[Congressional Record Volume 141, Number 130 (Saturday, August 5, 1995)]
[Extensions of Remarks]
[Pages E1674-E1675]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          THE SUPERFUND LIABILITY EQUITY AND ACCELERATION ACT

                                 ______


                       HON. WILLIAM H. ZELIFF, JR

                            of new hampshire

                    in the house of representatives

                         Friday, August 4, 1995
  Mr. ZELIFF. Mr. Speaker, I am pleased today to introduce the 
``Superfund Liability Equity and Acceleration Act.'' This is 
significant legislation because it presents a map of what I believe is 
the best way to make superfund work in the fairest and quickest way 
possible. My legislation will repeal superfund's unfair, unjust, and 
un-American retroactive and joint and several liability system. They 
will be replaced with a binding proportional liability allocation 
system that will only hold people responsible for what they contributed 
to a superfund site. Most importantly, my legislation lays out a 
mechanism that I am convinced can pay for such a repeal and see these 
sites come out of the courtroom and get cleaned up now.
  Before I continue, Mr. Speaker, let me be absolutely clear: I do not 
introduced this legislation as a means to compete with any other 
versions that may be introduced in the future by the authorizing 
committee chairmen. I introduce this legislation for the purpose of 
assisting in their effort, as I have been the only Member of this body 
who has introduced legislation like this in the past. I have 
significant experience with this issue of liability, and I look forward 
to working with my colleagues throughout the next couple of months.
  I have been involved with the superfund program since I was first 
elected in 1990. Soon after being elected, I learned that I had 14 
national priority list sites in my district-- and began walking those 
sites.
  After walking just a few sites, it became clear to me that this 
program was not working. Small towns were putting off building new 
schools or hiring new teachers, and small businesses could not find the 
capital to expand and create jobs.
  I then assembled a task force of about 35 members to study these 
problems, and come up with some suggestions as to how to get the 
superfund program back on track. We came up with a series of 
recommendations which I then turned into H.R. 4161, the ``Comprehensive 
Superfund Improvement Act,'' introduced in the 103d Congress.
  While there were many provisions of that legislation to effectively 
improve the superfund program, the provision which received the most 
attention was the provision which eliminated both retroactive and joint 
and several liability under the superfund program. It is my very strong 
opinion that nearly every problem with the current program can be 
traced back to the liability standards currently under the law.
  If we look briefly at the 15-year history of this program, we will 
see that superfund was created in 1980 with a trust of $1.6 billion to 
clean up what was then assumed to be a few dozen waste sites. Congress 
increased the financing to $10.2 billion in 1986, then to $15.2 billion 
in 1990. Despite these billions of dollars of taxpayers' money being 
spent for such a laudable cause, we now see that a mere 18 percent of 
superfund sites have been cleaned up in that same time period. This 
raises the obvious question of whether or not we are getting our 
money's worth. These facts, combined with a GAO report released just 
yesterday which says that at the most only one-third of all superfund 
sites pose an actual risk to human health, makes it is obvious to me 
that we re not getting our money's worth.
  There is one group out there, however, that would argue that we are 
getting our money's worth. It is the armies of lawyers who spend years 
in court arguing every possible detail of superfund liability. So when 
we look carefully at why this Congress has spent billions and billions 
of dollars and seen a minuscule amount of action, there should be no 
question as to the culprit: it is the current program's un-American and 
un-just liability system. If you like the O.J. Simpson train, you would 
just love a superfund trail.
  Just listen to some of the questions that have to be answered in 
superfund courtroom cases. Who deposited the waste? When was it 
deposited? What was the actual toxicity of the waste? Does toxicity 
have any bearing on liability? How much waste did each party deposit? 
What exactly were the contents of what was deposited? Was a community 
involved? If so, should they be held accountable? Did they actually 
produce the waste, or did they merely own the site? Should the 
community's funding priorities be taken into consideration--i.e. a new 
teacher or school instead of EPA--mandated study-remediation costs? Who 
pays the share of the bankrupt parties? How does that share get split, 
or does it get split at all? How about the insurance companies? Do 
their policies cover the activities of the insureds? If so, how much? 
How does the PRP interpret their insurance policies, and how do the 
insurance companies interpret their policies? Should banks and other 
lenders be exempt from liability merely for holding title to the land? 
The list
 is endless * * *

  It should be clear that it is the liability system of superfund which 
has brought this program to its knees. We can make all the reforms and 
changes we want to the superfund program, but I assure my colleagues 
that if we do not make major changes to the liability system, we will 
all be back here again having the same conversations in just a few more 
years.
  I have advocated the repeal of retroactive and joint and several 
liability for several years now, and in fact I offered amendments to 
last year's bill to repeal those liability standards. There was a large 
amount of support last year for my idea, but this year, we are seeing 
even more support. It is yet another burst of common sense that took 
over this Congress last November.
  Allow me to share with my colleagues a paragraph from a letter signed 
recently by Chairmen Shuster, Bliley, and Oxley, the superfund 
authorizing committee chairmen:

       At the heart of the superfund ``blame game'' is the system 
     of strict, joint and several, and retroactive liability. If 
     we, the authorizing committees, are to reform this program 
     and get superfund out of the courts and onto these sites, 
     then we must comprehensively reform the current superfund 
     liability, including a repeal of retroactive liability.

  I could not agree more.
  As for my legislation, I will briefly outline what is in the bill. 
Those of you who remember my legislation from last year, H.R. 4161, 
will see much that is the same: there are provisions requiring timely 
release of evidence to PRPs from EPA, contribution protections, certain 
exemptions for owners of contiguous properties, relief for lenders and 
fiduciaries, allowances for site redevelopment, and liability 
limitations for response action contractors. Finally, there are 
provisions that expressly state that; First, there will be NO 
reimbursements for parties guilty of illegally dumping, and Second, no 
party will lose their rights to continue liability actions in existing 
court actions.
  The real guts of the legislation are the pre-1987 retroactive repeal, 
the new binding allocation system, and the new Hazardous Substance 
Revolving Fund. I submit descriptions of these below:


                      sites with all pre-87 waste

       Construction complete by 1/1/95: No reimbursement for 
     construction. Assumption of 

[[Page E1675]]

     O&M costs from date of enactment until completed. No 
     reimbursement for completed O&M.
       Construction ongoing as of 1/1/95: Reimbursement for 
     cleanup actions from date of enactment forward. No 
     reimbursement until cleanup is completed.
       Discovery after 1/1/95: Cleanup costs are fully 
     reimbursable. No reimbursement until cleanup is completed.


         sites with waste from both pre- and post-87 (straddle)

       Construction complete by 1/1/95: No reimbursement for 
     construction. Assumption of O&M costs from date of enactment 
     until completed for the portion attributable to pre-87 waste 
     (determined by proportional allocation). No reimbursement for 
     completed O&M.
       Construction ongoing as of 1/1/95: Reimbursement for 
     cleanup actions from date of enactment forward for the same 
     percentage of total costs as the percentage of waste 
     attributable to pre-87. O&M costs are reimbursable under the 
     same conditions. No reimbursement until cleanup completed.
       Discovery after 1/1/95: Costs of cleanup are reimbursable, 
     but only for the same percentage of total costs as the 
     percentage of waste attributable to pre-87. O&M costs are 
     reimbursable under the same conditions. No reimbursement 
     until cleanup completed.


                      sites with all post-87 waste

       These sites would go through a binding proportional 
     liability scheme which will include allowance for an orphan 
     share, and for de minimis/de micromis parties.


                                funding

       All superfund revenues would be deposited into a new 
     ``Hazardous Substance Revolving Fund,'' which would be 
     modeled on a similar process used by the Patent and Trademark 
     Office with the fees it collects. This is not a revolving 
     loan fund.
       Using the model of the Patent and Trade Office's Fee 
     Surcharge Fund, proceeds to the revolving fund will be 
     recorded as an ``offsetting collection'' to outlays within 
     the expenditure account. Collections generally are made 
     available automatically for obligation. The proposed 
     revolving fund would not be classified as ``offsetting 
     receipts,'' which are collections credited to trust funds or 
     the general fund which re not authorized to be credited to 
     expenditure accounts.
       This new Hazardous Substance Revolving Fund is designed to 
     assure funds and taxes collected from private parties be used 
     only for that purpose. This has been a common complaint of 
     parties who see their money they thought was going to cleanup 
     instead go to offset budget figures or to Washington 
     bureaucrats. It also moves those revenues from the receipt 
     side of the budget to the outlay side. It turns superfund 
     taxes into ``user fees'' which are assessed against private 
     parties identified by Congress as contributing to the need 
     for cleanups. The proposal assures that funds collected by 
     the new Hazardous Substance Revolving Fund go to cleanup and 
     NOTHING ELSE.

  While I believe that the liability system is the culprit for just 
about every problem with superfund right now, there must be significant 
reforms in other areas as well, especially in the remediation and State 
role categories. My position on these reforms remain the same as in 
last year's H.R. 4161, and I support all of the provision proposed by 
my very good friend and colleague Senator Bob Smith, in his proposal 
made a few weeks ago.
  It is essential that we reform superfund this year, and that it be a 
comprehensive reform that includes liability, remedial, and State role 
reforms. Our environment and our economy are suffering. Something has 
to be done now. Once again, I look forward to working with Senator 
Smith, Mr. Shuster, Mr. Oxley, Mr. Bliley, and Mr. Boehlert in 
achieving significant, fundamental, and comprehensive superfund reform 
this year. Thank you, Mr. Speaker.


                          ____________________