[Congressional Record Volume 144, Number 125 (Friday, September 18, 1998)]
[Senate]
[Pages S10607-S10609]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 LET'S ENCOURAGE BROWNFIELDS DEVELOPMENT AND GET THE LITTLE GUY OUT OF 
               SUPERFUND LITIGATION AT CO-DISPOSAL SITES

 Mr. LAUTENBERG. Mr. Mr. President, yesterday the Majority 
Leader made a long statement on behalf of Senate action on S. 2180, the 
``Superfund Recycling Equity Act,'' which he introduced earlier this 
year. This legislation would clarify that persons who merely recycle 
certain specified materials, but did not dispose of those materials, 
are not subject to Superfund liability.
  Today, Mr. President, I join as a co-sponsor of this legislation. 
And, I note for the record, that I was the author of the recycling 
provision in 1993. I included it in comprehensive Superfund reform 
legislation, S.1834, which I introduced when I was Chairman of the 
Senate Superfund Subcommittee. As Senator Lott noted yesterday, this 
provision has reappeared in every major, comprehensive Superfund bill 
since then, whether authored by Democrat or Republican. And it has been 
introduced in every Congress, by Democrats and Republicans, as stand-
alone legislation. There is broad-based, bipartisan support for this 
legislation which would remove impediments to recycling efforts. It now 
appears that some type of liability relief for recyclers will be 
considered by the Environment and Public Works Committee next week, 
although it is not clear exactly which of several proposals will be 
considered.
  For this reason, Mr. President, I would like to bring to the Senate's 
attention two other very similar provisions which I believe should be 
considered in conjunction with S. 1280. They are designed to expedite 
the revitalization of communities all across this country, and to 
provide relief to untold numbers of small business owners, small non-
profits, and individuals who sent only ordinary household trash to 
landfills that are now Superfund sites.
  Mr. President, once it became clear that the Congress would not act 
on comprehensive Superfund legislation this year, and the Majority 
Leader expressed his interest in enacting a liability exemption for 
certain recyclers, I suggested that we also take the very modest step 
of enacting a similar exemption for brownfields development and for 
those who innocently disposed of municipal solid waste at landfills 
that later became Superfund sites. I wrote to the Chairman of the 
Environment and Public Works Committee, asking that the Committee 
consider exemptions for brownfields and municipal solid waste (MSW) 
disposal, should it take up any liability exemptions--because 
brownfields and MSW exemptions also enjoy broad, bi-partisan support 
and have been regarded as non-controversial. The Chairman responded 
that he opposed so-called piecemeal reform of Superfund, and that the 
Committee would not be considering such legislation this year. In 
deference to this judgement, I deferred introducing separate 
legislation. Now that the Committee apparently will be considering 
liability exemptions for recyclers, I hope we will also have an 
opportunity to consider exemptions for brownfields and MSW.
  Mr. President, as is the case for recyclers, provisions to clarify 
the law on liability for brownfields development and MSW have been 
included, with bipartisan support, in every comprehensive Superfund 
bill since 1993. In virtually every regard, they meet the same criteria 
that have been offered to justify enacting exemptions for recyclers. 
They are simple clarifications of existing law to correct unintended 
consequences of the Superfund liability scheme. They have gained the 
support of all stakeholders, the Environmental Protection Agency, the 
Department of Justice, and the national environmental community. The 
brownfields and MSW ``fixes'' are minor, but are critical for 
successful brownfields development, or to those subjected to unfair and 
unintended litigation. They do not involve cleanup standards or natural 
resource damages. They do not deal with orphan shares or municipal 
liability. And they offer significant economic and environmental 
benefits.
  Why, then, should the Senate reject consideration of these ``fixes?'' 
Only one reason is offered: that they should be held hostage to 
comprehensive Superfund reform! Mr. President, it is argued they are so 
popular, and enjoy such broad ranging support, and provide such 
significant benefits to the nation, that we should hold them hostage to 
see if they provide a stimulus for action on comprehensive legislation 
in the next Congress. It is argued that they should be held as 
``sweeteners'' to try to sweeten the sour pot of proposed changes to 
the Superfund program that

[[Page S10608]]

have been rejected by three successive Congresses.
  Mr. President, with all due respect to those making this argument, I 
think it is wrong to prevent enactment of legislation that enjoys broad 
support, and would reap acknowledged benefits, as a tactical matter to 
achieve unrelated goals. I think this disserves the public and adds to 
public cynicism. For a variety of reasons, efforts to radically change 
Superfund, the nation's toxic waste cleanup program, have failed for 
six years running. Toward the end of each of the past two congresses, 
many Senators, including this Senator, have argued that we should move 
ahead with achievable reforms that are non-controversial and permit our 
people, our communities, and our economy to benefit from their 
enactment. Today, as we head into the final weeks of this Congress, I 
make the same plea. Just as holding recyclers hostage to comprehensive 
Superfund reform has not worked, so holding brownfields development and 
persons who disposed of household trash hostage to other legislative 
goals is a failed strategy. It will not mitigate the controversy 
intrinsic to the broader issues raised by comprehensive legislation. 
Yet, it robs communities across the country of the jobs and tax 
ratables that flow from revitalized brownfields and imposes severe 
penalties on the individuals and small businesses caught up in a 
litigation nightmare through no fault of their own.
  Mr. President, in the last Congress, the Majority party insisted on 
an all or nothing Superfund strategy. But, when that failed, lender 
liability legislation was passed in response to a strong lobbying 
effort by lenders who, understandably, wanted relief from liabilities 
that were unfair and made no sense. I supported lender liability relief 
because I thought it had public benefits and corrected an injustice.
  In these last weeks of the 105th Congress, a similar game plan is 
unfolding. Thousands of recyclers around the country are asking for 
liability relief--relief they deserve, in legislation I support. They 
have skilled representatives making their case, and I do not fault them 
for that. In fact, I support their efforts. But, as a Senator from a 
state with literally thousands of brownfields sites, as well as 
altogether too many instances of homeowners and small businesses mired 
in litigation at landfill sites, it is my responsibility to lobby for 
those communities and individuals who don't have lobbyists representing 
them here in the Congress. We, as their elected representatives, are 
their lobbyists. We are their voice. There is no reason in the world 
why this Senate, and this Congress, should not move forward to make the 
minor, non-controversial, and eminently sensible changes to Superfund 
law that impede brownfields development and rob small businesses of 
their hard earned profits.
  Mr. President, I hope my colleagues will consider the plight of 
persons who disposed of household waste, or office trash, such as 
cafeteria waste or paper waste, at the local town dump. I am talking 
about homeowners, pizza parlor owners, and Girl Scouts who, as 
unbelievable as it may sound, have been dragged into Superfund 
litigation. They have not been sued by EPA. They have been sued, 
primarily, by large corporations who disposed of toxic waste, some by 
dark of night, at a dump alongside solid waste from homes and small 
businesses and restaurants.
  Through two Congresses now, the Senate Environment and Public Works 
Committee has heard testimony from Barbara Williams, the owner of Sunny 
Ray Restaurant, who was named as a fourth-party defendant in litigation 
concerning the Keystone Sanitation Company, Inc. Superfund Site, in 
Harrisburg, Pennsylvania. Indeed, the whole country heard her saga, 
when she was interviewed on ``60 Minutes.''
  How did Barbara Williams get ensnared in Superfund litigation? EPA 
sued 11 companies that dumped hazardous waste from industrial processes 
at the Keystone Landfill for a period of years, but did not want to 
clean it up. These 11 companies sued 180 third-party defendants, who in 
turn sued 590 fourth-party defendants, including Barbara Williams. But 
Mrs. Williams sent only mashed potatoes and other restaurant waste to 
the Keystone Site. Those suing her told her she could get out of the 
lawsuit if she would pay them $75,000.
  Mr. President, a $75,000 assessment is a lot of money for most small 
businesses, and Barbara Williams is no exception. Further, Barbara 
Williams is not a polluter. No one at the Department of Justice, the 
EPA or in the Congress believes she should be liable under Superfund 
for sending mashed potatoes to the local garbage dump. Nor does anyone 
believe she should have to pay staggering lawyers' fees to get herself 
out of this litigation nightmare. Congress could, and should, act now 
to free Mrs. Williams and get all those like her out of the litigation 
web. Mrs. Williams, her business, and her family should not be held 
hostage to some notion that if we wait to grant her justice another two 
years, or four years, we will enact highly controversial changes to the 
Superfund program. Comprehensive Superfund legislation will have to 
rise or fall on its own merits. Barbara Williams should not become a 
pawn in this legislative battle.
  Likewise, Mr. President, this body should ask the same questions 
about removing obstacles to brownfields development. Brownfields are 
often in cities, but also are located in many, many suburban and even 
rural areas. They are abandoned, or idle, former industrial properties. 
Some of these are contaminated, some are not. But it is the fear that 
these properties are contaminated that some say deters investors from 
buying them and redeveloping them.
  Mr. President, there are more than 500,000 brownfields staining this 
country's landscape. The nation's Mayors estimate they lose between 
$200 and $500 million a year in tax revenues from these properties 
sitting idle. Returning these sites to productive use could create some 
236,000 new jobs. Our nation's Mayors, as well as developers and 
bankers, say immediate action is imperative, since new tax laws provide 
incentives for brownfields redevelopment, but expire in 2001.
  Congress should act before we adjourn to remove the unintended burden 
of Superfund liability that deters investors from buying and developing 
brownfields properties. Brownfields development results in significant 
economic benefits. It creates jobs and tax ratables for communities, 
which lowers local tax burdens on residents. The cleanup of brownfields 
also removes contaminants from our environment. These cleanup 
initiatives are win/win opportunities that make good environmental 
sense and good business sense.
  Mr. President, if this body takes steps to encourage recycling, which 
I support, I urge my colleagues to also take steps to encourage 
brownfields development and to free our nation's small business owners 
from the unfair and punitive penalties being assessed on them. It is in 
the interest of good government, and clearly in the interest of 
millions of Americans, that we do so. Let's act now to revitalize our 
communities. And let's act now, and let Mrs. Williams discharge her 
lawyer.
  Mr. President, the legislative language which would provide relief 
from brownfields and MSW liability is well known to all who have 
followed this debate. But, for the convenience of my colleagues, I ask 
that a summary be printed in the Record.
  The summary follows:
  Summary of Senator Frank R. Lautenberg's ``CERCLA Liability 
Exemptions Act of 1998'', containing a total of four exemptions, three 
in the brownfields arena and one in the municipal solid waste (MSW) 
arena.
  The proposed legislation would relieve the following persons from 
Superfund liability:
  (1) Brownfields--
  (a) Bona fide prospective purchasers--persons who seek to buy 
contaminated properties, and can show that they did not cause the 
contamination;
  (b) Innocent landowners--persons who already own property that they 
did not know was contaminated; and
  (c) Contiguous landowners--persons who own property that becomes 
contaminated as a result of contaminants migrating from neighboring 
properties or areas; and
  (2) Municipal Solid Waste--
  individuals; small businesses (less than 100 employees); and small 
non-profit organizations (less than 100 employees)
  who disposed only municipal solid waste (ordinary household trash, or 
house-hold-like trash, such as cafeteria or office paper waste) at a 
landfill.

[[Page S10609]]

  The exemptions were replicated, almost verbatim, in S.8, except that 
S.8 would have shifted the exempt MSW party's share to the Trust Fund. 
Our Democratic substitute did not assign a share to the exempt MSW 
party, nor did S. 1834, the consensus bill reported out of EPW on an 
11:4 vote in the 103rd Congress.

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