[Congressional Record Volume 141, Number 167 (Thursday, October 26, 1995)]
[Senate]
[Page S15844]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            SUPERFUND REFORM

  Mr. PRESSLER. Mr. President, I wanted to bring to my colleagues' 
attention the concerns of a prominent South Dakotan regarding the 
Superfund program.
  Like many of my colleagues, during the August recess, I spent 
considerable time back home talking to my constituents. While in South 
Dakota, one issue came up on numerous occasions: Superfund reform. This 
issue is important to small business men and women throughout South 
Dakota.
  Recently, an op-ed by Bill Huebner of Rapid City, SD, was published 
in the Wall Street Journal. This article details Mr. Huebner's own 
unfortunate experience with Superfund. I ask unanimous consent that 
this article be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. PRESSLER. We all agree that the current Superfund program does 
not work. It is one of the most expensive environmental programs on the 
books. Despite the vast amounts of taxpayer dollars that have poured 
into the Superfund, the program has a very low success rate. One of the 
prime causes of this low success rate is a confusing and costly 
liability system. This system is unfair to small businesses. It 
encourages excessive and costly litigation.
  I am encouraged by the draft proposal drawn up by my esteemed 
colleague from New Hampshire, Senator Smith. As chairman of the 
Superfund, Waste Control and Risk Management Subcommittee, he has 
assumed the daunting task of rewriting the existing Superfund law. I 
look forward to working with him to create a new Superfund law based on 
fairness and common sense. We should not insist on a system that calls 
on small businesses that have complied with past laws and regulations 
to continue shouldering the burden of cleaning up our hazardous waste 
sites.
  Bill Huebner's article represents not only the concerns of South 
Dakota small business leaders, but of all small business men and women 
across the country. They are the innovators who collectively make our 
economic engine run. For that reason, we should take their concerns and 
experiences to heart in our reexamination of the Superfund program.

                               Exhibit 1

             [From the Wall Street Journal, Oct. 26, 1995]

                         My Superfund Nightmare

                           (By Bill Huebner)

       I'm sitting here at my desk starting at a three-foot-high 
     pile of letters, legal motions, and other documents. That 
     pile of paper tells my Superfund story--a 3\1/2\-year 
     nightmare that cost my company time, money and business.
       For those who don't know, Superfund is the federal 
     government's program to clean up America's worst hazardous 
     waste sites. It was established by Congress in 1980 with $1.6 
     billion in funding. Today, 15 years later, more than $20 
     billion in government and private sector funds have been 
     spent. More than 1,300 hazardous waste sites have been 
     identified by the Environmental Protection Agency. But only a 
     tiny fraction of these sites have actually been cleaned up.
       Where did Superfund go wrong? Read on.
       Back in November 1991, I received a letter addressed to Ace 
     Steel & Metals, claiming I owed $47,000 as my share of the 
     bill to clean up the Douglas County, Neb., Superfund site. 
     Between 1940 and 1982, the letter said, the property had been 
     owned by a series of battery recycling companies. Apparently, 
     some battery lead and acid had seeped into the ground, 
     creating a hazardous waste area.
       There were only a few problems. First my company is Act 
     Steel & Recycling, not Ace Steel & Metals. Second, we never 
     sent any batteries to Douglas County. And third, we weren't 
     even in business until 1989--a full seven years after they 
     said the last battery was dumped.
       A simple case of mistaken identity. I thought. In 1989, we 
     bought about 20 % of the assets of a company called Ace 
     Salvage, as well as the right to use the ``Ace'' name. That 
     company was still in business, operating as Lipp Ventures. 
     Lipp had sent the batteries to the Douglas County site, so 
     they must be the one the EPA wanted. A letter from my lawyer 
     explaining the situation should clear the whole thing up, 
     right? Wrong.
       Our first letter generated no response, so we sent another. 
     This time, we documented everything. We sent copies of our 
     original articles of incorporation from 1989, proving that we 
     couldn't have been responsible for the problems at the 
     Douglas County Superfund site.
       Again, no response to speak of. Just a letter of 
     acknowledgment saying thank you very much for the 
     information, but you still owe $47,000. Needless to say, as a 
     small business, we didn't have an extra $47,000 to spare--in 
     fact, that was more than our profit for the entire year. We 
     had to fight on or go out of business.
       Finally, after 3\1/2\ years, Lipp's attorney settled with 
     the lawyers from Douglas County. No one ever admitted there 
     had been a mistake, but Ace Steel & Recycling was removed 
     from the case ``with prejudice.'' That means the plaintiff 
     reserves the right to bring us back into the lawsuit, so we 
     might not be out of danger yet.
       Don't think for a minute that my case was some kind of 
     freak accident. More than 20,000 small and medium-sized 
     businesses, community groups, and other organizations across 
     America have been dragged into the Superfund mess.
       The primary problem with Superfund is its unfair liability 
     system known as ``retroactive, strict, joint and several 
     liability.'' Retroactive liability gives the EPA the power to 
     make companies pay to clean up problems that occurred before 
     Superfund was passed, even if they followed every rule on the 
     books at the time. And under joint and several liability, a 
     single company can be forced to finance the entire cleanup 
     cost, no matter now marginal its contribution to the site.
       With marching orders like those, you can easily guess the 
     EPA's standard operating procedure: Track down every company 
     with even the most remote connection to a Superfund site, 
     force them to pay, or drag them into court. Most companies 
     fight the charges, rather than pay to clean up a problem they 
     had little or no responsibility for creating. All the 
     litigation caused by Superfund's notorious liability scheme 
     is the main reason it now costs $30 million and takes 12 
     years to clean up the average Superfund site.
       Congress will shortly begin debating Superfund reform 
     legislation. Its top priority must be total repeal of 
     retroactive liability. Superfund reform opponents claim that 
     ending retroactive liability will let polluters off the hook 
     and force taxpayers to pick up the bill. Not true. The 
     program will still be financed by a tax on oil and chemical 
     companies and other large corporations. Individual taxpayers 
     won't have to pay a penny--unless Congress keeps Superfund on 
     it failed course for another 15 years.
       Repealing retroactive liability will put an end to wasteful 
     litigation and force the EPA to focus on cleaning toxic waste 
     sites instead of harassing innocent companies. Superfund 
     cleanup could start immediately. And think of how many 
     additional Superfund sites could be cleaned up if 50% of the 
     money wasn't wasted on lawyers and bureaucrats.

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