[Congressional Record Volume 140, Number 53 (Thursday, May 5, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 5, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
 INTRODUCTION OF THE SUPERFUND LIABILITY ALLOCATION ACT OF 
                                  1994

                                 ______


                           HON. RICK BOUCHER

                              of virginia

                    in the house of representatives

                         Thursday, May 5, 1994

  Mr. BOUCHER. Mr. Speaker, today I am pleased to be joined by my 
friend from Michigan, Fred Upton, a highly capable veteran member of 
the Energy and Commerce Committee, and my friend from Arkansas, Blanche 
Lambert, a new member of our committee who has an excellent record of 
accomplishment, in introducing the Superfund Liability Allocation Act 
of 1994. Our legislation reforms the process under which liability for 
cleanup costs in determined for parties at Superfund sites.
  We are introducing the measure today for purposes of eliciting public 
comment, and it is our intention to offer this new means of determining 
Superfund liability as an amendment when the Transportation and 
Hazardous Materials Subcommittee holds its markup of the broader 
Superfund reform legislation.
  In November of last year, I introduced with Mr. Upton H.R. 3624, the 
Superfund Liability Reform Act, which established a new process for 
determining liability for parties at Superfund sites. In February of 
this year, the administration presented its comprehensive Superfund 
reform proposal to the Congress, which resulted in the introduction of 
H.R. 3800 in the House. H.R. 3800 also included a new process for 
determining liability which was substantially similar to the 
legislation Fred and I had put forth. In the intervening period, we 
engaged in negotiations with the administration and interested parties 
representing the business and environmental communities to work out the 
differences between our respective approaches, and those negotiations 
have now been concluded successfully.
  The Superfund Liability Allocation Act of 1994, which we are 
introducing today, reflects the agreement we have reached among the 
Environmental Protection Agency, the Department of Justice, the 
environmental community and the industrial community. The bill sets 
forth a new structure under the Superfund program for allocating 
liability for cleanup costs among parties at Superfund sites. In 
addition, the legislation includes provisions to help small businesses 
resolve their Superfund liabilities through an expedited process, and I 
want to commend Congresswoman Lambert for successfully brokering that 
important part of the agreement. As a result of her work, small 
businesses can be assured that they will have a rapid resolution of 
their liability.
  The agreement we have reached on reforming the liability system under 
Superfund achieves the three essential objectives we had initially 
sought. First, each party's liability for cleanup costs at Superfund 
sites will be determined in an expedited manner, in most cases within 
18 to 24 months. Second, the parties will be required to pay only their 
fair share of the cleanup costs, which corresponds to their respective 
roles at the site and to the amount of waste they contribute to the 
site. Finally, the expedited process for determining liability and the 
limited judicial review of that process will greatly reduce the 
transaction costs for parties at Superfund sites.
  I want to thank my two colleagues for their contribution to this 
successful process and acknowledge the work of Roger Goodman on my 
staff and Len Barson of Al Swift's subcommittee staff. I also commend 
the EPA and the Justice Department representatives as well as the 
private sector participants, all of whom have brought to this process a 
determination to construct a fair and workable liability allocation 
system. The product of that work, embodied in the legislation we are 
introducing today, will be a fairer and far more efficient system than 
the scheme of joint and several liability which plagues Superfund 
today.
  The liability allocation system in the bill we are introducing will 
operate as follows:
  1. After a site is listed on Superfund's National Priority List, EPA 
notifies all parties at the site that they are required to participate 
in the liability allocation process.
  2. The parties choose private allocators to preside over the process 
and make the allocation.
  3. Any of the parties notified by EPA may nominate additional parties 
to be included in the process.
  4. EPA is required to provide expedited settlements to ``de minimis'' 
parties to enable such parties to avoid having to participate in the 
18-month allocation process, satisfying small business' major concern.
  5. The allocator is armed with the necessary information-gathering 
powers, including subpoena power, and is able to enforce such powers 
with the backing of the Justice Department. Parties who do not 
cooperate in providing information are subject to civil and criminal 
penalties.
  6. Each party is given the opportunity to be heard, including 
submitting an initial statement and commenting on the draft allocation 
report before the final report is issued.
  7. After considering the ``Gore Factors'' (including the party's role 
at the site and the toxicity and volume of material each party has 
contributed), the allocator issues a report identifying each party's 
share of liability for the cleanup costs at the site.
  8. Each party may settle with the EPA based on its allocated share. 
As consideration, each party which accepts its allocated share is 
shielded from joint and several liability and from actions for 
contribution from other parties. Any party who rejects its allocated 
share will be exposed to joint and several liability and remains 
unprotected from contribution suits. Although the allocation is 
nonbinding as to the parties, the exposure to joint and several 
liability and possible suits for contribution serves as a disincentive 
to reject the allocated share.
  9. The Government is bound by the allocation unless there is proof of 
bias, fraud or unlawful conduct on the allocator's part or unless ``no 
rational interpretation of the facts before the allocator, in light of 
the factors he is required to consider, would form a reasonable basis'' 
for the allocation. The Government only has 180 days during which such 
review can occur, after which the right to reject the allocation is 
waived.
  10. The orphan share (for defunct and insolvent parties) is paid out 
of the Superfund.
  11. The Government reimburses parties who pay for the cleanup for 
amounts spent beyond their allocated shares. The Government also 
pursues recalcitrant parties who fail to pay their allocated shares.

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