[Congressional Record Volume 152, Number 76 (Wednesday, June 14, 2006)]
[Senate]
[Pages S5878-S5879]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. CANTWELL (for herself, Mrs. Boxer, and Mr. Jeffords):
  S. 3515. A bill to amend title II, United States Code, to ensure that 
liable entities meet environmental cleanup obligations, and for other 
purposes; to the Committee on Environment and Public Works.
  Ms. CANTWELL. Mr. President, the Wall Street Journal recently 
reported on a growing phenomenon across the West--towns and cities are 
struggling to ensure cleanup from decades of environmental 
contamination on properties formally owned by Asarco, LLC.
  For over a century, Asarco mined, smelted, and refined metals at 
sites across the country, leaving behind a legacy of lead, arsenic, and 
cadmium contamination in more than 90 sites in 22 Western States. But 
when Asarco filed for bankruptcy in August 2005 suddenly it became 
unclear if these contaminated sites would ever get cleaned up. Asarco's 
outrageous legacy of environmental pollution stretches from Helena, MT, 
to El Paso, TX, and is estimated to total $1 billion nationwide. That 
is money that taxpayers, not the polluting company, may now have to 
pay.
  In my State, Asarco operated a 14-acre site in Everett from the 1800s 
until 1912, and two sites in Ruston, a 67-acre property and the larger 
97-acre Superfund site on Commencement Bay. When Asarco declared 
bankruptcy last August, the citizens of Washington State were left with 
a $100 million Superfund mess. In Tacoma and Ruston, Asarco contractors 
abandoned cleanup projects midway through, leaving piles of 
contaminated soil sitting in resident's backyards. Although cleanup 
resumed thanks to emergency removal funds from the Environmental 
Protection Agency, these funds only go so far and eventually taxpayers 
may have to bear the brunt of the costs.
  I wish I could say that Asarco is just an exceptionally bad actor, 
but there is evidence that the company's irresponsible practices are 
more common than we knew.
  That is why in October 2002, I asked the Government Accountability 
Office to examine how corporate polluters might be avoiding their 
responsibility under existing environmental law. I was pleased to be 
joined in requesting this study by then Environment and Public Works 
Chairman Jeffords, Judiciary Chairman Leahy, and Superfund and Waste 
Management Subcommittee Chairwoman Boxer. The report found that the 
Environmental Protection Agency has faced significant challenges in 
holding polluting corporations responsible for their environmental 
cleanup obligations, partly due to bankruptcy laws that allow companies 
to avoid future cleanup costs on sites that were damaged in the past.
  In many ways this report confirms what I feared back in 2002, and 
what became starkly evident last August, that corporate polluters are 
using bankruptcy and other regulatory loopholes to get out of their 
environmental cleanup obligations. The report has a whole section on 
how ``businesses can organize and restructure themselves in ways that 
allow them to limit their expenditures for environmental cleanups.'' 
Whether it is using the shield of bankruptcy to evade their 
obligations, or engaging in corporate shell games with foreign 
subsidiaries, the ``polluter pays'' principle should hold firm.
  To quote again from the report, ``As a result of EPA's inaction, the 
federal treasury continues to be exposed to potentially enormous 
cleanup costs associated with businesses not currently required to 
provide financial assurances.''
  Fortunately, the GAO provided not only a thorough analysis of the 
problem but also a set of detailed recommendations on how to tackle 
these abuses. Based on their recommendations, I authored the Cleanup 
Assurance and Polluter Accountability Act of 2006, which I am 
introducing today along with Senator Jeffords, the ranking member of 
the Environment and Public Works Committee and Senator Boxer, the 
ranking member of the Environment and Public Works Subcommittee on 
Superfund and Waste Management.
  My bill: Enables the bankruptcy court to examine 10 years of past
transactions--instead of 2 years--between a parent company and its 
subsidiary for evidence that companies transferred assets to avoid 
environmental cleanup responsibilities; requires the National 
Bankruptcy Review Commission to evaluate conflicting goals between the 
bankruptcy code and environmental laws and to provide recommendations 
for action to Congress; reasserts and expands upon the 1980 requirement 
that the Environmental Protection Agency develop financial assurance 
regulations and ensure that businesses maintain appropriate financial 
assurances, providing evidence that they're able to pay for cleaning up 
of environmental damage

[[Page S5879]]

should it occur; and requires companies subject to financial assurance 
requirements to report declarations of bankruptcy directly to the EPA 
with an estimation of environmental damage and an explanation of 
current and former owners or partners of the facility.
  These measures will go a long way toward closing these costly 
loopholes in our bankruptcy code and protecting tax payers from unjust 
corporate maneuvering to evade cleanup responsibility at polluted 
sites.
  Communities across the country continue to bear the burden of 
Asarco's irresponsible behavior. The GAO report confirms that this 
abuse is not specific to Asarco but is increasingly widespread. It will 
take many more years to clean up the mess that a few bad actors have 
left behind. We can't afford to stand by and allow another Asarco to 
happen. We must not ask the taxpayers to continue footing the bill for 
others' reckless actions. I look forward to working with my 
congressional colleagues to enact these protections into law.

                          ____________________