[Congressional Record Volume 142, Number 50 (Thursday, April 18, 1996)]
[Senate]
[Pages S3691-S3694]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          TOXIC WASTE CLEANUP

  Mr. LAUTENBERG. Mr. President, at this moment, though the hour is 
late, and I apologize to those who are inconvenienced while I make my 
remarks, this is a topic of great importance to me and my home State of 
New Jersey, and a number of communities across the country--that is, 
the cleanup of toxic waste.
  Mr. President, 73 million Americans live near toxic waste sites. That 
is

[[Page S3692]]

about one of every four of our citizens. Many people think of hazardous 
waste as a problem of ugly dump sites that harm a community's 
appearance and property values. But it is far more than that, Mr. 
President. Toxic waste is a huge threat to public health. By 
contaminating our drinking water, our air and our soil, dangerous waste 
contributes to a wide range of health problems, and these include 
cancer, birth defects, cardiovascular problems, immune disorders, and 
even something as simple and obvious as dermatitis.
  Now, Mr. President, it is difficult to say how many people are harmed 
because of exposure to toxic waste. But the number is considerable. 
Unfortunately, New Jersey, where there are more Superfund sites than 
any other State, is being hit especially hard. Recent studies found 
that in all but one of New Jersey's 21 counties, cancer rates and areas 
around hazardous waste sites exceeded the national average.
  Studies from other parts of the country also suggest that those 
living near toxic waste sites have suffered disproportionately from 
serious health problems. Beyond the public health problems associated 
with toxic waste, these sites also have serious economic effects on 
local communities. They discourage investment and occupy otherwise 
valuable real estate that could be used for productive economic 
activity. If we do not clean up these sites, we are depriving 
communities of good jobs and local tax revenues.
  Mr. President, Congress created the Superfund Program in 1980, 
largely to respond to health problems, to save lives and protect and 
restore the environment. The program was designed to ensure that toxic 
waste sites were cleaned up promptly and that polluters took 
responsibility for cleaning them up.
  Unfortunately, as many know, the Superfund Program got off to a very 
slow start for a variety of reasons, including a lack of Presidential 
commitment. Many cleanups were delayed. However, in recent years, the 
program has turned around. Under the Clinton administration, toxic 
waste cleanups have been 20 percent faster, 25 percent cheaper, and 
there is real progress in cleaning up sites. Although we have a long 
way to go, many more sites are being cleaned up, and delays have been 
reduced significantly.

  Like any program, Mr. President, Superfund has its share of problems 
and critics. And there are many legitimate concerns that must be 
addressed. We do need to speed cleanups, reduce unnecessary litigation, 
and make the program work more efficiently.
  Still, Mr. President, there has been tremendous progress. And 
President Clinton and EPA Administrator Carol Browner deserve real 
credit for that.
  Unfortunately, just as the program has picked up steam, the Congress 
has permitted its funding mechanism to expire. This funding source 
simply must be reestablished, or the whole program could be threatened.
  It is important, in my view, to pass a Superfund reform bill. Many of 
us in the Congress have been working long and hard, and in a bipartisan 
way, to develop reform legislation, and to make needed improvements in 
the program.
  As ranking minority member of the Senate's Superfund Subcommittee, I 
have worked with many of my colleagues on this issue for several years 
now, especially my distinguished colleague from Montana, Senator 
Baucus, the ranking member of the Environment and Public Works 
Committee.
  Last congress, after a long and arduous process involving all 
affected parties, we developed a bill that would have made 
comprehensive changes in the Superfund program.
  Our bill would have made Superfund fairer, more efficient, and less 
costly. It addressed every major issue raised by those affected by 
Superfund, and provided relief on every front.
  It would have fostered greater and earlier community involvement in 
cleanup decisions. It speeded up cleanups and made them more efficient. 
It would have slashed private litigation costs in half, and established 
a mechanism to efficiently resolve disputes involving polluters, their 
insurers, and the Government.
  It allowed qualified States to play a greater role in remedy 
selection and cleanup of sites, including federally-owned facilities. 
It promoted the voluntary cleanup and economic redevelopment of 
contaminated properties. And it provided much-needed relief to lenders, 
small businesses, municipalities and others who have been caught up in 
the liability scheme.
  Unfortunately, despite very broad support from environmentalists, 
industry, small businesses, State and local governments, communities, 
lenders, and others involved in Superfund, this reform bill was killed 
in the waning days of the 103d Congress. And so, last year, a new 
effort began to reauthorize the Superfund Program.
  Senator Smith, our new chairman of the Superfund Subcommittee, 
introduced a proposal last October.
  And for the past few months, Senator Chafee, chairman of the 
Committee, and Senators Baucus, Smith, and myself have spent countless 
hours trying to resolve our differences and produce a bill that can 
enjoy broad, bipartisan support. Representatives from the Clinton 
administration have worked with us virtually every day to support this 
effort.
  Last month, Senators Chafee and Smith introduced another measure that 
proposed a new liability scheme and made some other changes.
  Mr. President, I remain hopeful that we can reach an agreement on 
comprehensive reform, and note that the latest bill introduced by 
Senators Chafee and Smith--apart from the provisions on liability--
include improvements over the earlier draft.
  For example, the new measure would require that Superfund cleanups 
continue to meet Federal and State cleanups standards, and would allow 
States to impose their own liability and cleanup requirements. I am 
pleased by this progress and hope that it continues. Of course I would 
like to see it continue.
  At the same time, I remain deeply concerned about provisions in the 
chairmen's latest proposal that would dramatically reduce the 
responsibility of polluters to clean up their own waste.
  Before I go further, Mr. President, let me emphasize that Senators 
Chafee, Smith, Baucus and I share many goals. And I know every one of 
these senators is genuinely committed to making progress. We all want 
to reduce unnecessary litigation, and make Superfund more fair. Yet, I 
believe the approach embodied in their legislation has serious flaws.
  Their legislation essentially would eliminate polluters' liability 
for all actions causing pollution that took place before 1980.
  By letting so many polluters off the hook entirely, the proposal 
would fundamentally alter a basic principle of the Superfund Program: 
the principle that, in general, polluters--not taxpayers--should pay 
for cleaning up their own toxic waste.
  Mr. President, abandoning this principle would have serious 
consequences. It would lead to fewer cleanups. It would impose huge new 
burdens on State and local governments, which would be left holding the 
bag for cleaning up hundreds, if not thousands, of sites. And it would 
mean, in the end, that many fewer toxic waste sites will get cleaned 
up.
  Mr. President, Senator Baucus and I, along with the administration, 
have developed a different approach to reforming Superfund liability. I 
ask unanimous consent that an outline of our proposal be printed in the 
Record. I hope my colleagues will take a close look at it.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Liability Counterproposal to S. 1285


                      I. Relief for Small Business

       A. Exempt all businesses which are liable solely under 
     CERCLA sections 107(a)(3) or (a)(4) as generators or 
     transporters for activities occurring wholly before 1/1/96, 
     where the party seeking the benefit of the exemption 
     demonstrates that the business (including its parents, 
     subsidiaries and other affiliates):
       1. had annual gross revenues of no more than $2 million as 
     reported to the Internal Revenue Service for each of the 
     preceding three years;
       2. has 25 or fewer employees;
       3. provides full cooperation, assistance and facility 
     access in connection with the implementation of response 
     actions at the facility; and
       4. is not affiliated with any other party liable for 
     response costs at the facility (through any direct or 
     indirect family relationship, or any contractual, corporate, 
     or financial relationship other than a contract for the 
     treatment or disposal of hazardous substances)

[[Page S3693]]

       unless the President determines:
       1. that the party seeking the exemption has not complied 
     with all requests made under authority of CERCLA section 
     104(e); or
       2. that the materials containing hazardous substances 
     generated or transported by the business have contributed 
     significantly or could contribute significantly to the costs 
     of the response or to natural resource damages.
       B. Funding. Shares of responsibility attributed by an 
     allocator to the exempt small businesses that do not also 
     qualify for the de micromis exemptions in III.A and IV. shall 
     be included in the orphan share, subject to the provisions of 
     section VI.
       C. Recognition of Limited Ability to Pay of Businesses with 
     Fewer than 100 Employees: For parties not exempt under I.A. 
     above, EPA will implement expedited ability to pay 
     settlements for those small businesses with fewer than 100 
     employees, including small business owner or operators that 
     demonstrate a limited ability to pay.


             II. Relief for Municipal Owners and Operators

       A. Liability Cap:
       1. For a municipality with a population of greater than 
     100,000 that is or was an owner or operator of a landfill 
     listed on the NPL that contains predominantly municipal solid 
     waste (MSW) or municipal sewage sludge (MSS), its response 
     costs liability at the facility shall not exceed the cost of 
     closing the facility under RCRA Subtitle D.
       2. For a municipality with a population of fewer than 
     100,000 that is or was an owner or operator of a landfill 
     listed on the NPL that contains predominantly municipal solid 
     waste (MSW) or municipal sewage sludge (MSS), its response 
     costs liability at the facility shall not exceed the lesser 
     of the cost of closing the facility under RCRA Subtitle D or 
     10% of the total response costs for remediation of the site;
       unless the President determines that the municipal owner or 
     operator seeking the liability limitation does not meet the 
     following criteria:
       1. the municipality has complied with all requests made 
     under authority of CERCLA section 104(e);
       2. the municipality provides full cooperation, assistance 
     and facility access in connection with the implementation of 
     response actions at the facility;
       3. the municipality, during its period of ownership or 
     operation, accepted predominantly MSW or MSS, and any 
     materials, other than MSW or MSS, containing hazardous 
     substances accepted at the site do not contribute 
     significantly to the costs of the response or to natural 
     resource damages; and
       4. for activities occurring after 1/1/96, the municipality 
     had a qualified household hazardous waste collection program 
     in effect, and accepted for disposal only materials that it 
     was permitted to accept by law.
       B. Funding: Shares of responsibility attributed to 
     municipal owners or operators in excess of the amount 
     specified under II.A. above shall be included in the orphan 
     share, subject to the provisions of para. VA below.
       C. Recognition of Municipalities' Limited Ability to Pay: 
     EPA will implement expedited ability to pay settlements for 
     all municipalities which demonstrate a limited ability to 
     pay.


    iii. exempt generators and transporters of municipal solid waste

       A. Small MSW contributors: Exempt all generators and 
     transporters of MSW or MSS that are businesses with fewer 
     than 100 employees, residential homeowners, and small non-
     profit organizations who:
       1. are liable solely under CERCLA sections 107 (a)(3) or 
     (a)(4) as generators or transporters;
       2. contributed only MSW or MSS;
       3. have complied with all requests made under authority of 
     CERCLA section 104(e); and
       4. provides full cooperation, assistance and facility 
     access in connection with the implementation of response 
     actions at the facility.
       B. Other MSW contributors: Exempt all other generators and 
     transporters of MSW or MSS (including federal government 
     entities) at NPL sites for activities occurring wholly prior 
     to 1/1/96. The party seeking the exemption must demonstrate 
     that:
       1. it is liable solely under CERCLA sections 107 (a)(3) or 
     (a)(4) for activities occurring prior to 1/1/96;
       2. a) it contributed only MSW or MSS; or
       b) it contributed predominantly MSW or MSS--in which case 
     the exemption under this paragraph shall apply only to the 
     portion of its waste that is demonstrated by the generator or 
     transporter to be solely MSW or MSS, and the generator or 
     transporter shall become an allocation party, or an expedited 
     settlement party, and shall pay its allocated share for the 
     waste that is not demonstrated to be MSW or MSS;
       3. it has complied with all requests under authority of 
     CERCLA section 104(e); and
       4. it provides full cooperation, assistance and facility 
     access in connection with the implementation of response 
     actions at the facility.
       For activities occurring after 1/1/96, no generator or 
     transporter that otherwise demonstrates that it satisfies 
     criteria (1)-(4) above shall be liable for more than 10 
     percent of total response costs at a facility listed on the 
     NPL, provided its waste was disposed of pursuant to a 
     qualified household hazardous waste collection program. Where 
     more than one generator or transporter qualifies under this 
     paragraph, the 10% limitation shall apply to the aggregate 
     liability for response costs of all such generators and 
     transporters.
       C. Funding: The allocator shall not assign a share of 
     responsibility to the parties exempt under paragraph III.A. 
     above. Shares of responsibility attributed to parties 
     exempted under paragraph III.B. above shall be included in 
     the allocation and shall be attributed to the orphan share, 
     subject to the provisions of para. VI below.


         iv. exempt de micromis contributors of hazardous waste

       A. Exempt all generators and transporters (including 
     federal government entities) who contributed to a site 110 
     gallons or less of liquid materials containing hazardous 
     substances or 200 pounds or less of solid materials 
     containing hazardous substances wholly before 1/1/96, 
     provided that:
       1. the party has complied with all requests made under 
     authority of CERCLA section 104(e); and
       2. the party provides full cooperation, assistance and 
     facility access in connection with the implementation of 
     response actions at the facility,
       unless the President has determined that the waste 
     contributed significantly or could contribute significantly 
     to the costs of response or natural resource restoration.
       B. Funding: The allocator shall not assign a share of 
     responsibility to exempt de micromis parties.


                  v. expedited de minimis settlements

       The government will provide expedited settlements to any 
     small volume (de minimis) waste contributors (including 
     federal government entities). A ``small volume'' is presumed 
     where the President estimates the volume to be 1% or less of 
     the total waste at the site. The President may determine that 
     site specific conditions indicate that another amount 
     constitutes a small volume. To provide finality for these 
     settling parties, such settlements shall include premia that 
     cover the risks of, among other things, cost overruns. 
     Recovery from these settlements will be used to reduce the 
     liability of other settling responsible parties.


           VI. Full Funding--Maintaining the Pace of Cleanup

       A. Orphan share includes shares of responsibility for 
     response costs specifically attributable to:
       1. identified but insolvent or defunct allocation parties 
     who are not affiliated with any other person liable for 
     response costs at the facility, through any direct or 
     indirect familial relationship, or any contractual, 
     corporate, or financial relationship;
       2. the ability to pay settlement ``delta'';
       3. small businesses that are exempt under section I.A. and 
     that do not also qualify for the exemptions described in 
     sections III.A. IV.;
       4. municipal owners and operators for whom liability is 
     limited under section II.A., to the extent that their shares 
     of responsibility exceed this liability limitation; and
       5. the shares of responsibility attributable to parties 
     exempt under section III.B.
       B. Responsibility for hazardous substances that the 
     allocator cannot attribute to any identified party shall be 
     distributed among the allocation parties, including the 
     orphan share.
       C. The bill shall authorize up to $450 million per year for 
     orphan share payments funded under para. A.
       D. The amount of funding available for orphan share 
     payments in any fiscal year:
       1. shall not exceed the amounts that have been specifically 
     appropriated by Congress for that purpose in the fiscal year 
     in which the claim for payment is presented; and
       2. must be in excess of the President's budget request for 
     Superfund (excluding those amounts identified in section 
     VI.A.) or the budget for the Superfund program as established 
     in a Budget Reconciliation Act signed by the President 
     (excluding those amounts identified in section VI.A.).
       Shortfall: If claims for such payments exceed available 
     funds, any deficit shall be allocated pro rata among the 
     parties presenting the claim in that fiscal year. If funds 
     appropriated for this purpose are not fully obligated in the 
     fiscal year appropriated, the funds shall be carried over and 
     made available for claims in subsequent years.


                           VII. Other Issues

       A. NPL Listing Cap: Delete the cap in NPL listings.
       B. Burden of proof: For each liability exemption or 
     limitation described in this document, the party claiming the 
     benefit of the exemption or limitation or seeking to 
     establish the availability of an orphan share payment shall 
     demonstrate the applicability of that exemption or 
     limitation.
       C. Related allocation issues: Establish an allocation 
     process to enable PRPs to reach settlement with the United 
     States based on their allocated shares and to provide a 
     mechanism for determining the Trust Fund payments provided 
     for above. The allocation process would have the following 
     key features:
       1. Allocations shall be required for sites with 2 or more 
     potentially responsible parties, for which
       a. a remedial action is selected after enactment; and
       b. a remedial action was selected prior to enactment, if 
     requested by the parties performing the remedial action.
       2. The Administrator shall have discretion to provide 
     allocations at other sites.
       3. Allocations shall not be required for sites where there 
     has been a previous adjudication or settlement determining 
     liability

[[Page S3694]]

     of all parties or the allocated shares of all parties, or at 
     sites where all parties are liable under sections 107(a)(1) 
     and (2).
       4. Allocations under 1.b. and 2. shall not be construed to 
     require the payment of orphan shares, to confer reimbursement 
     rights, or to permit the reopening of a settlement.
       D. Additional exemptions, limitations and clarifications: 
     Liability exemptions, limitations and clarifications should 
     be provided, as appropriate, for the following additional 
     parties: lenders; fiduciaries; bona fide prospective 
     purchasers; inheritors of real property; federal, state and 
     local governments who own rights-of-way or issue business 
     licenses; federal agencies providing disaster relief; 
     contiguous landowners; religious, charitable, scientific or 
     educational organizations who receive property as gifts; 
     owners of railroad spurs; and recyclers.
       E. Settlements: any settlement or judgment signed or 
     entered prior to date of enactment shall not be affected by 
     any exemption or limitation set forth above.
       F. Fee Shifting: Any party who seeks to bring a non-liable 
     party or a party who has fully resolved its liability to the 
     United States into the allocation system will be responsible 
     for paying the attorney fees and other costs of the nominated 
     party for participating in the allocation system. Any party 
     who sues another party during the allocation moratorium or 
     who sues a party who has fully settled its liability to the 
     United States will be responsible for paying that party's 
     attorney fees and other litigation costs.
       G. Small business ombudsman: The Administrator shall 
     establish a small business assistance section within EPA's 
     small business ombudsman office, to act as a clearinghouse of 
     information for small businesses regarding CERCLA. The office 
     will also provide general advice and assistance to small 
     businesses regarding the allocation and settlement process, 
     but will not give legal advice or participate in the 
     allocation process.

  Mr. LAUTENBERG. Mr. President, we think our proposal addresses many 
of the concerns that have been raised about Superfund's liability 
system. It would increase fairness, increase efficiency, and reduce 
transaction costs. At the same time, it would protect both the pace and 
protectiveness of cleanups.
  It would provide greater fairness and efficiency by establishing an 
allocation system under which those responsible for pollution pay only 
their fair share. Under this system, they would be able to do this 
quickly and without litigation.
  Second, the proposal increases fairness and efficiency, and cuts down 
on lawsuits, by pulling out of the process people who never should have 
been pulled in. This is accomplished through a series of exemptions and 
limitations on liability for small businesses, contributors of small 
amounts of waste, municipalities, charities, lenders, and other 
parties.
  The proposal would exempt as many as 30,000 small businesses from 
Superfund liability. It would limit the liability of up to 525 
municipal owners and operators of municipal landfills. It would exempt 
countless individuals, businesses, and small nonprofit organizations 
that otherwise would be liable as a generator or transporter of 
municipal solid waste.
  It would exempt cities whose involvement is due solely to household 
trash created by its citizens. And it would exempt approximately 10,000 
contributors of small amounts of waste.
  This means that parties like the Girl Scouts, local taxpayers, pizza 
parlors, and churches will be protected from frivolous lawsuits--suits 
brought by polluters who have tried to force innocent parties to bear 
cleanup costs, simply because they have sent ordinary household garbage 
to Superfund sites.
  At the same time, Mr. President, our proposal would reaffirm the 
principle that polluters should pay. It would ensure the availability 
of funding for more cleanups. And it would ensure that those 
responsible for pollution are held accountable for cleaning up the mess 
they have made.
  It is important to provide relief to many who have been swept into 
the Superfund system unfairly. But it is equally critical that toxic 
waste sites not be left untended as a result, or passed off as a burden 
to local taxpayers.
  Mr. President, I remain committed and hopeful about the possibility 
of enacting a Superfund bill in this Congress. I also want to express 
my appreciation to Senators Smith and Chafee for their acknowledgment 
that the only way to get Superfund reform this year is through a 
bipartisan effort.
  That kind of cooperation is part of a long tradition at the 
Environment and Public Works Committee, and it has resulted in landmark 
legislation protecting our citizens and environment. It will also be 
necessary if President Clinton is to sign a reform proposal into law.
  Chairman Chafee has scheduled hearings next week on Superfund, and I 
hope we will have an opportunity to discuss this proposal, among 
others.
  We have shared this proposal with our Republican colleagues, and we 
hope they will view it favorably. If we work together, we believe there 
is still time left in this session of Congress for the full Senate to 
consider a bill and work with our colleagues in the House of 
Representatives to approve a bipartisan, consensus bill the President 
can sign.
  We believe our proposal is a serious effort to address concerns 
raised by our Republican colleagues. It also has the strong endorsement 
of the Administrator of the Environmental Protection Agency, Carol 
Browner, and the White House.
  Mr. President, I believe that this proposal represents the best hope 
of securing a bipartisan Superfund bill this year that not only will be 
approved by the Senate, but which will be signed into law. And I remain 
committed to working hard with my colleagues to reach an agreement.
  Mr. President, we can have a Superfund program that is both more fair 
and more efficient at protecting public health and the environment. To 
accomplish this goal, we need to continue working together in a 
cooperative fashion.
  Seventy-three million Americans in every State of the country are 
counting on us to get the job done. I hope we will not let them down.
  With that I conclude my remarks. I yield the floor.

                          ____________________