[Congressional Record Volume 141, Number 24 (Tuesday, February 7, 1995)]
[Extensions of Remarks]
[Page E286]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


     INTRODUCTION OF THE TOXIC POLLUTION RESPONSIBILITY ACT AND THE 
                      MUNICIPAL LIABILITY CAP ACT

                                 ______


                       HON. CHRISTOPHER H. SMITH

                             of new jersey

                    in the house of representatives

                        Tuesday, February 7, 1995
  Mr. SMITH of New Jersey. Mr. Speaker, today, I reintroduced 
legislation addressing one of the central problems in the Superfund 
Program--municipal liability. I have introduced this legislation in the 
past two sessions and was pleased that it was included in principle in 
the comprehensive Superfund reform which was supported by a wide 
coalition and nearly gained congressional approval last year.
  The Toxic Pollution Responsibility Act and the Municipal Liability 
Cap Act would free local governments from the costly entanglements of 
third party lawsuits generated by parties eager to share the costs of 
Superfund cleanup. Far too often, potentially responsible parties 
[PRP's] with obligations to contribute to cleanup costs initiate third 
party lawsuits against communities which had disposed simple municipal 
solid waste as sties which later found their way onto the National 
Priorities List [NPL]. Sometimes, these legal actions are predicated on 
serious, but erroneous, intentions of shifting cleanup costs to 
municipalities and taxpayers. Sometimes, however, they are just 
dilatory tactics meant to postpone final payments and cleanup.
  The success of these tactics is obvious. In the 15 years of the 
program, only 5 percent of the 1,245 sites on the NPL have been 
completely cleaned up. And for that small accomplishment, an estimated 
$20 billion in combined Federal, State, and private funds has been 
spent. The National Association of Manufacturers estimates that the 
average site clean up takes 11 years and between $25 and $40 million. 
This is a far cry from the original EPA estimates of 5 to 8 years and 
$7 million.
  To linger in negotiations and courts for years on end is very costly. 
A November 1993 Rand Corp. study of Superfund-related expenditures for 
108 companies indicates that 32 percent of these combined expenses went 
to legal fees. There are few municipalities--particularly small 
communities--which can afford such exorbitant prices. To meet these 
costs, implicated towns would have little recourse other than tax hikes 
and/or reduced local services.
  And beyond this, these lawsuits have averted the main principle of 
the Superfund law--to make the polluter pay.
  Municipalities are not the hazardous waste polluters. They disposed 
simple everyday waste at these sites--coffee beans, toilet paper tubes, 
and banana peels--and not the industrial hazardous waste which 
transformed simple landfills into Superfund sites. There is no equating 
one with the other. And the law must reflect this distinction.
  Furthermore, communities performed this duty not only to fulfill 
their traditional local responsibilities, but at the behest of the U.S. 
Congress and the Environmental Protection Agency [EPA]. In passing the 
Resource Conservation and Recovery Act of 1976 [RCRA], Congress 
specifically noted that ``the collection and disposal of solid wastes 
should continue to be primarily the function of State, regional, and 
local agencies.'' Congress was clear in RCRA that local governments 
should hold the primary responsibilities in solid waste management 
within their jurisdiction. Are we to punish them now for complying so 
efficiently?.
  The two bills which I have introduced today recognize the innocence 
of these actions. The provisions of the bills apply to transporters and 
generators of municipal solid waste which have not been named by the 
EPA as PRP's. The first of my bills--the Toxic Pollution Responsibility 
Act--would entirely exempt these parties from the threat of third party 
suits. The second of my bills--the Municipal Liability Cap Act--would 
cap the total municipal liability obligation at 4 percent for each 
site. This cap was first advocated in 1992 by an internal EPA review 
board. This principle was also incorporated into last year's 
comprehensive Superfund reform proposal as a 10-percent cap on 
municipal liability.
  The overwhelmingly decisive passage of unfunded mandates legislation 
by the House demonstrates our commitment to providing overburdened 
local governments with long overdue relief. These are our partners in 
governance and serve the same citizens we serve. We owe them this much. 
I encourage my colleagues to cosponsor one or both of these initiatives 
and I encourage the House Committee on Commerce to consider this 
important proposal for inclusion once again in a comprehensive 
Superfund reform package.


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