[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
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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)
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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
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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.
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