kill only a small 
percentage of the birds must be ignored because the overall impact on 
the local population is not ``significant.'' There is no reason to 
create issues for litigation by enacting these limiting requirements.
C. REMEDY SELECTION CRITERIA
    Section 401(c)(3), which amends a redesignated Sec. 121(d)(4)(A) 
[currently Sec. 121(d)(2)(A) of CERCLA], is problematic in several 
ways. Like Sec. 9 of H.R. 2580, while retaining compliance with 
``legally applicable'' state standards as a minimum requirement for 
remedies, remedies no longer would have to meet ``relevant and 
appropriate requirements.'' Relevant and appropriate requirements 
remain an important threshold criterion in remedy selection, 
particularly with regard to state drinking water standards, solid and 
hazardous waste laws, landfill remediation, radioactive waste 
remediation, and mining reclamation standards, and should therefore be 
retained. For instance, most landfill closure requirements are not 
``legally applicable'' to land disposal sites unless the site received 
waste after a date in the 1980's. Nevertheless, these requirements 
establish important remedial requirements and represent the best 
engineering judgment on protecting the public and the environment from 
releases of toxic substances after inappropriate land disposal. 
Eliminating ``relevant and appropriate'' standards from those which a 
cleanup presumptively must meet will severely complicate the remedy 
selection process, delay cleanups, and increase litigation costs as 
regulators are compelled to justify remedy decisions over and over 
again in each case that otherwise would be based on such standards.
    Section 401(c)(3)(F) of H.R. 1300, as reported, appears to have 
been drafted in order to eliminate the applicability of state 
requirements at federal or other facilities that engage in activities 
unlike those of other facilities in the state. It requires the 
President to ``closely examine'' state requirements at those facilities 
when deciding whether a standard is of ``general applicability.'' 
However, state requirements applicable to certain types of chemicals, 
such as plutonium, sometimes will only apply to federal facilities 
because they are the only facilities authorized to handle such 
materials. The fact that the requirement only applies at that facility 
is not an indicator that the state promulgated the standard in order to 
penalize or impose unfair or overly stringent standards on a federal 
facility. Rather than trying to devise a subjective test, Congress 
should retain the objective standard under current law, i.e., the terms 
of the standard alone should be examined to determine whether it is of 
general applicability, and, as in current law, compliance can be waived 
by the President if he demonstrates that the requirement has not been 
applied consistently.
    Section 401(c)(5) would add a new Sec. 121(d)(7), which excludes 
compliance with standards that require reduction of contaminants to 
concentrations below ``background levels.'' This provision creates 
significant uncertainties that could adversely affect the cleanup of 
sites near other sources of contamination. Throughout the country, 
numerous smaller industrial concerns have contributed to the 
contamination of the soils and groundwater in industrial parks and 
areas of mixed commercial and residential use, particularly in low 
income and minority neighborhoods such as the New Cassell site in 
eastern Nassau County on Long Island, New York, or the Rocky Mountain 
Arsenal site adjacent to Commerce City, Colorado. If background is 
measured immediately off-site, EPA could not require any cleanups at a 
particular facility because its neighbors have contaminated the 
immediate background. Whole communities could remain contaminated 
because cleanups could not be compelled at any facility. Current law, 
Sec. 104(a)(3)(A) of CERCLA, forbids cleanup of naturally occurring 
substances, and is sufficient to prevent the mandatory removal of 
contaminants to levels below the true natural background.
D. INSTITUTIONAL CONTROLS
    H.R. 1300, as reported, addresses institutional controls in several 
significant respects. We strongly support the inclusion of a mandatory 
review of the effectiveness of and compliance with any institutional 
controls related to the remedial action when EPA undertakes a five-year 
review under Sec. 121(c) of CERCLA. Similarly, the requirement that 
institutional controls be ``effective, implemented, and subject to 
appropriate monitoring and enforcement'' when a remedy leaves 
contaminants on-site, and that reviews be conducted to ensure that they 
remain so, is an important codification of common sense requirements. 
Finally, we support the provision that only allows the President to use 
institutional controls ``as a supplement to, but not as a substitute 
for, other response measures at a facility, except in extraordinary 
circumstances.'' See Sec. 401(b) of H.R. 1300, as reported.
    As recognized by H.R. 1300, as reported, notice of and enforcement 
of institutional controls and similar environmental easements integral 
to a remedy cannot be left to chance. While the bill includes measures 
to ensure the continued implementation of such controls and easements, 
the provision providing for the recording of hazardous substance 
easements acquired as part of a remedy is incomplete. Assignments by 
the President must be recorded and approved by ``State or other 
governmental entity.'' However, further assignments are not subject to 
any review or approval process, nor even a recording requirement. Also, 
the President could evade state approval of an assignment by seeking 
instead the approval of the ``other governmental entity,'' an undefined 
term. Such entities presumably could include local development agencies 
and others whose interests in the use of sites are very different from 
state agencies charged with protecting public health and the 
environment. State approval should be a nonwaivable condition for the 
transfer of any easement by any person or entity.
E. RISK ASSESSMENT PRINCIPLES, GUIDELINES AND REVIEWS
    Section 403 of H.R. 1300, as reported, and Sec. 9 of H.R. 2580 
would add provisions to CERCLA addressing principles to be followed 
when conducting risk assessments. While the August amendment removed 
some very troublesome clauses from the original section in H.R. 1300, 
as introduced, the need for this type of provision in the first place 
is not clear. Inclusion will probably not alter risk assessments 
conducted by EPA or states, and instead could only provide fodder for 
litigation. In any event, we do note that the language used by Sec. 9 
of H.R. 2580 is overly restrictive, and the provision set out in 
Sec. 403 of H.R. 1300, as reported, is less troublesome.
                      title v. general provisions
    NAAG strongly supports Sec. 504, which amends CERCLA 
Sec. 104(c)(3). This provision alters the cost-share formula to limit a 
state's share to 10% of the remedial and operation and maintenance 
costs at NPL sites. This change should result in swifter cleanups by 
eliminating any tendency to shift cleanup costs to the states which, 
under current law, are responsible for 100% of operation and 
maintenance costs. We also support the modification of current law by 
Sec. 505 of H.R. 1300, as reported, to provide that states, as well as 
localities, are eligible for reimbursement for up to $25,000 for a 
single response.
    Section 506 of H.R. 1300, as reported, addresses the state role at 
federal facilities. NAAG's Resolution regarding CERCLA reauthorization 
called for clarification of the waiver of sovereign immunity and for 
transfer of EPA's regulatory authority at federal facilities to states. 
On July 26, 1999, forty-one Attorneys General reiterated the need for 
clarification in a letter to the Senate Armed Services Committee, a 
copy of which is attached. We strongly urge the adoption of language 
that is contained in the DeGette/Norwood bill, H.R. 617, as it 
represents the compromise reached between states and federal agencies 
in 1994, and would clarify the waiver without disrupting the status quo 
with regard to the issue of dual regulation at NPL sites.
    We also urge that Sec. 506 include additional language to clarify 
that states do not impair their independent enforcement authority by 
entering into site-wide interagency agreements that combine state law 
requirements with CERCLA requirements. Proposed language for such a 
provision is contained in Sec. 5 of H.R. 617, and is necessary to 
preclude any arguments that might be made by federal agencies based on 
the decision Heart of America Northwest v. Westinghouse Hanford Co., 
820 F. Supp. 1265 (E.D. Wash. 1993). In Heart of America, an 
environmental organization brought a citizen suit under the Clean Water 
Act, among other claims, to force the Hanford facility to comply with 
state water quality regulations as they pertained to a surface water 
discharge at the facility. The discharge was specifically identified in 
the Hanford Interagency Agreement (``IAG''), not as a CERCLA response 
action, but rather as a discharge to be regulated under the state's 
water quality program. Nevertheless, the court dismissed the citizen 
suit on the ground that it constituted a challenge to a response action 
under CERCLA, and was therefore subject to the bar on pre-enforcement 
review in Sec. 113(h) of CERCLA.
    This ruling could be utilized by federal agencies to argue that any 
federal or state environmental requirement that is referenced in a 
CERCLA IAG effectively becomes a CERCLA requirement and is therefore 
subject to the bar on pre-enforcement review. Such an interpretation 
could preempt the independent application of state law, even where such 
authority is expressly preserved in the IAG. Although the Heart of 
America ruling addressed only citizen suits, we are concerned that the 
holding could be used by the federal government to oppose state 
enforcement actions. On July 10, 1997, thirty-nine Attorneys General 
signed a letter in support of H.R. 1195, which would have clarified 
that state and federal governments can coordinate their cleanup 
activities at federal facilities without risking loss of their 
enforcement authorities. A copy of the letter is attached.
    An additional provision is also necessary to provide for the 
transfer of EPA's oversight authorities. Although H.R. 1300, as 
reported, includes a provision at Sec. 506 for dispute resolution and 
enforcement of state selected remedies, the provision is limited to 
situations where ``the President's authorities under subsection 
[104](c)(4) have been transferred pursuant to a cooperative agreement'' 
to a state. Neither CERCLA nor H.R. 1300, as reported, allows for this 
transfer, and thus the provision is meaningless. Section 704 of H.R. 
3595, introduced during the last Congressional session, included 
delegation language that was acceptable to the states and would allow 
for state decision-making. In addition, Sec. 120(g) of CERCLA should 
clarify that the administrator's oversight authorities cannot be 
delegated or transferred other than to states or other EPA employees. 
Such a provision is necessary to prevent the executive's delegation of 
these authorities back to the polluting federal agencies themselves, 
and is predicated on the same concerns underlying the restriction on 
the exercise of Sec. 106 powers by a liable federal agency contained at 
Sec. 301(b) of H.R. 1300, as reported.
    NAAG also strongly recommends that Congress establish independent 
oversight of removals at federal facilities and strengthen protections 
for states and communities when federal facilities undertake transfer 
of contaminated federal properties prior to completion of cleanup 
activities.
    Section 507 of the bill calls for a Federal study to determine 
Federal liability for natural resource damages based on a review of 
pleadings filed by the Department of Justice on behalf of a federal 
trustee seeking such damages from private parties. The study is 
unlikely to produce accurate estimates of the liability of the federal 
government for natural resource damages claims. In the fifteen-year 
history of the natural resource damages program, few if any natural 
resource damages claims have proceeded through trial and resulted in 
damage payments required by trustee assessments. They are inevitably 
settled for considerably less. To more accurately gauge the federal 
liability, therefore, the study should examine settlements, not 
pleadings.
    Section 508 adds language reaffirming that Sec. 107 of CERCLA does 
not preempt state law claims regarding recovery of response costs. That 
concept is well established, and Sec. 302(d) of CERCLA already provides 
that ``[n]othing in [CERCLA] shall affect or modify in any way the 
obligations or liabilities of any person under other Federal or State 
law, including common law, with respect to releases of hazardous 
substances or other pollutants or contaminants.'' See also Sec. 114(a) 
of CERCLA. However, by not including natural resource damages in the 
section, the language of Sec. 508 might be read erroneously as 
suggesting that claims for such damages under Sec. Sec. 107(a)(4)(C) or 
107(f) preempt state law, unnecessarily creating an issue for 
litigation by overly zealous PRP attorneys. We urge this Committee to 
correct any misimpressions and eliminate an issue for litigation by 
either including all claims under Sec. 107 within Sec. 508 or 
eliminating the provision as unnecessary.

    Mr. Shimkus [presiding]. Thank you, Mr. Johnson. And now 
the committee will hear testimony from Ms. Jane Williams, Chair 
of the Waste Committee of the Sierra Club. Welcome and, again, 
your--the formal presentations are in the record and if you can 
summarize, you have 5 minutes.

   STATEMENT OF JANE WILLIAMS, CHAIR, WASTE COMMITTEE, SIERRA 
                              CLUB

    Ms. Williams. Thank you. Good morning, Honorable Chairman 
and members of the committee. Thank you for the kind invitation 
to testify before you today in the liability and remedy 
selection provision of the Superfund.
    As you know, the Sierra Club is an international and 
environmental organization with more than half a million 
members organized by chapters and groups in every State. The 
Sierra Club believe that the cleanup of our Nation's toxic 
waste sites is a critical issue for all Americans, especially 
minority neighborhoods and our children. EPA data show that 10 
million American children live within a bike's ride of a 
Superfund site.
    Repealing or weakening basic liability provisions of 
Superfund undermines the public interest in two major ways. Any 
costs shifted away from polluters will ultimately be paid by 
taxpayers and strict liability provisions create disincentive 
to polluters. As well, I want to talk about the comments of my 
neighbor here. The collateral damage that would be done to 
State cleanup programs that are non-Federal Superfund programs 
is great. In the State of California, for example, the State 
relies upon both NCP consistency and the strict--joint strict 
and several liability provisions for State Superfund program. 
So--and I know, as well, there are other many--there's many 
other States in the union that do that, as well.
    I, also, want to point out, I do have my prepared testimony 
that I submitted to you. But, I come at this from a very 
different perspective. I live next to a Superfund site. In 
fact, I live next to two Superfund sites. And the one Superfund 
site I live next to is the largest Superfund site in the 
country. It's Edwards Air Force Base. It has 456 sites that 
require cleanup. It's the size of a small State. It has PCBs, 
exotic rocket fuels, nuclear materials, all kinds of stuff. And 
we routinely fight with the Federal Government on the way in 
which the site would be cleaned up and the time line that the 
site would be cleaned up. The second site I live next to is a 
site, which is contaminated with dioxin. And children were 
riding their bikes next to the site and so we had to have an 
emergency response come in. Right now, the site is fenced and 
capped.
    The small town that I live in, which is Rosemont, 
California, is one of the most polluted towns west of the 
Mississippi River. In one square mile area of the town, nine 
children contracted cancer and died, five of them from medulla 
blastoma, a brain cancer so rare you'd expect to find one case 
in my town in a decade and we found 5 in 3 years. All of those 
children died. Subsequently, 24 toxic sites were found in our 
town, none of which, I might add, are Federal Superfund sites, 
but are being cleaned up under our State Superfund program.
    And so, I want to echo the comments of Mr. Pallone, and 
that is that I sat for many years in California and also on 
national committees looking at Superfund programs and RCRA 
programs and cleanup programs and I think too often we lose the 
face of the victim. We misunderstand that what we are talking 
about when we talk about changing liability provisions is 
slowing down a program that really has just hit strides. This 
is not the time to put the brakes on cleanups and the current 
provisions in H.R. 1300 would do just that.
    The important provisions for the RARs, which are very 
important in the State of California, that is how we manage to 
protect groundwater. Groundwater is a very important resource, 
not only in the State I come from, but across the United 
States. And many of the provisions in H.R. 1300 can only be 
termed the ``aqua for abandonment provisions,'' because they 
require the President to find consistency with basin plans. 
They roll back many provisions that States have taken to 
protect groundwater.
    And so it's for these reasons that we are not supporting 
H.R. 1300, although we are very interested in working with the 
members of the committee. You, yourself, Mr. Shimkus, brought 
up very important and valid points about diminimus and micromus 
parties. I think that the Sierra Club, as well as many other 
environmental organizations, want to see the program be fair. I 
don't think that anyone thinks that the program should be 
unfair and to the extent that we can work together to make it 
fair, but, also, not slow down the pace of cleanups, because 
when we slow down those cleanups, there's a real cost to that 
and that's measured in people's lives and in further economic 
damage that already impact the communities.
    Thank you for the opportunity to testify.
    [The prepared statement of Jane Williams follows:]
  Prepared Statement of Jane Williams, Chair, Waste Committee, Sierra 
                                  Club
                             introduction:
    Mister Chairman and members of the Committee, thank you for asking 
me to testify on this important topic. As you know, the Sierra Club is 
a national environmental organization. We are a grassroots organization 
with more than a half-million members, organized by chapters and groups 
in every state.
    The Sierra Club believes that clean-up of our nation's toxic waste 
sites is a critical issue for all Americans, especially minority 
neighborhoods and our children. EPA data show that more than 10 million 
American children live within a bike's ride of a Superfund site.
    Repealing or weakening basic liability provisions undermines the 
public interest in two ways.
    First, it flies in the face of longstanding common law that 
pollution is not now, nor ever has been, legal. Changing the liability 
system, whether by 50 or 100 percent or by any other political 
tinkering undercuts the funding needed for the program. And if the 
polluters don't pay for this, ultimately, the taxpayer will.
    Second, strict liability insures that the program remains as a 
disincentive to pollution. In other words, corporate actors will seek 
to minimize their risk--and maximize their pollution prevention 
efforts--if they know that hazardous waste clean-up costs will be borne 
by them, and not the public at large.
    Changes to remedy selection provisions will only serve to weaken 
the environmental protections important for our land, air, and water. 
As evidence mounts that chemical exposures are having adverse effects 
on human health and the environment, we need to be ever vigilant to 
keep the releases at Superfund sites minimized. The protection of 
groundwater and air quality suffers already at Superfund site. It is 
only through expeditious use of relevant and appropriate provisions of 
state and federal statues that these important societal resources can 
be restored and that releases to the environment minimized during this 
restoration. And it is important to retain relevant state and federal 
standards if we are to protect public health.
    In short, the important features of existing Superfund law that 
keep strict joint and several liability and the current remedy 
selection requirements should be retained.
                    h.r. 1300's liability provisions
    The liability provisions of H.R. 1300 make substantive changes to 
the current liability provisions of Superfund. These provisions, which 
maintain strict liability for polluters, have served the public well by 
creating a disincentive to contaminate new lands--few new Superfund 
sites have been created since the enactment of provisions which created 
this strong tie between polluters and the wastes they produce.
    Some states, for instance California, use the joint and several 
provisions of the federal Superfund law in their state Superfund 
programs exclusively because they have found that federal provisions 
result in more expeditious cleanups.
1. Slowing the pace of cleanups by undercutting incentives to settle 
        without increasing federal cleanup resources, and mandating 
        time-consuming allocations.
    One particularly disturbing feature of H.R. 1300 is the way it 
undercuts existing incentives for settling, incentives that now prompt 
polluters to use their own funds to clean up at about 70% of Superfund 
sites according to EPA reports (EPA uses federal funds for the 
remaining 30%).
    Specifically, H.R. 1300 takes away one of EPA's most powerful 
incentives for getting polluters to settle: the ability to offer 
partial funding to settling parties, and only to settling parties. But 
H.R. 1300 directs EPA to enter into agreements to provide ``mixed 
funding''--i.e., dollars from the public trough--to parties who do not 
settle, but who instead perform cleanup activities under an 
administrative order (p. 127).
    Under H.R. 1300, many parties will await issuance of a cleanup 
order rather than settling. This will take much more time, and more EPA 
resources, than is currently the case. Because Superfund's bar on pre-
enforcement review under section 113 is terminated by EPA enforcement 
of an administrative order in court, it can also open the door for 
litigation over the substance of the cleanup decision in advance of 
conducting the cleanup, further delaying cleanups by years.
    Alternatively, EPA could itself conduct additional cleanups itself. 
But H.R. 1300 does not authorize any additional funding to enable EPA 
to do so. (Even if the bill provided for increased authorizations, 
which it does not, it seems unrealistic to anticipate that 
appropriations to the Superfund program will grow significantly--indeed 
both the House and the Senate FY 2000 appropriations bill would 
decrease funding for Superfund.) The pace of cleanups will slow as a 
result. Until the last several years, the pace of the Superfund program 
has been roundly criticized, and rightfully so. Now that the program's 
pace has picked up significantly, hitting the brakes by undercutting 
settlement incentives is highly counterproductive.
    In addition, H.R 1300 creates a new mandatory ``allocation'' 
process (section 310, p. 118) for a wide array of sites. Under the 
bill, the allocation process determines the share of each party, as 
well as the Superfund trust fund. The latter includes costs for 
insolvent and defunct parties; for parties who settled for less than 
their allocated share because of limited ability to pay; for parties 
exempted as small businesses, service-station dealers, or recyclers; 
and for municipalities and commercial waste-management firms who paid 
less than their allocated share because of the bill's other provisions 
(which generally limit these parties' liability to 10% of the cleanup 
costs). Apart from the fact that some of these parties should not be 
exempted (see below), the allocation process thus creates incentives to 
identify every possible exempt or insolvent party and to pull them into 
the allocation process in order to increase the share allocated to the 
Trust Fund. This will result in a time-consuming process with high 
transaction costs for all concerned.
    Finally, while the bill nominally excludes from the allocation 
process the chain-of-title sites (e.g., sites where all potentially 
liable parties are current and former owner/operators, such as mining 
sites)and thus excludes these site from access to the Fund--it 
inexplicably provides that the exclusion doesn't apply to sites where 
the prior owner is insolvent or defunct (section 310, p. 120). This 
limitation on the exclusion potentially will impose massive costs on 
the Fund, and is unjustifiable.
2. Weakening the polluter-pays principle through extensive liability 
        carve-outs and limitations.
    Overview of H.R. 1300's financial implications.--Before looking at 
H.R. 1300's liability exemptions, it must be noted that the bill as 
written shifts about $11 billion in costs from polluters to the general 
taxpayer, because it fails to re-impose the polluter-pays taxes that 
provide the primary funding source for the Trust Fund. While the bill 
contains a statement that ``it is the sense of the Committee on 
Transportation and Infrastructure'' that the taxes should be re-imposed 
for the period 2000-2007 (Section 701, p. 177), this provision has 
absolutely no legal effect. In the meantime, industry continues its $4-
million-per-day tax holiday that began when the polluter-pays taxes 
expired at the end of 1995--itself a major incursion on the polluter-
pays principle already totaling more than $5 billion.
    In addition to the tax issues, the bill also contains numerous 
liability exemptions and limitations. Theoretically, some of these will 
not compete directly with cleanup resources because they are to be paid 
from a segregated ``pot'' of funds within the Trust Fund (authorized at 
$300 million annually for 2000-2004, then $200 million annually for 
2005-2007) (section 601, p. 165). However, there is no assurance that 
appropriators will not choose to fund the liability-relief pot in 
preference to the general Trust Fund, particularly if budget pressures 
are significant. And in any event, the liability-relief funds still 
comes within the same appropriations subcommittee cap as all other EPA 
programs, thus at least indirectly competing for resources.
    At the same time, other provisions of H.R. 1300 impose additional 
costs on the Trust Fund's cleanups monies. For example, the increased 
need for EPA-lead cleanups caused by undercutting settlement 
incentives, as well as additional transaction costs imposed on EPA by 
the allocation process, will have to be met through Trust Fund monies. 
In addition, H.R. 1300 shifts significant costs that are now borne by 
the states onto the federal program as well. Under section 504 (p. 
158), the States would pay only 10% of the cost of operation and 
maintenance, rather than the 90% provided by current law, thus 
decreasing the State's incentive to seek permanent remedies. And adding 
insult to injury, the bill also limits EPA's ability to collect 
oversight costs to 10% of the amount that the polluter spent on cleanup 
(p. 85). This provision undercuts incentives for polluters to avoid 
recalcitrant behavior that triggers greater EPA scrutiny, and indeed 
provides the greatest benefit to the worst-acting parties.
    Exemptions for owners that knowingly bought contaminated 
property.--Under the guise of clarifying existing statutory protection 
for innocent parties, H.R. 1300 creates a major new liability loophole 
for owners who know that their property was contaminated when they 
bought it. Specifically, the bill eliminates the current requirement 
that the owner ``did not know and had no reason to know'' of the 
contamination when the property was acquired (for pre-1980 
acquisitions) (p. 55). Thus, some owners will evade any liability for 
the cleanup of their own property, even if they bought the land cheaply 
because of the contamination.
    These provisions will likely shift substantial costs onto the 
Superfund Trust Fund. To make matters worse, unlike many of the bill's 
other exclusions or limitations on liability, it appears that these 
costs are not among those to be paid from segregated ``pot'' of money 
for exempted parties (section 601, p. 166 and section 131, p. 119). 
Thus, these shifted costs will compete directly with cleanup dollars.
    The bill also provides that owners can rely absolutely on a ``no 
further action'' determination by a relevant governmental agency (p. 
65) to satisfy the ``all appropriate inquiry'' element of the current 
innocent-party defense. But such determinations are not necessarily 
based on in-depth evaluation of the property, nor are they always 
correct. This provision essentially turns the no-further-action 
determination into a guarantee that the property is clean, thus 
eliminating one of the few incentives that now exists for careful 
evaluation of sites.
    Other liability carve-outs are overly expansive.--In addition, H.R. 
1300 contains a raft of inappropriate and overly broad liability carve-
outs, each of which undercuts the polluter-pays principle and shifts 
more cleanup costs to the general public. These include exemptions for:

 ``small'' businesses with up to 75 full-time employees and $3 
        million in gross revenues (section 305, p. 74), even though 
        almost 90% of the nation's businesses have fewer than 20 
        employees;
 generators and transporters of used oil (p. 113) (given the 
        exemptions for small businesses and small-quantity generators, 
        this provision just exempts big businesses that generated 
        significant quantities of used oil);
 generators and transporters of copper by-products (p. 110), 
        which are industrial process wastes;
 huge commercial trash companies (such as Waste Management and 
        BFI), who are exempted from all liability in most instances for 
        wastes dumped prior to the bill's enactment. Even if EPA 
        determines that such companies dumped wastes containing 
        hazardous substances, their liability is capped at 10% of the 
        total cleanup costs (p. 74).
 negligent cleanup contractors, since the bill preempts general 
        state tort law except for suits brought within six years of 
        completion of work (p. 87, p. 89)--so that that sloppy cleanup 
        contractors will evade any responsibility for chronic diseases 
        with a latency period, such as cancer and developmental 
        disabilities;
 many mining-site operators, given the limitations on the 
        exclusion for the chain-of-title sites (p. 110), as noted 
        above.
 other carve-outs for special interests, such as to releases 
        from pesticide application (p. 72).
In addition, the bill caps the liability of all persons who generated 
or transported municipal waste after enactment of the bill at 10% of 
the cleanup costs (p. 75).
    Shifting risks of long-term problems to taxpayers.--In addition, 
the bill also revamps current provisions governing settlements under 
Superfund, in ways that allow polluters to walk away from sites that 
have not been fully cleaned up. Specifically, section 308 allows for a 
complete waiver of future liability even at sites with waste remaining 
in place if the settlement contains a ``premium to address possible 
remedy failure or any releases that may result from unknown 
conditions'' (p. 95). But as a practical matter, how is it possible to 
calculate a premium for unknown conditions? And as a matter of public 
policy, why should taxpayers bear the risk of remedy failure?
    These concerns are exacerbated by the fact that the bill allows--
indeed, virtually requires--the use of less-than-complete cleanups. In 
selecting remedies, it demands consideration of ``current and 
reasonably anticipated land use'' (Section 401, p.136). In many cases, 
this is likely to involve industrial uses, which means allowing less-
stringent cleanups than would be required if homes were to be placed on 
the site. But industrial-use cleanups must be accompanied by 
``institutional controls,'' measures that are designed to assure that 
an industrial site stays industrial unless more cleanup is done first. 
Such measures must be applied virtually in perpetuity. Moreover, most 
cleanups today use containment-based remedies, rather than taking the 
waste off-site or treating it on-site to permanently render it 
harmless.
    While industrial-use and containment-based cleanups are sometimes 
appropriate, it is essential that polluters remain on the hook in case 
those non-permanent remedies don't work. This legal structure both 
protects the public fiscally, and creates powerful incentives for 
polluters to take steps to keep these remedies from failing.
    Put another way, complete releases should only be available 
following complete cleanups.
    In sum, many of H.R. 1300's liability provisions undercut good 
prevention, create bad ones, and will lead to slower cleanups.
H.R. 1300's Remedy Selection Provisions-
    Abolishing the Relevant and Appropriate Provisions of CERCLA.--H.R. 
1300 deletes the current requirement (Section 121d (2)(A)) that 
cleanups meet ``relevant and appropriate'' state and federal standards. 
(page 140) Current law requires that cleanups meet legally applicable 
state and federal standards or any environmental standard that is 
relevant and appropriate under the circumstances of the release.
    The relevant and appropriate standards are an important provision 
of law since in many instances the ``legally applicable'' provisions do 
not address state and federal standards for air pollution created 
during cleanup activities, groundwater contamination, the integrity of 
landfill liners, long-term monitoring of remedies, impacts to animals 
and wetlands, and other important environmental and public health 
safeguards. As well, the addition of ``relevant and appropriate'' 
standards avoids lengthy litigation over what is legally necessary and 
what is not.
    For example, it is becoming common practice to use dual phase vapor 
extraction systems to extract contaminated groundwater and soil vapors 
from Superfund sites, these contaminates are then burned in on site 
incinerators (thermal oxidizers). These incinerators emit a host of 
dangerous chemicals into the air of communities already overexposed to 
chemicals from living on or near a Superfund site. At the Operating 
Industries site in California, an incinerator installed to burn soil 
vapors was required to meet the regulations for a hazardous waste 
incinerator under the Resource Conservation and Recovery Act (RCRA). A 
long battle over whether or not this statue was legally applicable was 
avoided by identifying the requirement as relevant and appropriate.
    Liners and caps are used at many Superfund sites to isolate waste 
from the environment. The Resource Conservation and Recovery Act 
(Subtitle C) requirements serve to set standards for liner integrity, 
cap design, and vadose zone monitoring that help delay contamination of 
groundwater until more permanent remedies can be found. These 
provisions are crucial for groundwater protection, and in their 
absence, air emissions from poorly constructed and maintained caps and 
groundwater contamination from improperly installed and monitored 
liners, could increase. They are another example of important 
requirements that are relevant and appropriate.
    State standards to protect drinking water and the beneficial use of 
aquifers are commonly applied relevant and appropriate regulations. At 
a mining site in Colorado, the beneficial use of a stream was protected 
even though the final designation of the stream' beneficial use was 
only in draft form. The designation was deemed relevant and appropriate 
though not legally applicable because of the interim nature of the 
state action.
    The California State Water Board Resolution 9249 that applies 
provisions of the Porter Cologne Water Quality Control Act to the level 
of groundwater cleanup at Superfund sites are deemed relevant and 
appropriate and are routinely included in Superfund remedies under the 
auspices of the relevant and appropriate provisions of CERCLA, thus 
avoiding a lengthy dispute on whether or not they are legally 
applicable. Groundwater protection is extremely important in many parts 
of the United States because of its use for drinking water and 
agricultural production and states have a wide variety of laws enacted 
that serve to preserve these waters' beneficial uses. These laws would 
be ignored if the provisions for relevant and applicable were 
abandoned.
    A recent cleanup of DDT in Los Angeles complied with a state 
designated particulate standard that mitigated blowing DDT-laden dust 
in a highly impacted minority community. This standard was identified 
by the local air board as relevant and applicable. In the absence of 
this standard this blowing DDT-laden dust would not have had any 
enforceable emission limit and the contractor would have had no 
requirement to mitigate the impacts on the community from this obvious 
public health threat.
    H.R. 1300 fails to emphasize the return to beneficial use of 
groundwater and creates incentives to litigate, instead of mitigate, 
groundwater uses.--EPA issued guidance directing that ``reasonably 
anticipated future use of the land'' be considered in determining the 
appropriate extent of remediation. This directive does not apply to 
groundwater beneath contaminated sites.
    H.R. 1300 interjects new terminology tied to ``reasonably 
anticipated'' future use of groundwater, which includes a requirement 
that state water protection plans receive a written endorsement from 
the President before being able to be considered as meeting the 
designation of drinking water. This creates a new mechanism for the 
designation of the beneficial use of water that requires federal 
concurrence with the designation. (page 138)
    The presumption that water is drinking water can be rebutted 
through ``site-specific information identified through the analysis of 
relevant factors under Subparagraph C (pg. 138)''. But there are no 
``relevant factors'' identified in Subparagraph C only relevant 
information such as the views of the interested parties. This creates a 
loophole so large you could drive a Sparkletts truck through it. Given 
the enormous costs of remediating groundwater, every responsible party 
will analyze ``relevant factors'' conclude that nobody will every use 
the water as drinking water, and it will be up to the President to 
refute the claim.
    Prohibitions on ``reductions below background'' can become an 
excuse to do no cleanup.--Section 410(c) adds a new provision which 
states ``the standards, requirements, criteria, and limitations 
referred to in paragraph (4) shall not include any requirement for a 
reduction in concentrations of contaminants below background levels.'' 
(page 141)
    This provision will result in a lengthy debate determining what 
background is and where. For instance, historic goldmining in the 
foothills of the Sierras have resulted in arsenic and mercury 
contamination. If some of these levels (which pose public health risks) 
are considered background, arsenic and mercury would never require 
cleanup at a Superfund site. In many communities, if background is 
measured immediately offsite, EPA would not require cleanup because 
nearby properties are also contaminated. This is often the case in 
heavily industrialized areas of the inner city. Entire areas could 
remain contaminated because the contamination was defined away as 
``background''.
    Provisions exist in the current statue to prohibit the cleanup of 
naturally occurring substances; these provisions are sufficient to 
prevent removal of contaminants to levels below true background.
    In summary, we urge members of the Committee not to roll back key 
provisions of the federal Superfund program that hold polluters 
responsible for the pollution they have created, create incentives not 
to pollute, and protect our precious groundwater, air quality, and 
lands from degradation. The federal safety net that is embodied in the 
current provisions of Superfund needs to be maintained for the 
protection of our families and our future.

    Mr. Shimkus. Thank you. And now we'll hear from Mr. 
Jeremiah Jackson or Doctor, President-Elect of the 
Environmental Business Action Coalition. Welcome, again. Your 
formal testimony is inserted into the record; if you can 
summarize and you have 5 minutes. Thank you.

       STATEMENT OF JEREMIAH D. JACKSON, PRESIDENT-ELECT, 
            ENVIRONMENTAL BUSINESS ACTION COALITION

    Mr. Jackson. Thank you. Mr. Chairman, members of the 
subcommittee, my name is Dr. Jeremiah Jackson. I'm Director and 
Principle Engineer of Q&S Engineering in Escondido, California. 
I'm here today as President-Elect of the Environmental Business 
Action Coalition, or EBAC. EBAC is a coalition of 60,000 
professionals. Thank you for holding this important hearing. My 
focus today is on three critical issues related to any 
Superfund or Brownsfield legislation: first, remedy selection; 
second, the so-called ASTM standard; and third, response action 
contractor liability.
    On remedy selection issues, from our perspective, more 
flexibility in the law is needed. It is overly prescriptive and 
affords too little opportunity to accelerate cleanups or 
innovate with an existing Superfund processes. The goal should 
be timely, appropriate, and efficient cleanups, based upon 
intended use, instead of having to concentrate on producing 
evidence for litigation.
    H.R. 2580 contains improved remedy selection provisions. 
While we fully support this well-crafted reform, the 
subcommittee is strongly urged to expand their number. Our 
added suggestions include the following eight: (1) implement a 
risk-based approach; (2) address serious environmental threats 
first; (3) promote cost effective remedies; (4) encourage 
flexible cleanup approached; (5) make the assessment, cleanup, 
and risk reduction process more streamlined, flexible, and 
realistic; (6) allow for earlier participation by stakeholders; 
(7) include future land use considerations in remedy selection; 
and last, encourage testing and implementation of new and 
innovative technologies.
    As to the ASTM standard, EBAC again expresses strong 
disagreement with the requirement contained in H.R. 2580 for 
innocent land owners to undertake environmental site 
assessments, in accordance with ASTM phase one environmental 
site assessment process. We strongly disagree with the premise 
that the so-called ASTM Phase I standard is actually a 
standard. A practice labeled as a standard implies that it is 
tried and true practice, which, if followed, yields 
reproducible, reliable, and trustworthy results, which is not 
true in this case. This so-called standard was finalized 5 
years go, yet the profession has evolved significantly in the 
past 5 years. The right approach is an assessment conducted by 
qualified professionals, who allow the current standard of 
care.
    Finally, on contract liability issues, there's been a lot 
of discussion in the Superfund reauthorization debate about the 
fairness of the Superfund liability scheme. Our member 
companies are directly involved in fixing the problems caused 
by the hazardous waste releases of others. The law's liability 
provisions ensnare contractors in the same liability scheme as 
the PRPs. CERCLA does not differentiate among participants or 
among degrees of error. To hold someone liable under the 
current Federal Superfund law, all you need is proof that 
someone was involved in the site, regardless if they were at 
the site.
    Is this fair? Does it result in a speedy and cost effective 
cleanups? No. Does it hurt by business? Yes. In fact, it hurts 
every professional engineering and scientific firm by 
discouraging innovation, driving up cost, and delaying cleanup 
action.
    How can fairness be brought back into the law for the 
cleanup firms? Well, begin by treating cleanup firms according 
to their normal standard of care, simple negligence. In the 
absence of fault or negligence, it is wrong to saddle cleanup 
firms with the strict liability standard prescribed for the 
PRPs. Additionally, the right answer is found in the RAC 
liability provisions in last year's H.R. 3000, which you, Mr. 
Chairman, sponsored in H.R. 1300. Significant among these 
provisions are a negligence standard, a statute of repose, and 
last, extension of Section 119's coverage to all response 
actions.
    In conclusion, EBAC greatly appreciates the ability to 
testify before your subcommittee today. Thank you, very much.
    [The prepared statement of Jeremiah D. Jackson follow:]
      Prepared Statement of Jeremiah D. Jackson, President-Elect, 
                Environmental Business Action Coalition
    Mr. Chairman, members of the Subcommittee, my name is Jeremiah D. 
Jackson, Ph.D., P.E. I am Director and Principal Engineer of Q&S 
Engineering, Inc., a Small Disadvantaged Business based in Escondido, 
California. I am here today in my capacity as President-Elect of the 
Environmental Business Action Coalition (EBAC), formerly known as the 
Hazardous Waste Action Coalition (HWAC). My background is in 
environmental technology and implementation of remedies at hazardous 
waste sites. During my career, I have overseen cleanups at Federal and 
state Superfund sites; some of these cleanups have won awards for 
technical merit. I also lecture on site assessment and remediation at 
the University of California.
    EBAC, as you know, is a national, Washington, D.C. based not-for-
profit business trade organization whose mission is to serve and 
promote the interests of engineering, science and construction firms 
practicing in multimedia environmental management and remediation. EBAC 
operates as a coalition of the 5,000 member firm American Consulting 
Engineers Council.
    EBAC's President, Jonathan Curtis, who is also President and CEO of 
CDM Federal Programs Corporation, testified before this Subcommittee on 
August 4, 1999 on EBAC's support for the Brownfields provisions 
contained in H.R. 2580, Congressman Greenwood's Land Recycling Act of 
1999. In addition, one of EBAC's former Presidents, Pat O'Hara, 
testified before this Subcommittee in March of 1998 on the need for 
remedy reform in Superfund reauthorization. Both Mr. Curtis and Mr. 
O'Hara testified about contractor liability issues, and fielded 
questions about the harsh inequities of the Superfund law's legal 
impacts on cleanup firms. The record is therefore clear--in order to 
facilitate cleanups, a combination of reforms to both the law's 
liability system as it applies to the firms that perform cleanup 
actions, and to the way remedies are selected and cleanups are 
performed, is needed to help ensure that Superfund operates efficiently 
and cost-effectively, while providing improved protection to human 
health and the environment. I will testify today about the critical 
issues of remedy selection, the ASTM language in H.R. 2580, and the 
increased crisis it precipitates in the area of RAC liability.
Remedy Selection Issues
    EBAC is proud to be here and able to provide our technical 
engineering expertise to the complex debate regarding the selection of 
remedies at hazardous waste sites. Our overriding concern is protection 
of human health and the environment. We believe that the Federal 
Superfund law and related cleanup activities, including Brownfields 
activities, should focus primarily on effecting cleanups. All too 
often, however, you hear fears of ``bottled water'' and ``fences'' 
discussed when remedy selection changes to the law are debated. As the 
CEO of one of our largest members said most eloquently several years 
ago, ``Superfund is not designed to fix problems, it is a program 
designed to fix blame.''
    I am here to tell you that, as a representative of the professional 
community that recommends and implements cleanup actions, more 
flexibility in the law is needed. The present law is overly 
prescriptive and contains too little opportunity to accelerate cleanups 
or initiate rework within the Superfund ``process.'' In addition, work 
is often performed for the sake of ``producing evidence for 
litigation'' instead of just to get on with cleanup.
    Mr. Chairman, your bill last year, H.R. 3000, contained widespread 
remedy reforms which EBAC strongly supported. In fact, in our testimony 
we stated that H.R. 3000 ``will ensure that innovations are applied to 
cleanups, will provide incentives for new technologies at hazardous 
waste sites, and will spur essential state and local voluntary cleanup 
programs that sometimes languish due to the shadow of potential CERCLA 
liability that runs from the Beltway to every Brownfields site in this 
country.'' Mr. Boehlert's legislation, H.R. 1300, which has widespread 
bipartisan support, also has significant remedy reform changes that 
will do a lot towards improving Superfund cleanups.
    We are pleased that H.R. 2580, Congressman Greenwood's Land 
Recycling Act of 1999, also contains some remedy reform provisions. 
These provisions include:

 Consideration of future uses of land in remedy selection 
        decisions.
 Addressing the preference for treatment and permanent 
        solutions.
 Deleting the ``RA'' from ``ARARs,'' meaning that only 
        applicable requirements will apply. (Note: This is an important 
        change because it is often difficult to determine what is also 
        ``relevant and appropriate'' cleanup requirements).
 Making risk assessments more realistic and based on scientific 
        evidence and site-specific information.
We fully support these well-crafted provisions. We understand that in 
the nature of compromise the listing of remedy changes that have been 
included in H.R. 2580 are relatively few. However, we strongly urge 
this Subcommittee to expand this listing. Why do we feel this way? The 
last time that Superfund was comprehensively reauthorized was in 1986 
through the Superfund Amendments and Reauthorization Act (SARA). This 
means that 13 years have passed without substantive statutory change to 
``how'' cleanups are performed. And, in that 13 years, there have been 
significant advancements in the professional practices of hazardous 
waste cleanup. I am proud to say that these advancements have, in large 
measure, resulted from the hard work, imagination, and innovative 
approaches employed by the member companies comprising EBAC!
    Here are our suggestions for other issues to address in the remedy 
selection portions of any bill that is ultimately reported out of this 
Subcommittee and your full Committee:

 The law should emphasize a risk-based approach to encourage 
        reduction of hazards associated with hazardous waste cleanup 
        sites in an economical manner.
 Obvious and serious environmental threats should be addressed 
        first.
 The goal should be to achieve the most risk reduction for the 
        cleanup dollar.
 Cleanup plans should be flexible in anticipation of unknowns 
        to allow for quick responses to newly discovered conditions 
        that invariable arise in the course of a hazardous waste site 
        cleanup.
    All of the above recommendations are embodied in an engineering 
technique called the ``Observational Method.'' This method was embodied 
in H.R. 3000 last year, and is embodied in this year's H.R. 1300. More 
specifically, the Early Evaluation and Phased Remedial Action section 
of H.R. 3000 last year embodied this approach.
    Other recommendations include the following:

 Make the assessment, cleanup and risk reduction process more 
        streamlined, flexible, and realistic.
 Allow for greater participation by stakeholders in the cleanup 
        process.
 Embody future land use considerations in remedy selection 
        determinations.
 Encourage testing and implementation of new, innovative 
        technologies in cleanup.
    Finally, as EBAC testified last year, H.R. 3000 contained 
``excellent'' criteria for selecting a remedy. The alternatives 
considered and factors balanced included the following:

 Effectiveness of the remedy in reducing risk.
 Effectiveness at promoting source control.
 Long-term reliability.
 Risks that are posed by implementation of the remedy.
 Acceptability of the remedy to the community.
 The reasonableness of the difference in costs between 
        different remedial options.
    We also have expressed support for requiring remedies to prevent or 
eliminate any actual human ingestion of groundwater that has any 
contaminant present above its Maximum Contaminant Level (MCL). We 
believe that this is appropriate and protective of human health. We 
have also expressed a desire to remove the preference for permanence 
and treatment in the Superfund law because such a preference results in 
favoring one cleanup strategy over another. This type of preference 
artificially reduces the range of technical solutions without providing 
additional protection. Finally, we support express legislative 
codification of EPA's Administrative Reforms, to include legislative 
embodiment of EPA's Remedy Review Board. It is only through legislation 
that EPA's reforms will be uniformly and fairly applied on a consistent 
basis.
    H.R. 2580 would also allow for permit waivers for on-site response 
actions, which would remove the barriers to actual on-site cleanup and 
significantly increase the pace of Brownfields cleanups. Cleanup 
actions would still be protective of human health and the environment 
and subject to regulatory review and approval, of course, under such a 
scenario. We support this inclusion.
ASTM Standard
    I must reiterate previous EBAC testimony where we expressed strong 
disagreement with the requirement of H.R. 2580 for ``innocent 
landowners'' to undertake environmental site assessments ``in 
accordance with the standards set forth in the American Society for 
Testing and Materials (ASTM) Standard E1527-94, titled ``Standard 
Practice for Environmental Site Assessments: Phase I Environmental Site 
Assessment Process.'' Please note that this standard is also proposed 
to be codified in Chairman Boehlert's bill, H.R. 1300, and in H.R. 
1750.
    EBAC, ACEC, and other professional organizations strongly disagree 
with the premise that the so-called ASTM Phase I ``standard'' is 
actually a ``standard.'' A practice labeled as a ``standard'' implies 
that it is a ``tried and true'' practice which, if followed, yields 
reproducible, reliable and trustworthy results and is endorsed by the 
professionals who use it. That is not the case here. The scientists and 
engineers who, for the last several decades, have investigated 
contaminated sites know that it is foolish, even dangerous, to assume 
that using ``cookbook'' assessment procedures will uncover all 
significant contamination.
    Except for a few simple sites, the technology required to peer 
underground and locate all significant sources of contamination has not 
been invented. Moreover, as the ``94'' suffix indicates, this so-called 
standard was finalized five years ago. As with the case of remedy 
selection, practice in the hazardous waste field has evolved 
significantly in the past five years; these lessons learned are not 
reflected in this ``cookbook'' approach.
    Left with these uncertainties, the right thing to do is let the 
practitioners apply professional judgment to what is truly needed for 
responsible site cleanup. We recommend that you drop the requirement 
for using ASTM Standard E1527-94. We recommend instead that an 
appropriate inquiry conducted by a duly licensed or equivalently 
qualified professional who shall follow the current standard of care 
appropriate for the location and nature of the inquiry involved. If 
some kind of assessment guidelines are deemed necessary, then we ask 
that they be developed by EPA, using an open, transparent process, and 
incorporating substantial input from the licensed engineers who 
practice in this field.
    The legislation allows EPA to set up an ``alternative standard'' 
through a formal rulemaking process. However, as long as the 
legislation identifies the specific ASTM standard that qualifies for 
``innocent landowner'' status, we believe that EPA will never get to 
the rulemaking stage to create an alternative standard. We urge that 
the legislation delete the ASTM standard, and require EPA to undertake 
a rulemaking to identify the professional judgment required for 
qualification as an ``innocent owner'' within a limited, specific date 
certain period of time after enactment of this Superfund reform/
Brownfields legislation.
Contractor Liability Issues
    There has been a lot of discussion in the Superfund reauthorization 
debate about the fairness of the Superfund liability scheme, 
particularly as it relates to small businesses. My small business is 
directly involved in fixing the problems caused by the hazardous waste 
releases of others. My small business nevertheless has Superfund 
liability issues, too. The law's strict, joint and several liability 
provisions ensnare me in the same liability scheme as it does a 
Potentially Responsible Party (PRP), rather than holding me 
appropriately liable for the engineering and remediation work that I 
perform. That's because the law does not differentiate among wrongdoers 
or among degrees of culpability. To hold someone liable under the 
current federal Superfund law, all you need is proof that someone was 
involved at a site regardless of their role at the site.
    EBAC has been compiling information about lawsuits filed against 
those who have been performing cleanup activities for the past five 
years. There is a significant body of established caselaw whereby 
courts have allowed parties with direct CERCLA liability to bring suit 
under CERCLA against Response Action Contractors (RACs), drawing 
cleanup firms into the liability net without regard to fault or 
negligence in selecting or implementing cleanup technologies.
    The case-law that we have compiled is comprised of approximately 40 
cases that have worked their way through the courts--not including the 
cases that have been settled because the cost to litigate the claims 
(even when the firms are innocent of wrongdoing) is extremely high. 
Courts have allowed suits alleging that cleanup contractor activities, 
because they involved moving site contaminants, classified the 
contractor as site ``operators'' and ``transporters'' according to the 
definitions of these words in the Superfund law. Courts have also 
allowed nearby site residents to sue the government's cleanup 
contractor for damages incurred by exposure to site contaminants. A 
detailed listing of cases will be provided to this Committee for the 
record.
    What you have is a practice whereby the huge costs of Superfund 
cleanups, and the absence of fairness in allocating the cleanup costs 
among responsible parties, creates an environment where responsible 
parties turn around and sue everyone else who may have touched a site 
to obtain contribution for cleanup costs. Is this fair? No. Does it 
hurt my business? Yes. In fact, it hurts every professional engineering 
and scientific firm in business to clean up America's hazardous waste 
legacy.
    How can fairness be brought back into the law for the cleanup 
firms--regardless of firm size? First, treat cleanup firms according to 
their degree of negligence associated with a problem. If there is an 
absence of fault or negligence, then do not saddle the cleanup firm 
with strict liability. That's what the present Section 119 of Superfund 
was intended to do when it passed in 1986. In fact, this Committee's 
version of what was ultimately contained in the House-passed version of 
1986 Superfund contained a preemptive negligence standard developed by 
the then Majority of the Committee. Unfortunately, this language was 
not contained in the final bill, having been one of the last issues 
debated by the Conference Committee. However, because of other 
omissions or loopholes in the law, PRPs have been able to circumvent 
Section 119 and seek to hold cleanup firms responsible as site 
operators, transporters, and generators.
    It should also be noted that the present Section 119 allows EPA to 
indemnify cleanup firms for the claims brought against them. If 
indemnification is offered, a legislative change is needed that would 
make Section 119 consistent with the other parts of Superfund. Namely, 
the Superfund law applies to releases ``and threatened releases.'' 
However, Section 119, due to a technical drafting error, only applies 
to ``releases.'' There should be as much incentive to address 
threatened releases (i.e., BEFORE a release occurs) as there is to 
remediate a release after-the-fact. I urge you to undertake this 
technical correction.
    What else is needed? You need look no further than the RAC 
liability provisions in last year's H.R. 3000, which you, Mr. Chairman, 
sponsored, and this year's Superfund legislation sponsored by Chairman 
Boehlert of the Water Resources and Environment Subcommittee (H.R. 
1300). Both pieces of legislation thankfully included provisions that 
would address contractor liability issues. These provisions include the 
following:

 Negligence standard for cleanup firms that applies to claims 
        brought under federal and state law.
 Statute of repose, which is common in the construction and 
        engineering sectors, cutting off claims after a period of 
        years.
 Extension of Section 119's coverage to ``all response 
        actions'' (which is particularly important given the 
        significant interest in Brownfields cleanups, voluntary 
        cleanups, and state-led cleanup actions).
 Clarification that Section 119 is the sole authority to 
        determine the liability of RACs.
    I must point out that all of the above provisions are contained in 
Chairman Boehlert's bill, H.R. 1300. H.R. 1300 has the bipartisan 
support of over 120 members of this Congress, including Ranking 
Subcommittee Member Robert Borski (D-PA) and Ranking Full Committee 
Member James Oberstar (D-MN). RAC liability provisions are supported on 
a bipartisan basis. We support these provisions, and we urge this 
Committee to do the same.
    Use of the ASTM standard referred to earlier in my testimony makes 
it all the more imperative that the Response Action Contractor 
liability provisions that I have just identified be included in any 
Brownfields/Superfund legislation. This is because the ASTM standard 
leaves the Response Action Contractors as the sole community left 
``holding the bag'' as other groups receive liability relief 
appropriate to their status as innocent of creating hazardous waste 
pollution. This increases the already unfair liability exposure of the 
engineering community and increases the imperative need for RAC 
liability reform within this bill.
    In conclusion, EBAC greatly appreciates the ability to testify 
before your Subcommittee today on remedy selection provisions in H.R. 
2580, and on Superfund in general. The time to act is now. Much hard 
work has gone into moving H.R. 1300 on a nearly unanimous bipartisan 
basis through the Transportation and Infrastructure Committee. We 
encourage that it be the basis of this Subcommittee's markup vehicle. 
Please don't let partisan politics or environmental scare tactics hold 
up long overdue action on responsible Brownfields/Superfund legislation 
any longer! Thank you, Mr. Chairman and Members of the Subcommittee, 
for the opportunity to share the views of EBAC's membership on both key 
issues and the need for moving this vital legislation forward.

    Mr. Shimkus. Thank you, Dr. Jackson. Now, I will start with 
my 5 minutes. Set the clock and move in regular order.
    To no one's surprise, my first question will be to Mike. 
Again, I'm sorry I missed your opening statement. We have the 
congressional baseball game pizza party going on right now, 
where we deliver the checks. And although I should be up there, 
the coach of the team needs to be up there more than I do, and 
that's the chairman. So, I'm a pinch hitter and so I missed 
your opening statement. But, of course, I've read it and you 
followed the discussion I had with the EPA.
    The EPA seems to be readily--characterizes its 
administrator reforms as being successful for small businesses, 
and they cite their 18,000 cases. In particular, the Agency 
cites to its use of the status comfort letter, to notify and 
settle with small business over their liability before 
contribution suits by larger PRPs are levied. From your 
statement, I get the sense this form of settlement has done 
anything but bring you comfort. Can you elaborate on how the 
process works and why you believe, obviously as I do, that it 
is so fundamentally unfair to the small businesses involved?
    Mr. Nobis. First of all, there's two perspectives, I guess, 
on success. If you're the EPA, and I've talked with--the people 
that have been involved with us say, yes, it was a successful 
settlement, in that they did get us to settle. From our 
perspective, though, it wasn't a success, because about 149 
companies in Quincy were not responsible for the hazardous 
waste that caused the--our site to be declared a Superfund 
site. They--we had a process that basically--and I used in my 
testimony the word ``forced,`` and we were forced. I didn't use 
the word ``blackmail,`` but----
    Mr. Shimkus. I've used extortion before. You've heard me--
--
    Mr. Nobis. Well, I don't want to use that, but we were 
forced into it. Was it successful? Did they get the settlement 
done? Yes, they did. But what happened was 149 companies that 
had nothing to do with the hazardous waste in that site were 
forced to pay a settlement. My company paid $43,000. Forty-
three-thousand dollars, that out of the gratis of my heart, I 
had to give the EPA. And unfortunately, that money went to the 
lawyers, because the site was already cleaned. The parties that 
were involved in polluting that site had already agreed to 
clean it up. It was already done. And then late in the process, 
then the diminimus went through. And, basically, due to a time 
problem in their statute of limitations, within a very short 
period of time, a matter of just a short couple of months, 
forced us into the settlement.
    We were basically told that if we did not settle with the 
amounts they gave us, then they--we would all be hauled into 
Federal court and that our cost would be way beyond anything we 
could ever imagine. And what do you do? And since we did not 
have a time to really deal with the decision properly, many of 
us were forced to settle and begrudgingly. And the EPA told us 
that, well, you can settle. We're not saying you did anything 
wrong, but we want this done.
    So, was it successful? Yes. They point to Quincy as being a 
success story. For the small business and those of us in 
Quincy, we had to be involved. It was a disaster and very 
difficult for our companies.
    Mr. Shimkus. Thank you. Mr. Johnson, have you ever operated 
a small business?
    Mr. Johnson. No, but my father is a small businessman. I've 
worked with him.
    Mr. Shimkus. Okay, thank you. And, of course, you are in a 
legal professional?
    Mr. Johnson. Yes.
    Mr. Shimkus. So, you understand burden of proof and you 
understand evidence, whether--I'm not a lawyer--primary 
evidence or circumstantial evidence. Would you feel it's right 
to penalize a business, which there's no evidence to suggest 
that they're responsible for polluting a site?
    Mr. Johnson. I know that in my State, we are very careful 
before we name any small parties as parties in a Superfund 
cleanup case. We examine the facts. We look at the types of 
material that may have been sent to the site.
    Mr. Shimkus. Okay, but we're now addressing the--obviously 
the--I did that myself, sorry--the Federal Government and our 
Federal legislation. Would you think it was right, fair, and 
just to hold small businesses, like Mr. Nobis, who has recycled 
everything and there's no burden of proof through documentation 
that would lend anyone to believe that his company was 
responsible for the major industrial waste that was placed in 
that municipal landfill?
    Mr. Johnson. We, too, in the Attorney General's offices 
throughout the country, support an exemption from liability for 
small businesses.
    Mr. Shimkus. Could you help us--since the EPA is very 
reticent to try to define that, do you think you all would help 
us define small business?
    Mr. Johnson. I think we would be happy to sit down with the 
committee and give you our comments on what is appropriate. Our 
concerns, as we stated in the testimony, is that the status of 
the parties should not necessarily be the sole criteria. For 
instance, if a small business sent very toxic materials to a 
site, where large quantities----
    Mr. Shimkus. We're not addressing those--yeah, and, of 
course, newer legislation, you put your markers down.
    Mr. Johnson. Right.
    Mr. Shimkus. And I don't think anyone wants to not hold 
anybody responsible for polluting to pay for the cleanup of the 
site. The question that we're debating is: what about those 
parties, who have not polluted, and why should those businesses 
be forced into bankruptcy through this process? And so, if you 
could help with legislation--let me go on with this line of 
questioning.
    Although there were significant problems facing--actually, 
you made a statement in your written documentation presented 
that, although there were no significant problems facing the 
Federal--there were significant problems facing the Federal 
implementation of CERCLA during the 1980's, the current statute 
is now getting the job done as intended. This would suggest 
that the State prosecutors believe that the liability scheme is 
fair--you just testified against that for small business--not 
harming innocent parties, not causing unncessary litigation, 
and not delaying cleanup, and not inhibiting redevelopment. Is 
this the position of the Attorney General--is this the position 
of the Attorney's General, that they have--I need to turn the 
page--no recommendations for reform?
    Mr. Johnson. We do have recommendations for reform and 
we've addressed some of the things that we support in our 
written testimony and we've, also, attached our resolutions on 
the types of reforms that we think are appropriate. We think 
that fundamentally, the core liability provisions of CERCLA are 
sound and should be supported. We, also, agree with you, 
Congressman, that there should be some changes, with respect to 
certain aspects of that. We believe that a small business 
exemption is appropriate under--with the proper safeguards to 
make sure that it isn't abused. The same thing we feel with 
respect to municipal solid waste disposal.
    We have to be, though, very careful when we change language 
of the statute, because too many lawyers will address language 
changes and use--and try to use them in a process that 
inevitably delays the cleanups and raises transaction costs, 
rather than decreases them. And so, we think that we should 
continue to rely on many of the administrative reforms that 
have been reached in CERCLA. There are certain aspects, of 
course, that we'd be happy to work with the committee and make 
codified changes in the statute, as well, where there are--is 
really a need for that. But, we have to be very careful in that 
process.
    Mr. Shimkus. You were passed and all the members of the 
panel were passed a piece styled, ``Superfund is an unjust 
litigation nightmare.`` I'd ask for you to look at that and I 
ask that this be placed in the record. Without objection, so 
ordered.
    [The information follows:]
              Superfund Is An Unjust Litigation Nightmare
    ``Most mayors will tell you that the major impediment in securing 
    private capital for the clean up and redevelopment of brownfields 
    is Superfund's liability regime. We believe that . . . [i]t is time 
    to free innocent parties, both public and private entities, from 
    Superfund's unfair liability strictures. Parties that had no part 
    in causing the contamination at individual sites should no longer 
    be held liable under federal law . . . It is time to create more 
    certainty for the current owners of contaminated properties--the 
    hundred of thousands of sites in every place in America that are 
    likely to be brownfields at some time in the future--by providing 
    them certainty in their cleanup costs and liability exposure.''
--The Honorable Jim Marshall in testimony before the United States 
        Senate Environment and Public Works Committee, May 25, 1999
    ``We have been living under a federal statute and its strict 
    liability regime--although well-intended and largely aimed at more 
    contaminated properties posing greater threats to the public--that 
    has dramatically slowed progress by all parties in coming to terms 
    with lesser contaminated properties, sites we generally describe as 
    brownfields . . . It has produced a legacy of inaction by property 
    owners, be they innocent or responsible parties, which we now 
    measure in terms of thousands of properties and millions of acres . 
    . . Rhetoric and political advantage will not cleanup one 
    brownfield, but bipartisan legislative action will . . . 
    ``[F]inality'' must be provided to prompt current owners to move 
    forward and cleanup contaminated properties . . . The price of 
    keeping EPA over-empowered in this area is simply too high.''
--The Honorable Jim Marshall in testimony before the United States 
        Senate Environment and Public Works Committee, May 25, 1999
    ``There is no question 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. Many 
    potential developers of brownfields sites have been deterred 
    because even if a state is completely satisfied that the site has 
    been properly addressed, and even if the site is not on the NPL, 
    there is the potential for EPA to take action against the 
    cooperating party under the CERCLA liability scheme . . . In 
    considering how to restore brownfields sites to productive use, 
    please remember the importance of state voluntary cleanup programs 
    in contributing to the nation's hazardous waste cleanup goals.''
   --Tom Curtis, Director of the Natural Resources Group, National 
Governor's Association, in testimony before the Senate Committee on 
                         Environment and Public Works, May 25, 1999
    ``I am here to tell you that, in actuality, the true Brownfields 
    market has not kept pace with expectations. Why? We have been 
    asking our clients just that. Our clients' responses are fairly 
    unanimous. They fear that EPA will ``second guess'' Brownfield 
    cleanups, and require costly site rework at a later dat to reach a 
    different site cleanup standard so they ``hold onto'' lightly 
    contaminated parcels instead of turning them over to beneficial 
    reuse. Moreover, there remains potential down-stream liability 
    associated with that reuse which further retards the process. These 
    concerns result in owners of such properties not undertaking 
    redevelopment efforts at viable Brownfields sites. While EPA has 
    indicated a willingness to enter into, on a case-by-case basis, 
    prospective purchaser agreements at Brownfields sites, the process 
    to enter into those agreements is quite time consuming and there is 
    no certainty in the end that EPA will agree to a prospective 
    purchaser agreement.
    ``H.R. 2580's provisions in Section 3 provide the finality in 
    Brownfields decisions are truly needed if this market, and the 
    actual cleanups, are to accelerate . . . This provision is very 
    important to spurring increased voluntary cleanup actions at 
    Brownfields sites across the country and reducing possible risks to 
    nearby populations that are currently not addressed, expressly 
    because of the fear of federal liability.''
    ``The permit waiver for on-site response actions that is contained 
    in H.R. 2580 would remove the barriers to actual on-site cleanup 
    and significantly increase the pace of Brownfields cleanups.''
      --The Cleanup Contractors, The Environmental Business Action 
     Coalition in testimony before the Subcommittee on Finance and 
                               Hazardous Materials, August 4, 1999.
    ``H.R. 2580 succinctly mandates that U.S. EPA must receive a 
    Governor' concurrence prior to listing a facility on the National 
    Priorities List. We support this provision as it is clear, 
    unambiguous and satisfies our goal of clarifying the role of the 
    federal Superfund program in the future.''
    ``Both the National Governors' Association and ASTSWMO oppose 
    provisions which allow the U.S. EPA to review and approve existing, 
    established State voluntary cleanup programs. ''
    ``It is our belief that we can no longer afford to foster the 
    illusion that State authorized cleanups may somehow not be adequate 
    to satisfy federal requirements. The potential for U.S. EPA 
    overfile and for third party lawsuits under CERCLA is beginning to 
    cause many owners of potential Brownfields sites to simply 
    ``mothball'' the properties''
    ``H.R. 2580 satisfies the goal of clarifying which governmental 
    entity is an should be responsible for deciding when a cleanup is 
    complete and when a party is released from liability.''
 --The National Governors Association and the Association of State 
and Territorial Waste Management Officials in testimony before the 
   Subcommittee on Finance and Hazardous Materials, August 4, 1999.
    ``It has been shown that Superfund's liability regime unfairly 
    threatens innocent parties and too often drives private sector 
    investors from brownfields to more pristine locations. And, we 
    recognize that this Act helps fuel a development cycle that imposes 
    increasing burdens on all of us.''
  --The Honorable Marc Morial, Mayor of New Orleans, The Honorable 
Michael Turner, Mayor of Dayton, The Honorable Jim Marshall, Mayor 
      of Macon, testimony before the Subcommittee on Water and the 
                                          Environment, May 12, 1999
    ``Another provision that is important to the nation's Governors 
    concerns the requirement for a Governor to request the listing of a 
    site before a state's site may be added to the NPL . . . Because 
    states are currently overseeing most cleanups, listing a site on 
    the NPL when the state is prepared to apply its own programs and 
    authorities is not only wasteful of federal resources, it is very 
    often counterproductive, resulting in increased delays and greater 
    costs. The Governors fear a case where there will be ``two 
    masters'' of the cleanup process . . . To avoid this we advocate 
    that Governors should be given the statutory right to concur with 
    the listing of any new NPL sites in their states.''
   --Tom Curtis, Director of the Natural Resources Group, National 
Governor's Association, in testimony before the Senate Committee on 
                         Environment and Public Works, May 25, 1999
    ``One common incentive provided by these programs is liability 
    relief. Typically, the state will provide some form of liability 
    relief once it has approved a cleanup. In Ohio, relief comes in the 
    form of a ``No Further Action'' letter from the state EPA. 
    Unfortunately, there is no guarantee that the federal EPA will not 
    assert authority at a future date and require additional cleanup. 
    Without the certainty of knowing that they are protected from 
    federal as well as state liability, property owners and developers 
    are very reluctant to undertake development of a site which is or 
    might be contaminated. Let me illustrate with an example. I 
    recently had a contract as listing agent to sell a large warehouse 
    property. The property was adjacent to a government-owned landfill. 
    There were concerns about contamination on the property due to 
    migration of heavy metals from the landfill. If we only had to 
    comply with Ohio law, the government entities that owned the 
    landfill would have removed the contamination, and the property 
    would have been sold in a reasonable time. However, because of 
    uncertainty over federal liability, the lender and the purchaser 
    were reluctant to go forward. As a result, it took five years to 
    close the deal, and only after we found a new buyer and a new 
    lender willing to face the risk of future liability.''
                   --National Association of Realtors, May 12, 1999
    ``The Superfund liability scheme has clearly exacerbated the 
    difficulty of bringing brownfields back to productive use. 
    Moreover, that liability scheme itself is responsible for the 
    creation of many brownfields. This system makes the owners of 
    contaminated properties liable for millions of dollars in cleanup 
    costs even if they had nothing to do with contaminating the site 
    and they purchased the property decades after the contamination 
    occurred. It exposes landowners not only to Superfund actions by 
    EPA, but also to lawsuits decades in the future by as-yet 
    unanticipated parties who incur costs to clean up the property. 
    Concerned about this ``trailing'' liability, owners of the 
    properties that may be contaminated hold these properties back from 
    the market. This practice has been referred to as ``mothballing,'' 
    bringing to mind the useless hulks of rusting ships set aside by 
    the U.S. Navy after World War II. When properties which carry the 
    stigma of contamination become available for sale, most developers 
    avoid them out of concern for exposure to endless uncertainty and 
    undue financial liability.''
--Barry J. Trilling, National Association of Industrial and Office 
  Properties, testimony before the Subcommittee on Water Resources 
                                      and Environment, May 12, 1999
    ``The example of states like Pennsylvania, Michigan, Indiana, and 
    others with voluntary cleanup programs support this view. In 
    Pennsylvania, for example, NAIOP actively participated in the 
    legislative process that resulted in Act 2, the Land Recycling and 
    Environmental Remediation Standards Act. Under that statute, 
    parties may choose to clean up contaminated properties to one or 
    more of three different levels, after which they receive a release 
    from liability under state environmental laws. The remediation 
    standards of Act 2 apply both to voluntary cleanups and mandatory 
    remedial actions under the state's version of Superfund. The 
    Pennsylvania statute has been adopted as model legislation by the 
    American Legislative Exchange Council, an organization represented 
    by legislators from all 50 states. Under Pennsylvania's program, in 
    effect since July, 1995, 267 sites have already been cleaned up and 
    nearly 500 sites are in the process of remediation. State voluntary 
    remediation and revitalization efforts, such as Pennsylvania's, are 
    significant steps forward, but these state programs do not protect 
    our members from liabilities arising under the federal Superfund 
    statute.
--Barry J. Trilling, National Association of Industrial and Office 
  Properties, testimony before the Subcommittee on Water Resources 
                                      and Environment, May 12, 1999
    ``We know that Superfund's liability regime too often drives 
    private sector investors from brownfields to more pristine 
    locations. We know these rules punish innocent parties, fueling a 
    development cycle that is unsustainable. We know that current law 
    must be reformed to undo the bias toward new land resources over 
    recycling land that is already urbanized or developed. Mitigating 
    the effects of this nearly twenty-year Superfund policy will 
    require actions on several fronts.
    ``We have learned that liability under Superfund is their dominant 
    concern. Despite progress in securing ``comfort letters'' at many 
    sites, lender liability reforms and growing confidence in state 
    program efforts, there is real anxiety, and we would wish 
    otherwise, among bankers and other lenders on these issues. The 
    specter of Superfund liability severely limits their ability to 
    increase the flow of private capital into these projects.''
    ``We also strongly support liability reforms contained in H.R. 1300 
    and H.R. 2580 to address the many circumstances whereby cities and 
    other local governments have acquired brownfield properties in the 
    past. Under these provisions, cities and other public agencies are 
    rightly afforded innocent party relief in the performance of local 
    government functions.''
    ``We hope that the legislation that is adopted by this Committee, 
    as provided in H.R. 2580, will encourage states to use these funds 
    to place more priority on efforts to bolster state programs in 
    support of brownfield cleanups.''
    ``Without this certainty on state authority, we can't hope ever to 
    provide the necessary assurances sought by private investors in 
    brownfield sites, let alone secure final decisions on the hundreds 
    of thousands of brownfields sites we are seeking to clean up and 
    redevelop. Mr. Chairman, we also want to indicate our interest in 
    seeing provisions that would help accomplish more cooperation and 
    integration of applicable federal laws and standards. One of the 
    areas that H.R. 1300 does not address is the applicability of RCRA 
    and LUST specifically at brownfield sites. Mayors have been very 
    consistent in urging more attention in federal policies to a ``one-
    stop'' brownfields regulatory program at the state level, where 
    states, which are vested with delegated authority, can provide more 
    coordinated and integrated programs. Such an approach would respond 
    to the realities of the contaminants and types of problems that 
    localities encounter at these sites.''
    ``I would note that H.R. 2580 provides authority for RCRA waivers 
    to allow states to integrate this law's permit requirements with 
    cleanups of brownfields. I understand that this provision does not 
    diminish or alter RCRA requirements, but is intended to give states 
    some flexibility in delivering a more responsive and coordinated 
    regulatory program in addressing brownfields. This or some variant 
    of this provision would be very helpful to those of us at the local 
    level who often find ourselves confronting increased complexity at 
    specific sites as we work to return them to productive use.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of 
the U.S. Conference of Mayors, testimony before the Subcommittee on 
                    Finance and Hazardous Materials, August 4, 1999
    ``Legal authority for qualified states to play the primary role in 
    liability clarification is critical to the effective redevelopment 
    of local brownfield sites. A state lead will increase local 
    flexibility and provide confidence to developers, lenders, 
    prospective purchasers and other parties that brownfield sites can 
    be revitalized without the specter of Superfund liability or the 
    involvement of federal enforcement personnel. Parties developing 
    brownfields want to know that the state can provide the last word 
    on liability, and that there will be only one ``policeman,'' 
    barring exceptional circumstances.''
    ``Therefore, in delegating brownfields authority for non-NPL 
    caliber sites to the states, NALGEP proposes that: EPA should 
    provide that it will not plan or anticipate further action at any 
    site unless, at a particular site, there is: (1) an imminent and 
    substantial threat to public health or environment; and (2) either 
    the state response is not adequate or the state requests U.S. EPA 
    assistance.''
    --Donald J. Stypula, Manager, Environmental Affairs, testimony 
before the Subcommittee on Finance and Hazardous Materials, August 
                                                            4, 1999
    `` . . . We all know it doesn't work--the Superfund has been a 
    disaster. All the money goes to lawyers and none of the money goes 
    to clean up the problem it was designed to cleanup.''
 --Clinton speech to business leaders at the White House, February 
                                                           11, 1993
    ``I'd like to use that Superfund to clean up pollution and not just 
    pay the lawyers.''
     --President Clinton, State of the Union Address, Feb. 17, 1993
    ``On a site by site basis, it is clear that liability negotiations 
    consume a lot of time and delay completion of the site.''
 --EPA Inspector General in testimony before House Subcommittee on 
                          Government Reform and Oversight, May 1996
    `` For nonfederal sites, the time required to complete cleanups 
    increased from 2.4 years in 1986 to 10.6 years in 1996 . . . EPA 
    officials also said that the effort to find the parties . . . and 
    to reach cleanup settlements with them can increase cleanup 
    times.''
--Government Accounting Office Report, Superfund, Times to Complete 
   the Assessment and Cleanup of Hazardous Waste Sites, March 1997.
    ``Superfund has been a bonanza for lawyers and consultants . . . 
    After over a decade of delay, cleanup is only now beginning at the 
    McColl site in Fullerton . . . cleanup was continually put off as 
    various defendants wrangled in court over how much they would 
    pay''.
         --James M. Strock, California Secretary for Environmental 
                                                  Protection, 1994.
    ``Hastings . . . has already spent roughly $1.1 million under 
    Superfund, yet the cleanup is far from completed. More that 90 
    percent of the money has been spent on consultants and legal 
    fees.''
             --Governor Ben Nelson, Nebraska Journal March 1, 1996.
    ``[Superfund] has failed the efficiency test: of the $13 billion 
    spend by the governments and companies, one-fourth has gone to what 
    are euphemistically known as ``transaction costs''--fees to lawyers 
    and consultants, many of them former Federal officials who spun 
    through Washington's revolving door to trade their Superfund 
    expertise for private gain.''
                       --New York Times Editorial, February 7, 1994
    ``[Superfund] is generating intolerable injustices and needs to be 
    fixed . . . Many of these cases are grotesquely unfair, and all 
    invite furious litigation as small companies, big ones, banks, 
    mortgages holders, local governments and insurers all go after each 
    other . . . That is why a high proportion of the money spent so far 
    has gone not into clean-ups but into lawyer's fees . . .''
                      --Washington Post Editorial September 2, 1993
    ``[Superfund] has created a legal swamp, enriching lawyers while 
    accomplishing precious little cleanup.''
                 --Seattle Times Editorial Board, February 23, 1995
    ``Just about anyone who ever has been involved with a site can be 
    held liable. That encourages the parties to sue each other 
    endlessly to determine who pays.''
                     --Chicago Tribune Editorial, February 14, 1994
    `` . . . Superfund is absurdly expensive, hideously complex, and 
    sometimes patently unfair. As a result, it invites litigation the 
    way dung attracts flies: not by seeking but just by being''.
                            --USA Today Editorial, February 2, 1994
    ``Far too much money is being spent on lawyers and not nearly 
    enough on cleanup. Our primary concern is that tens of thousands of 
    abandoned properties in urban areas lie contaminated and 
    unproductive because developers and local businesses fear getting 
    pulled into Superfund's far reaching liability system. Congress 
    must act this year to fundamentally reform the failed liability 
    system . . . Without these changes these properties will lie 
    dormant and critical economic revitalization opportunities will be 
    lost for cities nationwide.''
 --Letter from Robert Ingram, President of the National Conference 
                  of Black Mayors to Speaker Gingrich, October 1995
    ``Eliminate retroactive and strict liability prior to January 1, 
    1987 to prohibit liability for conduct that was not negligent, 
    illegal or in violation of regulations or permits at the time.''
  --Recommendation of 1995 White House Conference on Small Business
    `` . . . [A]ny meaningful reform of the liability scheme must 
    include elimination of retroactive liability for waste disposal 
    prior to January 1, 1987.''
          --Acting Chief Counsel for Advocacy, U.S. Small Business 
       Administration, Letter to Leon Panetta, Director, Office of 
                           Management and Budget, January 25, 1994.
    ``The current Superfund liability scheme of strict, joint and 
    several and retroactive liability is grossly unfair. We are 
    convinced that this must be rectified in the reauthorization of 
    Superfund. In reality, the current system is not a ``polluter pay'' 
    system but instead a ``deep pocket pay'' system. The scheme imposes 
    significant impediments to redevelop contaminated sites and only 
    serves to dry up transaction costs at the expense of getting 
    cleanups completed.''
  --Charles McIntosh, Office of the Governor, State of Michigan in 
      testimony before the House Commerce Committee, June 22, 1995.
    ``The ABA position holds that CERCLA needs substantial revision as 
    Congress revisits this year. As presently written, interpreted, and 
    enforced, it results in massive. wasteful, and unproductive 
    litigation. In many instances, it has also resulted in the 
    imposition of liability grossly disproportionate to the conduct 
    involved, perverting rather than implementing the polluters should 
    pay principle. In many situations, it has not been cost-effective, 
    nor have the social benefits been equal to the costs imposed. 
    Finally, in the over fourteen years since its enactment, relatively 
    few sites have been cleaned up . . . 
    Government should generally avoid passing laws which provide for 
    the imposition of retroactive liability: that legislation which 
    creates a new obligation, imposes a new duty, or attaches a new 
    disability for past activities. Retroactive criminal legislation is 
    barred by our Constitution. Retroactive civil legislation is 
    contrary to the common law, and unknown in the civil law. It is 
    unfair and presents an additional major risk to business decisions, 
    because present activities which are legal may have uncertain 
    future consequences due to after the fact enactments of 
    unanticipated legal schemes. This added risk tends to discourage 
    new investments.''
--Statement of the American Bar Association presented to the House 
                                  Commerce Committee June 22, 1995.
    ``While massive, time-consuming litigation may perhaps provide 
    short-term pecuniary benefits to some in the legal profession, the 
    American Bar Association and the attorneys it represents have no 
    desire to stand by idly and profit from other people's misery.''
           --May 21, 1997 letter from Robert D. Evans, Director of 
   Governmental Affairs, American Bar Association to Rep. Sherwood 
                                                           Boehlert
    ``A vote for the Markey Amendment is a vote against Superfund 
    reform and in favor of the current, flawed Superfund Program . . . 
    Many innocent small-business owners are unjustly trapped in the 
    Superfund litigation nightmare even though they followed the law 
    and legally disposed of their wastes . . . No small business can 
    afford to stay in business when the average cleanup costs are $30 
    million . . . [T]he Markey amendment would prevent any possibility 
    of Superfund reform for Fiscal Year 1997 . . . Supporters of the 
    amendment are forgetting about the small businesses and 
    municipalities who are stuck in Superfund litigation . . . This is 
    a key vote for small businesses.''
    ``Adoption of the Markey amendment would condemn the Superfund 
    program to continue as a wasteful and failed environmental 
    program--something this country neither wants, nor can afford . . . 
    A vote for this amendment is a vote for the status quo, and against 
    the interest of small business and other innocent parties who have 
    been caught in the Superfund litigation lottery. After 15 years, 
    it's time for a real change that will get small business and other 
    innocent parties completely out of Superfund. Hazardous waste sites 
    can--and will--be cleaned up faster under the GOP reform plan.''
--Statement of Jack Farris, President of the National Federation of 
       Independent Businesses, the nation's largest small-business 
                 advocacy group in a statement dated June 25, 1996.
    ``While it is no doubt convenient for the Government to assign 
    liability to all parties that have contributed to a Superfund site 
    irrespective of whether they were in compliance with existing laws, 
    doing so violates common standards of fairness while doing nothing 
    to deter future undesirable behavior. In some cases, parties held 
    liable were not only in compliance with laws existing at the time 
    of their action, but were in fact following the State government's 
    explicit directive to deposit the waste at the site.''
 --from the text of the Treasury Department proposal on Superfund, 
                                        released on August 23, 1993
    ``As you will recall, this has been a matter which the Oversight 
    Subcommittee when I was the chairman of it, complained on many 
    occasions. We had a number of hearings about the inadequacies of 
    the administration and about the basic failures and the structural 
    failures which were built into Superfund law which defied even the 
    best of administrations. I believe that these are matters which 
    have to be corrected because it is intolerable that we would spend 
    so much money on litigation, so little money on cleanup. So much 
    time has been dissipated and wasted, and so little accomplishment 
    generally can be observed in what we have done.''
   --Oral Statement of the Honorable John Dingell, Ranking Member, 
             Commerce Committee, during a hearing of the Commerce, 
 Transportation and Hazardous Materials Subcommittee, June 22, 1995
    ``It is easy to criticize the current liability scheme and the way 
    that it has been administered, and there has certainly been no 
    shortage of people who have been willing to do so. I agree with 
    many of those criticisms. We spend far too much money on litigation 
    and not enough on cleanups . . . there is no question though, that 
    the liability scheme is unfair, litigious and a policy disaster''.
        --Opening Statement, Chairman Al Swift, Hearing before the 
 Transportation and Hazardous Materials Subcommittee, February 19, 
                                                              1994.
    ``[W]e believe legislative changes are necessary so Superfund can 
    better protect human health and the environment and operate in a 
    more cost-efficient manner. Each of us has heard concerns from our 
    constituents that the pace of cleanup is too slow; that more money 
    is being spent on litigation than on cleanup activities; that 
    citizens are not properly involved in cleanup decisions; and that 
    program costs are unnecessarily high.''
--Letter from Senators Robert Byrd and John Rockefeller to Senator 
         John Chafee, Chairman Senate Environment and Public Works 
                                    Committee, dated June 25, 1997.
    ``A system that results in 50% of the costs going to lawyers--
    although I am a lawyer--consultants, and transactional costs is a 
    system that begs for, we believe reform, fundamental reform, so 
    that more of the money goes to site remediation.''
--Statement of Michael Finnegan, Counsel to the Governor, State of 
        New York, before the Subcommittee on Finance and Hazardous 
                                          Materials, March 7, 1997.
    ``One site in particular has escaped the effectiveness of CERCLA 
    simply because there are 18 or more PRPs and CERCLA clearly 
    provides the right to litigate. The litigation is not aimed at the 
    regulatory agencies but instead at the PRPs themselves.
    With over 20 million dollars spent on characterizing Fields Brook 
    at least half has been devoted to suing non-participating PRPs by 
    participating PRPs; PRPs against other PRPs to determine who put 
    how much into the Brook; Who's material was more toxic and should 
    they pay more than less toxic polluters: litigation against 
    insurance companies to pay for the disposed materials of PRPs they 
    insured and on and on.''
 --Statement of Leonard E. Eames, Owner Operator Fish City Marina, 
Ashtabula, Ohio before a Hearing of the Subcommittee on Finance and 
                            Hazardous Materials, February 14, 1997.
    ``The Council is cognizant of the negative effect [Superfund] has 
    had upon the reuse and redevelopment of real estate in Ohio. 
    CERCLA's liability scheme, coupled with the staggering cost of 
    conducting and environmental cleanup in accordance with Superfund 
    program requirements and ill-defined cleanup standards has resulted 
    in a widespread reluctance to use or acquire ``so-called'' 
    contaminated property. Manufacturers are reluctant to expand 
    operations into existing commercial and industrial properties, 
    developers are reluctant to acquire existing commercial and 
    industrial properties for redevelopment, lenders are reluctant to 
    loan on such properties and even public or non-profit entities shun 
    such properties . . . 
    The Ohio legislation establishes a liability scheme which exempts 
    those who neither caused nor contributed in any material respect to 
    the release of hazardous substances from liability for the costs of 
    investigation and cleanup.''
     --Statement of James D. Donohue, Ohio Steel Industry Advisory 
      Council, before a Hearing of the Subcommittee on Finance and 
                            Hazardous Materials, February 14, 1997.
    `` . . . Superfund is unduly harsh on small businesses. Under this 
    liability scheme, any contributor to a site is potentially 
    responsible for the entire cost of a site, even if the volume of 
    waste they contributed to the site was minimal. Under retroactive 
    liability, small businesses can be held liable for clean-ups that 
    resulted from alleged waste management activities occurring years 
    or even decades ago. It need not be demonstrated that a small 
    business was negligent or at fault to establish liability.
    Like many of my fellow dealers in Ohio and across the nation, I 
    sent my wastes to recycling facilities. The solvents in question 
    were stored in compliance with all applicable regulations in effect 
    at the time, not mixed with other chemicals, and were transported 
    by licensed haulers to licensed facilities which were designed to 
    recycle a resource for reuse . . . 
    My story is just one of many businesses that have been 
    unjustifiably burdened by an unfair system. I hope my statement 
    will give you and your colleagues a clearer picture of the 
    devastation wreaked on my dealership and America's small businesses 
    community by Superfund . . .''
   --Statement of Richard Smith, President, Bob Daniels Buick Co., 
Columbus, Ohio, before a Hearing of the Subcommittee on Finance and 
                            Hazardous Materials, February 14, 1997.
    ``The uncertainties, disagreements, and litigation produced by 
    these aspects of joint and several liability have imposed delay, 
    profound resentment, and high transaction costs on the basic 
    process of achieving cleanups . . . [t]he basic mechanism for 
    funding Superfund cleanups is fundamentally unfair and extremely 
    inefficient. This problem cannot be solved by EPA's administrative 
    reforms . . .''
   --Statement of Michael W. Stienberg, on behalf of the Superfund 
 Settlements Project in a Hearing before the Subcommittee on Water 
                         Resources and Environment, April 10, 1997.
    ``Superfund's liability provisions make brownfields more difficult 
    to redevelop, in part, because of the unwillingness of lenders, 
    developers, and property owners to invest in a redevelopment 
    project that could leave them liable for cleanup costs.''
 --United States General Accounting Office Report to Congressional 
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June 
                                                      1996, Page 2.
    ``Perhaps the greatest barrier to industrial site reuse, however, 
    is the 1980 Comprehensive Environmental, Response, Compensation, 
    and Liability Act--commonly known as Superfund.''
  --``Restoring Contaminated Industrial Sites'' by Charles Bartsch 
 and Richard Munson, Issues in Science and Technology, Spring 1994 
                                                             Issue.
    ``Superfund laws actually reduce the reuse, supply of, and demand 
    for brownfield properties''
     --Unlocking the Brownfields: Overcoming Superfund Barriers to 
Redevelopment, by Ross Macfarlane, Jennifer Belk and J. Alan Clark, 
  a Report Done By the Law Firm of Preston Gates & Ellis, Seattle, 
                                                        Washington.
    ``The Superfund liability system needs to be reformed to reduce the 
    burden on small businesses and to ensure that more money goes to 
    clean-up not lawyers . . .''
  --Statement of Carol Browner, Administrator, U.S. EPA, before of 
     hearing of the Subcommittee on Commerce, Trade, and Hazardous 
                                       Materials on March 16, 1995.
    ``We are all frustrated by the number of lawyers who are now 
    involved in Superfund. We want the lawyers out.''
  --Statement of Carol Browner, Administrator, U.S. EPA, before of 
     hearing of the Subcommittee on Commerce, Trade, and Hazardous 
                                       Materials on March 16, 1995.
    `` . . . We are paying a high price in terms of administrative and 
    cleanup costs incurred by EPA, and a high price in terms of the 
    transaction and cleanup costs incurred by companies and State and 
    local governments potentially liable for contamination. We are 
    paying a high price in terms of the basic fairness--or unfairness--
    of the program. Finally, we are paying a high price in terms of the 
    anxiety and frustration of local communities concerned about delays 
    in cleaning up contaminated sites . . . Additional time is spent 
    negotiating and litigating over the responsibility for, and the 
    cost and extent of cleanup. These delays, even if sometimes 
    explainable, can add significantly to the total costs of cleanup.''
  --Statement of Carol Browner, Administrator, U.S. EPA, before of 
       hearing of the Subcommittee on Transportation and Hazardous 
                                         Materials on May 13, 1993.
    ``One of the most significant delays that occurs in the Superfund 
    process is the allocation of liability among responsible parties.''
  --Statement of Carol Browner, Administrator, U.S. EPA, before of 
       hearing of the Subcommittee on Transportation and Hazardous 
                                         Materials on May 13, 1993.
    ``I think we all agree that the transaction cost portion is one due 
    very serious evaluation and consideration. Again, I do not think we 
    could have predicted 12 years ago that the result of the law would 
    be that responsible parties suing responsible parties--insurance 
    companies, I mean, the level of legal actions that would take 
    place. We need to do something to address it.''
  --Statement of Carol Browner, Administrator, U.S. EPA, before of 
       hearing of the Subcommittee on Transportation and Hazardous 
                                         Materials on May 13, 1993.
    `` . . . [A] system which puts a premium on assessing liability 
    invites legal warfare, a result which is fundamentally at odds with 
    the goals of the statute . . . [I]t appears as if many, if not 
    most, of the 20,000 PRP's named so far are not the midnight dumpers 
    Congress has in mind in 1980. Instead they are thousands of small- 
    and medium-sized businesses, municipalities, individuals, 
    hospitals, and others who never broke any laws, who sent their 
    waste where they were told--often to government-permitted 
    facilities--and who did not and do not fit the popular definition 
    of irresponsible polluters . . . arly, the Superfund status quo is 
    unacceptable. We cannot tolerate a program which generates so few 
    cleanups, a program which encourages the responsible Agency, EPA to 
    concoct all manner of public relations schemes to inflate its 
    accomplishment, and a program which is disappointing to thousands 
    of citizens who live near Superfund sites.''
 --Extension of Remarks of Congressman Mike Synar, October 9, 1992.
    ``When examining the few 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, its 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 . . . 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 . . . There isn't one segment whether it be a retail 
    store, a professional service business, or a construction business 
    that has not been touched.''
  --Statement for the Record by National Federation of Independent 
       Business before the Senate Subcommittee on Superfund, Waste 
                       Control, & Risk Assessment on March 5, 1997.
    `` . . . EPA, under the current liability provisions, is now going 
    after hundreds of small service stations in my district who thought 
    that they were doing the right thing . . . This despite the fact 
    they had no knowledge of nor control over the facility's actions . 
    . . In fact, the EPA has taken unusual steps to `verify' which 
    services stations sent used oil to the Peak Oil site and how much 
    they sent. The de minimis parties involved in the Peak Oil site 
    were identified by a truck driver who worked for Peak Oil from 1955 
    until 1965 hauling used oil from various locations throughout 
    Florida . . . With EPA officials in a car, they drove around 
    Florida and he pointed to all the businesses from which he claimed 
    to remember picking up oil . . . Nevertheless, Yarborough Tire 
    Service has had to hire a lawyer to challenge the EPA `evidence'.''
  --Congressman Mark Foley in testimony before the Subcommittee on 
              Finance and Hazardous Materials on September 4, 1997.
    ``[S]ound science must have a seat at the table. In determining the 
    appropriate remediation option, science must play a role in 
    distinguishing realistic scenarios under which public health and 
    safety would be at risk. Remediating a site under outlandish 
    assumptions not only creates fear within the community, but ties up 
    additional resources and prolongs the final clean-up.''
--Congressman John E. Peterson in testimony before the Subcommittee 
           on Finance and Hazardous Materials on September 4, 1997.
    ``Little did the community know then, that EPA's decision to 
    declare the plant a Superfund site was not the beginning, but the 
    end of efforts to clean up the plant. It was as if EPA had signed 
    the death warrant for the entire community . . . And they wait to 
    this very day. While in the middle of town there sits the plant--
    almost 1 million square feed of prime industrial real estate . . . 
    Empty of jobs, empty of taxes for the local schools, and empty of 
    hope. Adding insult to injury, local economic development officials 
    tell me that they have had to refuse several offers to resume 
    industrial production at the site . . . And all of this because the 
    Superfund program--while admittedly well intentioned--has became an 
    almost impenetrable morass of red tape, liability litigation and 
    expense . . . No community should have to suffer through what has 
    happened to us.''
--Congressman Phil English in testimony before the Subcommittee on 
              Finance and Hazardous Materials on September 4, 1997.
    ``Each year since I have been elected to Congress, I have visited 
    each site on what I call my annual Superfund tour. I am accompanied 
    by employees of the EPA Superfund Region 2 division, and I am 
    joined in many cases at each site by local elected officials, town 
    administrators, and concerned members of the community. At each 
    site, the EPA site manager provides a status update on the site to 
    me and community representatives and, unfortunately, the updates do 
    not seem to vary much from year to year . . . In the 17 year 
    history of the program, only one of my 13 sites has been listed in 
    the ``Construction Completed'' category and none have been deleted 
    . . .''
           --Congressman Rodney Frelinghuysen testimony before the 
   Subcommittee on Finance and Hazardous Materials on September 4, 
                                                              1997.
    ``In New Jersey alone, 57 school districts have been assessed for 
    liability under Superfund . . . In one case in New Jersey, 
    involving the Gloucester Environmental Management Services Landfill 
    (GEMS), 53 school boards were assessed $15,000 each, not including 
    additional money associated with legal costs. As a result of the 
    tangled Superfund liability web, these precious dollars in a 
    school's budget were diverted away from educating children and into 
    the Superfund coffers.''
        --Congressman Rodney Frelinghuysen in testimony before the 
   Subcommittee on Finance and Hazardous Materials on September 4, 
                                                              1997.
    ``In drafting this statement, I came upon the Environmental 
    Protection Agency's Web Site. Curious, I decided to see if it 
    mentioned Operating Industries Incorporated (OII), a Superfund site 
    in my district that has been a red tape, bureaucratic nightmare for 
    ten years. Imagine my surprise to not only see it mentioned, but to 
    find it listed under the heading ``Superfund Success Stories''.
    As you can see [EPA] lauds the Agency's settlement with the 
    responsible parties, the agency's quick action in formulating a 
    plan for the construction of two cleanup facilities, and the 
    Agency's close working relationship with the surrounding community.
    I don't know where they EPA got its information, but it did not 
    talk to me, or the city manager or council members of Monterey 
    Park, where OII is located, or to the residents of the city, who 
    live with this toxic eyesore day in and day out . . . [T]he EPA 
    continues to drag its feet and throw up every obstacle possible to 
    prevent Monterey Park from moving forward with this project . . . I 
    for one, fail to see how preventing a community from cleaning up 
    and developing its land can be considered productive. I fail to see 
    how denying the community's request time and time again, and 
    preventing it from turning a blight into a benefit, can be 
    considered community cooperation.
    I can't emphasize enough how frustrating it has been to deal with 
    such bureaucratic arrogance. The city of Monterey Park has bent 
    over backwards in its attempt to work with the EPA to achieve the 
    release of this land, which is actually a prime candidate for the 
    much-touted brownfield program. As a matter of fact, several local 
    developers have expressed interest in the land once minor cleanup 
    is completed. But instead of working with the community, the EPA 
    has fought it at every turn.''
         --Congressman Matthew G. Martinez in testimony before the 
   Subcommittee on Finance and Hazardous Materials on September 4, 
                                                              1997.
    ``[T]he Superfund program has become a tool to punish companies and 
    individuals, many of whose actions were not negligent, illegal or 
    in violation of any regulations at the time, rather than focusing 
    on cleaning up the nation's worst toxic waste sites--and the 
    biggest losers have been the American public.''
  --Congressman Chris John in testimony before the Subcommittee on 
              Finance and Hazardous Materials on September 4, 1997.
    ``Liability reform comes closer to a real concept of ``polluter 
    pays'' by seeking to hold liable those parties which owned and 
    controlled sites and parties which violated disposal laws, rather 
    than pursuing everyone connect to the site. The goal is to secure 
    who is truly responsible for the pollution and hold them 
    accountable while reducing the number of parties at sites to a 
    relatively small number, each with clear liability.''
 --Superfund Reform 105th Congress Goals for Progress presented in 
 testimony by Congressman Robert Condit before the Subcommittee on 
              Finance and Hazardous Materials on September 4, 1997.
    ``[B]usinesses paid a premium fee for a private company to manage 
    their waste. The management company violated the law, not the small 
    business owners. Yet the small businesses apparently are being 
    forced to pay for sins they did not commit. They made a good faith 
    contract and the Superfund law as applied violates it. Congress 
    must fix these glaring injustices.''
        --Statement of Congress Tim Roemer before a hearing of the 
    Commerce, Transportation and Hazardous Materials Subcommittee, 
                                                  October 18, 1995.
    ``I have already spent over $30,000 in my defense. I don't 
    understand, why I should be liable for activities that took place 
    before I bought the business? Why should the landlord be held 
    liable for what he had no control over? Why should businessmen like 
    myself who have revitalized shops in poor neighborhoods be 
    penalized for the good we are trying to do? . . . [T]he salinity of 
    the underground water in that area is so high that since the time 
    of Genesis we have already known that we cannot ever use it . . . 
    Ladies and gentleman, this old man is in jeopardy just because of 
    the Superfund. It has strict retroactive liability, it sets 
    unrealistic and unwarranted cleanup standards, and it allows for 
    costly private lawsuits against innocent, hard-working people like 
    myself. Please fix this broken law.''
--Statement of Martin Yee, White Spur Cleaners before the Commerce, 
Transportation, and Hazardous Materials Subcommittee June 22, 1995.
    ``No bank will finance my growth because retroactive liability has 
    destroyed my property value, which small businesses use as a source 
    of growth capitol . . . There is little doubt left that retroactive 
    liability is unfair . . . Still, there are some left in government 
    who maintain that retroactive liability is needed . . . It is as 
    though any means are justified in pursuit of an end . . .''
--Statement of Richard Leavitt, President and Owner, Chelsea Clock 
       Company, before the Commerce, Transportation, and Hazardous 
                             Materials Subcommittee, June 22, 1995.
    ``Arrowhead Refinery Superfund site is a classic example of the 
    best intentions becoming the worst nightmare . . . The company went 
    out of business some time in the late 1960's . . . From what I 
    understand there were not many records left over from Arrowhead so 
    the federal and state agencies looking into the site interviewed a 
    former driver, now up in years, as to where and when he went to 
    pick up waste oil . . . The federal agency in Chicago and Pollution 
    Control Agency in Minnesota were both involved . . . They both 
    asked for the same documentation. We weren't sure who was 
    controlling the process. Because I had been active in politics I 
    would get calls from various litigants complaining or, in some 
    cases, almost crying wondering what was going to happen . . . I 
    could go on and on about what transpired during the eight years of 
    litigation, hearings and depositions. The point is that there is no 
    reason for something like this to cause eight years of stress on 
    people that have been good citizens and good business people . . . 
    This Act reversed our whole tradition of innocent until proven 
    guilty to you're guilty prove otherwise''
  --Statement of Kelvin Hersted, President/Treasurer, United Truck 
Body, before the Commerce, Transportation, and Hazardous Materials 
                                      Subcommittee, March 16, 1995.
    ``I am a fourth party defendant in the Keystone Superfund lawsuit. 
    I have been sued by my friends and neighbors. Why did they do this? 
    Upon the advice of attorneys bringing others into the suit, this 
    was the only way they could lessen the amount of their settlements 
    . . . I am being sued for $76, 253.71. That is a lot of money to 
    me, more than I am eager to pay myself a year. That does not 
    include my ever increasing legal fees. This legal action has 
    angered, depressed and confused me. After paying thousands of 
    dollars in insurance premiums, my company will not defend me or 
    assist me without cost . . . I obeyed State, local, and Federal 
    regulations. Being forced to defend myself is a travesty of 
    justice. Being forced to pay this settlement would be devastating 
    to my business. Has anyone considered the effect on my employees 
    and their families. Has anyone considered the effect on our 
    community? . . . What is the Superfund law accomplishing? The 
    attorneys are making a fortune, small businesses are unfairly 
    burdened, and the contamination still isn't cleaned up.''
--Statement of Barbara Williams, Owner, Sunnyray Restaurant before 
     the Committee on Environment and Public Works, April 23, 1996.
    ``One component of CERCLA that exacerbates this problem of 
    inordinately high litigation transaction costs is the statute's 
    imposition of retroactive liability coupled with absolutely no time 
    limit on how far back in history a party's conduct will be subject 
    to scrutiny. As a result, it is common for potentially responsible 
    parties who may have had some relationship to the property at 
    issue, even those whose relationship to the property ended during 
    the last century . . . UGI and other companies mired in costly 
    claims over liability at ancient sites where their activities 
    ceased many years ago are expending a substantial amount of time, 
    dollars and resources litigating over documents from the 19th 
    Century gas light era. With the clean up costs as enormous as they 
    are, companies if permitted will go back as far in time as they are 
    allowed in order to drag in one more potentially responsible party 
    . . . Indeed, UGI has retained an entirely new kind of Superfund-
    spawned specialist, known as ``insurance archaeologist'' who 
    attempts to identify and evaluate the import of ancient insurance 
    documents. Thus, one more company, this time an insurance company, 
    is drawn into the retroactive liability morass of the swamp and any 
    claim against the insurance company will likely involve additional 
    litigation.''
  --Statement for the Hearing Record, Richard Bunn, UGI Utilities, 
    Subcommittee on Water Resources and Environment, June 15, 1995.
    ``Now, almost 15 years later, the matter is about to be fully and 
    finally settled. In the interim, EPA spent approximately $1,300,000 
    investigating the site. Additionally, our company spent almost 
    $500,000 in attorney's fees and consulting fees over the period. 
    And for what? The actual cleanup of the site, which EPA ordered and 
    oversaw, cost approximately $38,000 . . . It took over 15 years and 
    cost our company nearly $2 million in professional fees, lost 
    profits, and environmental studies, all for the sake of a $38,000, 
    2-day cleanup, which resulted in three truck-loads of nonhazardous 
    dirt being trucked to Oklahoma.''
  --Statement of Michael Mallen, Southern Foundary Supply Company, 
    Subcommittee on Water Resources and Environment, June 15, 1995.
    ``Construction contractors are being held liable for cleanup costs 
    at landfills for construction debris disposed of there as long as 
    thirty years ago. The contractors did nothing illegal or 
    irresponsible in disposing the wastes and it is questionable if the 
    wastes could be found hazardous even by today's strict standards.''
     --Statement for the Record of Stephen E. Sandherr, Associated 
General Contractors, before the Subcommittee on Commerce, Trade and 
                                Hazardous Materials, June 22, 1995.
    ``We were told that unless we had documentation from the 1960's to 
    prove that the drums were triple rinsed, the fact that they were 
    empty did not matter . . . We were told by Mr. Caplan that if we 
    were not part of the PRP group that settled with EPA, we were 
    subject to paying triple damages if the EPA or the official PRP 
    group came after us for reimbursement . . . 
    In talking to some of the many lawyers that were at the meeting, we 
    were told that we better join, as the EPA basically had unlimited 
    power to do whatever they wanted even if we were innocent of any 
    wrongdoing. At the time we were so intimidated that we paid the 
    $25,000 to stay in the paper loop so that we could keep abreast of 
    what was to transpire . . . It looks as though Stamas would end out 
    between $175,000 to $450,000 if we are coerced into going along 
    with what the EPA expects.
    Gentlemen, in all fairness, how can a small company like Stamas be 
    held responsible for actions taken 30 years ago that were at the 
    time legal, particularly when this action is by another company . . 
    . The requirement to triple wash an empty drum and to be 
    responsible for the life of that drum was not required by any 
    regulation at the time . . . To pay out the kind of money the EPA 
    expects, we might as well close our doors and lay off the 75 
    employees that we currently employ.''
   --Statement of J.L. ``Jim'' Williams, Controller, Stamas Yacht, 
    Inc., before the Subcommittee on Commerce, Trade and Hazardous 
                                          Materials, June 22, 1995.
    ``In 1979, Robert Cox, Sr. then president of the tiny Gilbert-
    Spruance Company in Philadelphia, Pennsylvania, testified as 
    Congress considered passing the initial Superfund law. He told the 
    Senate Environment and Public Works Committee that he did not want 
    his legacy to be bankruptcy for his son, Bob Cox, Jr. due to the 
    open-ended nature of the Superfund liability system . . . 
    Bob Cox, Jr., was forced to declare bankruptcy a decade later due 
    to protracted Kafka-like liability litigation under Superfund and 
    similar state statutes. Many NPCA members have been caught up in 
    the web of Superfund litigation and have experienced great 
    frustration and expense in attempting to find workable and 
    equitable solutions to the cases in which they have become 
    involved.
    In 1992, NPCA conducted a survey of its members and found that, of 
    the $600 million extended by the industry on Superfund-related 
    matters, only $200 million went to cleanups while $400 million was 
    consumed in transaction costs''
     --Statement of Richard Bliss, on Behalf of National Paint and 
  Coatings Association, before the Subcommittee on Commerce, Trade 
                            and Hazardous Materials, June 22, 1995.
    `` . . . Similac, a substitute for breast milk, in fact, had copper 
    content that was required by FDA that far exceeded the copper 
    content that was the basis for the liability in our waste . . . we 
    got two major circuits in this country to admit that . . . in 
    Superfund, everything in the universe is a hazardous substance 
    including federally approved drinking water . . . [F]acts are 
    irrelevant, because if everything in the universe is a hazardous 
    substance, we don't have to concern ourselves with the facts as to 
    what it is . . . [C]ausation was not a part of the statute. That is 
    the present state of the law that everyone thinks is too expensive 
    and too slow, and yet is a plaintiff's lawyers dream; you have 
    nothing to prove.''
--Statement of Lawrence A. Salibra, Alcan Aluminum Co., before the 
 Subcommittee on Commerce, Trade and Hazardous Materials, June 22, 
                                                              1995.
    ``Too many of us have had the unpleasant experience of dealing with 
    federal regulators who impose arbitrary and unreasonable 
    requirements upon property owners. Too many of us have had the 
    unpleasant experience of not being able to resolve these issues 
    after years of involvement. Too many of us have seen small business 
    owners be pushed out of business after having their life savings 
    depleted due to a system that produces little benefit for the 
    public.
    In my district, for example, I have been working with several auto 
    dealers who have been sued by the U.S. Environmental Protection 
    Agency for having deposited oil at a Purity Oil Sales disposal site 
    in Fresno, California between 1930-1970's. Since the oil company's 
    records were burned in a fire sometime in the late 1960's, the only 
    evidence that the EPA has on these auto dealers is the vague 
    recollection of a Purity Oil Sales driver that ``thinks'' he picked 
    up oil from auto dealers. We are now six years into the process. 
    190 defendants have been sued and spent over $200,000 has been 
    spent for attorneys fees, yet not one ounce of contaminated soil 
    has been cleaned up.''
 --Statement of Congressman Gary Condit before the Subcommittee on 
National Economic Growth, Natural Resources and Regulatory Affairs, 
                                                       May 8, 1996.
    ``We think that after spending $8 million our property is in far 
    worse environmental condition than it was before the remedy was 
    begun, and it's still going to take a lot of money to correct all 
    the mistakes that have been made.
    These problems can be addressed by proper management, supervision, 
    and controls, utilizing competent contractors and requiring EPA to 
    be responsive to property owners and the local community.
    An appropriate remedy could have been selected for our property and 
    could have been completed in a far more cost-effective manner . . . 
    Believe us when we say that after 13 years, 13 years of 
    aggravation, anger, tears, and frustration that no one else 
    deserves to suffer this fate.''
  --Statement of Hans and Helena Tielman, Meyersville, New Jersey, 
      before the Subcommittee on National Economic Growth, Natural 
                     Resources and Regulatory Affairs, May 8, 1996.
    `` . . . We utilized other facilities to aid us in our recycling 
    efforts. Most of these locations have since been closed and are now 
    Superfund sites. Because of this Marisol is labeled a `polluter.' 
    To have helped pioneer the recycling industry and be labeled a 
    polluter is an insult . . . 
    I've personally watched the current Superfund system literally 
    waste millions, if not billions of dollars. The amount of money 
    spent for non-cleanup expenses is a national disgrace.
    I believe Superfund is a major reason many businesses have left or 
    have not expanded in the United States, and especially in New 
    Jersey.
    This has amounted to lost jobs, and you don't put a man or woman 
    out of work. You put his or her whole family out of work.
    It has become difficult to plan and budget effectively. 
    Administrative and allocation costs related to Superfund are 
    extremely unpredictable. The unanticipated and untimely imposition 
    of these expenses defy and frustrate managerial control . . . 
    My small company has already paid over $310,000 in defense and 
    administrative costs . . . not toward cleanup . . . 
    Superfund liability provisions are woefully lacking in fairness, 
    logic, and reason . . .''
--Statement of James Nerger, Marisol, Inc, before the Subcommittee 
     on National Economic Growth, Natural Resources and Regulatory 
                                              Affairs, May 8, 1996.
    ``We believe EPA has let all the federal government agencies off 
    the hook . . . In other words, only the non-federal agencies were 
    ordered to spend millions of dollars on the cleanup, while federal 
    agencies did nothing.''
     --Letter from the Colorado School of Mines to Congressman Dan 
                                      Schaeffer dated June 6, 1997.
    ``Because of Superfund, my small business has spent over $1 million 
    due to contamination caused by others. What makes it even worse is 
    the fact that the vast majority of the contamination was caused by 
    agencies of the Federal Government during World War II when they 
    owned and operated the property.
    How would you describe a law that allows one branch of the Federal 
    Government, EPA, to pursue me to clean contamination caused by 
    another branch of the Federal Government, the Department of War . . 
    . 
    . . . EPA stated at a public meeting that site workers, children 
    playing at the park next door and neighbors living across the 
    street were not at risk from the soils or the air from the Liberty 
    site.
    However, EPA went on to say that there was a risk to the 
    hypothetical trespasser. That trespasser was assumed to be a 
    teenage boy who would enter on the property twice a week, 2 hours 
    per visit, 52 weeks a year for 9 consecutive years, each time 
    coming in contact and ingesting certain soils.
    Based on this scenario, the trespasser would have a hypothetical 3 
    in 10,000 increased risk of getting one type of cancer.
    Ironically, these soils were behind locked, fenced areas that 
    covered less than half of 1 percent of the site with signs saying, 
    ``High voltage. Keep out.''
    Yet, when EPA made their determination about risk, they assumed 
    that the teenage trespasser would be in contact with the soils from 
    these isolated high spots containing the highest concentrations 
    every time they walked on the site . . . 
    Because of all the expenses I have been forced to incur, I have 
    been unable to maintain the mortgage payments . . . One million 
    dollars is a lot of money. However, it is not a true measure of 
    what owning the site and being caught in the web of Superfund 
    liability has cost me.
    It is impossible to measure the toll that it has taken on me, my 
    family and my small business. It has sapped me and my small 
    business of capital, energy, and entrepreneurial spirit. It has 
    taken me from my family and children . . .''
 --Jeffrey Rosmarin, RGE, Inc. before the Subcommittee on National 
 Economic Growth, Natural Resources and Regulatory Affairs, May 8, 
                                                              1996.
    ``In April 1992, EPA sent us a letter stating that we were a 
    potentially responsible party, PRP and they wanted a lot of 
    information that would have taken a year to answer completely.
    But they threatened a $25,000 a day fine if we didn't give it to 
    them . . . We asked them, in July 1992, what they had against us, 
    and the answer was that they had a couple of statements from former 
    garbage men that worked out at that dump who said that we had used 
    other contractors to bring trash out to that dump . . . 
    We did an extensive investigation of all of our employees who were 
    still around to ask, who happened to still be alive, including my 
    mother who has since deceased.
    None of the people that we talked to that had any --or truck 
    drivers had any knowledge of that situation . . . I think they 
    spent about a half a million dollars with litigation before they 
    even started cleaning the thing up . . . [the primary PRPs] wanted 
    $26,000 from us as a downpayment to get the ball rolling . . . 
    That's what makes this Superfund law such a nightmare, and 
    ``nightmare'' is a word that we've all used.
    We are charged with something that our grandfather allegedly did 
    that was legal. It's even worse than being fined by a legitimate 
    act allegedly done by your grandfather or my great-grandfather, for 
    that matter . . . 
    [T]hanks to Congress, we face a tremendous legal cost and fines 
    based on allegations that we did something legal that is illegal.
    This is unfair, un-American, and we request that you consider 
    rescinding this outrageous injustice.''
        --Statement of Steve Dixon, Beckett Bronze Co., before the 
   Subcommittee on National Economic Growth, Natural Resources and 
                                   Regulatory Affairs, May 8, 1996.
    ``I can tell you as a town manager that the site-specific, 
    retroactive liability system has made it virtually impossible for 
    local governments to fulfill their four major responsibilities at 
    Superfund sites which are (1) eliminating the risk in a timely 
    manner; (2) protecting the local economy and tax base; (3) 
    returning polluted, non-productive land to productive, taxable 
    status when that is practical; and (4) controlling costs at those 
    sites. The current Superfund law, in particular its liability 
    system, significantly impedes rather than facilitates the 
    attainment of these goals.''
   --John Weichsel, Town Manager, City of Southington Connecticut, 
before the Subcommittee on Water Resources and Environment, October 
                                                          30, 1997.
    `` . . . I am mired in litigation at the Berks Superfund Site in 
    Douglassville, Pennsylvania . . . The Berks site operated as an oil 
    and solvent recycling facility from the 1930's until 1985. Delaware 
    Oldsmobile is just one of twenty dealerships that was identified as 
    a contributor by the testimony of a former truck driver for a 
    company that had transported used oil to the Berks site . . . 
    Significantly, the driver was employed for only two and a half 
    years, and there are no supporting receipts or other documentation 
    to substantiate his claims. Yet, with no other fact-finding on 
    EPA's part and no documentary records of evidence, EPA used the 
    driver's recollections to determine, through extrapolation, the 
    amount of oil that each dealership sent to the Berks recycling 
    facility for all years in question.
    As a small businessman who complied with all federal, state and 
    local regulations regarding used oil, I am utterly amazed at the 
    legal entanglements I have endured, and I am even more frustrated 
    by the exorbitant liability that I am being forced to assume''.
  --William Luke, Delaware Olds, Inc., Wilmington, Delaware before 
  the Subcommittee on Water Resources and Environment, October 29, 
                                                              1997.

    Mr. Shimkus. And these are quotes from everybody, talking 
about--I think there's--you know, and you can look at that at 
your leisure. But, it suggests another opinion; that although I 
think we're accepting the fact that there are problems, I think 
there's maybe a little bit more problems than--than a lot of 
people are willing to admit.
    I know I am beating a dead horse on the limited liability 
provision for small business, but the reason why I'm doing that 
is I saw it historically portrayed a couple of years ago on a 
60 Minutes episode. People promised to have reform, from the--
from the administration on down the line. Three years later, no 
reforms. That story is being replayed out in my district. And 
if we don't have any reforms, that seems to always going to be 
replayed out 3 years from now and we're going to be back at it. 
And it's the small businesses and mom and pop operations that 
have--there's no connection to the hazardous material that--by 
this failed, unfair law, especially with provisions for small 
business.
    With that, my time has expired and I yield to the ranking 
member, Mr. Towns, for 5 minutes.
    Mr. Towns. Thank you, very much. If a State or Federal law 
is both relevant and appropriate under the circumstances of a 
lease, it would seem to be common sense to apply that 
requirement, particularly if it would avoid disputes with the 
States over whether such a State standard is per se legally 
applicable. Mr. Johnson, what is the position of the States and 
please give us a reason for your views?
    Mr. Johnson. We are very concerned about the rejection of 
relevant and appropriate standards by 1300 and 2580. Our 
feeling is that it, in fact, is a common sense conclusion; that 
if a standard is relevant and appropriate, it should be applied 
at a site. Why should it matter whether the landfill, for 
instance, stopped accepting waste in 1984 and 1988, when it--
when it comes to determining how that landfill should be fixed. 
However, many standards will not be legally applicable, if the 
landfill stopped accepting waste in, let's say, 1984 or whereas 
they will be applicable after that date. But the standard, 
nevertheless, is important for protecting the public. It is 
relevant and appropriate under the circumstances and we think 
it should be applied at the site.
    Keeping relevant and appropriate standards in the statute 
will avoid fights about whether regulations, in fact, are 
applicable; avoid excessive rulemaking by States that would be 
compelled to have to completely repromulgate all of its rules 
to apply to Superfund cleanups, and that places an 
extraordinary burden on all the States throughout the country. 
Relevant and appropriate standards usually represent the best 
engineering judgment about what should be utilized in the 
remedy selection process. And because they are not mandatory 
under the statute, the EPA and the States still have the 
ability to choose among the various standards and pick that 
which is best for the circumstance.
    And it seems to us to be a very good way to proceed in 
picking an appropriate remedy. It avoids excessive risk 
assessments. It avoids having to demonstrate case after case 
after case that somehow, and it's a best engineering judgment, 
to put an impermeable cap on a landfill. Instead, the States 
can rely on the relevant and appropriate standards to require 
those types of protective remedies.
    Mr. Towns. All right, thank you. Ms. Williams, from the 
community standpoint, the same question.
    Ms. Williams. Well, from a key community standpoint, RARs 
are the first line of defense against the Federal agency that 
may not understand local ordinances or State ordinances that 
were enacted. Let me give you an example. We're recently 
working at the Del Amo/Montrose site, where they picked up what 
was essentially pure DDT and had to go into the neighborhood 
and pick it up with bulldozers. And the local Air Board put a 
standard for air emissions that they had to meet, and if they 
didn't meet that, they had to shut the cleanup down and re-
water the site. Now, if that standard had not been adhered to 
and applied by the local Air Board, the Federal agency--
actually, the contractor doing the work would have just been 
able to pretty much, you know, have billowing DDT latent dust 
all over the neighborhood. So, that just gives you one example.
    Another example I can give you, in California, is with 
drinking water standards. California has more stringent 
drinking water standards. California has a Porter/Cologne Water 
Quality Act, which was passed almost a century ago, to protect 
ground water from contamination, and no other States have 
programs like that, as well. And so the Water Board actually 
has a special resolution that they passed 4 years ago, I think, 
to force Superfund sites and Federal agencies, such as DOE and 
DOH, comply with groundwater standards, which are very 
important. Because, in many instances, at very complicated 
cleanups, where we may not have technologies yet to actually 
destroy the contaminants, you end up with a cap. And part of 
the requirements that the Water Board imposes on those caps is 
that they put in monitoring systems, to make sure that the 
groundwater is not becoming contaminated with the cap.
    So--I mean, I can go on at great length. But, these 
relevant and appropriate regulations are very, very important 
for the protection of public health, as well as the 
environment.
    Mr. Towns. Right. Thank you, very much. Let me have 1 
minute additional here. I want to just sort of raise a question 
with Mr. Jeffers. Why do you support and seek legislative 
ratification on the numbers in EPA's municipal settlement 
policy?
    Mr. Jeffers. Well, I think we, as a muncipal government, 
feel that they are fair, equitable, and conservatively 
estimable and they're workable and we supported those ideals 
for several years now. And we think we can live with them and 
they work for us.
    Mr. Towns. Okay, thank you. Let me thank all of you for 
your testimony. Thank you. Yield back.
    Mr. Shimkus. The gentleman yields back his time. Next, we 
have the gentleman from Michigan, Mr. Stupak, you are 
recognized for 5 minutes.
    Mr. Stupak. Thanks, Mr. Chairman. Let me apologize, again, 
for bouncing back and forth between O&I and here. I was just 
once again looking at your testimony, Mr. Nobis, on Quincy, 
Illinois, and hopefully we have some good news we can share 
with you.
    Every member on this side, at least on the Democratic side 
here, has supported legislation to exempt from liability small 
businesses and residential home owners, who only send municipal 
solid waste or trash to a local landfill, much like you had in 
your Quincy experience here. And we have supported exempting 
you from liability for municipal solid waste over the past 5 
years. In the earlier panel, we had H.R. 2485, my bill, which 
would eliminate the liability; but, unfortunately, the 
leadership of the House didn't take any action on it. And we're 
going to bring it up again and hopefully, as this legislation 
moves, we can do something with it to give you that exemption 
you're looking for. And, quite frankly, you're being held 
hostage to those have a much broader and more controversial 
Superfund legislative agendas. And that's why we developed 
2485, because the little individuals that we're trying to help 
out were always getting caught in the larger issues on 
Superfund.
    So, would you and NFIB--I guess you're representing NFIB--
would you support moving a bill separately to relieve you and 
your friends in Quincy, who are sent their trash to the normal 
municipal solid waste? Would you guys be willing to, at NFIB, 
support our legislation 2485?
    Mr. Nobis. I think the thing for small business--and the 
Superfund is a very complicated thing, and we found that out 
and tried to deal with it in our community. For small business, 
I think, small business will definitely be supportive of any 
bill that would get small business out. To me, it makes a lot 
of sense. We have been dealing with this problem for at least 6 
years. There have been promises to get small business out. Yes, 
we do feel hostage. We have needed to be out of this problem 
for a long time.
    Had--I think it was 5 years ago, we saw a 60 Minutes piece, 
where the problem was dealt with in Gettysburg and that then, 
they said, well, you know, they're working on the problem. And 
had that been done, my problem in Quincy wouldn't have 
happened. So, we are being held hostage. We think--we really 
want to be out of this. We see the necessity for small business 
to be out of it. We would be supportive of any bill that would 
get small business out of this. It makes sense to us, though, 
that there's a bill that can just deal with small business, 
definitely, that would be the quickest way. It's been real 
frustrating, where both sides--and we've heard it many times, 
yes, the Democrats are for getting small business out, the 
Republicans are for it; but, yet, we're still in.
    Mr. Stupak. Right.
    Mr. Nobis. To me, I'm very simple. I'm just a printer. I 
get right to the point. If you all believe that we need to be 
out, let's get a bill that just gets us out. You can leave us 
alone. We'll leave you alone. As a matter of fact, I think we 
even save you money. It will cost you less money to track after 
us and then you can put that money back and clean up the 
landfills.
    Mr. Stupak. Use your organization, then, to encourage your 
leadership to allow my bill to go. Because, 2485, you mention 
Gettysburg. That's Representative Goodling. He was co-sponsor 
with me and we had it to get you out. We just need a little 
help from the leadership of the House of Representatives to 
move the bill. So, thank you for your input on that.
    Mr. Jeffers, H.R. 1300 provides in Section 305 a full 
exemption for any generator or transporter of municipal solid 
waste, including large commercial companies like Waste 
Management or BFI, who sent municipal solid waste to a landfill 
prior to enactment. But, you support a different resolution of 
the municipal liability issue; is that correct?
    Mr. Jeffers. That's correct.
    Mr. Stupak. Could you just take a moment to explain that?
    Mr. Jeffers. Well, again, my groups feel that the EPA 
policy, which we were very supportive and commented on in 
detail when it was being developed and, ultimately, developed 
and processed, again, deals with a fair, equitable, and 
workable manner, which keeps Superfund going. I think all of us 
want to have the assurance that these environmental parcels 
that need attention are equitably and quickly addressed from a 
community standpoint. We need to make sure that there's a 
chance for them to be redeveloped back into community use and 
that, therefore, the EPA policy, as stated, we think, allows 
that to happen and it treats us, as municipal governments and 
local government, in a manner that we can live with and proceed 
forward with.
    Mr. Stupak. Thank you. My time has expired.
    Mr. Shimkus. Gentleman yield back?
    Mr. Stupak. Well, my time expired. I had one more question.
    Mr. Shimkus. Go ahead.
    Mr. Stupak. Okay, thank you. Mr. Johnson, if I could ask 
you this, what affect will the current owner liability 
provision in Section 302 have on current--let me try again--
what affect will the current owner liability provisions in 
Section 302 have on the current owner category on current law?
    Mr. Johnson. We are very concerned, because we think that 
the revisions that are proposed in H.R. 1300 will make it very 
difficult to hold current owners liable. It makes----
    It makes a number of changes in the law that will make the 
law very difficult to apply for many years. First of all, it 
allows certain owners who purchase even with knowledge of 
contamination even at a reduced price to avoid liability under 
many circumstances. And in fact that is inconsistent with the 
common-law duty to maintain property so that it isn't a 
nuisance or a hazard to others. And we find it a bit odd that 
that type of exemption would appear in Superfund at this point, 
particularly given the consensus over a long period of time, 
several hundred years, that property owners have an obligation 
to protect the public from conditions that occur, that exist on 
their properties.
    Second, the statute changes the standard of care from due 
care to appropriate care. This will invite a new round of 
litigation on what is appropriate versus what is due. And we 
feel that the current statutory language provides an 
appropriate protection for truly innocent owners, and it does 
not need to be changed at this point. This is a problem that we 
don't think is serious. We don't think it is a problem in need 
of a legislative fix. We think the current statute adequately 
provides protection to truly innocent owners and doesn't need 
to be changed.
    Mr. Oxley. The gentleman's time has expired.
    Mr. Stupak. Thank you, Mr. Chairman, for the courtesy.
    Mr. Oxley. The gentleman from New York, Mr. Engel.
    Mr. Engel. Thank you, Mr. Chairman.
    First I would like to ask, Mr. Chairman, unanimous consent 
to insert a statement I have into the record.
    Mr. Oxley. Without objection.
    Mr. Engel. Thank you, Mr. Chairman.
    This legislation troubles me, for a number of reasons, and 
let me give a little bit of an analogy. Years ago when I was on 
the Education and Labor Committee, we held hearings on OSHA, 
which is safety in the workplace. And the majority at that 
time--the majority was trying to point out all the problems 
with OSHA, and so their proposal was to simply eliminate OSHA. 
Instead of fixing it, simply eliminate it. It was an excuse to 
eliminate a program that I think has been very, very good. And 
I called it throwing out the baby with the bath water.
    And I'm afraid the same thing is happening here. Yes, there 
are problems with Superfund. Yes, there are changes that need 
to be made. Yes, we don't want small business to be hurt. It is 
not in anyone's interest to hurt small business. And I think we 
ought to take care of that. But what this legislation does in 
my estimation is it overreaches, and it uses as an excuse to 
roll back the clock in terms of many, many gains that we have 
made.
    I think we need a Brownfields-only bill. Mr. Towns has such 
a bill in H.R. 1750, and I support that bill, and I am a 
sponsor of that bill, I believe.
    But what H.R. 1300 does in my estimation is it nullifies 
the reforms already instituted, and cleaning up of contaminated 
sites in my estimation if this were to pass would stall because 
of the new liability defense defenses giving polluters 
exemption.
    Now we want to not hurt people who are not guilty, but on 
the other hand we don't want to let off the hook the polluters 
who are guilty. And that is why I believe that a number of 
State officials, including the organization Mr. Johnson is 
representing, the National Association of Attorneys General, 
they have stated that the core liability provisions of 
Superfund are an essential part of a successful cleanup 
program. Let me just say what they say. According to the State 
officials, the Superfund liability provides strong incentives 
for early cleanup settlements, promotes improved management of 
hazardous waste and pollution prevention, and promotes 
voluntary cleanup.
    So I would like to ask Mr. Johnson, since he is from New 
York, and so am I, and he represents this Association of 
Attorneys General, what effect will the mandatory allocation 
scheme and all the significant liability exemptions contained 
in H.R. 1300 have on the current Superfund program?
    Mr. Johnson. We are particularly concerned about the 
allocation scheme. As you have said, Congressman, the 
Association's resolution has said that we would like to retain 
the core liability provisions with some minor changes to take 
care of some of the problems that have cropped up in the 
statute. But it is important to keep the core elements of 
liability in the statute.
    The requirement that there be an allocation at every site, 
every NPL site, we think is not a good idea at all. What the 
result of this we think is is that the allocation process will 
change the emphasis that currently exists in the law from 
obtaining settlements, where the issues are decided and the 
case is over and people's liability is determined, to a process 
where an allocation is just the first step in that process of 
resolving the case.
    Mandatory allocation we think under this statute will 
become a trial. It will not result necessarily in settlements. 
When allocations are made mandatory, parties are more likely to 
await its results rather than make an effort to truly settle 
the case and end it. Why not wait and see what happens as a 
result of the allocation before coming forward with a 
settlement proposal?
    Mandatory allocation we think will just inevitably lead to 
trial-like allocations rather than a reduction in transaction 
costs in settlements. And this is particularly pertinent here 
because PRP's ordered to clean up a site will get reimbursed by 
the fund, and thus removing any incentive that they currently 
have to settle.
    Under current law, EPA can provide mixed funding for PRP's 
who agree to settle their liability. However, if they know that 
they don't have to make a settlement in order to be reimbursed 
for any excess costs, PRP's are not going to be settling. That 
means that the fund is going to have to pay for cleanups. There 
is going to be a lot more orders. Cleanups will be delayed. And 
the whole process of resolving cases by settlement and getting 
cleanups to move forward quickly will be delayed.
    Mr. Oxley. The gentleman's time has expired.
    Mr. Engel. May I ask just ask one more question, Mr. 
Chairman?
    Mr. Oxley. Without objection.
    Mr. Engel. Thank you. I don't want to put words in your 
mouth, Mr. Johnson, so correct me if I am wrong, you are saying 
in essence that an allocation is in effect a trial, and you are 
saying that H.R. 1300 on the Superfund program would trigger 
another decade of litigation, escalate private transaction 
costs, create delays in cleanup, and shift huge costs back to 
the Federal Government and the States. Is that not a fact?
    Mr. Johnson. I think----
    Mr. Engel. That is what I believe. I want to know if you 
believe that.
    Mr. Johnson. I think you have taken the words from our 
written testimony and summarized them succinctly. We think that 
that is a problem.
    Mr. Engel. Well----
    Mr. Johnson. Sometimes allocation can work. But to make it 
mandatory in every situation is a bad idea. We need flexibility 
in order to decide what will work on a case-by-case basis.
    Mr. Engel. You just mentioned your testimony, and on page 
21 you said that the section 305(e) in particular--and again I 
don't want to put words in your mouth; correct me if I am 
wrong--would add an additional limitation on liability that 
would directly affect every State by establishing a 10-percent 
cap on recoverable oversight costs. Can you please just tell us 
your concerns with this provision?
    Mr. Johnson. Yes. States need to provide oversight to 
cleanups. The public is always concerned about the quality of a 
cleanup that goes on at a Superfund site, and if private 
parties that are cleaning up a site do not have oversight, the 
public is especially concerned, because they don't know if the 
cleanup is being done properly.
    Under H.R. 1300, section 305 puts a cap on the oversight 
costs of a State 10 percent. Now sometimes that will be all 
right, but in other circumstances it will not be, and this type 
of cap will prevent States from providing the type of oversight 
and ensuring the type of public confidence in cleanups that the 
public demands, appropriately so.
    In particular, we are concerned about putting a cap on 
State oversights, oversight costs. We could end up with 
fraudulent cleanups or shoddy cleanups, and that's not 
appropriate. States do not gold-plate their oversight. We don't 
have enough personnel to do that type of thing. We do what is 
necessary and what it costs, it costs. But those are costs 
necessary to protect the public. And artificially putting a 10-
percent cap on our costs we don't think is correct.
    Mr. Oxley. The gentleman's time has expired.
    Mr. Engel. Thank you, Mr. Chairman, for indulging me.
    Mr. Oxley. Mr. Jackson, we have worked with the Governors, 
the State cleanup agencies, the cleanup contractors, engineers, 
the Commission on Risk Assessment and Risk Management. They 
have all supported changes to ensure that remedy selection is 
protective and modernized. I would like to outline the brief 
but important remedy selection pieces of H.R. 2580 and ask how 
these pieces will help cleanups.
    First, H.R. 2580 modifies the provision requiring treatment 
for treatment's sake to consider practicality, future land use, 
and risks to the community and workers' health. Can you comment 
with the field experience of the cleanup contractors on this 
matter?
    Mr. Jackson. Yes, I would tend to agree with that position. 
I think it is important to look at not just doing treatment for 
treatment's sake. I think it is important to look at the use of 
the land, and I think it is very important to incorporate risk 
assessment in identifying not only the cleanup goal but also 
the method.
    Mr. Oxley. Isn't it a fact that EPA in the past has 
supported changes in future land use as espoused in this 
legislation?
    Mr. Jackson. I believe in some cases yes.
    Mr. Oxley. Well, that was in testimony earlier today from 
Mr. Fields that appeared to be the case.
    Second, H.R. 2580 requires compliance with drinking water 
standards at reasonable points of compliance and removes the 
needless bureaucratic relevant and appropriate standards. Can 
you comment on the need for these changes?
    Mr. Jackson. The key word there is point of compliance. 
Many times I have seen a drinking water standard used 
inappropriately that is not relative to the point of 
compliance, namely, when the water is being consumed by the 
public. So I think the general intention of what you just said 
is correct.
    Mr. Oxley. Finally, H.R. 2580 requires use of sound and 
objective risk assessment practices. Can you comment on that 
based on your experience?
    Mr. Jackson. I would agree with that wholeheartedly. It is 
something that not only I have had experience with in the 
United States, but have also been involved with on projects 
overseas. It is a concept that is based on sound science.
    Mr. Oxley. And finally, Mr. Jackson, can you tell me how 
the RAC liability provisions would spur Brownfields 
redevelopment? And how do you respond to the arguments of Mr. 
Fields and Mr. Johnson?
    Mr. Jackson. One example comes to mind that is very obvious 
from my industry is that by modifying appropriately the RAC--
the response action contractors--liability--you will see a more 
speedy process as far as proposing, adopting, and implementing 
a remedial action on a given site. Many times those sites are 
Brownfields sites. So I would see it as a positive thing.
    Mr. Oxley. Mr. Johnson and Mr. Jeffers, I want to ask you 
about the Allied Signal case and enforcement policy. Isn't it 
true that an enforcement policy is an exercise of discretion, 
and courts will always have the discretion to review whether a 
settlement is equitable? In Allied Signal, on the facts before 
the courts, they found the municipal settlement policy not fair 
under the circumstances. How can codification of a settlement 
policy remove this uncertainty, and how can Congress codify a 
policy where the design of the court is to provide fairness on 
specific facts?
    Let me start with Mr. Johnson, and then go to Mr. Jeffers.
    Mr. Johnson. I think we have to be careful before we draw 
any general conclusions about that decision. I have read the 
decision, although the State was not I don't believe a party in 
that particular case. However, there were some unusual facts in 
that case that are I think unlikely to be replicated at other 
Superfund sites.
    In particular there was evidence in the case that the town 
had required that large amounts of hazardous waste actually be 
deposited at that landfill. And so I don't think it is really 
representative of the problems that are faced at municipal 
sites, at least at the vast number of the municipal sites where 
there hasn't been a resolution of liability.
    Mr. Oxley. Mr. Jeffers.
    Mr. Jeffers. Mr. Chair, again we rely on the EPA policy 
numbers, and we think that those numbers are fair. In fact, we 
had originally started off with a lower number, but agreed to 
settle on a higher number when the policy was being circulated 
for comment. In fact, in the Fultz Landfill case in Cambridge, 
Ohio, the Federal court did affirm the EPA numbers as fair and 
equitable, and again as a decision the benefited both 
municipalities and industrial generators in that case. 
Codification of the EPA policy numbers will use again a fair 
and equitable number that will drastically reduce transaction 
costs over the long run, and we think keep the program alive, 
which again I think all parties want these sites quickly and 
cleanly resolved.
    Mr. Oxley. And would legislation like 1300 or similar deal 
with the issue that you have raised and deal with the problem?
    Mr. Jeffers. Whatever bill is the mechanism or vehicle to 
get there, we think as long as it contains the EPA municipal 
policy numbers, it is a vehicle that we can work with, and 
again it is fair and equitable.
    Mr. Oxley. Thank you. The Chair notes there is a series of 
votes on the floor, and will take this opportunity to thank all 
of you on the panel for an excellent presentation.
    I ask unanimous consent to keep the hearing record open for 
60 days for members to insert statements, questions, and 
additional material for the record.
    Without objection, it is so ordered, and this subcommittee 
is adjourned.
    [Whereupon, at 1:13 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

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                         U.S. Department of Justice
                              Office of Legislative Affairs
                                                    October 4, 1999
The Honorable Michael G. Oxley, Chairman
Subcommittee on Finance and Hazardous Materials
Committee on Commerce
U.S. House of Representatives
Washington, D.C. 20515
    Dear Mr. Chairman: We would like to supplement for the record the 
testimony given by Assistant Attorney General Lois Schiffer at the 
August 4, 1999 hearing before the Finance and Hazardous Materials 
Subcommittee of the House Commerce Committee on the bills introduced on 
brownfields issues by Congressmen Towns and Dingell (H.R. 1750), 
Congressman Greenwood (H.R. 2580), and Congressman Boehlert (H.R. 
1300). In particular, we would like to respond to certain concerns 
raised by Congresswoman Wilson about the State's role and authority at 
Superfund sites.
    At the hearing, Congresswoman Wilson asked whether a State is 
authorized to intervene and override EPA remedy decisions that the 
State finds were inadequate. She stated that she understood our 
testimony to be that EPA should be able to do so for State decisions, 
and asked whether States should be given similar authority to override 
Federal decisions that States believed failed to protect public health 
and the environment.\1\
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    \1\ In her remarks, AAG Schiffer indicated her belief that any 
amended Superfund law should retain EPA's authority to protect public 
health and the environment from the threat of an imminent and 
substantial endangerment, even at sites cleaned up under State 
authorities. Of course, if a site is satisfactorily cleaned up under 
State authorities, there should not be an imminent and substantial 
endangerment.
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    In fact, under the present Superfund law, states do have 
substantial authority to influence and shape EPA's remedy selections. 
Section 121(f) specifically provides that ``The President shall 
promulgate regulations providing for substantial and meaningful 
involvement by each State in initiation, development, and selection of 
remedial actions to be undertaken in that State.'' Such involvement 
includes the following:
    First, EPA must solicit State comments on its proposed plan for 
remedial action and respond to a State's comments. CERCLA 
Sec. 121(f)(1)(G). Second, EPA must provide a State with notice of its 
negotiations with potentially responsible parties (PRPs); the 
opportunity to participate in the negotiations; and the opportunity to 
be a party to any settlement between EPA and the PRPs. CERCLA 
Sec. 121(0(1)(F). Consequently, the State has the opportunity to be 
actively involved in PRP negotiations and settlements.
    Third, CERCLA Section 121(f) recognizes the importance of 
substantial state involvement in remedy selection. Where EPA orders a 
PRP to undertake a cleanup, if EPA proposes a remedy that does not meet 
all legally applicable or relevant and appropriate State requirements, 
it must provide the State with an opportunity to concur or not concur 
in the remedy selection. If the State disagrees with the remedy chosen, 
it has a right to intervene in the CERCLA Section 106 action. CERCLA 
Sec. 121(f)(2)(B). If the State is able to persuade a court that its 
judgment is correct, the remedy must be modified accordingly. Id. If a 
court does not agree with the State, the State may still modify the 
remedy if it pays, or assures the payment of, the cost difference to 
attain the State's preferred remedy. Id.
    In another example of the State's role in remedy decisions, if a 
State believes there is a problem with a remedy at a site where EPA 
must use Fund monies to do the cleanup, the State can choose not to 
contribute the 10% of site costs (including all future maintenance) it 
is obligated to pay under the statute. Such action would have the 
effect of blocking EPA from undertaking a Fund-financed cleanup at the 
site. CERCLA Sec. 104(c)(3).
    States have used many of the authorities described above. Each time 
EPA proposes a remedy, it solicits and considers State comments. Also, 
we have handled countless settlements in which individual States and 
EPA are co-plaintiffs supporting an agreed remedy.
    We are also sending a copy of this reply directly to Congresswoman 
Wilson to respond to her questions raised at the hearing.
            Sincerely,
         Jon P. Jennings, Acting Assistant Attorney General

cc: The Honorable Edolphus Towns, Ranking Minority Member
   The Honorable Heather Wilson
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