[Congressional Record Volume 140, Number 35 (Thursday, March 24, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
            COMPREHENSIVE SUPERFUND IMPROVEMENT ACT OF 1994

                                 ______


                       HON. WILLIAM H. ZELIFF JR.

                            of new hampshire

                    in the house of representatives

                        Thursday, March 24, 1994

  Mr. ZELIFF. Mr. Speaker, today I am introducing the Comprehensive 
Superfund Improvement Act of 1994. This bill is a grassroots approach 
to comprehensive reform of the Superfund law. As you know, the law has 
come under wide criticism in recent years, and Congress has begun 
consideration of the President's comprehensive reform package. While I 
applaud the President and his efforts, I believe my reform will go 
further in making the needed reforms to enhance fairness, efficiency, 
and speed in the Superfund cleanup process.
  It is clear that most of the money under Superfund currently goes 
toward litigation and bureaucratic overhead, not to badly needed 
hazardous waste cleanup and the health and safety of our citizens. My 
bill, to be introduced in the other body by Senator Bob Smith, uses the 
money to clean up the mess, not to pay for legal costs and bureaucracy.
  As of 1992, cleanup had only been completed on 12 percent of the more 
than 1,275 National Priority List [NPL] sites. Despite these dismal 
statistics, Congress has appropriated over $15 billion since the 
enactment of Superfund 13 years ago . . . and that figure does not 
include litigation and transaction costs.
  The arms of bureaucracy, litigation, and cost have strangled the 
Nation's Superfund program. To this point, the lawyers have thrived 
under Superfund, while the environment and the taxpayers have suffered. 
Red tape and an unfair liability system--which results in lengthy 
lawsuits--slow down the cleanup process.
  It is time for Congress to admit they made mistakes in Superfund law, 
and I believe my legislation is a common-sense approach to reforming a 
law that has gone awry. The Comprehensive Superfund Improvement Act of 
1994 will promote environmental protection, speed cleanup, reduce 
costly lawsuits, target health risks, give States and communities more 
control and flexibility, and reduce bureaucracy.
  This approach to reform is a grassroots, real-world approach to a 
comprehensive Superfund reauthorization. My legislation has grown out 
of the recommendations of my New Hampshire Superfund Task Force, a 
group of 27 volunteers representing a wide cross-section of 
individuals. Of the 17 NPL sites in New Hampshire, 14 are in my 
district. Furthermore, 10 of the 17 sites are more than a decade old. 
None have been completely cleaned up. The members of my task force 
therefore have tremendous experience in the real world operation of 
Superfund, and I have no doubt of the validity of their concerns.
  In addition, we have had input from numerous business groups, 
environmentalist, State and municipal leaders, members of the National 
Governor's Association, the Business Roundtable, the Alliance for a 
Superfund Action Partnership [ASAP], John Sawhill at the National 
Advisory Council on Environmental Policy and Technology [NACEPT], and 
high-level officials at EPA.
  We have listened and we have acted. This is not a Washington, DC 
bureaucratic mandate--it evolved from real people at the grassroot.
  The comprehensive Superfund Improvement Act will:
  Eliminate retroactive liability from the current law. Under current 
law, parties who contributed waste prior to enactment of the law can 
still be held responsible for cleanup costs. This has resulted in 
excessive litigation.
  Implement a fair share system whereby parties will only be held 
responsible for the amount of waste they contributed to a site.
  Provide a new framework for quicker and more efficient Superfund 
cleanups.
  Restructure the method by which EPA determines health and 
environmental risk at Superfund sites to incorporate scientifically 
acceptable principles.
  Allow States to administer the program without EPA interference in 
the decision making.
  Establish community advisory councils to make recommendations to the 
EPA on cleanup and future land use of a site and assure that priorities 
to the local community are considered.
  I urge Members to look seriously at this legislation as Congress 
moves through the reauthorization process. My bill represents the 
grassroots, not back room deals. This is a real solution that comes 
from real people.

          The Comprehensive Superfund Improvement Act of 1994


                           title 1--liability

     1. Elimination of Retroactive Liability Before 1980
       All liability is removed for parties which contributed 
     waste to an NPL site prior to enactment of CERCLA on December 
     11, 1980. EPA reports that there are 176 sites which have 
     waste that was dumped prior to 1980. Sites which have 
     remedial action completed that contained waste dumped prior 
     to 1980 will not be eligible for any compensation.
     2. Release of Liability for Other Innocent Parties
       A. Lenders and Fiduciaries. Lenders and fiduciaries holding 
     title to land on which an NPL site is located, or which may 
     be held liable for costs associated with the cleanup of that 
     site, are exempted. There are safeguards against any 
     exemption of any such party which is found to be responsible 
     for waste distribution.
       B. Innocent Landowners. Releases landowners from Superfund 
     liability if they meet the criteria defined in this section 
     after which they will have been deemed to have performed 
     ``all appropriate inquiry'' under CERCLA.
       C. Conservation Easements. Grantees of conservation 
     easements on which an NPL site is located is relieved from 
     Superfund liability considering they had nothing to do with 
     any release of hazardous substances.
       D. Site Redevelopers. Individuals who had nothing to do 
     with disposal and who wishes to redevelop a former NPL site, 
     is released from the threat of any future liability claims.
       E. Non-negligent Remedial Action Contractors. Clarifies 
     current liability exemption for environmental contractors who 
     are not negligent and did not contribute to the waste.
     3. Binding Proportional Allocation of Liability
       The process of allocation is as follows:
       A. Initial Petition. Within 30 days of remedial 
     investigation study, EPA or state will file petition 
     identifying site, PRPs, and summarizing legal and technical 
     issues specific to site. Initial petition will also include 
     name of person appointed by Administrator to be ``guardian of 
     the fund.''
       B. Statement of Parties. Within 30 days of initial 
     petition, all parties may submit statements regarding 
     defenses to liability, additional facts, and any further PRPs 
     (which may be done for up to 120 days of initial petition). 
     Also within 30 days of initial petition, allocation panel may 
     begin requesting information from all parties (who then have 
     45 days to respond).
       C. Initial Publication of All PRPs. Within 6 months of 
     initial petition, allocation panel will publish all PRPs. 
     Allocation panel may add PRPs until final decision is made. 
     Also within that period, allocation panel will name ``de 
     micromis'' parties, who contributed only a miniscule amount 
     of waste (10 pounds or 10 liters), and who may be released of 
     all liability.
       D. Advocacy Papers. Within 30 days of publication, all 
     parties may submit papers outlining how they propose 
     liability determination and liability allocation should be 
     done. Parties will also have this opportunity after the 
     allocation panel's first report.
       E. Allocation Reports. Within 90 days of publication, 
     allocation panel issues report specifying on what basis it 
     will allocate liability. Following second round of advocacy 
     papers (above), allocation panel issues decision on liable 
     parties and allocation of responsibility. Any PRP may request 
     a hearing on these determinations. Allocation panel has 
     discretion to honor that request. For period between filing 
     of initial petition and 18 months following that filing, 
     allocation panel may release any party deemed not liable from 
     all future liability at site.
       F. Orphan Share. Any party may submit evidence identifying 
     one or more of liable parties whose share should be assigned 
     to orphan share. Following receipt, allocation panel will 
     assign orphan share.
       G. Final Binding Allocation Decision. Within 18 months of 
     initial petition filing, allocation panel makes final 
     decision (which is binding), based on the following factors: 
     (1) degree to which each party's contribution can be 
     distinguished; (2) amount of hazardous substances contributed 
     by each liable party compared to total amount of waste at 
     site; (3) degree of toxicity of substances contributed by 
     each party; (4) degree of involvement of each party in 
     generation, treatment, storage, or disposal of waste; (5) 
     degree of care exercised by each party; (6) degree of 
     cooperation of each party with government officials in 
     prevention of harm to public health; (7) weight of evidence 
     as to the liability and the appropriate shares of each liable 
     party; (8) any other factors deemed appropriate; (9) ability 
     to pay.
       H. De Minimis Settlements. As part of final decision, 
     allocation panel identifies all parties which contributed 
     less than 1.0% of total waste. These parties may settle with 
     EPA based on: EPA estimate of total site cleanup cost 
     multiplied by de minimis party share, plus a premium to 
     reflect the benefit of early and complete resolution of 
     liability.
     4. General Provisions
       Requires a release of evidence by EPA to PRPs if requested, 
     which details the basis upon which EPA made their decisions 
     regarding liability at a site.
       Provides for contribution protection for parties which 
     settle with EPA from any further cost recoveries by third 
     parties.
       Allows ``assurances of no enforcement action'' for owners 
     of contiguous parties who were not owner/operators at the 
     site.


                     title 2--state implementation

     1. State Authorization
       States are authorized to carry out response actions and 
     cost recoveries following approval from EPA and entering a 
     contractual agreement with EPA. The State is not mandated to 
     take on the responsibility of Superfund, nor is it required 
     to address every NPL site within its borders.
       A. Promulgation of Regulations. Within one year of 
     enactment of this legislation, the Administrator (of EPA) 
     will issue regulations to determine a State's eligibility for 
     authorization. The State is deemed eligible if the 
     Administrator determines that ``the State possesses the legal 
     authority, technical capability, and resources necessary to 
     conduct response actions and enforcement activities in a 
     manner that is substantially consistent with this Act and the 
     National Contingency Plan. * * *''
       B. Authorized Use of Fund. States are authorized to receive 
     funding from the Fund for response actions. The amount 
     authorized takes into account the number and financial 
     viability of all PRPs, and is limited to the amount necessary 
     to achieve a level of response that is not more stringent 
     than required under this legislation. Specific regulations 
     will be promulgated within one year by the Administrator, in 
     consultation with the States.
       States must assure payment of a 10% cost share for response 
     actions.
       States may retain 5% of all cost recoveries for use in its 
     hazardous cleanup response program.
       C. Federal Oversight. EPA is allowed periodic review of 
     State programs to determine that response actions selected 
     are consistent with this Act, monies from the Fund are being 
     properly used, and the State's cost recovery efforts are 
     conducted in accordance with the contract. EPA may not, at 
     any time, modify any remedial decision of a State.
       The EPA may withdraw State authorization and seek 
     enforcement in Federal court (after 60 days notice) if a 
     State violates its contract of authorization with EPA. Any 
     withdrawal or approval of authorizations are subject to 
     public comment. Finally, if a State chooses to implement 
     response actions which are more stringent than under this 
     Act, they are solely responsible for the cost of any 
     additional costs.


                       title 3--remedy selection

     1. Immediate Risk Reduction Measures (IRRMs)
       The first step at all sites should be to minimize and 
     prevent, to the maximum extent possible, any actual and 
     imminent and substantial endangerment to public health. EPA 
     or the State will have the authority to draw money from the 
     Fund to abate the danger by taking such actions as: removing 
     waste from barrels, tanks, or lagoons; providing alternative 
     water supplies; preventing discharges to surface waters or 
     groundwaters; installing fencing; or instituting other 
     institutional controls (this is not an exclusive list).
       The IRRM must be conducted in the most cost-effective 
     manner.
       The IRRM will be performed by the State or the EPA as soon 
     as possible; but not later than 60 days after NPL listing. 
     IRRMs are also allowed at a later date if new or changed 
     conditions warrant.
     2. Site Scoring
       The EPA or State (the lead agency) then scores the site 
     based on then-existing conditions after the IRRM is 
     completed. Thus, the scoring is based on residual risk. If 
     residual risks score high enough, the site is ``listed.'' 
     (Prior conditions are not considered in scoring)
     3. Prepare a Long-Term Response Plan (LTRP)
       The EPA or State will then prepare a LTRP, which includes 
     four components (see below). PRPs may be given the 
     opportunity to prepare the LTRP, and the lead agency may be 
     able to expedite the LTRP if it determines a standardized 
     remedy satisfies the selection criteria.
       A. Site Characterization. Type, nature, and extent of 
     contamination, including location(s) of source(s). This will 
     be more focused than the current RI process and must be 
     completed within twelve months of listing.
       B. Risk Assessment. Risk assessment defines who is at risk, 
     what they are at risk of, and the likelihood and degree of 
     the risk. Risk assessment is performed at the same time as 
     the Site Characterization and must be completed within twelve 
     months of listing.
       C. Community Advisory Council (CAC). The CAC investigates 
     current and reasonably expected future uses of the site, and 
     affected off-site areas of resources, and determines the 
     community's desire(s) for the site and the potentially 
     affected resources. The CAC's report is also prepared within 
     twelve months of listing. (consultation rights but no veto 
     power)
       D. Response Option Identification. Following completion of 
     steps A, B, and C, and earlier if possible, there will be a 
     three month period in which to develop the range of possible 
     response actions and to conduct a cost/benefit analysis on 
     each category of action: Containment (permanent or not while 
     awaiting new technology), remediation, monitoring, and 
     delisting (no further action).
       The CAC, PRPs, and other interested parties would then 
     inform the lead agency of their preferred option(s).
       4. Long-Term Response Plan Selection. EPA or the State 
     selects a long-term response or combination which achieves an 
     acceptable level of residual risk reduction (the ``cleanup 
     goal''), taking into account such factors as future site 
     uses, cost/benefit considerations, and economic impact. The 
     selected LTRP may include monitoring, containment, 
     institutional controls such as groundwater management zones 
     (GMZs), natural attenuation, and active remediation. ARARs 
     and preference for permanence are eliminated.
       Response is selected by lead agency, based on review of the 
     LTRP and input from CAC, PRPs, and the general public. The 
     lead agency shall consider, but is not bound by, the 
     recommendations of the CAC, PRPs, or other parties. ARARs are 
     no longer a consideration, and the preference for permanence 
     is also eliminated.
       5. Transition Provisions. Existing sites will fall into a 
     three-tier transition process: if an existing NPL site has 
     not yet conducted an RI/FS, then Title III of this Act is 
     executed in full. If an existing NPL site is at some stage 
     between the RI/FS and the execution of the RA contract, then 
     the parties at the site must declare within 30 days of 
     enactment their desire to opt in to this Act and begin the 
     new remedial process with a new risk assessment, as defined 
     in this Act. The final tier allows for any site at any stage 
     following the execution of the RA contract to restart the 
     process at the risk assessment stage of this Act if the lead 
     agency determines it would be technically and economically 
     feasible.
       6. General Provisions. (a) Appeal process for IRRM issues: 
     standard of review is arbitrary and capricious, abuse of 
     discretion, or not in accordance with law. There is a seven-
     day limit on appeals filings in an IRRM. Appeal process for 
     LTRP: de novo review. All appeals are heard by the US 
     District Court where the site is located.
       (b) Appeal process on LTRPS: if no appeal or lose appeal, 
     or appeal results in modifications, the PRPs must implement 
     LTRP within 30 days of EPA's decision date or the court's 
     decision date.
       (c) EPA/State may have periodic review every 5 years; may 
     trigger a supplemental LTRP, which includes all the process 
     steps for an LTRP.
       (d) Site is delisted once cleanup goals have been met, 
     which includes delisting while O&M or monitoring are still 
     being conducted.
       (e) All LTRPs shall be determined and initiated within 6 
     years of the enactment of this act.


                            TITLE 4--FUNDING

       1. Reauthorization of Tax Authority. Allows for a straight 
     reauthorization of current taxes relating to Superfund.
       2. Authorizes Appropriations From General Treasury. For 
     $250,000,000 per year for five years (no change from 
     current).
       3. New Funding. Assessments on corporations with taxable 
     income above $2,000,000 will be increased to 0.24%. A new fee 
     on insurance companies will also go into effect. Funds 
     collected which are a result of these increases will be 
     placed in a fund dedicated solely to cleaning up sites prior 
     to Superfund being enacted.
       4. Sunset of Some Provisions. Any increases will sunset 
     after five years.