[Congressional Record Volume 142, Number 39 (Wednesday, March 20, 1996)]
[Extensions of Remarks]
[Pages E383-E384]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   EXCEPTING LOCAL REDEVELOPMENT AUTHORITIES FROM THE COMPREHENSIVE 
        ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT

                                 ______


                           HON. FRANK R. WOLF

                              of virginia

                    in the house of representatives

                        Tuesday, March 19, 1996

  Mr. WOLF. Mr. Speaker, yesterday I introduced legislation which would 
amend the Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 [CERCLA] to exempt certain State and local 
redevelopment authorities such as civic boards or commissions, and 
fresh start users of facilities purchased from those boards or 
commissions, from liability under the Superfund law under certain 
limited circumstances.
  Under current law, civic boards or commissions charged with the job 
of developing plans for and encouraging the rehabilitation and reuse of 
Superfund sites are handicapped by certain Superfund liability 
provisions. These provisions could make such boards or commissions or 
their members liable for the costs of remediation of the site because 
of their involvement with developing plans to encourage future 
productive use of the site. This situation is unacceptable. Local 
governments should be able to develop and implement redevelopment plans 
without the fear of lawsuits seeking to join them as liable owners or 
operators.
  Mr. Speaker, Front Royal, VA, located in Warren County, which I am 
proud to represent, is a beautiful and historic area located in the 
scenic Shenandoah Valley of the 10th District. The region has a 
blemish; however, namely, the Avtex-FMC Superfund site. State and local 
officials and the citizens of Warren County have come together in a 
concerted effort to cooperate with the Environmental Protection Agency 
(EPA) to clean up this contaminated site. Furthermore, like other 
communities that have Superfund sites, the citizens of Warren County 
and the town of Front Royal would like to move this site into 
productive economic use as soon as possible, thereby creating jobs and 
expanding the tax base.
  In fact, the Warren County Redevelopment Board [WCRB], a local civic 
board, is dedicated to facilitating the reuse of the site. However, the 
WCRB is limited in what it can do because liability under CERCLA is 
joint and several and adheres to owners or operators whether they 
actually contributed to the contamination or not. That means that a 
local governmental entity, which assumes ownership or control of some 
or all of the remediated property for the sole purpose of finding a

[[Page E384]]

new owner for the property, could be held liable for any further 
cleanup even though that entity did not engage in any response action 
at the facility and was not engaged in the generation of any hazardous 
substance disposed of at the facility.
  To further complicate the situation at the Avtex-FMC Superfund site, 
the EPA has proposed to subdivide putatively clean portions of the site 
and authorize the transfer of title to the clean sites to a new 
governmental, industrial, or business owner. In this manner some 
productive reuse of part of the property could be achieved long before 
the other polluted portion of the site has been remediated. Taking 
control of such a clean portion of the site is risky for the transferee 
because they could be liable for any further remediation required at 
the site.
  Thus, for example, a civic board taking ownership or control of land 
presently or formerly part of a Superfund site for nonprofit purposes 
merely with a view to conveying it to a new industrial or commercial 
entity could be subject to Superfund liability because, for a time, it 
was an owner or operator of the site, notwithstanding the fact that it 
never contributed to the contamination of the site. This is the problem 
facing the WCRB. Likewise, new fresh start users are deterred from 
taking over the cleaned site for fear of being liable under CERCLA's 
complicated liability system.
  Mr. Speaker, my legislation would allow a civic entity such as the 
Warren County Redevelopment Board to take title to portions of the site 
for the purpose of conveying ownership to an economic enterprise that 
will in turn be granted a fresh start, that is, to take and use the 
property free of potential liability for past pollution caused by the 
conduct of other parties at the site. It must be emphasized that the 
exemption provided by this legislation is strictly limited. 
Redevelopment authorities will only escape liability if such entity 
first, has not engaged in any response action at the facility, second, 
owns the facility or any portion thereof only on a temporary basis for 
the purpose of transferring the facility to a fresh start user, and 
third, has not engaged in the generation of any hazardous substance 
disposed of at such facility. Similarly, fresh start users will only be 
exempt if they acquired the facility from a redevelopment authority and 
has not engaged in first, any response action at the facility, second, 
disposal of any hazardous substance at the facility, or third, the 
generation of any hazardous substance disposed of at such facility. In 
short, redevelopment corporations and fresh start users that 
contaminate the property will not escape liability, but those that have 
nothing to do with the pollution would not be held liable.
  This legislation is a good Government measure which would give State 
and local governments needed flexibility in the transition of Superfund 
sites into productive uses. Moreover, shielding the fresh start user 
from liability for an act for which the new user has no blame is 
essential to attracting a new business user which would otherwise be 
deterred by the potential for liability under the current complicated 
liability structure.
  Mr. Speaker, I ask unanimous consent to include in the Record a copy 
of this legislation and a letter from Fred Foster, president of the 
Warren County Redevelopment Board, in support of this bill immediately 
following my statement.

                                H.R. --

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. EXEMPTION FROM CERCLA LIABILITY FOR CERTAIN 
                   REDEVELOPMENT AUTHORITIES AND FRESH START 
                   FACILITY USERS.

       (a) Exemption for Certain Redevelopment Authorities.--
     Section 107 of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 is amended by adding 
     the following at the end thereof:
       ``(n) Redevelopment Authorities.--No State or local board, 
     commission, or other entity, or any member thereof, appointed 
     or elected pursuant to State or local law to plan for or 
     implement the redevelopment or reuse of a facility shall be 
     liable under this section for costs or damages with respect 
     to any release or threat of release from the facility to the 
     extent such liability is based solely on the entity's status 
     as an owner of the facility under paragraph (1) of subsection 
     (a) if such entity--
       ``(1) has not engaged in any response action at the 
     facility;
       ``(2) owns the facility or any portion thereof only on a 
     temporary basis prior to transfer to another entity; and
       ``(3) has not engaged in the generation of any hazardous 
     substance disposed of at such facility.
       (b) Fresh Start Users.--Section 101(35)(A) of the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 is amended by striking ``described in 
     clause (i), (ii), or (iii)'' and inserting ``described in 
     clause (i), (ii), (iii), or (iv)'' and by adding the 
     following after clause (iii):
       ``(iv) The defendant acquired the facility from a person 
     exempt from liability under section 107(n) and has not 
     engaged in (I) any response action at the facility, (II) 
     disposal of any hazardous substance at the facility, or (III) 
     the generation of any hazardous substance disposed of at such 
     facility. This clause shall not apply to any person who 
     impedes the performance of a response action or natural 
     resource restoration at the facility concerned.''.
       (c) Effective Date.--The amendments made by subsections (a) 
     and (b) shall apply only with respect to final agency 
     actions, or court orders issued or judicial decisions made, 
     under the Comprehensive Environmental Response, Compensation, 
     and Liability Act of 1980 after the date of the enactment of 
     this Act.
                                                                    ____

                                                     Warren County


                              Redevelopment Corporation, Inc.,

                                   Front Royal, VA, July 19, 1995.
     Hon. Frank R. Wolf,
     House of Representatives, Washington, DC.
       Dear Congressman Wolf: I am writing on behalf of the Warren 
     County Redevelopment Board (WCRB) to thank you for 
     authorizing the drafting of legislation that will protect the 
     WCRB from legal liability as a result of our attempts to 
     obtain productive reuse of the Avtex-FMC Superfund site in 
     Front Royal.
       As you know, the EPA has proposed to subdivide the Front 
     Royal site and convey portions of the site that are supposed 
     to be clean on an expedited basis (by the end of this year), 
     long before the entire site has been cleaned up by FMC. As a 
     matter of fact, FMC has proposed to amend its ``work plan'' 
     to redo the cleaning up work on about 80% of the site which 
     they have already been working on since mid-1980's. In 
     addition EPA is proposing, for FMC approval, a work plan 
     change that will allow them to dispose of contaminated 
     industrial debris in a so called RCRA capsule. Under present 
     law this on-site disposal will, inter alia, result in an 
     inspection five years after the remedial action has been 
     completed and at a minimum yet another five year reinspection 
     delay thereafter.
       One of the problems we fact is whether EPA has the legal 
     authority to subdivide a Superfund site. I authorized our 
     environmental counsel to write to the EPA in Philadelphia to 
     request they disclose the basis for their authority to 
     perform this subdivision of the site and the conveyance later 
     this year of a ``clean'' part of the site to the WCRB.
       The legislation protecting the WCRB from liability is 
     necessary only if the subdivision of the Avtex-FMC site is 
     legally authorized. But even under the best case scenario, if 
     the subdivision is legally possible, the WCRB is convinced 
     that they could never interest a new company to take over a 
     ``clean'' part of the site unless your bill is expanded to 
     protect not only the WCRB but the new company which will 
     become the owner and operator of the subdivided site.
       Therefore to be helpful your bill must exempt such a new 
     owner by authorizing a ``fresh start'' status under which the 
     new company is exempted from liability for hazardous 
     substances and pollutants and contaminants on or near the 
     Avtex-FMC site unless the new owner can be shown to actually 
     release these substances by its own activities.
       I am convinced that unless we can convey ``fresh start'' 
     status to a new enterprise we will be unable to attract any 
     company to use the site even if it can be subdivided prior to 
     total cleanup.
       Again, I want to thank you for your efforts on our behalf. 
     The additional authority we believe to be necessary will of 
     course entail action by the Senate as well as the House of 
     Representatives. The WCRB and I personally would appreciate 
     it if you would undertake to arrange a meeting with Senators 
     Warner and Robb to get their support for this legislation.
           Sincerely yours,
     Fred P. Foster, President.

                          ____________________