[Congressional Record Volume 144, Number 136 (Friday, October 2, 1998)]
[Senate]
[Pages S11358-S11359]
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. President, yesterday the Conferees on VA-
HUD Appropriations decided to amend our nation's Superfund law.
  At present, Superfund contains a limit on the liability of sureties 
who issue performance bonds to Superfund cleanup contractors. I was the 
author of that provision, which I introduced in 1990 as a free-standing 
Superfund bill (S. 3187). My bill was broadly supported by labor, 
environmentalists, and the American Insurance Association.
  But, Mr. President, at the time the surety liability legislation was 
passed, certain Senators who doubted the limitation was necessary to 
increase the availability, and hence, competitiveness, of surety bonds, 
added a sunset provision.
  During the VA-HUD Conference yesterday, the Conferees agreed to 
eliminate that sunset provision. The deletion has had broad-based, 
bipartisan support, and has appeared in each comprehensive Superfund 
reform bill introduced in this Congress.
  I supported that amendment, Mr. President, but I want to underscore 
my distress at the manner in which the Conferees adopted the amendment.
  Several months ago, I asked Senator Chafee to include two Superfund 
amendments on the agenda for an Environment and Public Works Committee 
business meeting before the end of the year--one pertaining to 
brownfields and the other to municipal solid waste (``MSW''). Senator 
Chafee rejected this request, based on his opposition to ``piecemeal'' 
Superfund reform, that is, anything less than a comprehensive overhaul 
of the entire Superfund statute--something that has eluded this body 
now for three consecutive Congresses, or six years.
  I was therefore astonished that the surety amendment made its way 
into yesterday's VA-HUD Conference Report. I was especially surprised 
that Senator Chafee, as Chair of the authorizing Committee, signed off 
on this piece of Superfund reform on an appropriations bill, despite 
his repeated opposition to ``piecemeal'' reform, and the fact that this 
provision had not passed the House or the Senate as a stand-alone bill, 
and was not in either the House or the Senate VA-HUD bills.
  Some argued that the surety amendment was merely technical in 
nature--that it simply perpetuated the opportunity for sureties to 
enjoy limited liability under Superfund.
  Using that criterion, a brownfields liability exemption would also 
constitute nothing more than a technical fix--it would clarify that 
Congress did not intend Superfund liability to deter persons from 
purchasing and cleaning up brownfields properties. Nor would an MSW 
amendment--which would confirm that Congress did not intend persons who 
disposed of only household waste to be liable for cleanup of toxic 
waste.
  The surety amendment has also been touted as non-controversial--
having consistently enjoyed broad-based bi-partisan support.
  Mr. President, as I have stated on many occasions, and my esteemed 
colleagues must agree, brownfields and MSW liability exemptions can 
boast the same historic consensus. They have appeared in each of the 
comprehensive Superfund reform bills introduced by Republicans or 
Democrats since the 103rd Congress. And they have gained the support of 
all stakeholders, the Administration, and the national environmental 
community.

[[Page S11359]]

  The brownfields and MSW fixes are minor, but they are crucial for 
successful brownfields development, or to relieve those subjected to 
unfair and unintended litigation. And they offer significant economic 
and environmental benefits. The nation's Mayors estimate they lose 
between $200 and $500 million a year in tax revenues from these 
properties sitting idle, and that returning these sites to productive 
use could create some 236,000 new jobs.
  I am therefore honestly trying to understand what, if any, objective 
criteria exist for determining which small Superfund fixes will be made 
in this session.
  When I consider yesterday's surety amendment, along with Senator 
Lott's recycling proposal (S. 2180), I can find nothing that 
distinguishes sureties or recyclers from brownfields or MSW. There is 
virtually nothing that makes the surety's or recycler's needs more 
urgent than those of our cities in need of brownfields revitalization, 
and their taxpayers and residents, who want cleanup and redevelopment; 
or those of the homeowners and small businesses mired in litigation at 
landfill sites. And it certainly cannot be argued that brownfields or 
MSW have enjoyed any less broad-based support than have fixes for 
recyclers or sureties.
  As a Senator from a state with literally thousands of brownfields 
sites, as well as altogether too many instances of homeowners and small 
businesses dragged into Superfund litigation by their corporate peers 
(and not by EPA), 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.
  Now, Mr. President, some of my colleagues have claimed that passage 
of brownfields or MSW amendments are anathema to comprehensive 
Superfund reform. Or some of my colleagues have argued that precisely 
because the brownfields and MSW amendments are so popular, and enjoy 
such broad ranging support, and provide such significant benefits to 
the nation, that they should be held hostage to comprehensive Superfund 
reform--that we should see if they will succeed in driving parties back 
to the table to negotiate comprehensive Superfund reform for the fourth 
consecutive Congress.
  Mr. President, with all due respect, 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. 
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 week of this Congress, I make the same plea. Just as holding 
recyclers or sureties hostage to comprehensive Superfund reform has not 
gotten us any closer to producing an acceptable product that the 
President could sign, 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. But it will rob 
communities across the country of the jobs and tax ratables that flow 
from revitalized brownfields and will impose severe penalties on the 
individuals and small businesses caught up in a litigation nightmare 
through no fault of their own.
  Mr. President, I call upon my esteemed colleagues to move brownfields 
and MSW amendments before this Congress ends. I believe otherwise we 
will all have a hard time explaining, when we return to our home states 
in October, why sureties and recyclers merited this body's attention, 
but our communities and our taxpayers and our small businesspeople were 
somehow less worthy.

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