<DOC>
[106th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:58513.wais]
LEGISLATION TO IMPROVE THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT
=======================================================================
HEARINGS
before the
SUBCOMMITTEE ON
FINANCE AND HAZARDOUS MATERIALS
of the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
AUGUST 4, 1999--BROWNFIELDS PROVISIONS OF H.R. 1300, H.R. 1750, and
H.R. 2580
SEPTEMBER 22, 1999--H.R. 1300 and H.R. 2580
__________
Serial No. 106-82
__________
Printed for the use of the Committee on Commerce
U.S. GOVERNMENT PRINTING OFFICE
58-513CC WASHINGTON : 1999
COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa THOMAS C. SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING,
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Finance and Hazardous Materials
MICHAEL G. OXLEY, Ohio, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana EDOLPHUS TOWNS, New York
Vice Chairman PETER DEUTSCH, Florida
PAUL E. GILLMOR, Ohio BART STUPAK, Michigan
JAMES C. GREENWOOD, Pennsylvania ELIOT L. ENGEL, New York
CHRISTOPHER COX, California DIANA DeGETTE, Colorado
STEVE LARGENT, Oklahoma THOMAS M. BARRETT, Wisconsin
BRIAN P. BILBRAY, California BILL LUTHER, Minnesota
GREG GANSKE, Iowa LOIS CAPPS, California
RICK LAZIO, New York EDWARD J. MARKEY, Massachusetts
JOHN SHIMKUS, Illinois RALPH M. HALL, Texas
HEATHER WILSON, New Mexico FRANK PALLONE, Jr., New Jersey
JOHN B. SHADEGG, Arizona BOBBY L. RUSH, Illinois
VITO FOSSELLA, New York JOHN D. DINGELL, Michigan,
ROY BLUNT, Missouri (Ex Officio)
ROBERT L. EHRLICH, Jr., Maryland
TOM BLILEY, Virginia,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Hearings held:
August 4, 1999............................................... 1
September 22, 1999........................................... 137
Testimony of:
Curtis, Jonathan G., President, Environmental Business Action
Coalition.................................................. 78
Fields, Hon. Timothy, Jr., Assistant Administrator, Office of
Solid Waste and Emergency Response, U.S. Environmental
Protection Agency:
Accompanied by Lois Schiffer, Assistant Attorney General,
Department of Justice.................................. 19
Accompanied by Steve Herman, Assistant Administrator,
Office of Enforcement and Compliance Assurance......... 150
Florini, Karen, Senior Attorney, Environmental Defense Fund.. 83
Garczynski, Gary, Treasurer, National Association of Home
Builders................................................... 92
Helmke, Paul, Mayor of Fort Wayne, Indiana, on behalf of the
U.S. Conference of Mayors.................................. 54
Jackson, Jeremiah D., President-elect, Environmental Business
Action Coalition........................................... 221
Jeffers, Christopher, City Manager, Monterey Park, on behalf
of the National Association of Counties.................... 193
Johnson, Gordon J., Deputy Bureau Chief, Office of the
Attorney General, State of New York, on behalf of the
National Association of Attorney's General................. 201
Kerbawy, Claudia, Section Chief, Superfund, Environmental
Response Division, Michigan Department of Environmental
Quality, on behalf of Association of State and Territorial
Solid Waste Management Officials........................... 69
Mills, Teresa, on behalf of the Buckeye Environmental Network 75
Nobis, Mike, JK Creative Printers, on behalf of National
Federation of Independent Business......................... 198
Stypula, Donald J., Manager of Environmental Affairs,
Michigan Municipal League, on behalf of National
Association of Local Government Environmental Professionals 62
Williams, Jane, Chair, Waste Committee, Sierra Club.......... 215
Material submitted for the record by:
Association of Metropolitan Water Agencies and the American
Water Works Association, letter dated October 8, 1999, to
Hon. John Dingell.......................................... 252
California Environmental Agency, letter dated October 12,
1999, to Hon. Thomas J. Bliley, Jr......................... 277
Campaign for Safe and Affordable Drinking Water, letter dated
November 1, 1999........................................... 285
Children's Health Environmental Coalition, letter dated
November 1, 1999........................................... 282
Clean Water Action, letter dated October 26, 1999............ 284
Curtis, Jonathan G., President, Environmental Business Action
Coalition, letter dated September 7, 1999, enclosing
response for the record.................................... 129
Jennings, Jon P., Acting Assistant Attorney General, U.S.
Department of Justice, letter dated October 4, 1999, to
Hon. Michael G. Oxley...................................... 287
Lew, Jacob, Director, Office of Management and Budget, letter
dated October 12, 1999, to Hon. John Dingell............... 251
Salazar, Ken, Attorney General, State of Colorado, letter
dated November 5, 1999, to Hon. Tom Bliley, enclosing
material for the record.................................... 272
Spitzer, Eliot, Attorney General, State of New York, letter
dated October 12, 1999, to Hon. Tom Bliley, enclosing
material for the record.................................... 256
(iii)
LEGISLATION TO IMPROVE THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT
----------
WEDNESDAY, AUGUST 4, 1999
House of Representatives,
Committee on Commerce,
Subcommittee on Finance and Hazardous Materials,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2123, Rayburn House Office Building, Hon. Michael G. Oxley
(chairman) presiding.
Members present: Representatives Oxley, Greenwood, Largent,
Lazio, Shimkus, Wilson, Shadegg, Fossella, Blunt, Ehrlich,
Bliley (ex officio), Towns, Stupak, DeGette, Barrett, Luther,
Markey, Hall, Pallone, Rush, and Dingell (ex officio).
Staff present: Nandan Kenkeremath, majority counsel; Amit
Sachdev, majority counsel; Kristi Gillis, legislative clerk;
and Dick Frandsen, minority counsel.
Mr. Oxley. The subcommittee will come to order. The Chair
will recognize himself for an opening statement.
Today we start the first day of a hearing for the 106th
Congress on legislation to improve the Comprehensive
Environmental Response Compensation and Liability Act. For
those who need a reminder, this is the same broken Superfund
statute on which we have had over 26 hearings in this committee
over the past 7 years. The sad truth is, during the nearly 20
years of CERCLA, we have been cleaning up sites with greater
speed and less waste, while protecting people's health and the
environment.
Superfund creates disincentives and uncertainty for State
and voluntary cleanups, where a lot of the work is getting done
these days. As I have stated before, the quality of our
Nation's most prominent cleanup program does matter. When sites
stay abandoned because of Superfund's vagaries, people suffer.
Neighborhoods suffer, cities and towns suffer. The hardest task
in politics is fixing a broken environmental program.
Superfund, however, could not be a better case for reform.
I still believe there is a bipartisan majority in the house and
a broad number of stakeholders for significant changes to the
Superfund statute.
Many Members of Congress have worked on a bipartisan basis
over the last 6 years with State cleanup agencies, cleanup
engineers and dozens of experts to develop statutory changes
that would make a real difference. The 105th Congress saw
several serious bipartisan efforts in this regard, including
H.R. 3000, which was introduced with 19 original Democrat
cosponsors. In this Congress we see that H.R. 1300, the Recycle
America's Land Act of 1999, now has 47 Democratic cosponsors
and 47 Republican cosponsors.
Mr. Greenwood's bill, the Land Recylcing Act of 1999, is a
serious bipartisan effort covering several areas, with 9
Democrat cosponsors and 7 Republican cosponsors. I commend the
long and growing list of Democratic and Republicans for their
willingness to move forward on a bipartisan basis. It is these
efforts that the subcommittee must look to. For the 106th
Congress if you cannot work in a bipartisan fashion, it would
appear that you do not want any legislation at all. If you are
willing, let's start working now and start showing the ability
for a bipartisan compromise.
Today we will focus on certain provisions related to
brownfields issues. No one should take from this first day that
I want to limit the scope of Superfund reform efforts to these
topics. To the contrary, Superfund is broken in a number of
areas and there have been positive bipartisan proposals in a
number of these areas which should be fully considered.
On today's topic I would state that needless uncertainty
and counterproductive Federal rules have hurt the effort to
clean up brownfields. We must overcome the lack of trust that
the administration and the national environmentalist activists
continue to carry for State cleanup programs. The record shows
that big Federal Government is hurting, not helping; and States
like Ohio and Pennsylvania are moving ahead to protect the
environment and create jobs.
For example, 83 projects have been undertaken through
Ohio's voluntary action program. These are non-NPL lesser
contaminated sites that might otherwise have languished and
spread blight. Instead properties are being cleaned up and jobs
are being created from Cleveland to Columbus to Cincinnati.
I also recall an impressive brownfields project that I saw
at the Pfizer plant in Congressman Town's district in New York
City. We need to respect the position of the State agencies and
cleanup contractors who have the most experience in the
brownfields area; otherwise we have just more unworkable
prescriptions from Washington, DC.
Again, I will be turning to all of today's witnesses, other
stakeholders, on both sides of the Chair, for more information,
the right formula and the right opportunity for positive
reforms. The Chair is now pleased to recognize the ranking
member, the gentleman from New York, Mr. Towns.
Mr. Towns. Thank you very much, Mr. Chairman. I want to
thank you for holding this hearing. If you recall at the
subcommittee's March 23 oversight hearing, many members on both
sides of the aisle expressed their interest in working on
brownfields legislation. Recently the United States Chamber of
Commerce has adopted a policy that urges Congress to focus on
brownfields legislation rather than comprehensive Superfund
reform.
In early May, I, along with all of my colleagues on this
side of the aisle, introduced H.R. 1750, the Community
Revitalization and Brownfields Cleanup Act of 1999. It provides
liability protection for the new purchasers and developers,
innocent landowners and contiguous property owners. It also
provides brownfields funding for local governments and
addresses the finality issue of current owners. I am pleased to
say that H.R. 1750 has already obtained the strong support of
the President of the United States, the only brownfields bill
to do so--and I repeat, the only brownfields bill to do so.
The mayors from big cities like Denver, Detroit, St. Louis,
Newark, Philadelphia, and Elizabeth, New Jersey and other local
government organizations have written to express their support
of H.R. 1750. Just this week, the National Association of
Counties and National Association of Towns and Townships
endorsed H.R. 1750 and expressed their strong interest in
legislation ratifying EPA's municipal settlement policy as
well.
Finally, H.R. 1750 has received support from the National
Realty Committee, a member organization of leading real estate
owners, developers, investors and lenders throughout this
Nation.
Mr. Chairman, if we keep our aim narrowly focused and
targeted, and our approach based on obtaining a broad
consensus, I believe brownfields legislation can be signed into
law in this Congress. The approaches taken by H.R. 1750 and
H.R. 2580 on liability protection for new purchasers, liability
clarification for innocent landowners, and funding for site
assessment grants and revolving loan funds track very closely
the difference in these important brownfields provisions. It
should be easily resolvable.
However, on several other provisions, there are significant
differences in the bills. These will not be as easily
resolvable as we discuss these differences and State authority
versus Federal authority. I urge the subcommittee to not forget
the needs of citizens and communities throughout this Nation
when they fear that contamination at any site may be presenting
a risk to their health and welfare. Citizens want to have all
of the necessary authorities available to protect their health
and the environment.
Mr. Chairman, again I thank you for holding this hearing
and I look forward to hearing from the witnesses. I yield back
the balance of my time.
Mr. Oxley. The Chair is now pleased to recognize the
gentleman from the full Commerce Committee, the gentleman from
Richmond, Mr. Bliley.
Chairman Bliley. Thank you, Mr. Chairman. Let me commend
you for holding this hearing on legislation to improve
Superfund. Perhaps one of the hardest tasks in politics is
fixing a broken environmental program. Superfund could not be a
better case for reform. The statute is excessively litigious,
slow, unrealistic, imposes barriers to cleanups all across the
Nation.
House Republicans and many Democrats agree on the need for
substantial reform. The 105th Congress saw several bipartisan
efforts in this regard, including Chairman Oxley's bill, H.R.
3000, which was introduced with 19 original Democrat
cosponsors.
Today we are holding a hearing on 3 bills to fix the
Superfund program. First we see that H.R., 1300 the Recycle
America's Land Act of 1999, now has the same number of Democrat
cosponsors as Republicans: 47. Similarly, Mr. Greenwood's bill,
the Land Recycling Act of 1999 is a serious bipartisan effort.
This presents us with a gulf that must be bridged. We have
a bipartisan group that supports Superfund reform, and, on the
other hand, we have the House Democrats and the administration
who support partisan legislation. To bridge this gulf and
finally enact Superfund legislation, we must address both the
substantive and political differences.
On the substance, I see a program that takes 8 years to
accomplish the identification and listing of a hazardous waste
site, and another 10 years to accomplish remedy selection.
While the administration and some of my colleagues call this a
satisfactory pace, I see only waves and waves of litigation.
Where the administration sees vindication of the ``polluter
pays'' principle, I see needless uncertainty and
counterproductive Federal rules. On bipartisanship, I note that
it is not alive and well.
So the divide within the Democrat Party remains. There are
those who are willing to work on a bipartisan reform and those
that have not shown a desire to make Superfund work. It seems
to me for the 106th Congress, if you cannot work in a
bipartisan fashion, then you do not want change at all. We have
a short time to determine whether we will cross this divide.
After 5 years, my patience is running thin. If you are willing,
let's start working with Chairman Oxley now and start showing
the ability for a bipartisan compromise.
Today is the first day of our legislative hearings on
Superfund. Today we will focus on the brownfields-related
provisions of several bills. I believe we must listen to State
cleanup agencies and cleanup contractors who have the expertise
to know what it takes to bring life to the cleanup and
redevelopment arena by reforming Superfund. After years of
trying and negotiating, we have developed workable bipartisan
provisions that can make a difference.
I look forward to hearing from today's witnesses and to
moving forward on Superfund reform. Thank you, Mr. Chairman.
Mr. Oxley. I thank the Chair.
[The prepared statement of Hon. Tom Bliley follows:]
Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
Thank you, Mr. Chairman. Let me commend you for holding this
hearing on legislation to improve Superfund.
Perhaps one of the hardest tasks in politics is fixing a broken
environmental program. Superfund could not be a better case for reform.
The statute is excessively litigious, slow, unrealistic, and poses
barriers to cleanups all across the Nation. House Republicans and many
Democrats agree on the need for substantial reform.
The 105th Congress saw several bipartisan efforts in this regard,
including Chairman Oxley's bill, H.R. 3000, which was introduced with
19 original Democrat cosponsors. Today we are holding a hearing on
three bills to fix the Superfund program. First, we see that H.R. 1300,
the Recycle America's Land Act of 1999, now has the same number of
Democrat cosponsors as Republican: 47. Similarly, Mr. Greenwood's bill,
the Land Recycling Act of 1999 is also a serious bipartisan effort.
This presents us with a gulf that must be bridged--on the one hand,
we have the bipartisan groups that support Superfund reform, and on the
other hand, we have the House Democrats and the Administration who
support partisan legislation. To bridge this gulf and finally enact
Superfund legislation, we must address both the substantive and
political differences.
On the substance, I see a program that takes eight years to
accomplish the identification and listing of a hazardous waste site,
and another 10 years to accomplish remedy selection. While the
Administration and some of my colleagues call this a satisfactory pace,
I see only waves and waves of litigation. Where the Administration sees
vindication of the ``polluter pays'' principles, I see needless
uncertainty and counterproductive Federal rules.
On bipartisanship, I note that it is not alive and well. So the
divide within the Democrat party remains. There are those who are
willing to work on bipartisan reform and those who have not shown this
desire to make Superfund work. It seems to me that for the 106th
Congress, if you cannot work in a bipartisan fashion, then you do not
want change at all.
We have a short time to determine whether we will cross this
divide. After five years my patience is running thin. If you are
willing, lets start working with Chairman Oxley now and start showing
the ability for a bipartisan compromise.
Today is the first day of our legislative hearings on Superfund.
Today we will focus on the brownfields-related provisions of several
bills. I believe we must listen to State cleanup agencies and cleanup
contractors who have the expertise to know what it takes to bring life
to the cleanup and redevelopment arena by reforming Superfund. After
years of trying and negotiating, we have developed workable bipartisan
provisions that can make a difference. I look forward to hearing from
today's witnesses and to moving forward on Superfund reform.
Mr. Oxley. The gentleman from New Jersey, Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman. I want to thank you
for holding this hearing on brownfields legislation. With
certain Federal protections in place, along with State
voluntary programs, we can work to put abandoned or underused
contaminated industrial or commercial sites back into use. This
not only spurs economic development, but avoids development of
greenfields or pristine open spaces.
In Long Branch, New Jersey, we recently received a $200,000
grant to participate in the pilot project that is part of EPA's
brownfields initiative; and EPA's national brownfields
initiative has already resulted in the assessment of 398
brownfields properties, cleanup of 71 properties and
redevelopment of 38 properties.
Mr. Chairman, on the subject of the Superfund program,
which I know is not the subject of the hearing today, I just
wanted to say that I remain pleased with the direction of
progress that EPA is making, particularly in New Jersey and in
my district. To try to enact Superfund reforms at this time
could delay progress. If anything, we need to ensure that our
Federal Superfund program remains strong; that the burden of
site cleanups remains with the polluter, the potentially
responsible party; that we avoid corporate carveouts and ensure
communities' and children's protection and right to know.
I want to mention that I believe we should have a separate
hearing on the Superfund right-to-know issue because it has
been left out of the Boehlert Superfund bill. In the meantime,
we should act to pass sound brownfields legislation.
Mr. Towns' bill, H.R. 1750, is endorsed by President
Clinton and the National Association of Attorneys General
support the strengthening of State voluntary cleanup and
brownfields redevelopment programs. Yet they oppose parts of
the Boehlert bill, H.R. 1300, because potentially responsible
parties would be able to avoid enforcement too easily under
that bill. Many State officials have informed me and other
Congress members that the existing Federal framework, with its
liability and enforcement mechanisms, provides important
incentives for private entities to voluntarily clean up State
sites. And I believe we must uphold the imminent and
substantial endangerment standard that exists in current
Federal and State statutes as well as in the memorandum of
agreement between 12 States and the EPA in their State
voluntary cleanup programs.
In fact, in my home State of New Jersey, our State
environmental or Department of Environmental Protection may
direct the discharger to clean up and remove the discharge
whenever any hazardous substance is discharged. A substantial
threat of endangerment does not have to be proven. And it is
important to maintain a Federal safety net for sites where
State cleanups failed to adequately protect human health and
the environment, as the Environmental Defense Fund points out
in its testimony.
The standard should be consistent with Federal enforcement
authority to order cleanups under other Federal statutes,
including CERCLA, the Clean Air Act, the Clean Water Act, and
the Safe Drinking Water Act, as well as these memoranda of
agreement. And I want to say that the Towns bill provides such
a safety net. The other bills under consideration do not.
While current law may not adequately address targeted
liability relief for qualified parties, we must take care not
to create exemptions that are too broad or that enable PRPs to
avoid liability. In H.R. 1750 we have carefully defined and
provided limited liability relief for innocent landowners,
prospective purchasers and contiguous property owners, but only
for these categories. The administration supports targeted
liability relief for these parties. Other bills under
consideration today include inadequate and overly broad
exemptions for innocent landlords.
Finally, I would urge my colleagues to join me in passing
brownfields legislation that contains provisions that enjoy
widespread support and consensus, and I believe and I urge full
consideration and ultimate passage of the Towns bill for that
reason. Thank you, Mr. Chairman.
[The prepared statement of Hon. Frank Pallone follows:]
Prepared Statement of Hon. Frank Pallone, Jr., a Representative in
Congress from the State of New Jersey
Thank you, Mr. Chairman. We need to keep this hearing, and any
legislation the Subcommittee and Committee might consider, focused on
something we can pass, namely Brownfields. With certain federal
protections in place along with state voluntary programs, we can work
to put abandoned or underused, contaminated industrial and commercial
sites back into use. This not only spurs economic development but
avoids development of ``greenfields,'' or pristine, open spaces. In
fact, Long Branch, New Jersey, my home town, has received a $200,000
grant to participate in a pilot project that is part of EPA's
Brownfields Initiative. This Initiative has already resulted in the
assessment of 398 brownfields properties, cleanup of 71 properties and
redevelopment of 38 properties.
In addition, I remain pleased with the direction of progress that
EPA is making in the Superfund program, particularly in New Jersey and
in my district. To try to enact major reforms at this time could delay
this progress. If anything, we need to ensure that our federal program
remains strong, that the burden of site cleanups remains with the
polluter (the Potentially Responsible Party), that we avoid corporate
carve-outs, and ensure communities', and particularly children's,
protection and right-to-know. I believe that we should have a separate
hearing on the right-to-know issue. This issue has been completely left
out of the Boehlert bill and the current debate.
In the meantime, we should act to pass sound Brownfields
legislation now. The Democrats' bill, H.R. 1750, is endorsed by
President Clinton. And, the National Association of Attorneys General
support the strengthening of state voluntary cleanup and brownfields
redevelopment programs. Yet, they oppose parts of H.R. 1300 because
Potentially Responsible Parties would be able to avoid enforcement or
listing too easily under the bill. Many state officials have informed
me and other Congressmembers that the federal framework, with its
liability and enforcement mechanisms, provide important incentives for
private entities to voluntarily clean up state sites.
We must uphold the ``imminent and substantial endangerment''
standard that exists in current federal and state statutes as well as
in Memoranda of Agreement between 12 states and the U.S. Environmental
Protection Agency (EPA) in their state voluntary cleanup programs. In
fact, in my home state of New Jersey, the State Department of
Environmental Protection may ``. . . direct the discharger to clean up
and remove . . . the discharge'' ``whenever any hazardous substance is
discharged.'' A substantial threat of endangerment doesn't even need to
be proven. It is important to maintain a federal safety net for ``sites
where state cleanups fail to adequately protect human health and the
environment,'' as the Environmental Defense Fund points out in its
testimony. And, the standard should be consistent with federal
enforcement authority to order cleanups under other federal statutes,
including CERCLA, the Clean Air Act, Clean Water Act, and the Safe
Drinking Water Act, as well as these Memoranda of Agreement. H.R. 1750
provides for such a safety net; the other bills under consideration
today do not.
While current law may not adequately address targeted liability
relief for qualified parties, we must again take care not to create
exemptions that are too broad or that enable PRPs to avoid liability.
In H.R. 1750, we have carefully defined and provided limited liability
relief for innocent landowners, prospective purchasers, and contiguous
property owners, but only for these categories. The Administration
supports targeted liability relief for these parties. Other bills under
consideration today include inadequate and/or overly broad exemptions
for innocent landowners.
I urge my colleagues to join me in passing Brownfields legislation
that contains provisions that enjoy widespread support and consensus. I
urge full consideration and ultimate passage of H.R. 1750. Thank you,
Mr. Chairman.
Mr. Oxley. The Chair now recognizes the gentleman from
Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. As we know, there
seems to a breakthrough in Superfund with the Transportation
Committee. While I applaud my colleague's work, I will fight
vigorously to preserve the committee's jurisdiction.
With a move of this committee on brownfields and hopefully
small business liability protection, I think we will start
addressing some of the major concerns of Superfund that the
general public understands. They understand that we ought to be
able to clean up industrial sites and reuse them for industrial
sites and protect liability of future users.
As my colleague from New Jersey said, we ought to hold the
primary responsible parties responsible, but we should not hold
the small restaurant owners for a million dollars' worth of
cleanup costs, as we have seen in Quincy, Illinois.
I look forward to learning more about this entire issue and
hopefully moving legislation sometime in this Congress. I
appreciate the opportunity to work on this, Mr. Chairman and I
yield back the balance of my time.
Mr. Oxley. The gentleman yields back.
The gentleman from Michigan, Mr. Stupak.
Mr. Stupak. Thank you. As we all know, the Superfund
program has been successful in helping to make our environment
cleaner in many communities across the country. Michigan has 82
sites on the Superfund national priority list and over 60
percent have effectively completed all necessary construction
activity.
By the end of this Congress, approximately 3 of every 4
Superfund sites in Michigan will be completed. In addition, EPA
has performed over 150 cleanup actions at Michigan sites that
are not on the Superfund list under its removal program. The
overall program has made incredible progress, but we should not
overlook the opportunity to make targeted changes to enhance
and facilitate brownfields cleanup.
The ranking member of this subcommittee has introduced
legislation of which I am cosponsor, H.R. 1750. H.R. 1750
addresses many of the same Superfund liability issues which I
have worked on in the past. In the last Congress I introduced
legislation, along with several Republican colleagues, to
provide liability protection for innocent landowners and bona
fide prospective purchasers. We have had a bipartisan consensus
on these issues for many years, and yet each Congress we are
faced with the same debate.
It is time that we move targeted brownfields legislation
forward, without getting tied up in the other contentious
Superfund issues. But it is also important that any new
legislation not construct additional obstacles to protecting
health and welfare of our communities over the long term. For
example, the use of new statutory language in H.R. 2580 raises
serious protection questions. This legislation may unreasonably
limit the ability of Federal Superfund enforcement authorities
to take action against a responsible party only when the
response action is, and I quote, ``immediately required to
prevent or mitigate a public health emergency and for which the
State is not responding in a timely manner.''
Twelve States, including Michigan, currently have
memorandum of agreement with the EPA regarding their voluntary
cleanup programs. However, these agreements use the standard
imminent and substantial endangerment language which is found
in all Federal environmental laws and many State laws,
including Michigan. If these changes were to become law, how
would these State agreements be affected? The elimination of a
widely recognized environmental standard should be of concern
for both those who are concerned about new legislation and
citizens who rely on a Federal safety net for protection of
their health, safety and welfare.
Mr. Chairman, I look forward to the testimony and I welcome
all of our witnesses today. Mr. Chairman, I will be going back
and forth between another hearing, and I would ask unanimous
consent to enter into the record the opening statement of my
colleague, Mr. Hall, and that of Mr. Klink who is also at
another Commerce Committee hearing.
Mr. Oxley. Without objection all of the opening statements
will be made a part of the record.
Mr. Stupak. Thank you, Mr. Chairman.
Mr. Oxley. The gentleman from Pennsylvania, the sponsor of
the aforementioned legislation.
Mr. Greenwood. Thank you, Mr. Chairman.
I would like to take this opportunity to thank Chairman
Oxley for holding this hearing on my Land Recycling Act, as
well as the Towns and the Boehlert bills. While I believe the
legislation I have introduced represents a well-balanced
approach to the brownfields issue, I still do look forward to
continuing to work in a bipartisan manner toward overall reform
of the Comprehensive Environmental Response Compensation and
Liability Act, better known as Superfund. The Land Recycling
Act represents an important first step toward that goal.
On July 21 I, along with a strong bipartisan group of
cosponsors, introduced the Land Recycling Act of 1999. The act
is intended to remove barriers to the cleanup of brownfields
across the country. Accelerating these cleanup efforts will
spur investments and provide tools for State and local
governments to tackle this problem. These efforts will provide
for more livable, secure neighborhoods. The blight on both
urban and rural areas can be cleansed. My bill will bring about
aggressive State reclamation and cleanup of brownfields,
abandoned or underutilized former industrial properties where
actual or potential environmental contamination hinders
redevelopment or prevents it altogether. The U.S. Environmental
Protection Agency estimates that there may be as many as
500,000 such sites nationwide.
In my Congressional district, the southern portion of
Buck's County, Pennsylvania, we have 3 miles of abandoned or
underutilized industrial property. Thus, these well-positioned,
once productive industrial real estate sites pose continuing
risks to human health and the environment, erode State and
local tax bases, hinder job growth, and allow existing
infrastructure to go to waste.
This subcommittee visited that portion of my district 3
years ago. The Land Recycling Act of 1999 will revitalize these
sites and is based on the input of all of the stakeholders in
the brownfields debate, the Federal Government, States, local
governments, cleanup contractors, sellers, buyers, developers,
lenders, environmentalists, community interests and others. And
it is particularly based on my own experiences in my district.
Among other things, the bill provides finality for
brownfields cleanup done pursuant to and in compliance with
State programs releasing buyers and sellers from liability and
litigation under Federal law. In today's testimony, the
National Governors Association and the State and Territorial
Waste Management Association officials testify that H.R. 2580
``satisfies the goal of clarifying which governmental entity is
and should be responsible for deciding when a cleanup is
complete, and when a party is released from liability.''
H.R. 2580 will also provide liability protection under
Federal law for a number of nonpolluters, including innocent
landowners, prospective purchasers, contiguous landowners and
response action contractors, thus removing disincentives to
cleanup and reuse. In their May 12, 1999 testimony before the
Subcommittee on Water and the Environment, the Honorable Mark
Morial, the Mayor of New Orleans; the Honorable Michael Turner,
Mayor of Dayton; and the Honorable Jim Marshall, Mayor of
Macon, testified that, ``it has been shown that Superfund's
liability regime unfairly threatens innocent parties and too
often drives private sector investors from brownfields to more
pristine locations.'' and we recognize, they went on to say,
that ``this act helps fuel a development cycle that imposes
increasing burdens on all of us.''this legislation will
streamline the Federal cleanup process and employ sound and
objective science.
Finally the Land Recycling Act of 1999 will provide
brownfields grants to States, local governments and Indian
tribes with the inventory and assessment of brownfield sites
and the capitalization of the revolving loan funds for
cleanups.
I believe these straightforward solutions will provide an
aggressive anecdote to the wasteful burden of brownfields in
America, and are part of an overall set of solutions that we
must pursue to reform the Nation's broken hazardous waste laws.
While I am confident that the Land Recycling Act will go a very
long way, we in Congress have also a larger task at hand, over
all of the Superfund program in its entirety, to ensure that we
do not perpetuate the brownfields problem across the country.
The Land Recycling Act of 1999 is only a piece of the
puzzle. I look forward to the chairman of the Commerce
Committee, Mr. Bliley, and the chairman of this subcommittee,
Mr. Oxley, for continued leadership on Superfund reform to
address the areas that we can and must address.
Thank you for holding this hearing today. I look forward to
continuing to work with the committee on this issue.
Mr. Oxley. The gentleman's time has expired.
The Chair now recognizes the gentleman from Minnesota, Mr.
Luther.
Mr. Luther. Thank you, Mr. Chairman. I thank you very much
for holding the hearing today. This is an issue that I dealt
with extensively in Minnesota as a member of the Minnesota
legislature, but this will be an opportunity to be directly
involved here at the Federal level. And being a new member of
this subcommittee, I am very much looking forward to the
testimony. Thank you very much.
Mr. Oxley. Thank you.
The Chair now recognizes the gentleman from New York, Mr.
Lazio.
Mr. Lazio. Thank you, Mr. Chairman. I just want to add my
voice of compliments both to you for holding the hearing and to
Mr. Greenwood and Mr. Towns and Mr. Boehlert for their work on
Superfund reform and on the brownfields issue.
I think the primary reason why we need to address this
issue quickly and honestly is because it is a major opportunity
for this committee to speak to urban policy and to redevelop
areas that have the potential to be areas that can create jobs
and be economic magnets. And I think failure to act has the
perverse impact of creating continued frustration for
communities and continued disinvestments in some of the
communities that most need investment. I think this is a great
opportunity for this committee to be speaking to an issue that
is important to the environment and quality of life of
Americans, but, more importantly, speaks very much to the
economic quality of life of some of our urban areas. I thank
you for your concern in holding the hearings.
Mr. Oxley. The Chair now recognizes the gentlewoman from
Colorado, Ms. DeGette.
Ms. DeGette. Thank you, Mr. Chairman. I am gratified this
committee is addressing a variety of bills that deal with
brownfields specifically. When I was elected to Congress I was
a little mystified why we didn't pass brownfields legislation,
since everybody loves it, particularly the environmentalists in
my district and the business communities in my district. I was
dismayed to find that the reason, apparently, we had not passed
brownfields legislation was that it was all tied up in a ball
with Superfund reauthorization and some really knotty Superfund
issues like liability.
I have maintained that we need to look at Superfund reform,
but we need to pass meaningful brownfields legislation as
quickly as possible because it can be helpful not just in urban
areas like my district, but also in suburban and rural areas
around the country. Areas that, luckily for the landowners
don't warrant Superfund listing, but do need some kind of
cleanup, and, frankly, areas where the property owners are
often scared to undertake any cleanup because they are afraid
of government enforcement actions.
This is an area I have worked on for a long time, as you
may know. When I was in the Colorado legislature in the mid-
1990's I was the chief sponsor of the Colorado State Voluntary
Cleanup Act, which was one of the very first laws in the
country that a State passed to do brownfields-type legislation
on a State level. I learned a lot through sponsoring that
legislation and, frankly, Colorado has learned a lot ever since
that was sponsored. We have now had over 70 applications under
that State law for redevelopment and cleanup of property in
Colorado. This is true even though we don't have Federal
legislation providing liability relief, as is contemplated in
at least two of these bills.
People still think that it is worthwhile. The State has
entered into an agreement with the EPA, for example, that they
will hold off on any kind of EPA action while the State
voluntary redevelopment and cleanup plan is being executed; and
that has been really, really successful for a number of
property owners.
When I introduced the legislation in Colorado, I tried to
give more incentives to clean up these sites, other than the
State restraining itself from any kind of enforcement action. I
tried to give tax relief, and I learned that it was
unconstitutional under the Colorado Constitution. I tried to do
other things and they didn't work, so I felt like we were sort
of giving minor relief to these property owners, but they felt
that it was a big step out from under government regulation and
it has been tremendously successful.
I think this experience gives us some clue as to what we
should do in terms of liability relief for bona fide
purchasers. I do believe that we should give some liability
relief for bona fide purchasers of contaminated properties, for
innocent landowners, and for contiguous property owners. And I
also support the establishment by some States of voluntary
cleanup programs to address sites that don't warrant Federal
protection to protect human health and environment. But I am
concerned about language that will preclude Federal, State or
local governments from taking action at any time after the
cleanup is started or completed, especially if new conditions
or contamination is found.
And so as these bills go through the process, I look
forward to talking with Mr. Greenwood and others about how we
can protect the health and the rights of property owners around
this property to make sure we give appropriate incentives for
cleanup, to make sure that we give appropriate liability
protection, but at the same time that we protect the public
health from unseen contamination that may crop up during a
cleanup.
I look forward to the testimony today. I look forward to
hearing how the Federal statute will interact with State
statutes. With that, Mr. Chairman, I yield back the balance of
my time.
Mr. Oxley. The gentlewoman yields back.
The gentleman from Illinois, Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman. I am delighted that the
committee is holding this very important hearing on select
Superfund reforms. I believe we should not go into the summer
recess without addressing the issue of Superfund, especially as
it relates to brownfields.
In my congressional district in Chicago, there are many
abandoned areas which once were the source of thriving
communities and thriving commerce. Mr. Chairman, there is one
area in my district, the Engelwood area, that has the highest
concentration of brownfields in the city. But it also has the
highest concentration of those who don't own homes in my city,
as provided by Fannie Mae, and I have a chart here. It has the
lowest median household income, the lowest median home value.
Also the lowest--a number of affordable housing in this area,
which has the highest concentration of brownfields; the lowest
owner-occupied housing units; the highest rental-occupied
housing units.
So as you can see, brownfields has a direct impact on the
economic worth and survival of communities throughout the
Nation, especially in urban areas.
The cleanup of brownfields is not simply cleaning up
abandoned areas. However, it is a significant part of the
revitalization of blighted urban areas which can provide jobs
and recreational opportunities to local residents.
I look forward to hearing the testimony by our
distinguished panelists on this important issue of brownfields
provisions as it relates to H.R. 2580, H.R. 1300 and H.R. 1750.
As you know, these bills address a myriad of issues, including
voluntary cleanup, availability of cleanup funds and liability
of innocent parties. With that, Mr. Chairman, I yield back the
balance of my time.
Mr. Oxley. The Chair now recognizes the gentleman from
Maryland, Mr. Ehrlich.
Mr. Ehrlich. Mr. Chairman, this is an important issue for
an awful lot of members, particularly for me representing an
area right outside the city of Baltimore. I look forward to
working with the members of our subcommittee and the full
committee in a bipartisan way to improve a very important piece
of legislation. I yield back the balance of my time.
Mr. Oxley. The gentleman from Massachusetts, Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman. Brownfields tend to be
in closer, nearer the inner city areas, because they were the
original industrial sites. As we turn the corner from the
Industrial Age to the Information Age, many of these sites
which were found to be undesirable in the 1950's and 1960's and
1970's because as the high-tech companies were beginning to
expand, obviously these sites, the brownfields sites, were
still being occupied. And so as a result, the high-tech firms
in the fifties and sixties went out to the next beltway, out
further. They would have preferred to be in nearer, but they
were occupied.
As the sites have been left vacant by that industrial era
type of development, we have a responsibility to make sure that
they become reusable. If they were reusable, I think many of
those corporations that leaped all of the way out would much
prefer to be in closer to the universities and the inner city,
as would many of the workers. That is, that they would desire
to work and live in closer.
So the job that we have is to try to get to a commonsense,
quick resolution of this issue. Unfortunately, under H.R. 1300
and H.R. 2580, a current owner who has made a site into a toxic
cesspool could participate in a voluntary program, cleaning the
surface but leaving an underground mess, cleaning one piece of
a large area, and then would be free to walk away. No one, not
the Federal Government, not the city or the neighbors, could
intervene to make the polluter clean up the rest of the site.
Under H.R. 2580, even if the EPA thought there was an
imminent and substantial endangerment to public health or
welfare or the environment at an RCRA site, they could not do a
thing. And requirements for Federal permits under other laws
such as wetlands protection would be waived.
The voluntary State programs were never meant to replace
the backstop of Federal action, and in many cases do not
include full cleanup requirements.
Finally, H.R. 2580 also seems to seep outside the
boundaries of what we usually call brownfields, to limit action
on proposed Superfund national priority list sites. Unlike the
other major brownfields bills, H.R. 2580 would prohibit Federal
action at proposed Superfund sites, and it would require a
Governor's concurrence before a proposed site could be
designated a Superfund site, even if the contamination affects
neighboring States, even if local governments or citizens
propose the listing, even if the State itself caused the
contamination and would be responsible for the cleanup.
We have a lot of work to do. These bills are a starting
point, but they clearly are not the finishing point if we are
to be effective in dealing with brownfields. Thank you, Mr.
Chairman.
Mr. Oxley. The Chair is pleased to recognize the ranking
member of the full committee, Mr. Dingell.
Mr. Dingell. First of all, Mr. Chairman, thank you for
conducting this hearing on brownfields legislation. This is a
subject important to me and most members of the subcommittee.
In the Detroit metropolitan area alone, which is home to our
country's industrial strength for over 100 years, brownfields
cover tens of thousands of acres of lands once occupied by
mighty manufacturing facilities and thriving communities.
Today many of these properties are abandoned by once
prosperous owners. They have become an eyesore, a threat to the
livelihood and health of the citizens in the area. This is the
fourth Congress in which we have considered reauthorization to
the Superfund statute. In each Congress, among our many
disagreements, we have collectively, however, agreed that
brownfield legislation is needed. We have gone so far as to
agree even on legislative language to clarify the liabilities
of lenders, bona fide prospective purchasers, and innocent
landowners.
Lender liability relief was enacted into law because we
achieved consensus among the stakeholders, the administration
and members on both sides of the aisle.
By contrast, the many controversial provisions we have
considered in the past Congress have never become close to
becoming public law. They have held hostage consensus
provisions such as prospective purchaser and innocent landowner
relief. As many consensus provisions languish, some members of
this body still wish to tinker, thus sparking controversy where
there was need for none.
As the committee with primary jurisdiction over Superfund,
it is incumbent upon us to recognize that we have now an
opportunity to do something that is meaningful, rather than to
tilt at windmills and to fiddle around with Superfund, which
has no prospect of enactment during this Congress. It should be
noted that great success has been achieved despite an awful lot
of trouble with Superfund. About three-quarters of all
Superfund sites in Michigan will shortly be completed. A higher
percentage of sites in other States have already been
completed.
As you know, Mr. Chairman, I have been a frequent critic of
Superfund and the program and its administration. Our oversight
efforts in the 1980's emptied some people from the EPA and, I
would hope, taught the Agency some lasting lessons. At a time
when Superfund lawyers have now moved on to other specialties,
we do not want to give them reason to flock back to the
Superfund practice once again. But some of the legislation that
we consider today will create just that incentive by
introducing new and vague terms, and repealing well-settled law
for no reason that I think makes good sense.
I am pleased to report that brownfields development is
occurring as local governments, developers and citizens are
finding creative ways to build their own consensus and to
rebuild our communities. In Taylor, Michigan, an abandoned
eyesore will be replaced by a $9.8 million retail complex that
will create 150 jobs. City officials plan to clean up another
contaminated site and create 250 jobs, 70 percent of which will
be full-time. The city of Monroe is one of the leading
communities in redeveloping brownfields properties.
We can build upon this success, then, with carefully
targeted consensus legislation. The administration must be a
part of this. Of the three bills today, only H.R. 1750 has been
endorsed by the President. The bill has 168 cosponsors. It also
enjoys the support of mayors of numerous cities, including
Mayor Dennis Archer of Detroit and Mayor Wellington Webb, the
current president of the Conference of Mayors. The National
Realty Committee which testified in Dearborn, Michigan on this
subject, supports this bill. I note that the National
Association of Counties, with a number of other government
organizations, have endorsed H.R. 1750, and I hear that the
Chamber of Commerce has suggested that it is important that we
should move forward on brownfields and dispense with efforts
with regard to Superfund.
I hope that we recognize from these facts that it is urgent
for us to commence addressing the problem of brownfields, to
abandon a failed tactic of trying to amend Superfund, proceed
with that which is possible, achieve a great success in the
public interest and move forward. And I thank you for
recognizing me.
[The prepared statement of Hon. John D. Dingell follows:]
Prepared Statement of Hon. John D. Dingell, a Representative in
Congress from the State of Michigan
Mr. Chairman, I thank you for conducting this hearing on
brownfields legislation. This subject is important to me, and to many
of the Members of this Subcommittee. In the Detroit metropolitan area
alone--home to much of our country's industrial strength for over 100
years--brownfields cover tens of thousands of acres of land once
occupied by mighty manufacturing facilities and thriving communities.
Today, many of these properties are abandoned by their once-prosperous
owners. They have become an eyesore and, in some instances, a threat to
the livelihood and health of the citizens who live around them. This
situation is not unique to the Detroit area, nor to urban areas
generally.
This is the fourth Congress during which we have considered the
reauthorization of the Superfund statute. In each Congress, among our
numerous disagreements, we have collectively agreed that brownfields
legislation is needed. We have gone so far as to agree on legislative
language to clarify liability for lenders, bona fide prospective
purchasers and innocent landowners. Lender liability relief was enacted
into law because we achieved consensus among stakeholders and the
Administration, and Members on both sides of the aisle. By contrast,
the many controversial provisions we have considered in the past four
Congresses have never come close to becoming public law--and they have
held hostage consensus provisions such as prospective purchaser and
innocent landowner relief. As these consensus provisions languish, some
Members in this body cannot resist the temptation to tinker, thus
sparking controversy where there was none.
As the Committee of primary jurisdiction over the Superfund
statute, it is incumbent upon us to understand what needs to be done
with this statute, and what does not. While we have wasted time trying
to build a better mousetrap that effectively guts the Superfund
program, the Superfund program itself has progressed substantially,
particularly in the past six years. By the end of this Congress,
cleanup construction at about three quarters of all the Superfund sites
in Michigan will be completed. A higher percentage of sites already
have been completed in many other states.
As you know, Mr. Chairman, I have been a frequent critic of the
Superfund program. Our oversight efforts in the 1980s taught the Agency
some lasting lessons. At a time when Superfund lawyers have moved on to
other specialties, we do not want to give them reason to flock to the
Superfund practice once again. But, some of the legislation we will
consider today will create just that incentive by introducing new and
vague terms, and repealing well-settled law, for no good reason.
I am pleased to report that brownfields redevelopment is occurring,
as local governments, developers and citizens are finding creative ways
to build their own consensus and to rebuild their communities. In
Taylor, Michigan an abandoned eyesore will soon be replaced by a $9.8
million retail complex that will create 150 jobs. City officials plan
to clean up another contaminated site and to create 250 jobs, 70
percent of which would be full-time. The city of Monroe also has been
one of the leading communities in Michigan in redeveloping brownfields
properties.
We can build upon this success with targeted, consensus
legislation. The Administration must be part of this consensus. Of the
three bills we will consider today, only H.R. 1750 has been endorsed by
the President. The bill has 168 House cosponsors. It also enjoys the
support of the mayors of numerous major cities, including Mayor Dennis
Archer and Mayor Wellington Webb, the current President of the
Conference of Mayors. The National Realty Committee, which testified in
Dearborn, Michigan on this subject back in 1995, also supports this
bill. I am also pleased to announce that the National Association of
Counties along with a number of other local government organizations
have endorsed H.R. 1750 and expressed their strong interest in
legislatively ratifying EPA's current municipal settlement policy. I
ask unanimous consent that the statements of these supporters of H.R.
1750, and others, be entered into the record.
We must stop holding our communities hostage to the inside-the-
beltway poker game that uses brownfields provisions as the
``sweetened'' for bills containing controversial provisions sought only
by the special interests that have not yet met their responsibilities
to clean up their mess. The good people outside the beltway deserve
better. This Committee, having overseen the implementation of this
program since its beginning, is in the best position to identify the
areas of agreement and to provide the states and local governments with
needed additional tools to strengthen their communities. Mr. Chairman,
I thank you again for holding this hearing.
Mr. Oxley. The gentleman's time has expired.
The Chair would note that there are two votes on the House
floor and it would be my desire to recess at this time and
return in approximately 20 minutes. The subcommittee stands in
recess for 20 minutes.
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. Vito Fossella, a Representative in Congress
from the State of New York
First of all, I'd like to thank the Chairman for having a hearing
on such an important and timely issue. Legislation to Improve the
Comprehensive Environmental Response, Compensation and Liability Act is
much needed. Brownfields are generally accepted to be abandoned or
underutilized former industrial properties in which potential or real
environmental contamination hinders or prevents redevelopment reuse.
One issue of particular concern to me is that of liability. It
makes no sense whatsoever to saddle new owners with liability for
pollution they did not cause or create. One area of particular concern
in my district is an area called Richmond Terrace. While it has so much
property available to potentially develop, business owners are leery to
buy the property for fear of being held liable for cleanup and damages
and banks and insurance companies are leery of putting any financial
backing behind potential investors. Even a GAO report from 1996 on
Barriers to Brownfield Redevelopment affirmed this theory:
Superfund's liability provisions make brownfields more
difficult to redevelop, in part, because of the unwillingness
of lenders, developers, and property owners to invest in a
redevelopment project that could leave them liable for cleanup
costs. While brownfields usually are not contaminated seriously
enough to become Superfund sites, these parties, still fear
that they could be sued for cleanup costs if they become
involved with a contaminated site. For example, as a result of
the liability problem and the general riskiness of investing in
redeveloping brownfields, banks sometimes refuse to lend funds
for this purpose. United States General Accounting Office
Report to Congressional Requesters, RCED-96-125, Barriers to
Brownfield Redevelopment, June 1996, Page 2.
In addition, I believe the States should be responsible for
overseeing the redevelopment of Brownfields sites and that if a State
registers a Voluntary Cleanup Program with the Federal Government,
those Brownfields sites should be free of the risk of being looked at
by the EPA. As it stands now, businesses, municipalities and potential
landowners are fearful of the EPA second guessing the judgments of
states and having to face potential insurmountable problems down the
road.
I quote again from that same GAO report:
Although most brownfields are no highly contaminated, cities,
lenders, and developers cite the possibility that the liability
provisions in CERCLA could be applied to these properties as a
major barrier to redeveloping them. United States General
Accounting Office Report to Congressional Requesters, RCED-96-
125, Barriers to Brownfield Redevelopment, June 1996, Page 3.
I strongly believe that we must all work together to foster the
redevelopment of Brownfields sites and help small businesses and others
utilize these properties and therefore make them once again viable
community areas as well as economically productive. Businesses, the
financial industry, government and environmentalists have an excellent
opportunity to work together to give these properties new leases on
life. We all need to strike a balance that safeguards the environment
and guarantees that these sites are cleaned up thoroughly, and yet also
provides businesses with protection to take them over.
I look forward to working with the Chairman and the rest of the
Committee Members on this issue that is not only important to Staten
Island and Brooklyn, but to New York City, New York, and every
community around the country.
______
Prepared Statement of Hon. Ralph M. Hall, a Representative in Congress
from the State of Texas
Thank you Mr. Chairman for calling this hearing today. I think it
is important that we take this opportunity to closely examine the
strengths as well as the possible weaknesses in each of these three
bills that address the problems currently associated with clean-up at
Brownfields sites. While voluntary actions seem to have worked quite
well in my home state of Texas, we have heard a great deal of criticism
from other areas of the country where they have not been so fortunate,
and the regulations seem to have hindered more than promoted the goal
of clean-up and redevelopment.
I am a cosponsor of two of these bills, H.R. 2580, introduced by
Representative Greenwood, and H.R. 1750, introduced by Representative
Towns. I think all reasonable minds agree that we should encourage
property owners and developers to take necessary actions to convert
these properties into usable and productive resources for the
community. I think all reasonable minds can also agree that currently
their is a serious legal and political disincentive for property owners
and developers to initiate appropriate clean-up actions. While these
three bills provide for varying degrees of autonomy to property owners
in making certain clean-up decisions, they all recognize the fact that
if clean-up and redevelopment are to be accomplished, we must move away
from the philosophy that erects obstacles and undeserved penalties
toward a philosophy that promotes incentives for responsible action.
I think the Brownfields issue really symbolizes the overall
inequity that can be so easily perpetrated through unfair regulatory
policies that seek to simply catch ``the unlucky ones'' in a trap. I
think instead we must make a more honest effort to attribute
responsibility where it is actually due. And when that is not possible,
we must provide incentives rather than penalties to the innocent
landowners and bonafide purchasers who simply find themselves in the
wrong place at the wrong time.
We know that many of these sites serve as major sources of blight
and as symbols of hopelessness in urban areas where almost any kind of
economic development would be embraced enthusiastically by the
residents of those communities. We have a responsibility to encourage
rather than penalize those people who would seek to make this kind of
redevelopment a possibility. For these reasons I look forward to
working in a bipartisan fashion, and where appropriate in concert with
our colleagues on the Transportation and Infrastructure Committee,
towards the goal of marking up a bill that contains Brownfields
provisions that will promote clean-up and redevelopment, at these sites
where people have hesitated to act in the past due to unfair, punitive
and outdated regulatory structures. Mr. Chairman, I thank you again for
scheduling this hearing, and I yield back the balance of my time.
______
Prepared Statement of Hon. Ron Klink, a Representative in Congress from
the State of Pennsylvania
I want to thank Subcommittee Chairman Michael Oxley, and Ranking
Member Edolphus Towns, for holding this hearing today. It is my hope
that the Committee will mark up a brownfields bill during this first
session of Congress, and that the provisions of H.R. 1750, the
``Community Revitalization and Brownfields Cleanup Act of 1999,'' will
be incorporated into any brownfields bill the Committee sends to the
House Floor. I was pleased to be an original co-sponsor of H.R. 1750,
which was introduced by Ranking Member Towns, Congressman Robert Borski
of the 3rd District of Pennsylvania, and Congressman John Dingell,
Ranking Democratic Member of the Committee on Commerce.
The issue of brownfields cleanup is important in all 50 states, and
certainly in Pennsylvania, which has a history of heavy industrial
production. Pennsylvania is working to revitalize industry while taking
a leading role in high tech and medical research. I am pleased that all
Democrats in the Pennsylvania congressional delegation have cosponsored
H.R. 1750.
I deeply appreciate the endorsements of H.R. 1750 from key
government officials in Pennsylvania. We have received endorsement
letters from Mayor Ed Rendell of Philadelphia, Mayor Tom Murphy of
Pittsburgh, and from several communities in my District, the 4th of
Pennsylvania: Mayor James Mansueti of the City of Aliquippa, Mayor
William DeMao of the City of Arnold, Mayor Gilmore Hendrickson of the
Borough of Brackeridge, City Clerk Ronald Dinsmore of the City of
Jeannette, Mayor Dennis Kowalski of the City of Lower Burrell, Mayor
William Shovlin of the Borough of Midland, Mayor Timothy Fulkerson of
the City of New Castle, Mayor Patrick Petit of the City of New
Kensington, and Mayor Matthew Cucinelli of the Borough of Rochester.
These government officials recognize that when brownfields are
cleaned up, new businesses come in, jobs are created and the tax base
is stimulated. The provisions of H.R. 1750 provide the best chance for
this to happen. Under H.R. 1750, brownfield sites may include
associated rivers, streams, lakes and mine-scarred land. This is
beneficial to Pennsylvania, with its history of coal mining.
I respect the fairness of Chairman Oxley in allowing three bills,
with differing viewpoints about brownfields clean up, to be considered
at this hearing today: H.R. 1750, which I support, H.R. 2580 introduced
by my Committee colleague from Pennsylvania, Jim Greenwood, and H.R.
1300, introduced by Sherwood Boehlert of New York. While I respect the
efforts and hard work of my colleagues Jim Greenwood and Sherwood
Boehlert, I differ with the provisions of their bills.
Regarding funding, we must recognize that sometimes local
governments cannot afford to clean up brownfields and need financial
support. H.R. 1750 is the best bill providing federal financial
assistance. The authorization provisions of H.R. 1750 are clearly
stated.
In order to clean up brownfields, the sites must be assessed to
determine the type of contamination, and the level of contamination.
H.R. 1750 authorizes $35 million a year from general revenues, for five
years, for grants to local governments for site assessment. From these
funds, local governments can receive a maximum grant of $500,000 a
year, and the local officials oversee the work.
In contrast, both H.R. 1300 and H.R. 2580 cap site assessment
grants at $200,000.
In order to capitalize local government revolving loan funds to
clean up brownfields properties, H.R. 1750 authorizes $65 million a
year from general revenues, for five years. From these funds, local
governments can receive $500,000 annually, with the Environmental
Protection Agency (EPA) having discretion to increase the grant amount
to $1,000,000 if significant economic and environmental benefits would
be achieved.
In contrast, H.R. 2580 simply authorizes ``such sums as may be
necessary.''
In order to assist states in developing their voluntary clean up
program, where brownfield site owners or developers work cooperatively
with the state, as opposed to an enforcement driven program, H.R. 1750
authorizes $15 million a year from general revenues, for five years,
for the voluntary clean up program.
In contrast, H.R. 2580 does not authorize funding for voluntary
clean up programs.
Regarding liability, H.R. provides liability protection for any
person at a brownfields site if the site is undergoing cleanup in a
state cleanup program (including a voluntary cleanup program) as long
as the program meets basic criteria such as protection of human health
and the environment, adequate state oversight, and adequate
certification indicating that the cleanup is complete.
In contrast, H.R. 1300 has no qualifying criteria for state cleanup
programs.
These are a few instances of the differences that I hope we can
iron out in a markup. However, in this statement, I would rather focus
on the positive role that brownfields programs play in revitalizing
blight, thereby protecting our rapidly disappearing green fields--those
green spaces around our cities.
In Pittsburgh, Pennsylvania, we had a case we call ``slag to
riches.'' Along the riverfront what used to be 240 acres of land that
was considered unusable, because it was a former dumping area for
industrial slag, will now be valuable residential property with
picturesque views. This is known as Nine Mile Run.
Total private investment in Nine Mile Run is expected to exceed
$200 million, which will be used to develop 713 new housing units,
100,000 square feet of new neighborhood commercial retail space, and 80
acres of park land. By the time of the projects's completion, more than
$240 million of new housing stock, $10 million in new retail
construction and 1,680 temporary and permanent jobs are anticipated.
All of this came from revitalizing the abandoned Lectromelt
Electroplating plant. The City of Pittsburgh received a $200,000 grant
from the federal government to begin site assessment.
However, if H.R. 1750 had been enacted into law, when the Nine Mile
Run grant was awarded, the ``Slag to Riches'' case could have received
a $500,000 grant for site assessment, allowing this procedure to begin
earlier.
There are other brownfields success stories in Duquesne, McKeesport
and Clairton, Pennsylvania, communities which were once the heart of
the nation's iron, steel, coke, chemical, glass and electrical
manufacturing industries, which experienced traumatic collapses
beginning in the late 1970s and extending through the 1980s. This hurt
smaller commercial businesses and ruined the communities' prosperity.
The Steel Valley Authority listed 52 brownfields sites in the
southwestern Pennsylvania area totaling 1,420 acres. The solid funding
provisions of H.R. 1750 are a key aspect in helping to build momentum
toward economic development for the entire Monongehela Valley.
In addition, in a survey published in April of 1999 by the U.S.
Conference of Mayors, the Mayors of 153 cities across the nation
estimated that if brownfields were cleaned up and redeveloped, a
conservative estimate of potential tax revenues would total $955
million annually.
In the survey, Mayors from many Pennsylvania cities--Bethlehem,
Erie, our Capitol City of Harrisburg, Lancaster, McKeesport,
Norristown, Philadelphia, and York responded that a sum total of 38,875
jobs could be created for brownfields redevelopment in their
communities.
In summary, H.R. 1750 is the best bill to meet the economic
redevelopment potential in states like Pennsylvania, which have been
hard hit with dying industries. Not only does H.R. 1750 provide grants
to local governments, as well as to site owners and developers, but it
authorizes the EPA to provide technical assistance and training to
individuals and organizations to inventory brownfield sites and conduct
site assessments or cleanups.
A key feature of H.R. 1750 is that the funds are taken from General
Revenues, rather than the Superfund Trust Fund, allowing the Superfund
Trust Fund to be used for National Priority Listing sites.
Because H.R. 1750 focuses strictly on brownfields, rather than the
all-encompassing Superfund program, it has a much better chance to be
enacted, because Superfund reauthorization has been a divisive issue,
especially when it comes to reinstating the Superfund taxes, as would
be done under the provisions of H.R. 1300.
I fervently hope we can hammer out a bipartisan brownfields bill
including the good, solid provisions of H.R. 1750 in the areas of
grants, and liability protections for prospective purchasers, innocent
landowners, and contiguous property owners, while protecting the
environment. H.R. 1750 is the most common-sense brownfields bill,
providing the financial assistance and liability protections
communities need in order to redevelop brownfields. Thank You.
Mr. Oxley. The subcommittee will reconvene.
Having completed our opening statements from the members, I
now turn to our first panel. Let me invite an old friend and a
frequent visitor here, Mr. Tim Fields, Assistant Administrator
of the Office of Solid Waste and Emergency Response with the
U.S. Environmental Protection Agency.
Mr. Fields, welcome.
Mr. Fields. And Lois Schiffer will be joining me.
Mr. Oxley. Ms. Lois Schiffer from the Justice Department as
well.
We are pleased to have you back, Mr. Fields, and you may
begin, and don't be too concerned about the 5-minute rule.
STATEMENTS OF HON. TIMOTHY FIELDS, JR., ASSISTANT
ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE,
U.S. ENVIRONMENTAL PROTECTION AGENCY; ACCOMPANIED BY LOIS
SCHIFFER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
Mr. Fields. I will be very brief, Mr. Congressman. Mr.
Chairman, thank you for the time to be here to speak before
this subcommittee. I am pleased to be here to offer comments on
the three pending bills before this subcommittee, H.R. 1750,
H.R. 2580 and H.R. 1300. I appreciate your leadership in having
this hearing on the very important topic of brownfields
assessment, cleanup, redevelopment.
I am accompanied today by Assistant Attorney General Lois
Schiffer, who will be available with me to respond to questions
after this testimony.
The administration believes that environmental protection
and economic redevelopment can complement one another. We are
pleased to see that members of the committee from both sides of
the aisle are interested in enacting responsible brownfields
legislation. The Clinton administration continues its support
for the enactment of responsible brownfields legislation, and
EPA Administrator Carol Browner has testified before both the
House and the Senate earlier this year in support of
legislation that would promote brownfields cleanup and
redevelopment through Federal grants and loans, which encourage
private sector investment by providing appropriate liability
protection to prospective purchasers and contiguous property
owners, and would clarify liability protection for innocent
landowners.
An enormous amount of bipartisan support has been generated
for these brownfields provisions, and I am confident that the
President would sign legislation like H.R. 1750.
The administration did not wait for Congress to enact
brownfields legislation, however, to implement administrative
reforms to encourage brownfields redevelopment. In 1995, EPA
announced our brownfields action agenda, which has provided
local communities with brownfields assessment grants. It has
clarified liability issues. It has encouraged workforce
development and job creation. It has provided brownfields
cleanup revolving loan funds to communities across the country.
To date, we have awarded more than 300 brownfields
assessment grants and 68 revolving loan fund grants for
cleanup. We have changed policies for prospective purchasers,
innocent landowners, and contiguous property owners. We have
created more than 3,000 jobs and allowed private and public
sector investment of more than $1.4 billion through based on
EPA's investment of roughly $100 million.
EPA and the Department of Justice are committed to removing
the barriers to brownfields cleanup and redevelopment. That is
why we have worked together on effective policy changes that
clarify liability under the current statute.
For example, more than 110 prospective purchaser agreements
have been negotiated, resulting in the purchase of more than
1,500 acres of contaminated property and the redevelopment of
much more property. We have signed memoranda of agreement with
12 States. Seven more memoranda of agreement under development,
like the ones Congresswoman DeGette referred to earlier.
Mr. Chairman, I would hate to see the progress under that
brownfields agenda inhibited or curtailed by well-intentioned
but ill-conceived legislative proposals. We believe that we
should not inappropriately limit Federal response and
enforcement authorities or provide broad liability exemptions
to owners of contaminated property. We believe that the
legislation should not limit EPA's ability to list Superfund
sites on the national list, where appropriate.
The administration opposes H.R. 2580 and H.R. 1300 as
currently crafted. Both bills go much too far in limiting
Federal response and enforcement authorities at non-NPL sites.
The American people have come to depend on a nationally
consistent public health and environmental safety net provided
by Federal environmental laws. Superfund is no different. The
Superfund program and State cleanup programs work together hand
in hand to clean up waste sites. They are not mutually
exclusive.
We sincerely appreciate the leadership of Congressman
Greenwood on brownfields legislation. We congratulated him as
he celebrated the completion of Superfund site number 600 in
his district.
However, we are concerned about elements of H.R. 2580 that
we believe would prevent EPA and citizens from using our
imminent and substantial endangerment authority to protect
public health and the environment from serious risk. H.R. 2580,
we believe, would also limit the Federal Government's authority
at sites that are proposed for Superfund listing. Coupled with
the mandatory Governor's concurrence requirement for NPL
listings, H.R. 2580 provides an extremely narrow set of
circumstances under which EPA can come back in, even if it is
needed, to protect public health and the environment.
H.R. 2580 provides very minimal criteria for a State
response program, which we believe is inadequate. There are no
State program requirements for public participation or adequacy
of cleanup. H.R. 2580 eliminates the requirement to obtain
Federal permits and permit revisions, even when the Federal
Government is responsible for overseeing the permit.
The liability provisions in the bill, we believe, are
better. With some modification they could made acceptable, but
we are concerned about the restrictions on Federal enforcement
and response capability.
Regarding H.R. 1300, we are concerned with the liability
provisions. These provisions allow current owners that purchase
property with the knowledge of contamination to avoid
liability. This is inconsistent with long-standing principles
of common law and creates significant fiscal consequences for
the trust fund.
Like H.R. 2580, H.R. 1300 would take away the Federal
Government's ability to use the imminent and substantial
endangerment standard as a mechanism for protecting public
health and the environment. H.R. 1300 has no minimum,
qualifying criteria for a State response or voluntary cleanup
program.
Mr. Chairman, we believe we can work together to pass a
bill that encourages people to redevelop brownfields properties
by codifying responsible prospective purchaser liability
protection, contiguous property owner protection and innocent
landowner clarification, as well as other elements of an
effective brownfields program. The administration believes that
Congressman Towns' bill, H.R. 1750, has all the necessary
elements of brownfields legislation that can generate a broad
consensus among a variety of local, State, and private sector
stake holders. We remain committed to working with members of
this committee and with Congress to enact brownfields
legislation that can be signed into law.
In H.R. 1750, funding is provided for State response
programs and brownfields grants are provided for assessment and
for cleanup revolving loan funds. In H.R. 1750, prospective
purchasers, innocent landowners and contiguous property owners
are provided with appropriate liability protections. Under H.R.
1750, crucial environmental safeguards for communities are
provided by ensuring the EPA has the authority to protect human
health and the environment, where appropriate.
Mr. Chairman, we believe that brownfields legislation can
be enacted that the President can sign. We believe that these
three bills, if modified pursuant to the administration's
comments today, would be bills and legislation that we could
live with. But right now, we believe H.R. 1750 is the only one
that currently meets the minimal criteria that the
administration would need.
Thank you, Mr. Chairman, for your time. Assistant Attorney
General Schiffer and I will be pleased to answer any questions
you and members of the subcommittee may have. Thank you very
much.
[The prepared statement of Hon. Timothy Fields, Jr.
follows:]
Prepared Statement of Hon. Timothy Fields, Jr., Assistant
Administrator, Office of Solid Waste and Emergency Response,
Environmental Protection Agency
introduction
Good morning, Mr. Chairman, and Members of the Committee. I am
pleased to have this opportunity to appear before you today to: 1)
share with you the substantial accomplishments EPA has achieved since
the inception of the Brownfields Economic Redevelopment Initiative in
1995; and 2) address the legislative proposals now before this
Committee and the U.S. House of Representatives: H.R. 1300, H.R. 2580
and H.R. 1750.
brownfields economic redevelopment initiative
Through the Initiative, EPA continues to promote redevelopment of
abandoned and contaminated properties across the country that were once
used for industrial and commercial purposes (``brownfields''). While
the full extent of the brownfields problem is unknown, the United
States General Accounting Office (GAO\RCED-95-172, June 1995) estimates
that approximately 450,000 brownfield sites exist in the United States.
Virtually every community in the country, no matter what the size, is
grappling with the challenge of problems associated with recycling
older, mostly industrial properties. The presence of these properties
fuels urban sprawl, luring investment and job development farther from
city centers and inner suburbs.
The Administration believes that environmental protection and
economic progress are inextricably linked. The Brownfields Initiative
seeks to bring all parties to the table--and to provide a framework for
them to seek common ground on a whole range of challenges:
environmental, economic, legal and financial. As the former Director of
the Portland Oregon Brownfields Initiative said, ``brownfields renewal
is one of the most important environmental and economic challenges
facing our nation's communities, calling for partnership among our
federal and local governments, businesses and community and
environmental leaders. We must work together to build a national
brownfields partnership from the ground up.'' The Agency's multifaceted
initiative represents a significant step forward by the Administration
and, according to Renew America, represents ``a new paradigm in
locally-based environmental protection that forges public-private
partnerships, promotes innovation, and relies on market incentives and
private sector actions.''
The initial Brownfields Action Agenda announced on January 25,
1995, focused on the award of Brownfields Assessment Demonstration
Pilots; building partnerships to all brownfields stakeholders;
clarifying liability and cleanup issues; and, fostering local workforce
development and job training initiatives. By mid-1996, EPA completed
all of its commitments on the initial Action Agenda and continues to
move forward. Let me briefly describe what we have done in the last
four years.
Brownfields Assessment Demonstration Pilots
The Brownfields Assessment Pilots have formed a major component of
the Brownfields Initiative since its beginning. To date, EPA has
selected 307 pilots in states, communities and tribes, funded at up to
$200,000 each. These two-year pilots are intended to generate further
interest in Brownfields redevelopment across the country. Many
different communities are participating, ranging from small towns to
large cities. In charting their own course toward revitalization, we
are seeing many positive results. The assessment pilot effort combined
with our targeted state and EPA site assessment efforts has resulted in
the assessment of 845 brownfields properties. Our assessment pilots
have reported the related cleanup of 91 properties, and determined that
more than 574 properties do not need additional cleanup. This has led
to known redevelopment of 51 properties. The assessment pilots have
provided information that they have leveraged more than $1.4 billion in
redevelopment funds and have been the catalyst for support for more
than 3,000 jobs as a result of the EPA program.
Chosen through a competitive process, these pilots are helping
communities articulate a reuse strategy that demonstrates model
opportunities to organize public and private sector support, and
leverage financing, while actively demonstrating the economic and
environmental benefits of reclaiming brownfield contaminated sites. The
Brownfield pilots enable recipients to take a unified approach to site
assessment, environmental cleanup, and redevelopment, an approach that
stimulates economic activity and the creation of jobs.
Stakeholders tell the Agency that many Brownfields redevelopment
activities could not have occurred in the absence of EPA efforts. For
example:
<bullet> On an abandoned, four-acre railroad site, the city of
Emeryville, CA. and a development corporation are planning to
construct 200 units of residential housing. Approximately 100
construction workers have already been hired to build these
housing units. Within the next five years, construction of
retail, hotel and office complexes is expected to create as
many as 10,600 jobs and nearly 4 million square feet of new
facilities, and provide an additional $6.4 million in annual
property tax revenues.
<bullet> In Shreveport, LA., as a result of $1.3 million in cleanup and
redevelopment funding, the former HICA steel foundry and
upgrade company has been upgraded and renovated into the new
HICA Steel Castings, LLC, with owners committed to running an
environmentally safe operation in the Cedar Grove neighborhood
of the city.
<bullet> In Birmingham, Alabama, efforts are underway to transform a
run-down industrial area into a 150-acre industrial park, with
75 acres reserved for heavy industry, a 50-acre distribution
center, a business park, and a full-scale retail center. Work
on the distribution center is already underway, and by the
project's completion, more than 2 million square feet of
industrial and commercial facilities could be in place.
Planners believe that ultimately the area will see the creation
of more than 2,000 jobs.
Brownfields Cleanup Revolving Loan Fund Pilots
EPA is building on its experience with the assessment pilots
through a ``second stage'' brownfields pilot award. These pilots,
called Brownfields Cleanup Revolving Loan Fund (BCRLF) pilots, enable
communities and coalitions of communities to fundthe safe cleanup and
sustainable reuse of brownfields through revolving loan funds that EPA
helps to capitalize. Again, EPA's goal through these pilots is to
develop revolving loan fund models in communities across the nation
that can be used to promote coordinated public and private partnerships
for the cleanup and reuse brownfields.
In fiscal year 1997, EPA's used $10 million of its brownfields
budget for the award of BCRLF pilots at up to $350,000 each. Twenty-
three pilots are now in various stages of development. These early
pilots have been the Agency's pioneers of the program, and many are
expected to make their first loans soon.
As a result of our early experience with the BCRLF pilots, the
Agency has determined that recipient of the most recent pilots would
benefit from an increased capitalization of $500,000 each. Representing
more than 60 communities as single pilot communities or as coalitions
of states and communities, forty-five (45) new BCRLF pilots were
announced just this past May. In ten of the new pilots, states like
Massachusetts, Illinois, Arizona and California will assist cities in
carrying out a variety of activities under the BCRLF. We were extremely
pleased to see in their applications an increased level of
understanding of program parameters and needs and a sophistication in
infrastructure planning. We are confident that the program has caught
hold and can move forward to make loans for brownfields cleanups.
Job Training and Development Pilots
EPA initiated a third brownfields demonstration pilot program in
1998 to help local citizens take advantage of new jobs created by
assessment and cleanup of brownfields. The Job Training and Development
Demonstration Pilot program provides two-year grants of up to $200,000
to applicants located within or near one of the existing assessment
pilot communities. Colleges, universities, non-profit training centers,
and community job training organizations, as well as states, Tribes and
communities, were eligible to apply. Today, 21 job training pilots are
in place. The first 11 were awarded last year, and the most recent 10
pilot awards were announced in May.
The goal of these unique pilots is to facilitate cleanup of
brownfields sites and prepare trainees for future employment in the
environmental field. The pilot projects must prepare trainees in
activities that can be usefully applied to cleanup employing an
alternative or innovative technology. Among the projects proposed in
the first round of pilots, the Jobs for Youth-Boston Brownfields Job
Training and Development Pilot, awarded in September, 1998, has already
graduated fifteen (15) trainees from a 17-week training program
designed to prepare graduates to work as environmental field and lab
technicians, hazardous materials handlers and emergency response
technicians. Half of the trainees (8) have obtained jobs, and the
remainder are currently interviewing for employment. In Clearwater,
Florida, Career Options, Inc., awarded a Brownfields Job Training and
Development Pilot in September, 1998, graduated 11 trainees from its
first class on May 20, 1999.
Brownfields Partnerships Build Future Solutions
The Brownfields Initiative is clearly about partnerships--with
other Federal, State, and local agencies, and a diverse array of
stakeholders. The EPA has undertaken partnership efforts with
individual States as well as through broad organizational structures
like the National Association of Development Organizations (NADO), the
National Governors Association (NGA), the National Association of Local
Government Environmental Professionals (NALGEP), the Conference on
Urban Economic Development (CUED) and the U.S. Chamber of Commerce. EPA
also forged working relationships with a vast spectrum of other
stakeholders, including the Environmental Bankers Association, the
Irvine Foundation's Center for Land Recycling, the International City/
County Management Association (ICMA), to mention but a few.
EPA continues to work closely with States and Indian Tribes as key
partners in the cleanup and redevelopment of contaminated properties.
The Administration supports the continued growth of the State and
Tribal regulated and voluntary programs which have greatly expanded the
number of sites cleaned up to protect human health and the environment.
To date, 44 States have established voluntary cleanup programs.
Recognizing the important role that State environmental agencies have
in encouraging economic redevelopment of brownfields, EPA has provided
$28.6 million in funding to States and Tribes to support the
development of these programs since FY 1997. EPA has proposed to
continue to provide $10 million, in FY00, to encourage the development
or enhancement of State programs that encourage private parties to
voluntarily undertake early protective cleanups of less seriously
contaminated sites, thus accelerating their cleanup and redevelopment.
EPA is also pleased with the progress it has made in signing MOAs with
States. Twelve States have now signed MOAs with EPA regarding sites to
be cleaned up under voluntary cleanup programs. The most recent state
to sign an MOA with EPA is Oklahoma in Region 6. Two additional MOAs
are now close to signature.
Brownfields National Partnership
Early in the development of EPA's Brownfields Initiative, the
Agency realized that it needed to find ways to further identify,
strengthen, and improve commitments to brownfields, while continuing
efforts toward a comprehensive, community-based approach to clean up
and redevelop contaminated property. We recognized the important
contribution of many of our Federal partners to brownfields through
their participation in the Brownfields National Partnership. Through
the partnership Federal departments and agencies can offer special
technical, financial, and other assistance that can be of great benefit
to brownfields communities. More than 20 national partners are
committing resources and assistance to brownfields. The Federal Home
Loan Bank System, for example, is exploring ways to bring more private
investment to redeveloping brownfields properties and, along with the
U.S. Conference of Mayors, has selected 50 cities to participate in a
project to research opportunities, impediments, and successes by both
cities and lenders to address brownfields.
Many of the commitments by our federal partners were expressed
through initial Memoranda of Understanding (MOUs). EPA has signed MOUs
with the Economic Development Administration of the Department of
Commerce, the Departments of Labor, Housing and Urban Development, and
Interior. EPA also is working with the Agency for Toxic Substances and
Disease Registry and county health officials to address the health
concerns of brownfields communities. Our partnership with HUD has been
particularly beneficial for brownfields. The HUD Brownfields Economic
Development Initiative (BEDI) grants program is providing $25 million
this year in assistance to cities to redevelop contaminated industrial
and commercial sites.
Showcase Communities
The Brownfields Showcase Communities project is an outgrowth of
those early partnership efforts and now forms an important component of
the Brownfields Initiative. It represents a multi-faceted partnership
among federal agencies to demonstrate the benefits of coordinated and
collaborative activity on brownfields in 16 Brownfields Showcase
Communities. For example, through the Showcase Community in Glen Cove,
New York, a revitalization plan to convert brownfields and Superfund
sites into tourist destinations has been completed. State, Federal, and
local agencies have played a crucial role in securing $18 million in
grants from various agencies. In addition, a prospective purchaser
agreement was signed between EPA and the Glen Cove Industrial
Development Corporation for the Li Tungsten and Captain's Cove
Superfund sites. Proceeds from selling the property will go toward
repaying response costs.
The report, Building A Brownfields Partnership from the Ground Up,
by the National Association of Local Government Environmental
Professionals, (February 13, 1997), presented the views of a network of
local government brownfields leaders on the value of EPA's brownfields
programs and policies. The report calls local government leaders ``a
key link in the success of brownfields partnerships, for it is the
environmental, health, development and political leaders in our cities,
counties and towns who can best build a brownfields partnership `from
the ground up' ''. EPA has developed its brownfield capacity for
outreach through each of its ten regions. Each region has a designated
``Brownfields Coordinator'' to assist and oversee the brownfields
pilots and other actions under the Brownfields Initiative. We believe
our Brownfields Coordinators are the most effective link to communities
and form the linchpin of success under the Brownfields Initiative.
Brownfields Redevelopment and Environmental Justice
These partnerships and those that we will develop in the future
represent new ways of doing business with communities. We are working
hard to continue to improve communication and coordination among all
stakeholders. In this regard, we are encouraged by the increasing
linkage being made between brownfields redevelopment and environmental
justice. EPA is working with the National Environmental Justice
Advisory Council (NEJAC) to promote meaningful community involvement
and environmental justice. This past June, EPA provided support for a
program held in South Carolina by the Medical University of South
Carolina. The conference, ``Environmental Justice: Strengthening the
Bridge between Economic Development and Sustainable Communities,''
sought to bring together stakeholders to explore solutions to the dual
achievement of environmental justice and economic development. The
conference also gathered findings for a report to be shared with the
Congressional Black Caucus.
Most recently, as a follow up to the February 1998 issuance by EPA
of its ``Interim Guidance for Investigating Title VI Administrative
Complaints Challenging Permits'' for public comment, the Agency
conducted studies to determine whether the guidance would prove to be a
barrier to the redevelopment of brownfields if implemented. EPA
undertook case studies at six of its Brownfields Assessment
Demonstration Pilots. These case studies were recently released,
Brownfields Title VI Case Studies: Summary Report, June 1999, EPA 500-
R-99-003, DRAFT. Title VI complaints, according to the report, have
been avoided at brownfields projects because a wide variety of
governmental, community and business stakeholders are involved in
brownfields cleanup and redevelopment decision-making. These case
studies speak to the early and meaningful involvement of communities in
the brownfields process, redevelopment plans and activities for the
revitalization of blighted property.
Redevelopment Barriers--Addressing Liability Concerns
The Agency also committed to addressing the fear of liability and
other barriers impeding the cleanup and redevelopment of brownfields.
Over the past several years, EPA has announced a variety of guidance
and initiatives that have had a positive impact among Brownfields
stakeholders in terms of removing uncertainties often associated with
brownfields properties. EPA is promoting redevelopment of brownfields
properties by protecting prospective purchasers, lenders, and property
owners from incurring Superfund liability.
EPA's Prospective Purchaser Agreement (PPA) guidance issued in May
1995 has been used to stimulate the development of sites where parties
otherwise may have been reluctant to redevelop due to liability
concerns. Through agreements known as ``prospective purchaser
agreements,'' EPA clarifies that bona fide prospective purchasers will
not be responsible for cleaning up sites, provided they do not further
contribute to or worsen contamination. The 1995 guidance expanded the
universe of sites eligible for such agreements to include sites where
EPA has undertaken, is undertaking, or plans to undertake a response
action. Approximately 110 PPAs have been negotiated to date.
Environmental justice advocates see these agreements as a tool to
promote environmentally sustainable enterprises or green spaces
occupying former brownfields sites next to residential areas.
In 1998, EPA undertook a survey effort to gather information on the
impacts of the PPA process. Preliminary survey data indicate that
redevelopment projects cover over 1252 acres, or 80% of the property
secured through PPAs. EPA regional personnel estimate that nearly 1600
short-term jobs (e.g., construction) and over 1700 permanent jobs have
resulted from redevelopment projects associated with PPAs. An estimated
$2.6 million in local tax revenue for communities nationwide have
resulted from these projects. In addition, EPA regional staff estimate
that PPAs have resulted in the purchase of over 1500 acres of
contaminated property and have spurred redevelopment of hundreds of
thousands of adjacent acres. Using the survey results, EPA continues to
develop ways to improve the PPA process. The Agency is pleased to see
the inclusion of prospective purchaser relief as a common element of
most brownfields legislation being considered by the Congress.
Property Owner Protections
Other guidance issued by the Agency to benefit brownfields
assessment, cleanup and redevelopment have included the ``Policy Toward
Owners of Property Containing Contaminated Aquifers.'' Prior to the
issuance of this guidance in July 1995, people owning property under
which hazardous substances had migrated through groundwater also feared
liability under the statute. EPA responded by announcing that it will
not take enforcement actions under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) against owners of
property situated above contaminated ground water, provided the
landowner did not cause or contribute to the contamination. Further,
EPA also will consider providing protection to such property owners
from third party lawsuits through a settlement that affords
contribution protection.
The Agency also is pleased to see the inclusion of innocent and
contiguous landowner defenses as common elements of most brownfields
legislative proposals. We believe these liability relief provisions--
innocent landowner, contiguous landowner and prospective purchaser--
will provide a great deal of certainty to homeowners, buyers, and
developers involved in the purchase and sale, and cleanup and
redevelopment of brownfields properties.
Lender Protections
With respect to the lending industry and to governmental entities
who acquire property involuntarily, EPA was pleased to see the 104th
Congress enact the ``Asset Conservation, Lender Liability, and Deposit
Insurance Protection Act of 1996, which included provisions to clarify
the liability of lenders and fiduciaries under CERCLA and other toxic
waste laws. This reform, which was developed through a bipartisan
effort, was incorporated into a broader banking reform bill enacted in
the final days of the Congress as part of the continuing budget
resolution. This change in the law is providing significant relief to
banks and lending institutions, expanding the availability of credit
for small businesses, and greatly facilitating the assessment, cleanup,
and redevelopment of brownfields sites. EPA's lender liability policy
clarifies the steps a lender or governmental entity may take after
acquiring contaminated property through, for example, foreclosure or
involuntary acquisition.
EPA also is providing ``comfort/status letters'' in appropriate
circumstances to requestors, including new owners, lenders, or
developers to inform them of EPA's intentions at a site. The Policy on
the Issuance of Comfort/Status Letters is designed to assist parties
who seek to cleanup and reuse brownfields. EPA often receives requests
from parties for some level of ``comfort'' that, if they purchase,
develop, or operate on brownfield property, EPA will not pursue them
for the costs to clean up any contamination resulting from the previous
use. The policy contains four sample comfort/status letters that
address the most common inquiries for information EPA receives
regarding contaminated or potentially contaminated properties. The
policy aims at using such ``comfort'' toward facilitating the cleanup
and redevelopment of brownfields.
Supplemental Environmental Projects
In addition, EPA encourages the use of Supplemental Environmental
Projects (SEPs) to facilitate the reuse of brownfields through
assessment and cleanup projects at brownfield properties. SEPS are
environmentally beneficial projects that a defendant agrees to
undertake in settlement of a civil penalty action, but that the
defendant is not otherwise legally responsible to perform. SEPs enhance
the environmental quality of communities that have been put at risk due
to the violation of an environmental law.
Removing Sites From CERCLIS
Finally, EPA believes that the removal of sites from the active
Federal inventory, the Comprehensive Environmental Response,
Compensation and Liability Information System (CERCLIS), is having
positive repercussions for the Brownfields Initiative. To date, EPA has
removed approximately 31,681 sites from CERCLIS. The removal of these
sites eliminates the stigma of potential contamination and fear of
liability associated with these sites, and allows stakeholders to focus
on the future land use and redevelopment of such sites.
Brownfields Tax Incentive
EPA is pleased with the passage of the Brownfields Tax Incentive in
the last Congress. Passage of the 1997 Brownfields Tax Incentive has
enabled the federal government to level the economic playing field
between brownfields and greenfield sites. Under the tax incentive,
environmental cleanup costs for properties in designated areas are
fully deductible in the year in which they are incurred, rather than
capitalized. This incentive can reduce the capital cost for these types
of investments by more than one half. We regard this tax provision as
an essential element of a complete and comprehensive brownfields
program and hope it can be made a continuing and broad tool for
brownfields redevelopment in the future. Under current law, the
incentive will expire on December 31, 2000. The FY 2000 Budget proposes
to make it permanent.
The tax incentive is applicable to properties that meet specified
land use, contamination, and geographic requirements. To satisfy the
land use requirement, the property must be held by the taxpayer
incurring the eligible expenses for use in a trade or business or for
the production of income, or the property must be properly included in
the taxpayer's inventory. To satisfy the contamination requirement,
hazardous substances must be present or potentially present on the
property. To meet the geographic requirement, the property must be
located in one of the following areas: EPA Brownfields pilot areas
designated prior to February 1, 1997; census tracts where 20 percent or
more of the population is below the poverty level; census tracts that
have a population under 2,000, have 75 percent or more land zoned for
industrial or commercial use, and are adjacent to one or more census
tracts with a poverty rate of 20 percent or more; and Empowerment Zones
and Enterprise Communities. Both rural and urban sites qualify for the
proposed incentive. Sites on EPA's National Priorities List are
excluded. In West Chester, Pennsylvania, the tax incentive was used to
help a demolition and environmental service company relocate its
headquarters at a brownfield. This site was in a part of the town
suffering a 29.6% poverty rate, well above the 20% poverty rate
threshold set in the guidelines. The company estimates that 100-200
jobs could be created.
Better America Bonds
Innovative approaches and solutions to the problems faced by
communities are manifested in every aspect of brownfields. Innovative
financing efforts are no exception. Just as the federal government has
helped the brownfields program through the tax incentive, so, too, will
the Clinton Administration's latest effort through the proposed Better
America Bonds program. To build healthy, livable communities for the
21st century, the federal government would provide new resources to
communities to achieve their ``smart growth'' objectives. This proposal
for FY 2000 seeks to create $9.5 billion in bonding authority to state,
local, and tribal governments over 5 years. Communities will have
access to zero-interest financing for smart growth projects because
investors who buy these fifteen year bonds will receive tax credits in
lieu of interest. The tax credits would total approximately $700
million over five years. Communities would pay back the principal at
the end of the 15-year term of the bond.
To help communities preserve green space for future generations,
protect public health, and provide for greater economic development,
Better America Bonds can be used for three purposes:
<bullet> Preserve and Enhance Open Space: State, Tribal and local
governments can create, restore, or enhance parks, preserve
green spaces, and protect threatened farmland and wetlands.
Land can be protected either by acquiring title or purchasing
permanent easements.
<bullet> Protect Water Quality: Rivers, lakes, coastal waters, and
wetlands--and drinking water sources--can be restored or
protected through reducing polluted runoff, the largest
remaining threat to the nations' waterways. Eligible projects
to curb runoff include purchase of sensitive lands, wetlands
restoration, and the creation of planted or forested buffer
strips along waterways.
<bullet> Clean Up Brownfields: Pressure to develop green space can be
eased through cleaning up and reusing brownfields. Communities
can acquire and clean up brownfields for use as open space, or
for economic redevelopment in cases where abandoned brownfields
are acquired by the local government through tax foreclosure.
EPA believes Better America Bonds will further the Brownfields
Economic Redevelopment Initiative by providing much needed flexible
funding that communities can use for brownfields activities and add an
important funding source for site assessments and cleanups.
key elements of brownfields legislative reform
The Brownfields Economic Redevelopment Initiative has achieved much
initial success. The continuing value of the Brownfields Initiative is
its evolution and promise for the future. To build upon these
successful first steps and launch others, we must not lose sight of our
overall goal to revitalize communities. With the breadth and variety of
activities and stakeholders converging on the brownfields issue, we
have tried to establish a framework that articulates a complete and
comprehensive brownfields program. It is against this framework that we
will measure legislative proposals addressing brownfields.
Address Full Range of Brownfields Reforms
Brownfield reforms made under CERCLA should be codified, and should
reaffirm use of the Superfund Trust Fund to address the full range of
brownfield issues including: technical assistance funding for
brownfields identification, assessment and reuse planning, cooperative
agreement funding to capitalize revolving loan funds for brownfields
cleanup, support for State development of voluntary cleanup programs,
liability protection for bona fide prospective purchasers, innocent
landowners of contaminated property and contiguous property owners,
support for mechanisms for partnering with Federal, State, local and
tribal governments and other non-governmental entities to address
Brownfields, and support and long-term planning for fostering training
and workforce development.
Support Brownfields FY 2000 Budget Request
The Administration has requested funding for the brownfields
program in FY 2000 of $92 million to support additional assessment,
cleanup and job training pilot awards, to fund support for targeted
brownfields assessments, and to continue support for State Voluntary
Cleanup infrastructure and brownfields related job training efforts.
The United States Conference of Mayors has recently reiterated it's
earlier statement that ``the lack of cleanup funds'' for brownfields is
``the most frequently identified impediment.'' Recycling America's
Land, Volume II, April 1999. EPA urges the Committee to support this
component of the President's Budget as we work together on other
statutory changes that not only will enhance our ability to implement
these proposals, but also will enable us to forge stronger partnerships
with States, local governments, communities, and private interests that
successfully accelerate brownfields revitalization.
legislation
The Clinton Administration strongly supports the passage of
brownfields legislation and views it as an important step toward
restoring hope, opportunities, and jobs to local communities and
neighborhoods that are being held back by the presence of abandoned
industrial sites. Through three rounds of administrative reforms, the
Superfund program has made significant progress in cleaning up
hazardous waste sites, protecting public health and the environment, as
well as in the assessment and cleanup of brownfields sites.
In the past, the Administration supported brownfields legislation
within the framework for comprehensive legislative reforms to the
Superfund program. In light of the progress being made, the ever
increasing need to meet and assist communities in their revitalization,
as well as the apparent bi-partisan, and broad-based public support for
brownfields reform, the Administration now supports a targeted
legislative approach which addresses brownfields cleanup and
redevelopment, and specific liability provisions necessary to support
brownfields. In addition, EPA strongly supports the legislation that
would reinstate the expired Superfund taxes. These funds are needed for
the ongoing Superfund cleanup effort and the brownfields program.
EPA is encouraged by the focus that Congress has given to the
problems engendered by brownfields and we look forward to working with
Congress to enact this very necessary legislation.
h.r. 2580
EPA is encouraged to see in H.R. 2580, the ``Land Recycling Act of
1999'', a focus on the clean up and return of contaminated sites to
productive uses. However, provisions in H.R. 2580 severely restrict
EPA's ability to ensure protective cleanups at sites throughout the
country. The Administration opposes the bill in its current form.
Enforcement Authority is Severely Restricted.
H.R. 2580 represents the strongest limitations on the Federal
``safety net'' to date. While other bills, such as H.R. 1300, have
reduced EPA's (and other persons) ability to take CERCLA enforcement
actions, H.R. 2580 extends these prohibitions to citizens' and EPA's
imminent and substantial endangerment enforcement authority under
Sec. Sec. 7002 and 7003 of the Solid Waste Disposal Act. While HR 2580
leaves intact administrative judicial orders or decrees issued or
entered into under CERCLA, SWDA, FWPCA, TSCA, and SDWA before the
commencement of a response action under a state program, H.R. 2580 is
ambiguous about the continued viability of those authorities after the
commencement of a response action under a state program.
Given the patchwork of authorities throughout the 50 states, if
federal authorities are eliminated, it is unclear what authorities
would be available to protect public health and the environment. For
example, neither Arizona nor Idaho have RCRA Sec. 7003-like authorities
to address situations that pose an imminent and substantial
endangerment. Accordingly, the Administration strongly opposes the
enforcement bars present in HR 2580.
Further, the bill prescribes only minimal standards that a state
cleanup program must meet in order to trigger the broad prohibitions
upon EPA's and citizens' ability to take enforcement actions. In
addition, these minimal standards require no demonstration, but instead
can be met simply through self-certification. This represents a
significant departure from other environmental laws, which envision a
role for EPA review, and public comment on, a determination that a
state program is adequate, and that a transfer of federal enforcement
authority is appropriate.
While the inclusion of criteria is an improvement over H.R. 1300,
which contains no criteria state programs must meet, we believe the
criteria in HR 2580 are inadequate. Notably, while implementation of
the program must be in a manner that is protective of human health and
the environment, there is no requirement that response actions be
protective of human health and the environment, as required by H.R.
1750. Further, under H.R. 2580, a state must only certify the adequacy
of its financial and personnel resources at the point in time when it
submits its certification to EPA. There is no assurance that a state
ensure adequate resources in the future, as opposed to H.R. 1750, which
requires states to maintain consistency with the program criteria. This
requirement is critical, as state cleanup requirements can vary widely,
and resources can fluctuate over time. In fact, we are aware of several
states whose resources for hazardous waste cleanup programs have been
significantly diminished in recent years.
Also of great concern, H.R. 2580's criteria lack any requirement
for public involvement in program development or the selection of
response actions. The permitting process under environmental statutes
triggers public participation requirements. Thus, if an operating
facility wants to change their discharge limits under a Clean Water Act
NPDES permit or modify their RCRA permit, the public would have an
opportunity to participate in that decision. Given that the bill also
cuts off citizens' rights under RCRA and CERCLA, H.R. 2580 leaves the
citizens most likely to be affected by contamination in their community
with no voice, and no assurances of a federal ``floor'' of protection.
Accordingly, the Administration objects to the criteria set forth in HR
2580 as inadequate to ensure protection of human health and the
environment.
The exclusion of the public is exacerbated in H.R. 2580 by its
elimination of the requirement for any federal permit--including RCRA
corrective action permits--or permit revision for the on-site portion
of response actions. Although superficially similar to existing
language in CERCLA section 121(e)(1), CERCLA's current on-site permit
exemption does not negate the role of the public, as the CERCLA remedy
selection process, which requires significant public involvement, acts
as an equivalent to the role of the public in the permitting process.
However, state programs may not provide for public participation. Out
of 17 state voluntary cleanup programs it surveyed, GAO found that 8
had no requirements for public participation. GAO/RCED-97-66, Apr. 6,
1997 ``Superfund: State Voluntary Programs Provide Incentives to
Encourage Cleanups.'' If the state programs have no public
participation requirements, then HR 2580's language rendering federal
permits inapplicable represent a further blow to citizen's rights.
Taken as a whole, the bill would allow states to operate their cleanup
programs without adequate public scrutiny, contrary to the approach
taken in all other major federal environmental laws.
In addition to the limitations on public involvement, we are
concerned with other negative effects which will result from the permit
waiver. The bill would entirely extinguish the applicability of permits
in states not authorized to administer federal programs, such as the
Clean Water Act NPDES or Sec. 404 permits for dredging and filling
wetlands, or RCRA. For example, not all states are authorized for all
components of RCRA, meaning that federal permits issued in states
without their own permitting abilitity will be useless. States and
territories not authorized for either the base RCRA program or
corrective action include Iowa, Hawaii, Alaska, Puerto Rico, Virgin
Islands,American Samoa, and the Northern Mariana Islands. States not
authorized for corrective action include Connecticut, Massachusetts,
Rhode Island, New Jersey, Maryland, Pennsylvania, Delaware, Virginia,
West Virginia, District of Columbia, Florida, Mississippi, Tennessee,
Kansas, Nebraska, and Montana. In addition, in many cases, a facility
in an authorized state may still require a Federal permit for those
aspects of the RCRA program for which the state has not yet been
authorized. Thus, Under H.R. 2580, most RCRA permits, as well as any
permit modifications, would be invalid.
In addition, H.R. 2580 removes the requirement for federal permits
and permit revisions, even when the federal government is responsible
for overseeing the permit. H.R. 2580 limits EPA's ability to respond to
emergencies that affect the environment and sets a high and unclear
standard for EPA emergency response. For example, EPA issued a Section
7003 order at two adjacent facilities (that did not have federal or
state permits) to address lead and chrome contamination from Lead
Products, a battery reprocessing facility and Dixie Electroplating, a
plating facility. The metals from the facility contaminated residential
yards. The lead contamination becoming airborne was of particular
concern because the citizens' yards did not have grass and the streets
were not paved. The state's (Texas) voluntary cleanup program stopped
at the facilities' boundaries and would not require off-site cleanup.
EPA's federal RCRA authority provided for the coordination of off-site
response with the State(of Texas)'s on-site facilities.
Inadequate Reopeners Limit Federal Safety Net and Will Cause
Litigation.
The Administration is opposed to the provisions in H.R. 2580
regarding state response/voluntary cleanup programs. The bill would
eliminate the authority of EPA and other federal agencies to respond to
releases of hazardous substances whenever a state remedial action plan
has been prepared, whether under a voluntary response program, or any
other state program. It is critical that EPA retain its ability and
capacity to respond to threats that may present an imminent and
substantial danger to the public health or welfare or the environment.
This federal response ability or federal safety net, has several
important aspects. The federal safety net enables EPA, through its
emergency response capacity, to quickly mobilize and perform a removal
because the state does not have the resources to conduct and/or
complete removals. The federal safety net also establishes federal
requirements for public participation. These federal requirements offer
communities a recourse should a community perceive that the state is
excluding the community from meaningful involvement This bill could
eliminate community involvement if none is provided at the state level.
The federal safety net provides for federal permits, which are
important protections to human health, welfare, or the environment.
These are important aspects of the federal program that we think should
be retained.
Under HR 2580, where a state law or state-lead cleanup falls short,
or a local community seeks a federal response, EPA will be unable to
address public health or environmental concerns, except under the
strictest of circumstances. Unlike other legislative proposals, HR 2580
extinguishes ``any authority'' of CERCLA. Thus, HR 2580 eliminates
EPA's ability to fund-finance a response action when necessary. This is
a further departure from H.R. 1300, which would not extinguish EPA's
authority under Sec. 104 of CERCLA.
Further, as noted above, HR 2580 extinguishes EPA's (and citizens')
imminent and substantial endangerment authority under both CERCLA and
RCRA, a standard that has withstood more than 20 years of judicial
interpretation in cases occurring under both CERCLA and RCRA. In
addition, this standard is common to most other major environmental
laws, including the Clean Air Act (Sec. 303), the Clean Water Act
(Sec. 504), and the Safe Drinking Water Act Sec. 1431. It has been an
important attribute in the ``federal safety net'' that has ensured
protection of human health and the environment for all citizens.
As a result in the departure from the current standard of
``imminent and substantial endangerment,'' we have serious concerns
with the enforcement bar in both H.R. 2580 and H.R. 1300. While it is
important to ensure that federal liability does not inhibit brownfields
cleanup and redevelopment, such an inhibition should not come at the
expense of protecting human health and the environment. Our concerns
are exacerbated by the breadth of sites that may be subject to the
enforcement bar. H.R. 2580 excludes from the enforcement bar only sites
that are listed on the NPL (as well as federal facilities, and
facilities subject to orders or decrees under other environmental
statutes). HR 1300, by comparison, at least also excludes sites
proposed for listing on the NPL. When combined with the provision in
H.R. 2580 that allows an absolute governor veto on further NPL
listings, the bill could include even high-risk sites into the universe
of those subject to the enforcement bars. H.R. 2580 is also unclear as
to what type of ``response action'' is sufficient to trigger the
enforcement bar. For example, a site at which a surface removal had
been done would appear to be sufficient to trigger the enforcement bar,
even if extensive underlying groundwater contamination continued to
threaten nearby drinking water wells.
Compounding the problems above is the new standard for allowing EPA
to take action under H.R. 2580. On those occasions where a state
doesn't request EPA assistance, H.R. 2580 would create a new, and
burdensome, standard for EPA enforcement action that would require
EPA's satisfaction of essentially a three-pronged test: 1) response
actions must be immediately required; 2) response action may only be
used in the case of a public health emergency; and 3) the State is not
responding in a timely manner. This new standard will likely cause
significant and contentious litigation. ``Public Health Emergency'' is
not defined in current law nor in H.R. 2580. The term appears only in
CERCLA 104(a)(4) in the context of an exception to CERCLA
Sec. 104(a)(3), which limits EPA from responding to releases that are
naturally occurring; that are from products which are part of a
building; or that result from deterioration of a drinking water supply
system. EPA has never used 104(a)(4) to justify a response action. As a
result, there is no precedent to define the term. Additionally, it is
not clear how the word ``immediacy'' differs from the word
``imminence''. Finally, it is likely that additional litigation will
ensue regarding whether a State is responding in a timely manner. The
Administration believes it is inappropriate to risk public health by
barring EPA intervention until conditions have become sufficiently (or
legally) dangerous enough to lift the enforcement bar.
Targeted Liability Provisions
The Administration generally supports the targeted liability relief
provisions of H.R. 2580 for qualified parties that builds upon the
current success of the Superfund program. The Administration generally
supports the provisions in HR 2580 that address prospective purchasers,
innocent landowners and contiguous property owners. While these
provisions are close to H.R. 1750, there are concerns with the
provisions in H.R. 2580 as written.
We are concerned, for instance, that some of the preferable
language in H.R. 1750, was excluded from H.R. 2580. For example, with
regard to the bona fide prospective purchaser exemption, HR 1750
provides the United States with the ability to place a lien on other
property to recover its costs. Regarding the innocent landowner
defense, H.R. 1750 confirms that persons seeking to assert the defense
must, in addition to satisfying the requirements of Sec. 107(b)(3) as
to care and precautions, must also demonstrate that they performed an
appropriate inquiry as described in Sec. 101(35) before buying the
property, to demonstrate that they did not know or have reason to know
that the property was contaminated when they bought it.
We are concerned with HR 2580's approach towards contiguous
landowners. We prefer the approach in HR 1750, which creates an
affirmative defense for these parties, whereas HR 2580 gives them an
outright exemption. In addition, H.R. 2580's provisions relating to
contiguous property owners have been severely weakened, creating the
opportunity for parties to ``game the system.'' By removing any
requirement for an appropriate inquiry, prospective purchasers can
acquire contiguous property at a substantial discount with full
knowledge of the contamination and still avoid the potential for a
windfall lien. H.R. 2580 also removes any care requirement, due,
appropriate, or otherwise, which allows contiguous property owners to
turn a ``blind eye'' to contamination on their property for which they
are getting an exemption. Finally, H.R. 2580 omits the requirement that
a contiguous property owner not exacerbate the release. Such
requirements are appropriate in this context for parties seeking a
release from liability under CERCLA.
NPL Listing Is Severely Restricted
We continue to oppose provisions that restrict EPA's ability to
list sites on the NPL without a Governor's approval. This approval
requirements applies even in situations where Tribal, local community,
or interstate impacts exist, or where the State is a PRP. We currently
are working with States in a very successful voluntary effort to seek
their approval before listing a site on the NPL. In addition, HR 2580
prohibits listing of sites to the NPL if a Governor assures the site is
being addressed or will be addressed in the future. The bill has no
provision for when in the future a promised action to address
contamination might occur.
State Response Program Provisions
See above discussion on federal safety net.
EPA is developing MOAs with concerned States to ensure that its
response authorities complement and encourage rather than duplicate or
discourage, voluntary cleanups. This approach, we believe, strikes the
right balance between Federal and State programs while continuing to
provide the needed protection of public health and the environment for
our communities.
Brownfields Assessment and Remediation Grant Programs
H.R. 2580 provisions authorizing EPA to issue grants for assessment
and to capitalize revolving loan funds is similar to language in H.R.
1300. The bills provide funding for assessment grants ($200,000 per
grantee) and for capitalization of revolving loan funds ($1M per
grantee). Although EPA supports the grant programs for brownfields,
there are several problems we have identified with H.R. 2580 in this
regard. Among the concerns identified: (1) ranking criteria for
brownfield grant eligibility are onerous and call for information that
may not become available until site assessment is completed; (2) the
bill requires State matching funds for remediation grants of 50% for
receipt of State revolving loan fund grant; (3) political subdivisions
of a state could be deemed ineligible to receive loans under
remediation grant program as written; (4) eligible entities for
brownfield remediation grants may include parties who have caused or
contributed to contamination; and (5) references to ``remedial
actions'' preclude removals at brownfields sites. States may receive
grants to capitalize revolving loan funds for ``remedial actions'' but
not removals at brownfields sites. In addition, we are concerned about
the level of funding that would be provided for the Brownfields grant
program since the bill provides for ``such sums as are necessary.''
Breadth of Current Brownfields Program.
EPA is concerned that H.R. 2580 addresses only portions of the
current brownfields program and is limited to the grant program for
assessments and revolving loan funds. In particular, the bill omits
technical support and funding for job training and workforce
development.
Although the Committee did not request specific comment on the
remedy provision of H.R. 2580, the Agency has provided a brief summary
of concerns on section 9.
Remedies Are Less Protective
Superfund cleanups must be protective of human health and the
environment over the long term. H.R. 2580's remedy title weakens
current law and could result in a Superfund program that would not
adequately protect human health and the environment.
Under the current statute, remedies are required to ``utilize
permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable.'' Under H.R.
2580, the word ``maximum'' is stricken. This change effectively
eliminates the importance of selecting permanent remedies and permanent
protection for communities.
Under H.R. 2580 the preference for treatment does not apply to
treatment remedial alternatives ``that would increase risk to community
or to worker's health''. Under the current law, protection of community
and workers is addressed under: (1) the NCP remedy selection criteria
of protection of human health and the environment, and short-term
effectiveness; (2) the ARAR waiver of greater risk to human health and
the environment; and (3) worker protection standards. The bill's
imposition of a separate test for treatment remedies may weaken long-
term protection of remedies by reducing treatment, inviting additional
litigation, and delaying cleanups.
Groundwater Is Not Protected
Contaminated ground water is a problem at more than 85 percent of
Superfund sites. With roughly fifty percent of the U.S. population
relying on ground water for their drinking water, the Administration
strongly believes that this critical resource must be protected.
Legislation should not weaken the goal of restoring ground water to
beneficial uses, wherever practicable. H.R. 2580 replaces this goal
with a much lower standard. H.R. 2580 creates uncertainty and will
cause litigation over what or how contaminated ground water should be
restored. By including the term ``at reasonable points of compliance,''
the bill invites disputes over whether drinking water standards should
be met in the groundwater or at the tap. The use of ``reasonable'' will
inspire endless arguments, may let polluters off the hook for cleaning
up ground water, and will force EPA to determine what groundwater a
community will need in the future.
In addition, remedies selected under H.R. 2580 would not keep
contaminated ground water from spreading to uncontaminated ground
water. Inappropriate use of land use planning principles ``under-
protect'' ground water resources for the future. In fact, H.R. 2580
creates a bias against protecting uncontaminated ground water and
minimizes the need for cleanup because ground water is to be protected
only for its ``reasonably anticipated'' future use. Current practice
and proper nomenclature for ground water should be ``current or
potential beneficial use.''
Cleanups May Be Delayed
Under H.R. 2580 new and confusing provisions and terminology
regarding risk assessments will delay cleanups and generate costly new
litigation. Risk assessments under H.R. 2580 must be based on ``best''
scientific and technical information, and include site-specific
bioavailability data. This new terminology may cause time consuming and
costly litigation as the meaning and relevance of new terms are fought
over in the courts. The new language will not improve the quality of
remedies; rather, parties involved at sites could needlesslyl tie up
cleanups by litigating what is meant by the word ``best.''
h.r. 1750
H.R. 1750, the ``Community Revitalization and Brownfields Cleanup
Act of 1999,'' was introduced by Mr. Towns and is co-sponsored by 167
Members. As EPA Administrator Carol Browner stated in her letter of May
10, 1999, ``this brownfield redevelopment legislation is an important
step toward restoring hope, opportunities and jobs to local communities
and neighborhoods that are being held back by the presence of abandoned
industrial sites.'' Accordingly, Administrator Browner expressed the
Clinton Administration's strong support for the approach taken in HR
1750, which would promote brownfields cleanup and redevelopment by
providing grants and loans, and providing appropriate liability
protection to prospective purchasers, contiguous property owners and
innocent landowners; and preserves critical safeguards for communities
by ensuring EPA has authority to protect human health and the
environment.
A June 4, 1999 letter from Bill Clinton to the Hon. Deedee
Corradini and the Nation's Mayors echoes the sentiments expressed in
Administrator Browner's letter. Administrator Browner's letter notes
the broad consensus of Congressional and public support enjoyed by
brownfields reform proposals, and requests the opportunity to continue
to work with Representative Towns on appropriate resource levels and
other refinements to the bill. Mr. Clinton's letter likewise remarks
that HR 1750 offers the best prospect for broad public support, because
it focuses on those proposals that reflect substantial consensus in
Congress and among communities; and confirms his commitment to continue
to work with Representatives Boehlert and Borski, as well as senators
Chafee and Baucus, to achieve truly bipartisan brownfields legislation.
Many of the provisions in H.R. 1750 find some reflection in those
of H.R. 2580 and, as such, both emphasize the appropriateness of
targeted legislative solutions for brownfields. H.R. 1750 also provides
relief for prospective purchasers of brownfields properties, protection
to innocent landowners, and defenses to liability for contiguous
landowners, as well as funding brownfields assessment and cleanup grant
programs.
EPA has identified several provisions of H.R. 1750 that are of
particular merit. The bill provides $500,000 for brownfields assessment
grants and $500,000--up to $1million--for grants for the capitalization
of revolving loan funds. Unique to the legislation, however, are
provisions which (1) ensure grant funding support for local
governments, consortiums, and regional councils; (2) provide
opportunities to support projects and programs with particular
significant environmental and economic benefits; (3) make awards to
states as determined necessary to facilitate receipt of funds by one or
more local governments and (4) simplify the grant application and
review procedures conducted by the Agency.
In the last case, H.R. 2580 so laboriously details the review and
ranking process for brownfields grants it is doubtful that either the
applicant or the Agency would ever succeed in actually awarding a
grant. In many instances, the ranking criteria in these other bills are
onerous and would call for information that may not become available
until a site assessment is completed. These processes require
information like economic projections, employment opportunities, and
tax revenue forecasts that neither EPA nor the applicant could make.
H.R. 1750, by contrast, avoids this stumbling block by simply
recognizing that a grant application procedure is needed, requiring the
Agency to establish one and attaching such grant conditions as may be
appropriate.
H.R. 1750 also limits the procedural requirements of the NCP in
brownfields ``to the extent that those requirements are relevant and
appropriate to the program...'' Refinements to the brownfields program,
such as this one, reflect and express the insights and experience we
have gained from our brownfields pilots. H.R. 1750 removes yet another
barrier to the redevelopment of properties in distressed urban areas
and small towns.
H.R. 1750 provides funding support to states for the development of
their voluntary cleanup programs and further clarifies the
circumstances under which the EPA may have a role at a brownfields
site, while maintaining a ``safety net'' in the event the Agency must
act at a site presenting an imminent and substantial endangerment to
the community or the environment. Qualified state programs are ones
where the state is ensuring: adequate site assessment and protection of
human health and the environment; opportunities for technical
assistance; meaningful opportunities for public participation;
streamlined procedures for expeditious voluntary response actions;
adequate oversight and enforcement; and mechanisms for approval of
response action plans. EPA is pleased to see the bill ``grandfather''
existing memoranda of understanding between states and the Agency. We
look forward to working with Representative Towns on appropriate
resource levels consistent with the President's Budget and certain
refinements to the bill.
h.r. 1300
The Administration has previously commented on HR 1300. EPA
Administrator Carol Browner testified on the bill at a hearing before
the House Water Resources and Environment Subcommittee, and supplied a
May 11, 1999 letter from Jon Jennings, Acting Assistant Attorney
General, for the hearing record. For purposes of the present hearing,
we will reiterate some of our concerns with HR 1300's brownfield
provisions.
With regard to liability relief, HR 1300's treatment of contiguous
landowners is problematic, first, because it creates an exemption
rather than an affirmative defense, as set forth in HR 1750, and
second, because it lacks most of the eligibility requirements contained
in HR 1750, indeed, it contains fewer than in HR 2580.
We remain particularly concerned with HR 1300's ``innocent
landowner'' provision, which essentially collapses into one the
innocent landowner defense and the bona fide prospective purchaser
exemption that have both appeared in numerous legislative proposals.
Although we generally support protection for both groups, we are
gravely concerned that HR 1300's provision of relief for current owners
that knowingly bought contaminated property is inconsistent with
longstanding principles of common law. Those principles recognize that
owners are often in the best position to address hazardous substances
on their property; and that they must take steps to address hazards on
their property even if they did not themselves create the condition. In
addition, many of these owners acquired the property, not only with
knowledge of contamination, but also with knowledge of a responsibility
for performing a cleanup. Relieving these parties of this
responsibility constitutes an enormous windfall for these parties, and
creates significant fiscal consequences for the Trust Fund, especially
at sites where the current owner is the only major viable responsible
party.
conclusion
The Agency's administrative reforms have fundamentally improved the
Superfund program. Brownfields reforms made under CERCLA should be
codified, and Congress should reaffirm use of the Superfund Trust Fund
to address the full range of brownfield issues. We fully support
targeted legislation that will address brownfields and liability relief
provisions for qualified parties that builds upon the current success
of the Superfund program.
The federal attention directed at brownfields redevelopment over
the past four years reflects a growing realization that yesterday's
eyesore is today's opportunity. For EPA and the federal government, it
is an opportunity to demonstrate that environmental protection can also
promote economic development. For communities and cities, it is the
opportunity to return a wasted asset to productivity, job creation and
revenue generation. For local contractors and developers, brownfields
redevelopment is an opportunity to expand their work, to clean up sites
and to build new facilities. For local lenders, it is the opportunity
to meet their community reinvestment needs, often at much less of a
credit risk than they might otherwise anticipate. But the biggest
opportunity is for the people who live withbrownfields sites every day.
Eyesores are cleaned up. Frequently, potential threats to health are
substantially reduced, if not altogether eliminated The value of
property increases. And often brownfields redevelopment provides the
neighborhood's residents with a new sense of hope.
Thank you. I would be happy to answer any questions on brownfields
you may have.
Mr. Oxley. Thank you, Mr. Fields, once again, for your
appearance and for your testimony.
Let me begin with perhaps the mother of all questions in
terms of length at least, and so bear with me.
The Governors, States and the State cleanup agencies, the
mayors, cleanup contractors and the GAO state that the broad
liability and uncertainty from potential second guessing caused
by Superfund is and has been part of the brownfields problem
for almost 2 decades. We have had that discussion before.
I want to provide you some quotes on the relationship of
the Superfund statute to brownfields cleanups. Some of these
quotes are from written testimony of witnesses on today's
second panel, and other quotes are from witnesses in other
hearings or statements in other forums. Without objection, I
would like this document placed into the record, and without
objection, so ordered.[The information referred to follows:]
Quotes on the Barriers Superfund Poses for Brownfields Cleanups
Mayors and Municipal Cleanup Agencies
``Most mayors will tell you that the major impediment in securing
private capital for the clean up and redevelopment of brownfields is
Superfund's liability regime. We believe that . . . [i]t is time to
free innocent parties, both public and private entities, from
Superfund's unfair liability strictures. Parties that had no part in
causing the contamination at individual sites should no longer be held
liable under federal law . . . It is time to create more certainty for
the current owners of contaminated properties--the hundred of thousands
of sites in every place in America that are likely to be brownfields at
some time in the future--by providing them certainty in their cleanup
costs and liability exposure.''
--The Honorable Jim Marshall in testimony before the United States
Senate Environment and Public Works Committee, May 25, 1999
``We have been living under a federal statute and its strict
liability regime--although well-intended and largely aimed at more
contaminated properties posing greater threats to the public--that has
dramatically slowed progress by all parties in coming to terms with
lesser contaminated properties, sites we generally describe as
brownfields . . . It has produced a legacy of inaction by property
owners, be they innocent or responsible parties, which we now measure
in terms of thousands of properties and millions of acres . . .
Rhetoric and political advantage will not cleanup one brownfield, but
bipartisan legislative action will . . . ``[F]inality'' must be
provided to prompt current owners to move forward and cleanup
contaminated properties . . . The price of keeping EPA over-empowered
in this area is simply too high.''
--The Honorable Jim Marshall in testimony before the United States
Senate Environment and Public Works Committee, May 25, 1999
``It has been shown that Superfund's liability regime unfairly
threatens innocent parties and too often drives private sector
investors from brownfields to more pristine locations. And, we
recognize that this Act helps fuel a development cycle that imposes
increasing burdens on all of us.''
--The Honorable Marc Morial, Mayor of New Orleans, The Honorable
Michael Turner, Mayor of Dayton, The Honorable Jim Marshall, Mayor
of Macon, testimony before the Subcommittee on Water and the
Environment, May 12, 1999
``We know that Superfund's liability regime too often drives
private sector investors from brownfields to more pristine locations.
We know these rules punish innocent parties, fueling a development
cycle that is unsustainable. We know that current law must be reformed
to undo the bias toward new land resources over recycling land that is
already urbanized or developed. Mitigating the effects of this nearly
twenty-year Superfund policy will require actions on several fronts.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of
the U.S. Conference of Mayors, testimony before the Subcommittee on
Finance and Hazardous Materials, August 4, 1999
``We have learned that liability under Superfund is their dominant
concern. Despite progress in securing ``comfort letters'' at many
sites, lender liability reforms and growing confidence in state program
efforts, there is real anxiety, and we would wish otherwise, among
bankers and other lenders on these issues. The specter of Superfund
liability severely limits their ability to increase the flow of private
capital into these projects.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of
the U.S. Conference of Mayors, testimony before the Subcommittee on
Finance and Hazardous Materials, August 4, 1999
``We also strongly support liability reforms contained in H.R. 1300
and H.R. 2580 to address the many circumstances whereby cities and
other local governments have acquired brownfield properties in the
past. Under these provisions, cities and other public agencies are
rightly afforded innocent party relief in the performance of local
government functions.''
``We hope that the legislation that is adopted by this Committee,
as provided in H.R. 2580, will encourage states to use these funds to
place more priority on efforts to bolster state programs in support of
brownfield cleanups.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of
the U.S. Conference of Mayors, testimony before the Subcommittee on
Finance and Hazardous Materials, August 4, 1999
``Without this certainty on state authority, we can't hope ever to
provide the necessary assurances sought by private investors in
brownfield sites, let alone secure final decisions on the hundreds of
thousands of brownfields sites we are seeking to clean up and
redevelop. Mr. Chairman, we also want to indicate our interest in
seeing provisions that would help accomplish more cooperation and
integration of applicable federal laws and standards. One of the areas
that H.R. 1300 does not address is the applicability of RCRA and LUST
specifically at brownfield sites. Mayors have been very consistent in
urging more attention in federal policies to a `one-stop' brownfields
regulatory program at the state level, where states, which are vested
with delegated authority, can provide more coordinated and integrated
programs. Such an approach would respond to the realities of the
contaminants and types of problems that localities encounter at these
sites.''
``I would note that H.R. 2580 provides authority for RCRA waivers
to allow states to integrate this law's permit requirements with
cleanups of brownfields. I understand that this provision does not
diminish or alter RCRA requirements, but is intended to give states
some flexibility in delivering a more responsive and coordinated
regulatory program in addressing brownfields. This or some variant of
this provision would be very helpful to those of us at the local level
who often find ourselves confronting increased complexity at specific
sites as we work to return them to productive use.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of
the U.S. Conference of Mayors, testimony before the Subcommittee on
Finance and Hazardous Materials, August 4, 1999
``Legal authority for qualified states to play the primary role in
liability clarification is critical to the effective redevelopment of
local brownfield sites. A state lead will increase local flexibility
and provide confidence to developers, lenders, prospective purchasers
and other parties that brownfield sites can be revitalized without the
specter of Superfund liability or the involvement of federal
enforcement personnel. Parties developing brownfields want to know that
the state can provide the last word on liability, and that there will
be only one ``policeman,'' barring exceptional circumstances.''
``Therefore, in delegating brownfields authority for non-NPL
caliber sites to the states, NALGEP proposes that: EPA should provide
that it will not plan or anticipate further action at any site unless,
at a particular site, there is: (1) an imminent and substantial threat
to public health or environment; and (2) either the state response is
not adequate or the state requests U.S. EPA assistance.''
--Donald J. Stypula, Manager, Environmental Affairs, National
Association of Local Government Environmental Officials, testimony
before the Subcommittee on Finance and Hazardous Materials, August
4, 1999
The Governors and State Cleanup Agencies
``There is no question that voluntary cleanup programs and
brownfields redevelopment are currently hindered by the pervasive fear
of federal liability under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) of 1980. Many potential
developers of brownfields sites have been deterred because even if a
state is completely satisfied that the site has been properly
addressed, and even if the site is not on the NPL, there is the
potential for EPA to take action against the cooperating party under
the CERCLA liability scheme . . . In considering how to restore
brownfields sites to productive use, please remember the importance of
state voluntary cleanup programs in contributing to the nation's
hazardous waste cleanup goals.''
--Tom Curtis, Director of the Natural Resources Group, National
Governor's Association, in testimony before the Senate Committee on
Environment and Public Works, May 25, 1999
``H.R. 2580 succinctly mandates that U.S. EPA must receive a
Governor' concurrence prior to listing a facility on the National
Priorities List. We support this provision as it is clear, unambiguous
and satisfies our goal of clarifying the role of the federal Superfund
program in the future.''
``Both the National Governors' Association and ASTSWMO oppose
provisions which allow the U.S. EPA to review and approve existing,
established State voluntary cleanup programs.''
``It is our belief that we can no longer afford to foster the
illusion that State authorized cleanups may somehow not be adequate to
satisfy federal requirements. The potential for U.S. EPA overfile and
for third party lawsuits under CERCLA is beginning to cause many owners
of potential Brownfields sites to simply `mothball' the properties.''
``H.R.2580 satisfies the goal of clarifying which governmental
entity is and should be responsible for deciding when a cleanup is
complete and when a party is released from liability.''
--The National Governors Association and the Association of State
and Territorial Waste Management Officials in testimony before the
Subcommittee on Finance and Hazardous Materials, August 4, 1999.
``Another provision that is important to the nation's Governors
concerns the requirement for a Governor to request the listing of a
site before a state's site may be added to the NPL . . . Because states
are currently overseeing most cleanups, listing a site on the NPL when
the state is prepared to apply its own programs and authorities is not
only wasteful of federal resources, it is very often counterproductive,
resulting in increased delays and greater costs. The Governors fear a
case where there will be `two masters' of the cleanup process . . . To
avoid this we advocate that Governors should be given the statutory
right to concur with the listing of any new NPL sites in their
states.''
--Tom Curtis, Director of the Natural Resources Group, National
Governor's Association, in testimony before the Senate Committee on
Environment and Public Works, May 25, 1999
The Cleanup Contractors
``I am here to tell you that, in actuality, the true Brownfields
market has not kept pace with expectations. Why? We have been asking
our clients just that. Our clients' responses are fairly unanimous.
They fear that EPA will ``second guess'' Brownfield cleanups, and
require costly site rework at a later date to reach a different site
cleanup standard so they ``hold onto'' lightly contaminated parcels
instead of turning them over to beneficial reuse. Moreover, there
remains potential down-stream liability associated with that reuse
which further retards the process. These concerns result in owners of
such properties not undertaking redevelopment efforts at viable
Brownfields sites. While EPA has indicated a willingness to enter into,
on a case-by-case basis, prospective purchaser agreements at
Brownfields sites, the process to enter into those agreements is quite
time consuming and there is no certainty in the end that EPA will agree
to a prospective purchaser agreement.
``H.R. 2580's provisions in Section 3 provide the finality in
Brownfields decisions that are truly needed in this market, and the
actual cleanups, are to accelerate . . . This provision is very
important to spurring increased voluntary cleanup actions at
Brownfields sites across the country and reducing possible risks to
nearby populations that are currently not addressed, expressly because
of the fear of federal liability.''
``The permit waiver for on-site response actions that is contained
in H.R. 2580 would remove the barriers to actual on-site cleanup and
significantly increase the pace of Brownfields cleanups.''
--The Environmental Business Action Coalition in testimony before
the Subcommittee on Finance and Hazardous Materials, August 4,
1999.
Realtors and Property Owners
``One common incentive provided by these programs is liability
relief. Typically, the state will provide some form of liability relief
once it has approved a cleanup. In Ohio, relief comes in the form of a
``No Further Action'' letter from the state EPA. Unfortunately, there
is no guarantee that the federal EPA will not assert authority at a
future date and require additional cleanup. Without the certainty of
knowing that they are protected from federal as well as state
liability, property owners and developers are very reluctant to
undertake development of a site which is or might be contaminated. Let
me illustrate with an example. I recently had a contract as listing
agent to sell a large warehouse property. The property was adjacent to
a government-owned landfill. There were concerns about contamination on
the property due to migration of heavy metals from the landfill. If we
only had to comply with Ohio law, the government entities that owned
the landfill would have removed the contamination, and the property
would have been sold in a reasonable time. However, because of
uncertainty over federal liability, the lender and the purchaser were
reluctant to go forward. As a result, it took five years to close the
deal, and only after we found a new buyer and a new lender willing to
face the risk of future liability.''
--National Association of Realtors, May 12, 1999
``The Superfund liability scheme has clearly exacerbated the
difficulty of bringing brownfields back to productive use. Moreover,
that liability scheme itself is responsible for the creation of many
brownfields. This system makes the owners of contaminated properties
liable for millions of dollars in cleanup costs even if they had
nothing to do with contaminating the site and they purchased the
property decades after the contamination occurred. It exposes
landowners not only to Superfund actions by EPA, but also to lawsuits
decades in the future by as-yet unanticipated parties who incur costs
to clean up the property. Concerned about this ``trailing'' liability,
owners of the properties that may be contaminated hold these properties
back from the market. This practice has been referred to as
``mothballing,'' bringing to mind the useless hulks of rusting ships
set aside by the U.S. Navy after World War II. When properties which
carry the stigma of contamination become available for sale, most
developers avoid them out of concern for exposure to endless
uncertainty and undue financial liability.''
--Barry J. Trilling, National Association of Industrial and Office
Properties, testimony before the Subcommittee on Water Resources
and Environment, May 12, 1999
``The example of states like Pennsylvania, Michigan, Indiana, and
others with voluntary cleanup programs support this view. In
Pennsylvania, for example, NAIOP actively participated in the
legislative process that resulted in Act 2, the Land Recycling and
Environmental Remediation Standards Act. Under that statute, parties
may choose to clean up contaminated properties to one or more of three
different levels, after which they receive a release from liability
under state environmental laws. The remediation standards of Act 2
apply both to voluntary cleanups and mandatory remedial actions under
the state's version of Superfund. The Pennsylvania statute has been
adopted as model legislation by the American Legislative Exchange
Council, an organization represented by legislators from all 50 states.
Under Pennsylvania's program, in effect since July, 1995, 267 sites
have already been cleaned up and nearly 500 sites are in the process of
remediation. State voluntary remediation and revitalization efforts,
such as Pennsylvania's, are significant steps forward, but these state
programs do not protect our members from liabilities arising under the
federal Superfund statute.
--Barry J. Trilling, National Association of Industrial and Office
Properties, testimony before the Subcommittee on Water Resources
and Environment, May 12, 1999
The General Accounting Office and Others
``Lenders and developers are wary of investing in such contaminated
property because, under the environmental laws, they could be held
liable for cleaning up the contamination. They have often cited the
liability provisions in the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), commonly known as Superfund,
as one of the major disincentives to redeveloping brownfields.''
--United States General Accounting Office Report to Congressional
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June
1996, Page 1.
``Superfund's liability provisions make brownfields more difficult
to redevelop, in part, because of the unwillingness of lenders,
developers, and property owners to invest in a redevelopment project
that could leave them liable for cleanup costs. While brownfields
usually are not contaminated seriously enough to become Superfund
sites, these parties still fear that they could be sued for cleanup
costs if they become involved with a contaminated site. For example, as
a result of the liability problem and the general riskiness of
investing in redeveloping brownfields, banks sometimes refuse to lend
funds for this purpose.''
--United States General Accounting Office Report to Congressional
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June
1996, Page 2.
``Although most brownfields are not highly contaminated, cities,
lenders, and developers cite the possibility that the liability
provisions in CERCLA could be applied to these properties as a major
barrier to redeveloping them.''
--United States General Accounting Office Report to Congressional
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June
1996, Page 3.
``The liability for the costly cleanup of environmental
contamination is a barrier to brownfield redevelopment because it
discourages lenders, developers, and property owners from participating
in these projects.''
--United States General Accounting Office Report to Congressional
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June
1996, Page 7.
``Perhaps the greatest barrier to industrial site reuse, however,
is the 1980 Comprehensive Environmental, Response, Compensation, and
Liability Act--commonly known as Superfund.''
--``Restoring Contaminated Industrial Sites'' by Charles Bartsch
and Richard Munson, Issues in Science and Technology, Spring 1994
Issue.
``Superfund laws actually reduce the reuse, supply of, and demand
for brownfield properties.''
--Unlocking the Brownfields: Overcoming Superfund Barriers to
Redevelopment, by Ross Macfarlane, Jennifer Belk and J. Alan Clark,
a Report Done By the Law Firm of Preston Gates & Ellis, Seattle,
Washington.
Mr. Oxley. This document sets out a clear and unambiguous
point that Superfund creates problems for brownfields and
voluntary cleanup programs. Let me read just a few so that the
subcommittee can get an understanding of where I am coming
from. This is from the cleanup contractors.
Quote, ``The true brownfields market has not kept pace with
expectations. Why? We have been asking our clients just that.
These are the people who are trying to develop these
brownfields. Our clients' responses are fairly unanimous. They
fear that EPA will second guess brownfields cleanups and
require costly site rework at a later date to reach a different
site cleanup standard so they hold on to lightly contaminated
parcels instead of turning them over to beneficial reuse.
Moreover, there remains the potential downstream liability
associated with that reuse which further retards the process.
These concerns result in owners of such properties not
undertaking redevelopment efforts at viable brownfields sites.
While EPA has indicated a willingness to enter into on a case-
by-case basis prospective purchaser agreements at brownfields
sites, the process to enter into these agreements is quite
time-consuming, and there is no certainty in the end that EPA
will agree to a prospective purchaser agreement.
Continuing to quote, ``H.R. 2580's provisions in section 3
provide the finality in brownfields decisions are truly needed
if this market and the actual cleanups are to accelerate. This
provision is very important to spurring increased voluntary
cleanup actions at brownfields sites across the country and
reducing possible risk to nearby populations that are currently
not addressed expressly because of the fear of Federal
liability.''
Now, this is what the State cleanup agencies say.
Quote, ``It is our belief that we can no longer afford to
foster the illusion that State-authorized cleanups may somehow
not be adequate to satisfy Federal requirements. The potential
for U.S. EPA over-file and for third party lawsuits under
CERCLA is beginning to cause many owners of potential
brownfields sites to simply mothball the properties.''
The State cleanup agencies aalso state: ``H.R. 2580
satisfies the goal of clarifying which governmental entity
should be responsible for deciding when a cleanup is complete
when a party is released from liability.''
Now, do you disagree with the Governors and the State
cleanup agencies, the mayors, the cleanup contractors and the
GAO that the liability provisions and uncertainty posed by
Superfund is inhibiting remediation activities?
Mr. Fields. I don't agree with the comments that have been
made. I would like to clarify why I don't.
We believe that finality and assurance can be provided if
you enact the type of legislation that we support. We believe
that finality can be provided for prospective purchasers, for
innocent landowners, and contiguous property owners if
legislation were enacted like H.R. 1750. We endorse voluntary
cleanup program memoranda of agreement with minimal criteria
for State programs. We have already signed 12 memorandums of
agreement, and we are negotiating with others.
We support liability relief along the lines of Federal
legislation that we endorse and memoranda of agreement for
signing off and agreeing to an acceptable State program that is
managing sites no longer of Federal interest. We believe those
are the kind of elements that would provide the kind of the
cleanup community, State officials and those who are being
regulated.
We believe there needs to be retention of what we call the
Federal safety net, the ability to come in, where appropriate,
when imminent and substantial endangerment situations do occur.
This is my last point, and Attorney General Schiffer may
want to add something. The last point I would like to make is
this. Brownfields cleanup and redevelopment are occurring now,
even without the legislation that we support. We think the
legislation we support would make it go even faster. Right now
in communities across the country more than 845 properties have
been assessed. Many of them are being cleaned up. Much
redevelopment is occurring: 3,000 jobs, $1.4 billion in private
sector investment for cleanup. So I don't think brownfields
cleanup and development are not occurring. It is occurring in
communities across the country, and the type of legislative
proposals we are supporting we believe would make that go
faster.
Mr. Oxley. So you don't agree then with the folks who are
out in the field trying to make cleanup occur. In fact, there
are a lot of these parcels being set aside and warehoused,
because of the fear that EPA will come in and second guess the
decisions by the local people as well as the State?
Mr. Fields. I would just add that my information is also
gathered by people in the field, and I have been to many of
these cities and communities. Over the last 4 years we have
implemented changes to policy, to guidance on prospective
purchaser agreements and contiguous properties, and we have
tried to make sure we clarify liability so these deals can
occur.
We support the types of provisions in both Mr. Towns' bill
and Mr. Greenwood's bill to limit liability for those parties.
We want to limit liability in the statute so we don't have to
worry about working through all the 110 prospective purchaser
agreements, through policy and guidance, as we have under the
current statute for the last many years. We think that Federal
legislation would go a long way toward alleviating that fear
people have about entering into deals for prospective purchaser
agreements or comfort letters or other types of comfort that we
currently are providing to people who want to get enter into
real estate transactions.
Mr. Oxley. Well, according to the contractors, they don't
have a whole lot of comfort, nor do their client.
Let me ask you this. Is there some fear at the EPA that
somehow the States will collude with the contractors and the
developers in developing a site that is not clean enough for
your standards? Is that basically it?
Mr. Fields. No. It is very clear that we work real closely
with the States. Many of the States have indicated to us they
want a strong Federal environmental program. They want that as
a backstop when they need to become involved. We have entered
into partnerships with 12 States. Seven more are being
negotiated. We believe that, with minimum criteria for what a
State response program should be, we are willing to sign off
and reach an agreement with the State with respect to the sites
in that State.
Mr. Oxley. Right, under the current law. I understand that.
I think we are going to have testimony from the second
panel, from at least one of our witnesses from Michigan who
will indicate that, given the choice of an agreement with EPA
or supporting legislation from Mr. Greenwood, they would
support the ability of the State of Michigan to make those
decisions. They feel that they are qualified, and they have a
distinct interest in not only protecting the public health and
the environment but at the same time fostering job creation in
Detroit, as the gentleman, Mr. Dingell, mentioned. Is there
some disconnect here between the States and the contractors and
the EPA?
Mr. Fields. I think, Mr. Chairman, the issue is that not
all States are created equal. I know the witness----
Mr. Oxley. You trust some States and don't trust others?
Mr. Fields. No. We have entered into agreement with 12
States. Michigan--and the witness that will be testifying is
from Michigan--is one of those, and we have a very good
partnership. We have agreed to defer on certain sites to that
State because we have a memorandum of agreement with an
understanding, however, that if there is an imminent and
substantial endangerment situation in the State of Michigan,
the Federal Government would have the ability to come in and
take action if appropriate to protect citizens.
Mr. Oxley. Isn't the State qualified to determine a
substantial endangerment and deal with the issue?
Mr. Fields. Not all States are going to be capable.
Mr. Oxley. Which ones are and which ones aren't? How about
Ohio?
Mr. Fields. I don't want to name States.
Mr. Oxley. How about Ohio? Are we capable of doing that?
Mr. Fields. We are talking to the State of Ohio about
whether we can get a similar agreement. I know you have met
with the EPA Regional Administrator alliance recently, and we
want to work with the State of Ohio to see if we can come
together on an agreement. The State of Ohio is the only one
among the region's five States that we don't currently have a
memorandum of agreement with.
Mr. Oxley. Who has a bigger interest? What entity has a
bigger interest in making certain that these sites are cleaned
up properly, the State or Washington, DC, Federal Government?
Mr. Fields. Well, as overall environmental stewards, we
believe this is a shared responsibility. We have a mandate to
protect human health and the environment. We want to work with
States, with local governments, and with the regulated
community to make sure that mandate is carried out. We work
very closely with States and agencies to implement all of our
environmental statutes, whether it is air, water, toxic waste,
or RCRA. They are very important partners in environmental
waste management as well as environmental cleanup. But, in some
cases, States don't have the requisite staffing, enforcement
authorities, or public participation requirements in place to
assure that the people in that particular State are going to be
protected.
Mr. Oxley. Do you believe those situations demand that the
State provide that kind of ability? If I were living in a State
and I were concerned about human health and the environment,
wouldn't I, through the electoral process, make certain that
the State address those issues?
Mr. Fields. That is exactly what is happening in the State
of Ohio. As you know, there are citizens in the State of Ohio
who have urged us to make sure that, if we negotiate a
memorandum of agreement with the State of Ohio, there be an
effective process for public involvement.
One of the major issues that has been raised in the
discussions with the State of Ohio and Region 5 on negotiating
a memorandum of agreement is that there needs to be a better
process for public participation around voluntary cleanup in
brownfields sites in Ohio. We are trying to work with the State
of Ohio to see if we can craft an agreement that will be
satisfactory to the citizens in that State. You are right. It
is very important the citizens who live in a particular State
are comfortable that their environment and their health is
going to be protected.
Mr. Oxley. Right. And who do they hold accountable? You or
the State officials, the elected State officials? Who is
accountable?
Mr. Fields. I don't think we can say it is one or the
other. I think we feel some accountability.
Mr. Oxley. How so?
Mr. Fields. If a major public health threat occurs in Ohio,
we are often called upon by the State, by the way, to take
Federal response action. That is something we do all the time.
We have taken a number of Federal emergency response actions in
the State of Ohio at the State's request.
Mr. Oxley. Well, Mr. Greenwood's bill does cover major
public health threats, so that is not really an issue. The
issue is the day-to-day operations.
Mr. Fields. But his bill does not provide for the
flexibility to prevent a major emergency from occurring. We
believe that the Federal ability, the Federal standard, ought
to be imminent and substantial endangerment in terms of the
Federal Government's ability to come back in.
Mr. Oxley. So we have a philosophical difference. Some of
us think that the States are accountable and have the ultimate
responsibility to protect the citizens of their particular
State, and you think that it ought to be the Federal EPA.
Mr. Fields. I think it is a shared responsibility but I
believe that to assure even-handed and consistent protection
for all citizens across the country there needs to be an
ability for the Federal Government to come back in if there is
an imminent and substantial endangerment situation that is not
being addressed.
Mr. Oxley. Which Mr. Greenwood's bill covers, by the way.
My time has expired. I am sorry.
Let me turn to my friend from New York, the gentleman from
Brooklyn.
Mr. Towns. Thank you very much, Mr. Chairman.
Let me just say that I think the argument has really been
made here very strongly, and you have assisted us, that H.R.
1750 should be the bill that we move forward with, and I think
that by now Mr. Greenwood probably also agrees with the fact
that because mine will allow them to come back in, and I think
that is very, very important. So I want to just make that point
before I ask this question.
Mr. Fields, if the Federal EPA is not allowed to act at a
site after a State has performed some action there, no matter
how complete the State's actions, then the citizens around the
site may find themselves without a resource they now rely upon
to address their concerns. This could be a step backwards for
the communities disproportionately affected by an usually high
number of contaminated sites. In other words, it could make
environmental justice concerns even worse, to be frank. Where a
State may have allowed the disproportionate siting of a number
of facilities that polluted the community in the first place,
then that same State may not be as responsive to the citizens'
request for more cleanup. Does your agency hear directly from
citizens about the fears they may have about polluted
properties?
Mr. Fields. Yes, Congressman. We do hear from citizens who
live in States across the country about the need for the
Federal Government to make sure that, before they delegate,
before they authorize, before they enter into an agreement to
transfer responsibility to State programs that environmental
justice, community involvement, public participation, and
adequacy of cleanup issues be addressed. So that is a concern
and one of the reasons we believe that there needs to be an
ability for the Federal Government to be able to come back in
is to assure that the citizens in the situation that you point
to are going to be protected if the State does not do so.
Mr. Towns. Thank you very much.
Ms. Schiffer, it appears that the innocent landowner
provision of H.R. 2580, section 5, of course in H.R. 1750 which
will be section 201, are very similar in providing certainty
and clarifying the steps necessary to qualify for liability
protection as an innocent landowner. Would you agree?
Ms. Schiffer. I do agree that the innocent landowner
provisions of your bill, Congressman, and Congressman
Greenwood's bill are quite similar, yes.
Mr. Towns. However, H.R. 1300 contains a very different
innocent landowner provision which the National Association of
Attorneys General have commented on, and let me quote. It says
it would obliterate the current owner/operator category from
CERCLA Superfund liability. The State Attorney General also
stated that this would be contrary to one of the important
tenets of the CERCLA liability scheme. What is your opinion on
the innocent landowner provision of H.R. 1300?
Ms. Schiffer. The innocent landowner provision of H.R.
1300, which is really an innocent owner provision, is a very
drastic change. And basically what it would have the effect of
doing is retroactively repealing owner liability under the
Superfund law, rather than focusing on what we are trying to
achieve with brownfields, which is to say that if somebody
comes in, wants to be a new purchaser of a property, takes
reasonable steps and then goes ahead and develops the property,
that that is a person who we think shouldn't be liable, which
is what your proposed legislation does and Congressman
Greenwood's proposed legislation does on notifying a
prospective purchaser.
And H.R. 1300 basically says that if people currently own
property or in the past owned property and it was contaminated
and they were owners of it and they knew perfectly well they
were going to have to clean up, now we are going to create an
exception for liability. And that is not fashioned in any way
to help address any concerns that there might be about
brownfields, and it really does completely upset the apple cart
on the kinds of payment principles, polluter-based principles
that have operated effectively under Superfund.
Mr. Towns. Right. Thank you very much.
Let me ask one other question, Mr. Chairman. I think it was
on May 24, 1999, the National Association of Attorneys General
commented on H.R. 1300 as follows. They said, H.R. 1300 allows
a potentially responsible party to deflect enforcement actions,
including listing on the NPL, so long as it is merely
conducting a response action or engaged in a response action
that is under way pursuant to the identified undefined concept
of a State response program. Such provisions allow PRP many
easy routes to avoid enforcement of listings.
Do you agree with that?
Mr. Fields. Well, we are very concerned about that
provision, and we do believe it could interfere with the
ability of EPA to list sites. We are concerned particularly
about the requirements for governor commerce on listing.
Mr. Towns. Thank you very much.
Mr. Chairman, I yield back.
Mr. Oxley. The gentleman yields back.
The Chair now recognizes the sponsor of one of the pieces
of legislation before us, Mr. Greenwood.
Mr. Greenwood. Thank you, Mr. Chairman.
And let me say to my friend Mr. Towns that I am leaning a
little bit your way on some of this testimony right now, but I
suspect when the next panel gets up you will start leaning my
way, and my bill is going to start looking good.
Mr. Fields, in response to Chairman Oxley's question where
he basically laid out the concerns by a variety of groups about
the fact of the liability and the uncertainty posed by
Superfund does inhibit remediation, your response was twofold.
You said essentially that the Towns' bill would fix that, and
then you also pointed to your ability to do prospective
purchaser agreements, and I think EPA has done 85 of those and
comfort status letters, which I think you have done 250 or
something like that.
Two concerns about that in terms of the adequacy of the
comfort status letters and the prospective purchase agreements.
One of them is that they don't prevent third parties from
intervening under Federal law, isn't that right? I mean, that
gets EPA off my back, but it doesn't give me certainty that
other entities won't use the statute to come and expose me to
liability; is that not correct?
Ms. Schiffer. In general, the Superfund statute is one that
is very focused on EPA being the entity that tries to get
people to undertake the cleanups, and so we are not aware of a
lot of instances where when there has been no EPA cleanup and
the site isn't contaminated at the level where there would be
EPA involvement that there nevertheless are third parties who
are trying to get other people to cause problems for other
people.
Mr. Fields. And when these 110 prospective purchaser
agreements and 250 comfort letters have been signed, we are not
aware of situations where people have been affected by third
party litigation. Most of the time they have been very
effective. They have resulted in major redevelopment at these
sites. And because of the due diligence requirements and the
requirements that they contribute and be part of the cleanup,
we don't think litigation is a big issue.
The problem is trying to make sure that prospective
purchaser agreements are being signed and processed in a timely
way. It has taken us, historically, 9 months on the average to
effectuate one. We are doing it faster now because of efforts
by Lois Schiffer and the EPA staff, but we want to make sure it
does go faster. We don't think litigation has been a major
concern, once an agreement is signed.
Mr. Greenwood. I think one of the intangibles about this
whole issue is what we cannot measure, is the number of
property owners who don't go that route because they are
concerned about litigation, and it is somewhat of an
imponderable.
The other concern I have is simply that if we have 500,000
of these sites and you have 250, 300 agreements out there, that
that order of magnitude, at the pace we are going, that would
take thousands of years to get such an agreement on each one of
these, which is why in our legislation we try to shift some of
the responsibilities to the States because we think it is a
volume question, that the EPA cannot possibly get through
500,000 sites using that fairly slow and tedious, one-at-a-time
Federal nexus in each instance.
Mr. Fields. We should just clarify that the prospective
purchaser agreements are not for brownfields sites. These
agreements are mostly sites that are on the Superfund toxic
waste list. You are not going to go the prospective purchaser
agreements route for the typical brownfields site.
Mr. Greenwood. You just use comfort status letters in that?
Mr. Fields. Okay.
Mr. Greenwood. You are employing the comfort status
letters?
Mr. Fields. We use comfort letters, status letters and
memoranda of agreement between the State and EPA to provide the
kind of comfort that the developers and others need for those
types of sites. They don't need a PPA for those brownfields
sites.
Mr. Greenwood. How many EPA employees are involved in
reviewing State cleanup decisions, and how many hours does it
take, and how does EPA select which sites it will perform such
a review for?
Mr. Fields. Well, it is difficult to give you a quick
answer. I will respond more fully for the record.
Just put in place, for example, that many of these cleanups
are, for example, RCRA, corrective action, 32 States, one
territory has the authority. We have 18 States that we have the
authority to provide oversight for a RCRA cleanup. Forty-four
States have voluntary cleanup programs that are being overseen
primarily by State officials. There are several hundred, but we
will get back to you with more precise numbers. But we have got
to keep in mind there is a shared responsibility between EPA
and the States in terms of the oversight, whether you are
talking Superfund, RCRA, or voluntary cleanup programs.
Mr. Greenwood. I see my time has expired.
It points to the fact that we have got to somehow get to a
bipartisan solution on this because EPA cannot possibly deal
with these hundreds of thousands of sites in our lifetime using
those methodologies. I yield back.
Mr. Oxley. The gentleman's time has expired.
The gentleman from Michigan, Mr. Stupak.
Mr. Stupak. Thank you, Mr. Chairman.
Ms. Schiffer, it appears that both H.R. 1300 and H.R. 2580
restrict the Federal Government's ability to respond to the
needs of citizens when a site, even after some type of
voluntary cleanup, when a site may present an imminent and
substantial endangerment to human health or the environment.
In my opening, I cite the State of Michigan which uses the
same imminent and substantial endangerment standard as
contained in H.R. 1750, and Michigan has signed an agreement
with the EPA in June 1996 that clearly reserves Federal
authority over brownfields sites where an imminent and
substantial endangerment to human health is present or an
emergency situation. My question is this, is the imminent and
substantial endangerment an appropriate standard to preserve
for Federal action? And, if so, explain why is it important to
use this standard rather than what I believe to be the more
narrowly focused standard of immediately required to prevent or
mitigate a public health emergency as set forth in section 3 of
H.R. 2580 and a similar provision found in section 104 of H.R.
1300. Can you explain why it is important to keep that
standard?
Ms. Schiffer. Yes, Congressman Stupak.
What the ``imminent and substantial endangerment''
authorities to protect public health and the environment do is
mean that the Federal Government can come in and stop an
accident before it happens, that it doesn't have to wait until
the barrels that may appear to be leaking actually spill, until
an explosion actually occurs, until a fire actually happens
before it can go in and use authorities to stop the problem and
get the polluter to pay to fix the problem. It is a tried and
true standard. It has been in the laws for 20 years. It has
been tested in court. People know what it means.
What it is important for and why it is so important to have
that authority is it means that we can go and see that there is
a problem and stop the problem before the accident happens.
The emergency standard--by saying that the Federal
Government can't come in and reopen, that federal authorities
are not triggered until there is an emergency--that is in
Congressman Greenwood's legislation and Congressman Boehlert's
legislation, may well mean that, basically, the government
would have to wait until the accident happened before it could
go in, and that just seems to be very bad public policy if what
you are trying to do is protect public health and the
environment. It is unfortunately the difference between saying
somebody has to commit the violation before you can go after
them and that we have laws that prevent the attempt to commit
it so that you can go in and stop it before the real problem
occurs.
Mr. Stupak. Well, if we are looking to reopen this
standard, it is my understanding that the State of Texas has
agreed to a Federal safety net reopener with the EPA that is
actually broader than Michigan's. It has three circumstances
where the State acknowledged that it is proper for the EPA to
take action, and they were, No. 1, where it is determined that
the site poses a threat to human health or the environment; No.
2, or the site poses an imminent and substantial endangerment;
or No. 3, in an emergency situation.
Now, this seems a little broader perhaps, this
compassionate conservative Texas reopener. Would that be a
basis to look at it, as opposed to the standards we see
proposed in other pieces?
Ms. Schiffer. We certainly think that a standard that
includes imminent and substantial endangerment for the Federal
Government to go back in, and that includes the other two
circumstances you outlined, is vastly preferable to saying that
there has to be an actual emergency before the bar drops and
lets the Federal Government come back in and do the cleanup.
I might add also, Congressman, a response to some of the
earlier questions about ``do we not trust the States.'' We
certainly trust the States; and, as Mr. Field said, it is a
Federal-State partnership that does it in terms of getting
sites cleaned up. But what is really the keystone is to be sure
what we are doing collectively, Federal Government and State
government together, is protecting public health and the
environment; and what we really don't want is a system where,
because we focused on who has the responsibility between the
governments so much, what happens is the public health gets
adversely affected and we don't have tools to go in and clean
it up.
Mr. Stupak. You indicated, if I may, Mr. Chairman, the
imminent substantial endangerment standard has been litigated,
it has been around for a number of years. If we used a
different standard set forth in H.R. 2580 or H.R. 1300, would
that probably open the door to litigation to determine what
this standard is, how it is going to be applied? It seems to me
if we have 25 years of case law and application that has been
successfully used, why would we go to another standard that
would be challenged probably in court and where we really would
delay, would we not, cleanups?
Ms. Schiffer. I, of course, love lawyers, but I do have to
say that when you have a standard that is pretty well settled
in the law, it does reduce litigation because people know what
it means, and they can go ahead and apply it and lawyers can
sort of settle their cases. But, if you put in place a new
standard, you are opening the doors to lawyers arguing about
what it means and leaving it to the courts to develop law for a
while. So, it certainly will be one more step to putting the
lawyers back in Superfund, which we have made major efforts to
take out.
Mr. Oxley. The gentleman's time has expired.
Mr. Greenwood. I would ask unanimous consent that the
gentleman be granted an additional minute and ask if he would
yield to me on this very narrow point.
Mr. Oxley. Without objection.
Mr. Stupak. If I could, the standards of the State
statutory authority to order cleanups just make it part of the
record, the 12 States that I had mentioned, and we have them
mentioned right here, if I may.
Mr. Oxley. Without objection.
Mr. Stupak. And then I would yield to Mr. Greenwood.
Mr. Greenwood. Thank you for yielding.
Let me just clarify something if I may.
First off, the standard is not that there is an imminent
and substantial endangerment. It is that there may--that the
threat of release may present, and the problem that some on
this side of the aisle have is that we think that that is big
enough to drive a very wide truck through. And given the fact
that Mr. Towns' bill reiterates the existing standard, we don't
see it as making a difference at all in being any assistance to
the States in getting finality. Would you respond to that?
Ms. Schiffer. I think ``it may present an imminent and
substantial endangerment'' is the phrase both in the Superfund
law and in the Resource Conservation and Recovery Act, which is
the hazardous waste regulatory statute; and it is a standard in
other statutes as well. So it is a tried and true standard. And
while one might set forth a parade of horribles that might
suggest it is a very wide-open standard, as you say, the truth
of it is that it has been applied in a way that gives the
government--and I will say this is also State governments who
have similar provisions and have the same provisions in their
laws--the ability to go in and stop the accident from
happening, to see the drums that are likely to leak and to get
them cleaned up before they actually leak.
The problem with the standard of an actual emergency, which
is what is proposed in your legislation and Congressman
Boehlert's legislation, is that we may well have to wait until
the drums leak, until the fire happens, until the explosion
occurs, before we can use authorities to go in and clean it up,
and that isn't very protective of public health and the
environment. That is preventing the problem from happening
rather than stopping it before it actually happens.
Mr. Greenwood. Well, I don't want to abuse my time here,
but there certainly is a difference between imminent and may
present imminent, and I think that is a difference that needs
some further discussion.
Mr. Oxley. The gentleman's time has expired.
The Chair now recognizes the gentleman from Illinois, Mr.
Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I am going to follow
the same line of comments, and if the gentleman from
Pennsylvania wants to jump in, please do.
I guess the question that will come up in the next panel is
that the phrase ``may'' and ``endangerment'' is actually used
to basically run an ordinary cleanup program and that the
States and the cleanup contractors and the State legislators
and the local government entities are saying that that is the
big truck that my colleague Mr. Greenwood is saying that needs
to be tightened up. So if it is a regular cleanup program, that
the ``may'' and the ``endangerment'' aspects of this do not
close down the possibility of cleanup, and I will throw that
out for comment.
Mr. Fields. I think we have to look at the track record
here. As Lois has said, this has been used in many
environmental statutes for a number years. In implementing this
provision, all of the 12 memoranda of agreement that we have
signed with State officials and State agencies include language
that says that we may come back in if there is a situation
involving imminent and substantial endangerment. We have never
done that in the more than 6 years we have had memoranda of
agreement in place. We have never intervened in a State program
inappropriately where we have had a memorandum of agreement and
that State is overseeing cleanup.
So the practice is such that people should not fear Federal
interaction. As we sign a memorandum of agreement, we make it
very clear which sites in the State are of Federal interest and
which sites are not of Federal interest, and we operate in a
partnership with the State. But we believe that the imminent
and substantial endangerment language is critical to maintain
environmental protection for all American citizens,
particularly where you don't have an effective State program in
place to provide and assure that protection. States need the
backstop of the Federal Government with the ability to come in
when these situations do occur, when we see a threat about to
occur.
Mr. Shimkus. And you refused to address a question earlier.
I would like to know, one, which States want a strong Federal
backup, as you have used numerous times, and you have mentioned
that there are 12 States that have signed memorandums of
agreement. Are those the 12 States? And, if not, are those 12
States that have memorandums of agreement, are they in support
of a strong Federal backup, and--you know, just kind of
connecting back with the comments from my colleague from the
State of Ohio. I would like to know the facts. I would like to
know. We have got 50 States. Which States have come to you and
have stated on record that they want a strong Federal backup
and that they need you and they cannot do the job themselves?
Mr. Fields. Well, actually, the information was given to
the General Accounting Office in the study commissioned by
Congress. That General Accounting Office study, which was
completed in December, 1998, is what I was referring to or what
Ms. Schiffer was referring to when we said that State officials
commented to the General Accounting Office that they wanted a
strong Federal backup.
Mr. Shimkus. So if I go to that GAO report, that is going
to tell me which State officials said that on the record?
Mr. Fields. It will tell you some of the States that
indicated they wanted a Federal backup, yes.
Mr. Shimkus. You don't know the number?
Mr. Fields. We don't know the number of States or which
States specifically. I understand we can provide for the
record.
Mr. Shimkus. I will have the staff pull up that report.
Mr. Fields. I can read them off if you want me to.
Mr. Shimkus. Is it 10 percent of the States, 50 percent of
the States, 100 percent of the States?
Mr. Fields. I don't know the precise number of the States.
Quickly, on your second question, we have the list of the
12 States that have signed memoranda of agreement with EPA. I
will be happy to give them to you for the record or read them
to you now if you wish.
Mr. Shimkus. Are those the similar--that want the strong
Federal backup and feel they cannot do the job without it?
Mr. Fields. I don't know how this set of States correlates
with the States that are in the GAO study. I would have to go
back and compare that study with this list of 12 States that we
have entered into memoranda of agreement for.
Mr. Shimkus. Okay. Thank you, Mr. Fields. My time has
expired.
Mr. Oxley. The gentlewoman from Colorado, Ms. DeGette.
Ms. DeGette. Thank you, Mr. Chairman.
You know, frankly, I think that Mr. Greenwood's point about
property owners being concerned about cleaning up, if they
think that the EPA is going to come in, is a good one. I would
like you to comment, if you can, about the effect that you have
seen in the 12 States that have signed the memoranda of
agreement versus the States that haven't. Have you seen more
cleanup activities under the State plans in those States?
Mr. Fields. Right. One of those States is Colorado, where
we have signed a memoranda of agreement. We have never
overfiled or intervened in a State cleanup program that has a
memorandum of agreement. Congressman Greenwood's legislation
and Congressman Towns' legislation on liability for prospective
purchasers, innocent landowners, contiguous property owners is
very similar in many respects.
So we support that kind of liability relief. But our
history, Congresswoman DeGette, has not been that people should
fear the EPA is going to come back in and take further action
when a cleanup is being done pursuant to a State voluntary
cleanup program, as in the State of Colorado. Our history has
not been to come back in.
Ms. DeGette. Following up on the previous question, it
seemed to me in Colorado people wanted to do this memorandum of
agreement, not because they wanted strong Federal backup, but
to get the EPA threat out of their hair. So I think these
memoranda of agreement can work both ways. They can work to
give property owners an assurance that the EPA is not going to
come tromping in and, at the same time, it can give the States
that kind of backup that they want to get. I think it can be a
win/win.
Mr. Fields. But we don't sign the memorandum of agreement
unless they satisfy 6 criteria. Those criteria are similar to
what is in H.R. 1750. We believe before we sign a memorandum of
agreement, a State ought to meet certain minimum criteria in
terms of involvement and cleanup, et cetera.
Ms. DeGette. It is my understanding from looking at these
bills that while these criteria are enunciated in 1750, they
are not enunciated in 1300 or 2850; is that right?
Mr. Fields. That is correct.
Ms. DeGette. The National Association of Local Government
Environmental Professionals called for qualifying criteria
under State voluntary cleanup programs to be established before
Federal authority could be limited or restricted. Have these
criteria ever been promulgated by NALGEP? And, similarly, are
they roughly similar to the criteria you folks use?
Mr. Fields. NALGEP, which is a great organization, has
recommended that there be qualifying criteria for State
programs that enter into a memorandum of agreement with EPA.
They never promulgated that. They did publish a report that
contained those criteria, and those criteria are the kinds of
criteria that we support and have been utilizing for State
memoranda of agreement. We think that recommendation by NALGEP
is consistent with what is in H.R. 1750.
Ms. DeGette. It seems to me, and Mr. Greenwood and I are
going to talk about this later, but it seems to me that it
wouldn't be too hard to come up with some criteria that both
the locals and the States and the Federal Government would all
like.
Let me just follow up on one point, a confusion that I
think we have had in this hearing. The prospective purchaser
and innocent landowner provisions are the same in the Towns
bill and the Greenwood bill, essentially; would that be
correct?
Ms. Schiffer. They are similar. There are some differences,
particularly in the contiguous landowner provisions. We can
probably bridge the gap with discussions. We have some concerns
about that being created as an exception in Congressman
Greenwood's bill rather than being a defense; but, in general,
they are in the same direction and we think that the
differences could be bridged.
Ms. DeGette. Mr. Chairman, may I have another minute?
Mr. Oxley. Without objection.
Ms. DeGette. Thank you.
So we are really not talking about prospective purchasers
being chilled from buying land under this. What we are really
talking about is who maintains the ultimate liability: Is it
the polluter, the original person who put the contamination on
the property, or is it the public who would pay for it--isn't
that the real issue that we are talking about here?
Ms. Schiffer. Yes, that is the real issue; that is, if the
site has not been effectively cleaned up and it is a seriously
contaminated site, who is going to bear the obligation to clean
it up and who is going to have to pay for it?
Ms. DeGette. No one thinks that it should be an innocent
purchaser or some adjoining landowner or somebody like that;
right?
Mr. Fields. We agree that liability relief ought to be
provided to those people. We support that kind of liability
protection.
Ms. DeGette. Thank you. Thank you, Mr. Chairman.
Mr. Oxley. The gentlewoman from New Mexico, Mrs. Wilson.
Mrs. Wilson. Thank you. I want to explore the Federal and
State responsibilities a little bit and this concept of safety
net. Is it your belief under your approach to this that States
should have the authority to reopen Federal selection decisions
when the States believe that they have a better plan? Does it
work both ways?
Mr. Fields. Well, under the Superfund statute under which
both our Superfund and the brownfields programs are
administered, Congress has clearly defined that the Federal
Government is the lead decisionmaker regarding cleanup
decisionmaking. But the law that Congress gave us to administer
does very clearly make State acceptance----
Mrs. Wilson. We are talking about making some amendments to
that law, and I am trying to figure out what the philosophical
point of view is here. If the issue is a safety net and
protection of public health, if your agency is inadequate at
protecting that health, can the States intervene and override
your decisions?
Mr. Fields. You are talking about brownfields, the 500,000-
plus low-to-moderate contaminated properties across the
country. For brownfields, as a policy matter, we are trying to
give as much authority and responsibility and support to State
programs. We fund these programs at $10 million to $15 million
a year.
We support voluntary cleanup programs. We believe the best
way to deal with this is for States to enter into a memorandum
of agreement with EPA that clearly says the sites covered by
the memorandum of agreement are those that the States are going
to take the lead on and that we, the Federal Government, will
only get involved if there is an imminent endangerment
situation where, to protect public health, the Federal
Government's resources need to be provided to do so.
Ms. Schiffer. And under existing laws that affect
brownfields, States can have more stringent remedies at sites
if they want. All of the environmental laws are set up so that
if States want to have standards that are more stringent, they
are certainly welcome to put those into place.
Mrs. Wilson. Let's talk about that question of imminent and
substantial endangerment and particularly as it relates to
Superfund. And, Mr. Fields, we have had discussion about
Superfund, and after 7 years of inaction, that site in
Albuquerque is being cleaned up, an action which you admit was
inadequate; the response should have gone much faster.
Mr. Fields. I would agree with that, yes.
Mrs. Wilson. I take that from your testimony, so I assume
that you will agree with it.
Is it your view, should we change the Superfund law so when
the EPA fails to act on its responsibilities to clean up these
sites, that States can assume the authority for doing so? It is
really a question of federalism? Your attitude seems to be that
the Federal Government can override the States. Should the
States also have the authority to override failure to protect
public safety by the Federal Government?
Ms. Schiffer. Maybe we can take a step back for a moment,
because I don't think that what we are saying is that the
Federal Government should be able to override the States. What
we are talking about is when a person wants to buy or work on a
brownfields site which, as Mr. Fields has said, are not the
seriously contaminated sites, what assurance are they going to
have if they go in and effectively clean up that site--and the
State says it is an effective cleanup--that the Federal
Government is not going to come back and say it was not an
adequate cleanup?
I might point out if the person cleans up the site to the
adequate level for its use, we haven't come back, and we don't
come back into it because we want the site cleaned up, not a
Federal role. But what we are talking about is not overriding
the State but, rather, if the site continues to present an
imminent and substantial endangerment so there is a serious
threat to public health and the environment, giving the Federal
Government the authority to go in and get that site cleaned up
so the public health is protected, and then having the person
who caused the contamination pay for it. It is not the Federal
Government overriding the State; it is looking to be sure that
there is a way to get that site cleaned up.
Mrs. Wilson. The question of liability is a different one,
but I think this exchange shows just how far apart we are on a
philosophical basis of the relationship between Federal
authority and State authority, and that I am not even able to
communicate conceptually that there is a federalism question
here, and that if the Federal Government and the all-powerful
EPA comes down with a decision about what the site cleanup
should be, it doesn't seem--I don't seem to be able to
communicate to you that perhaps a State should have the
authority to override a Federal decision, because this pyramid
seems to go only in one way. That is one of the fundamental
differences that makes it difficult to come up with legislation
that will work.
Thank you, Mr. Chairman.
Mr. Fields. Just to add one thing to what Ms. Schiffer
indicated. To further address this issue, I think this ought to
be a partnership. I don't think it ought to be an issue of one
level of government overriding the other. I think the Federal
Government and the State government ought to sit down together
and decide jointly how they will address the universe of sites.
As you said, Mr. Chairman, there are 500,000-plus of these
brownfields sites across the country. It ought to be a
partnership between the Federal and the State Government where
we decide together what is the best delineation of
responsibilities for the sites. We have been able to do that in
many States, and I believe we can continue to do that in many
more States through entering into a memorandum of agreement
which clearly demarcates responsibilities in the State. It
ought to be working together in partnership.
Mr. Oxley. Mr. Fields and Ms. Schiffer, we thank you for
your testimony. Members may submit questions in writing.
Without objection, the hearing record will remain open for 60
days for members to submit written questions and provide
extraneous material for the record. Without objection, so
ordered.
Thank you for your participation.
Mr. Fields. Thank you.
Ms. Schiffer. Thank you.
Mr. Oxley. The Chair will now call the second panel. On the
second panel we have the Honorable Paul Helmke, Mayor of Fort
Wayne, Indiana, on behalf of the U.S. Conference of Mayors; Mr.
Don Stypula, Manager of Environmental Affairs, Michigan
Municipal League, on behalf of the National Association of
Local Government Environmental Professionals; Claudia Kerbawy,
Section Chief, Superfund, Environmental Response Division,
Michigan Department of Environmental Quality, on behalf of the
Association of State and Territorial Solid Waste Management
Officials here in Washington, DC; Teresa Mills, on behalf of
the Buckeye Environmental Network, Grove City, Ohio; Jonathan
Curtis, President, Environmental Business Action Coalition
Washington, DC; Ms. Karen Florini, Senior Attorney,
Environmental Defense Fund, Washington, DC; and Mr. Gary
Garczynski, Treasurer, National Association of Home Builders,
Washington, DC.
STATEMENTS OF PAUL HELMKE, MAYOR OF FORT WAYNE, INDIANA, ON
BEHALF OF THE U.S. CONFERENCE OF MAYORS; DONALD J. STYPULA,
MANAGER OF ENVIRONMENTAL AFFAIRS, MICHIGAN MUNICIPAL LEAGUE, ON
BEHALF OF NATIONAL ASSOCIATION OF LOCAL GOVERNMENT
ENVIRONMENTAL PROFESSIONALS; CLAUDIA KERBAWY, SECTION CHIEF,
SUPERFUND, ENVIRONMENTAL RESPONSE DIVISION, MICHIGAN DEPARTMENT
OF ENVIRONMENTAL QUALITY, ON BEHALF OF ASSOCIATION OF STATE AND
TERRITORIAL SOLID WASTE MANAGEMENT OFFICIALS; TERESA MILLS, ON
BEHALF OF THE BUCKEYE ENVIRONMENTAL NETWORK; JONATHAN G.
CURTIS, PRESIDENT, ENVIRONMENTAL BUSINESS ACTION COALITION;
KAREN FLORINI, SENIOR ATTORNEY, ENVIRONMENTAL DEFENSE FUND; AND
GARY GARCZYNSKI, TREASURER, NATIONAL ASSOCIATION OF HOME
BUILDERS
Mr. Helmke. Thank you, my name is Paul Helmke. I am the
Mayor of Fort Wayne, Indiana. I am appearing on behalf of the
United States Conference of Mayors. I am the past president of
the Conference of Mayors and I am the present and co-chair of
our Conference's Mayors and Bankers Task Force dealing
particularly with the brownfields issue.
You have got my full statement. Let me touch on a few
issues. First of all, Chairman Oxley, I want to thank you for
your leadership on the brownfields issues; and Mr. Towns and
Mr. Greenwood, your bills, we appreciate the discussion that is
going on today. We share a common view that our older
industrial communities are struggling to recycle these sites.
We know the value and the importance of the farmland that is
often needlessly placed at risk.
As spokesperson for the Nation's mayors and other community
leaders, I hope we can have some legislation successfully
enacted this year. Our communities need help. These are dead
zones. These brownfields sites exist everywhere and cause
problems. Securing bipartisan consensus on the legislation is a
top priority for the Conference of Mayors. We feel that we are
making some progress, thanks to the efforts of this committee,
Mr. Greenwood, you and others in Congress.
I also want to recognize EPA Administrator Browner and
other members of the administration for their efforts in this
area as well.
As a Nation we are making progress, but we don't feel that
it is quick enough or substantial enough. The problem of
brownfields lying fallow, coupled with our Nation's appetite
for use of greenfields, is epidemic proportions. We think the
answer lies in getting a bipartisan agreement moving through
this Congress.
This effort will be advanced later today when the
bipartisan leadership of the House Transportation and
Infrastructure Committee announce their agreement which has
been referred to already tomorrow. That committee will act on a
very broad, consensus-based bipartisan agreement: H.R. 1300,
the Recycle America's Land Act. This was the legislative effort
led by Sherry Boehlert. There is a lot at stake for all of us
in recycling these sites. Each of the bills is intended to move
the Nation forward. Representative Greenwood and Towns, thank
you for your efforts. Let me make a couple of important points.
The time has come to stop punishing innocent parties under
Superfund. And the time has come to undo the bias in favor of
open space that we have in current law and start recycling
brownfields. The time has come to take seriously the
unnecessary consumption of our open spaces, be it farms,
forests or other lands. The time has come to help us level the
playing field between greenfields and brownfields. The time has
come to help us redeploy properties that take fuller advantage
of taxpayers' prior investments, the road and street networks,
the public transit and rail capacities, the water and sewer
systems, the existing housing stock and the like. The time has
come to help us make welfare reform really work by recycling
properties and creating jobs close by the neighborhoods where
the people are living and having the business districts there.
The time has come to change policies that drive businesses to
look first for greenfields, not brownfields. I know you are all
aware of these efforts.
The Conference of Mayors recently released our second
annual brownfields survey which shows part of the problems that
are here today. One hundred eighty cities reported more than
19,000 brownfields sites representing more than 178,000 acres.
This is larger than the cities of Seattle, San Francisco and
Atlanta combined.
We feel that there are close to 500,000 sites nationwide.
Cities were asked to provide estimates of how many people they
could absorb if we redeveloped brownfields. One hundred fifteen
cities reported they could absorb more than 3.4 million people
without appreciably adding to the infrastructure. That is equal
to the population of the city of Los Angeles. It is equal to 16
months of our Nation's population growth.
In the area of job creation, the 168 cities responding
estimated that reuse of brownfields cogenerate more than
675,000 jobs. It is important to get something done and get
something done now. We have got a partnership with bankers, but
they have told us that they are not willing to move forward on
brownfields, on lending to brownfields, unless there is
legislative effort. They are concerned about the liability
issue. They are willing to put the investment in if the
liability issue and some of the other brownfields issues that
we are discussing are taken care of.
Let me comment on the legislation. We want to emphasize,
first of all, the importance of liability reforms. In addition
to the prospective purchaser provisions, which is a common
element in the pending bills and absolutely crucial, we
strongly support the liability provisions contained in H.R.
1300 and 2580 to address the circumstances where cities and
other local governments have acquired brownfields in the
performance of their legislative functions, our government
functions. We need the funding for cleanup. We need to
strengthen the voluntary cleanup programs and clarify the
balance between State and Federal authority. And you might want
to look at the Transportation Committee's agreements on these
issues to see the balance. We need some sense of finality.
We have urged more attention to Federal policies that
provide for a one-stop brownfields office. The basic problem
that we face, and I have listened to the debate earlier today
on liability, is that these brownfields sites are staying in
our cities. They are dead zones. They become cancer zones and
take down our neighborhoods. And while folks are arguing at the
Federal level or other levels about who is responsible,
basically people are not coming in to develop these properties
because they are not getting finality and they are concerned
about liability.
If we can get some help on liability and finality, we feel
in H.R. 1300 we can help redevelop these properties and
strengthen our neighborhoods and cities and stop eating up our
farmland. Thank you for the opportunity to testify.
[The prepared statement of Paul Helmke follows:]
Prepared Statement of Hon. Paul Helmke on Behalf of The U.S. Conference
of Mayors
Mr. Chairman, I am Paul Helmke, Mayor of Fort Wayne, Indiana.
I am pleased to appear today on behalf of The U.S. Conference of
Mayors, a national organization that represents more than 1,050 U.S.
cities with a population of 30,000 or more.
The Conference and its member mayors have been involved extensively
in the legislative debate on brownfields redevelopment and related
efforts to enact much needed reforms to the nation's ``Superfund'' law.
I presently serve as a as co-chair of the Conference's Mayors and
Bankers Task Force which is focusing on financing brownfield
redevelopment deals. I am also a Past President of the Conference of
Mayors.
Mr. Chairman, the Conference's statement addresses a number of
areas pertaining to the legislation before this Subcommittee today.
<bullet> First, it discusses why we believe Congress needs to act on
legislation to further the efforts of cities and other
communities in recycling brownfield properties.
<bullet> It presents new information documenting the scale of the
brownfields problem and the many benefits that can be achieved
by federal policy changes in support of our efforts.
<bullet> It explains what mayors have been learning in our continuing
work with bankers and other financial interests, particularly
how legislative reforms can help stimulate additional private
sector investment in these sites.
<bullet> Finally, it reviews how pending legislation responds to the
many issues raised by mayors and others who are seeking to
redevelop these sites.
why congress needs to act on legislation
Mr. Chairman, I would like to begin by acknowledging your
continuing efforts, and those of others on this Committee, to address
the many issues pertaining to brownfields redevelopment and selected
reforms to the nation's Superfund law.
Securing bipartisan consensus on legislation on these matters is a
top priority for The U.S. Conference of Mayors. Mr. Chairman, we
believe the time has come to act decisively and promptly on brownfields
and selected Superfund reforms.
Mr. Chairman, the Conference also acknowledges and appreciates the
many efforts by the Administration, particularly U.S. EPA Administrator
Carol Browner, and those of you in Congress who have supported policies
and initiatives, such as funding for local brownfield programs, to
further our efforts to recycle America's land. These programs and
policies have certainly helped, and again let us underscore that we are
very appreciative of these efforts. But, as a nation, we are not making
progress at a rate that is quick enough or substantial enough given
other considerations, which we discuss further in this statement.
The problem of brownfields lying fallow, coupled with our nation's
appetite for open space, is of epidemic proportions. To date, our
collective actions are inadequate in meeting these and other challenges
before the nation.
Anyone who examines the brownfields issue acknowledges the need for
broader strategies to promote the redevelopment of these sites. They
also share a sense of urgency in acting promptly to address this
national problem.
Need for Bipartisan Action
For our part, we have tried to articulate why bipartisan action and
leadership by the Congress and the Administration are needed. The
Conference has also focused its efforts in support of broad, bipartisan
legislative initiatives.
Since I served as Conference President, the nation's mayors have
worked with Representative Sherwood Boehlert to support his efforts to
secure bipartisan agreement on these issues. It now appears that these
efforts have helped produce a consensus-based bipartisan agreement.
Tomorrow, the House Transportation and Infrastructure Committee is
expected to act decisively on its pending legislation, H.R. 1300, the
``Recycle America's Land Act.''
The agreement that will come before that committee affirms our view
that a national strategy to deal brownfields necessarily requires broad
consensus among Democrats and Republicans. We believe that such a
consensus needs to be enduring over time, because the nature of this
problem does not lend itself to a one-time legislative correction.
Each of the bills before you today is intended to move the nation
forward in dealing with brownfields. We know that this legislation is
not an endpoint. We anticipate working with you and future Congress' on
redirecting the tax code, infrastructure investment patterns
particularly in transportation, and other policies in the environmental
and housing arenas, to make recycling our nation's land part of the
nation's development life cycle.
We also envision an enduring bipartisan commitment by the Congress
to challenge investment practices and public, private and individual
decision-making that unnecessarily consume our precious greenfields as
brownfields are discarded.
Effects of Current Policy
We know that Superfund's liability regime too often drives private
sector investors from brownfields to more pristine locations. We know
these rules punish innocent parties, fueling a development cycle that
is unsustainable. We know that current law must be reformed to undo the
bias toward new land resources over recycling land that is already
urbanized or developed.
Mitigating the effects of this nearly twenty-year Superfund policy
will require actions on several fronts. The legislation before you
today is the first step in reversing or slowing down our predisposition
for pristine land. Foremost among these provisions are protections for
innocent party developers and others as well as resources and other
incentives to help us undo the stigma on these properties and begin to
reshape investment decisions by the private sector.
We also share the view that the problem of brownfields is national
in scope and transcends more localized interests in reusing these
properties.
Let us explain further. As I have so often discussed in my speeches
on this subject, we see a nation where our open spaces--farms, forests
and other lands--are being consumed at an alarming rate. At the same
time, we know that the nation's already substantial and growing
inventories of previously developed lands, most notably brownfields,
are vast and can be tapped to slow our nation's demand for open space.
We see a nation where existing communities, particularly our older
industrial centers, suffer unreasonably from the lingering effects of
economic shifts and prior land uses. Once-productive lands lay fallow
or underutilized, as inventories of brownfields grow relentlessly all
across the nation. And, adding Superfund to the mix is one more burden
added on. All of us know that this cycle--abandoning used properties in
favor of pristine greenfields--can't be sustained without serious
consequences for the nation.
At the same time, with your support in the Congress and in the
Administration, mayors are dealing with public education and public
safety, updating their infrastructure, initiating other investments and
improvements to make our cities more attractive to private investors,
families and individuals.
All of us increasingly understand that our patterns of urbanization
are already saddling our citizens and our nation with unanticipated and
unacceptable burdens, promising only more of the same in the not too
distant future. Shrinking open spaces in areas where most Americans
live and work is just one symptom of the many ills brought about by
this cycle of using and disposing of our land.
Consider some examples of this such as declining air and water
quality, escalating flood control and transportation investment needs,
and threats to drinking water supplies. As one indicator, consider that
of the more than 1,050 U.S. cities with a population of 30,000 or more,
nearly two-thirds of them are in areas that exceed national air quality
standards for ozone. We know our development patterns are aggravating
efforts to combat air pollution in areas where so many Americans now
live and work. And, such patterns challenge us in other important
areas, such as in the transportation arena where we are working to
increase mobility, improve air quality and grow the economy.
To illustrate this point further with brownfields, we have sites
that are already situated to take advantage of road and street
networks, public transit and rail capacities, as well as other assets
that come with reusing properties in existing communities. At the same
time, we are investing at a feverish pace to build new roads, new
streets, new schools and other new systems to serve fewer people living
farther away from existing and established communities.
We all know where this development cycle is taking us and the
stresses it continues to place on existing communities, our natural
resources and available public and private capital resources. How we
consume the nation's land resources, including our failure to
effectively recycle brownfields, is at the core of this.
We also see a nation where existing communities which are
repositories for so much of our nation's human, economic, environmental
and cultural resources needlessly placed at risk, as we, collectively,
turn a blind eye to the wasteful use of our nation's land.
Each of us here today, and mayors and local officials across this
country, can testify to these realities and offer perspectives on the
broader challenges before the nation. For most of us, it is about
renewal and the sustainability of existing communities, where so many
Americans now live and work and upon which all of us depend. It is
where we have invested generations of the taxpayers dollars and where
we continue to extract so much of the wealth that keeps the national,
state and regional economies growing.
It is also about meeting the challenge of making welfare reform
work where jobs are being created and retained in close-by
neighborhoods and business districts, not just an exercise in
terminating public assistance and sentencing our most vulnerable
citizens to endless bus trips elsewhere in search of jobs and income.
For many mayors, redevelopment of these sites is about securing a
fairer share of state and federal resources to upgrade
infrastructures--water, sewer, roads and streets, school buildings--to
make their communities more competitive in the marketplace. This is
about leveling the playing field, offering some comparability in the
quality of public facilities and infrastructures. We now offer modern
and new infrastructures in our growing areas, but we do so by directing
substantial shares of the public's capital to these areas, while
depleting the asset base of our existing communities.
Just to cite a few examples of many. We would point out how Clean
Air standards are now applied to the established and denser, closer-in
areas of the non-attainment areas, not the outlying and developing
areas which have gone unnoticed in air models. Or, consider the
application of municipal stormwater requirements to the preponderance
of larger and established communities, like cities with a population of
100,000 or more, not the faster growing and newer developing areas
where options are more plentiful and can be deployed more readily at
less cost. These are examples of federal policies which further
motivate businesses to look for greenfields, where too often our
transportation and other infrastructure investment dollars are more
plentiful or soon will be captured.
For our discussion this morning, consider what we know about
Superfund and how its liability provisions have scared private sector
investors away from already urbanized lands, much of which is viewed as
``tainted'' property or brownfields, and toward our greenfields.
Yet, despite this record before the Congress and this Committee,
and the acknowledgement by so many policy-makers of the effects of
brownfields on the nation, we continue to search for ways to break out
of the Congressional impasse. We are very hopeful that the House
Transportation and Infrastructure Committee's agreement on H.R. 1300
will demonstrate that there is a way out of this impasse.
Mr. Chairman, we know that you and the Members of this Subcommittee
are well attuned to these issues, as evidenced by the very important
provisions included in the legislation before you today. We believe it
is crucial that you act, and act in a bipartisan way, to help change
the way we use land in America.
We must adopt these reforms, and do so this year, to provide more
parity for decisions affecting how our land resources are used. Such
reforms will help us to grow smarter in the future.
These reasons explain why the nation's mayors are so strongly in
support of bipartisan legislative efforts to redirect federal policies
and further engage with our communities in tackling the brownfields
problem.
new information on scope of brownfields problems and benefits of
positive policy reforms
Mr. Chairman, I am pleased to report to you and this Subcommittee
on the findings of the Conference's Second Annual Brownfields Survey.
Information from this report supports many of our statements about why
legislation is needed. It also substantiates many of the key provisions
of the pending legislation, be it H.R. 1300, H.R. 1750 or H.R. 2580,
before the Subcommittee today.
Mr. Chairman, let me now provide you with some of the key findings
to amplify further what we believe are some of the key issues before
this Subcommittee today as you prepare for action on pending
legislation.
First, the findings confirm that brownfields are a national problem
and broad in scope. Our results are drawn from more than 220 cities, a
sample of cities, both large and small, in 39 states and Puerto Rico.
In our survey, 180 cities, collectively, reported more than 19,000
brownfields sites totaling more than 178,000 acres, a land area that is
larger than the cities of Seattle, San Francisco and Atlanta combined.
This sample size represents a relatively small universe of the nation's
more than 28,000 municipalities, suggesting a scale to the problem that
is disturbing at best.
Cities were asked to identify obstacles to redeveloping brownfields
in their communities. Of the top three responses, the need for cleanup
funds was identified as the number one obstacle, followed by liability
issues and the need for environmental assessments. The relative ranking
of obstacles is the same as last year's survey of about 140 cities.
Mr. Chairman, we note that the pending legislation deals directly
with the top three issues that were identified in our survey. Each of
the bills address a range of liability issues affecting innocent public
and private parties and they also authorize funding for assessment of
these sites and to clean up brownfields.
We also found that three out of every four cities expressed the
view that their communities will need additional resources beyond
cleanup funds and assessment funds in support of their efforts to
redevelop brownfields. This finding underscores earlier points in our
testimony about the need to look at the tax code and incentives here as
well as how infrastructure investment dollars are being deployed.
The survey also documented the substantial benefits that can be
realized for cities and the nation through the redevelopment of these
sites. About two-thirds of the respondents provided estimates of local
revenue gains which could be realized through redevelopment of
brownfields. Collectively, they estimated the potential local revenue
gains of nearly $1 billion annually under a conservative estimate and
about $2.7 billion annually under an optimistic estimate.
In a related area of inquiry, cities were asked to provide
estimates of how many new people they could absorb without adding
appreciably to their existing infrastructure. While 180 of the
respondents indicated they could absorb more people, only 115 provided
actual numbers.
Astoundingly, these 115 cities reported that they could absorb more
than 3.4 million without adding appreciably to their infrastructure, a
population about equal to the City of Los Angeles, our nation's second
largest city. To put these numbers in context, this capacity is equal
to about 16 months of the nation's population growth.
In a relatively small sample of municipalities nationwide, albeit
generally larger ones, the survey provides clear evidence of the
substantial, incumbent carrying capacity of existing communities. If we
can find ways to tap these capacities, and we believe that brownfields
redevelopment is a key piece to this equation, we can realize
substantial savings for all of the nation's taxpayers. Consider the
potential savings to the nation if we can minimize the public and
private costs of building the equivalent of one new Los Angeles City
every 16 months over the next decade.
And, consider the implications of this in terms of our consumption
of land. If we pursue policies, like an expanded commitment to
brownfields redevelopment and other means to reinforce existing
communities, we can slow the nation's consumption of farmlands and open
spaces. Today, the nation is growing in ways that uses more and more
land to serve fewer and fewer people.
In the area of job creation, 168 cities estimated that reuse of
these brownfields could generate more than 675,000 jobs. This supports
our claims that there are vast opportunities to develop jobs in
existing urban areas and neighborhoods, a particularly important
finding as we continue to implement welfare reforms emphasizing welfare
to work.
Finally, in our findings on the status of state voluntary cleanup
programs, cities reported that where such programs were in effect, a
sizable majority indicated that these programs were at least
satisfactory, if not better.
Alternatively, you can describe these results more negatively by
combining cities that indicated the questions on state voluntary
programs were not applicable with those giving their state a ``not very
good'' or ``poor'' ranking. Under this method, more than one-half of
the respondents indicated that voluntary cleanup programs didn't apply
or they were ranked poorly. This assessment suggests the need for
further investment in state voluntary cleanup programs, as provided in
the pending legislation before you.
perspectives on banking and lenders support for brownfields
Mr. Chairman, as you know, the Conference has been working
extensively with bankers and other financial interests to explore ways
to increase investment in brownfields redevelopment.
Last year the Conference formed a Mayors and Bankers Task Force to
work with representatives of the Federal Home Bank System and others to
examine ways to facilitate investment by member banks in brownfields.
We have learned that liability under Superfund is their dominant
concern. Despite progress in securing ``comfort letters'' at many
sites, lender liability reforms and growing confidence in state program
efforts, there is real anxiety, and we would wish otherwise, among
bankers and other lenders on these issues. The specter of Superfund
liability severely limits their ability to increase the flow of private
capital into these projects.
We have heard repeatedly--in our work with members of the Federal
Home Loan Bank System through our Task Force and in our other efforts
with financial interests--that lenders are not willing to move
aggressively on brownfields until there are legislative reforms to
Superfund. They have told us that the private sector is prepared to
substantially increase capital flows to projects on brownfield sites as
soon as Congress enacts legislation that explicitly shields innocent
parties from Superfund's liability scheme.
Today, we are enjoying the benefits of one of the longest economic
expansions in our nation's history. If there is a time to enact changes
to stimulate private sector investment in these sites, it is now. This
is the time to demonstrate to investors and others--when private
capital is plentiful and available for new investment opportunities--
that brownfields redevelopment can be successful. Such successes will
help carry our future efforts to attract investment in brownfields
during the leaner times which will inevitable come as the economy moves
to other cycles.
Mr. Chairman, when mayors talk about brownfields, our federal
partners sometimes only hear us asking for federal partnership
resources in support of brownfields redevelopment, as if mayors are
suggesting that public resources alone will solve the brownfields
problem. As you know, mayors are fairly attuned to the realities of our
market economy. We know that the private sector is the dominant
investor and the pivotal actor in determining how successful we, as a
nation, will be in recycling brownfields. It also explains the
particular priority we place on ensuring that any legislation include
liability protections for innocent third parties.
However, conversely, we also know that a market economy, fueled by
liability reforms, doesn't respond fully to the problem either. There
are many types of brownfields in all circumstances and locations. For
these reasons, we also know that public investment is crucial in
defining our success in recycling these sites. Again, Mr. Chairman, the
bills before you account for these realities by providing resources
directly to communities to help us assess and clean up these sites,
providing us with added resources and capacities to partner with the
private sector.
perspectives on the legislation
Mr. Chairman, finally, we want to amplify further some of our views
on specific provisions of the legislation before this Committee.
We have described throughout this testimony why legislative action
is needed. The following further describes some of the priority issues
of concern to the mayors in acting on legislation affecting
brownfields.
First, we want to reemphasize the importance of liability reforms,
an area that was just discussed in this statement. These provisions
address a number of circumstances where cities and other public
agencies unfairly find themselves subject potentially to Superfund's
strict liability standards.
In addition to the prospective purchaser provisions, which is a
common element in each of the pending bills and an absolutely critical
element of any package of reforms, we also strongly support liability
reforms contained in H.R. 1300 and H.R. 2580 to address the many
circumstances whereby cities and other local governments have acquired
brownfield properties in the past. Under these provisions, cities and
other public agencies are rightly afforded innocent party relief in the
performance of local government functions.
Local governments routinely acquire such properties through
condemnation proceedings to protect public health and safety or in
settling tax disputes. There are also circumstances whereby their
economic development functions result in taking title to these
properties. These are important provisions that should be included in
any legislation you adopt.
The pending bills also authorize funding for both assessment
efforts and local cleanup programs, providing criteria to help U.S. EPA
determine how to provide these funds in support of local programs.
Provisions of H.R. 1300, which we support, place no limit on future
federal funding for either purpose, providing Congressional
appropriators with flexibility in future years to increase commitments
to these activities.
We are pleased that each of the bills authorize resources to help
states further strengthen their voluntary cleanup programs. We hope
that the legislation that is adopted by this Committee, as provided in
H.R. 2580, will encourage states to use these funds to place more
priority on efforts to bolster state programs in support of brownfield
cleanups. Considering the many thousands of such sites all across the
country, we are hopeful that these funds will help states move to
address brownfields more responsively.
We are also pleased that this legislation clarifies the balance
between state and federal program authority, providing more certainty
for the private sector and local officials about the state's authority
to make final decisions affecting brownfields. We need to concentrate
U.S. EPA's efforts on sites where the level of contamination rises to a
federal interest. Without this certainty on state authority, we can't
hope ever to provide the necessary assurances sought by private
investors in brownfield sites, let alone secure final decisions on the
hundreds of thousands of brownfields sites we are seeking to clean up
and redevelop.
This issue, known as ``finality,'' is particularly important to
local officials seeking to redevelop these sites. The mayors and others
continue to emphasize that for virtually every non-NPL site, there is
no real federal presence today, other than the perceived ``potential''
of federal interest or action. In taking action on legislation to deal
with finality, these provisions must be clear and decisive so that the
private investors, local officials and others understand that the state
can act. This was among the most challenging issues for the
Transportation and Infrastructure Committee in structuring its broad,
bipartisan agreement on H.R. 1300. We would encourage panel members to
examine how this Committee balanced state and federal authority in this
area, providing a balanced and bipartisan approach to this issue.
Mr. Chairman, we also want to indicate our interest in seeing
provisions that would help accomplish more cooperation and integration
of applicable federal laws and standards. One of the areas that H.R.
1300 does not address is the applicability of RCRA and LUST
specifically at brownfield sites. Mayors have been very consistent in
urging more attention in federal policies to a ``one-stop'' brownfields
regulatory program at the state level, where states, which are vested
with delegated authority, can provide more coordinated and integrated
programs. Such an approach would respond to the realities of the
contaminants and types of problems that localities encounter at these
sites.
I would note that H.R. 2580 provides authority for RCRA waivers to
allow states to integrate this law's permit requirements with cleanups
of brownfields. I understand that this provision does not diminish or
alter RCRA requirements, but is intended to give states some
flexibility in delivering a more responsive and coordinated regulatory
program in addressing brownfields. This or some variant of this
provision would be very helpful to those of us at the local level who
often find ourselves confronting increased complexity at specific sites
as we work to return them to productive use.
While the focus of this hearing is on brownfields-related
provisions, I wanted to note particularly our support for liability
reforms that limit municipal liability at Superfund sites where
municipal solid waste was disposed and for transporters and generators
of municipal solid waste (MSW). We also have an interest in securing
liability relief for wastewater treatment operations.
Finally, we want to note our support for provisions in H.R. 1300
that extend the Superfund taxes as part of the legislation. Meaningful
reform is dependent upon a reliable revenue stream to ensure that
highly contaminated sites are cleaned up and the land is restored to
productive uses.
closing comments
Mr. Chairman, we want to express again our thanks to you and
Members of this Subcommittee for holding this hearing today and your
continuing efforts to move this important legislation during the First
Session of the 106th Congress.
The nation's mayors believe that the time has come for bipartisan
action on brownfields and selected Superfund reforms. In moving broad
bipartisan legislation forward, you can count on the support of the
nation's mayors in this regard.
On behalf of The U.S. Conference of Mayors, we appreciate this
opportunity to share the view of the nation's mayors on these important
issues.
Mr. Greenwood [presiding]. Thank you very much.
Mr. Stypula.
STATEMENT OF DONALD J. STYPULA
Mr. Stypula. Representative Greenwood and Representative
Towns, my name is Donald Stypula. I am the Manager of
Environmental Affairs for the Michigan Municipal League which
represents all 534 cities and villages in the State of
Michigan. One of my prime responsibilities in that capacity is
to help communities across the State deal with the brownfields
issues, and we have done that quite successfully.
I am pleased to testify here today on behalf of the
National Association of Local Government Environmental
Professionals, or NALGEP. We represent city and county
environmental managers and more than 120 local government
entities across the country. NALGEP members include many of the
leading brownfields communities, including many that are
represented by members of this subcommittee, such as Baltimore;
Chicago; Lima, Ohio; San Diego; Des Moines, Dade County,
Florida; Milwaukee; Boston; and Los Angeles.
NALGEP has been working actively with local governments
since 1995 when we began a project which led to the publication
of our first report which was referenced earlier. It was
entitled ``Building a Brownfields Partnership from the Ground
Up: Local Government Views on the Value and Promise of National
Brownfields Initiatives.'' and the organization continues to
work on brownfields, Smart Growth and other environmental
projects.
Today I will offer comments about how local governments
need Federal brownfields legislation and additional Federal
funding for the assessment, cleanup, and development of
brownfields across the Nation. The cleanup and redevelopment of
brownfields is one of the most exciting and challenging
opportunities facing the Nation, and I would like to compliment
the members of this subcommittee and the full committee for
their leadership in promoting legislative solutions to this
important issue.
Virtually every community in this Nation faces a
brownfields challenge. There has also been tremendous progress
at the State and local level to remove the barriers to
brownfields revitalization. My own State of Michigan provides
an example of how State leadership, in cooperation with Federal
incentives and local coordination, can make a difference in
brownfields redevelopment.
Michigan has one of the Nation's best voluntary cleanup
programs, and in cities--like my hometown of Lansing--Marquette
and Detroit, brownfields projects have revitalized entire
sections of those communities. A survey of just 33 of our
communities across the State shows that our brownfields program
in Michigan has already resulted in more than $1 billion of
private investment and the creation of more than 5,000 new jobs
across the State.
However, despite countless examples of brownfields success,
local communities across the Nation still need Federal
legislation to clarify the continuing spectrum of Superfund
liability, to authorize more State leadership on voluntary
brownfields cleanup in cooperation with the Federal Government,
and to provide additional Federal resources for the assessment,
remediation and redevelopment of these blighted sites.
Certainly, brownfields leaders in this Congress, including
a member of this subcommittee, have reached a consensus on most
of the important brownfields issues. NALGEP and its local
government members hope that the remaining bridges can be
gapped and that progress can be made on this critical issue in
this Congress.
There are two points that I wish to emphasize. First, local
communities badly need additional Federal resources to support
the assessment, cleanup and redevelopment of brownfields.
Brownfields are a smart investment by the Federal Government in
partnership with local and State governments and the private
sector. Brownfields investment can yield a bountiful harvest of
revitalized neighborhoods, new jobs, economic development,
increased tax base, the protection of public health and the
avoidance of sprawling development on the fringe of our cities,
as the mayor noted.
NALGEP has found a need for Federal resources to continue
local site assessment activities, to support the capitalization
of local brownfields remediation revolving loan funds, to bring
Federal agencies together to support infrastructure and
economic development in brownfields, and to provide remediation
grants to local governments for brownfields cleanup. NALGEP
emphasizes the need for brownfields remediation grants to local
governments to help fill the well-known gap in remediation
funding at the local level.
We emphasize that in the Senate, both Republicans and
Democrats have developed solid, much-needed proposals for
cleanup grants.
Second, there is a clear need for Federal legislation to
clarify and promote the critical role that States play in the
voluntary remediation of brownfields properties. NALGEP has
found that States with effective voluntary cleanup programs,
like my own, and the ability to resolve liability issues at
these sites is necessary to give confidence to purchasers,
lenders, developers, and municipalities in brownfields
revitalization. Thus, we believe there is a need for Congress
to further clarify and limit liability for nonresponsible
parties such as innocent landowners, prospective purchasers and
owners of contiguous properties.
There is also a need for Congress to allow qualified States
that meet minimum requirements to take the lead in clarifying
brownfields liability and issuing no further action decisions
for local or for non-NPL sites, and we believe that there is a
need for Congress to provide a continued safety net of Federal
authority for those exceptional circumstances in which a
voluntary cleanup is not sufficient to protect public health
and the environment, and the State is not willing nor is it
able to ensure adequate remediation. EPA would----
Mr. Greenwood. I am going to have to ask you to summarize.
Mr. Stypula. We also believe that EPA should have the
ability to retain its ability to reopen its involvement in a
particular brownfields site under some very exceptional
circumstances. Anyone who has watched this program, who has
followed the program of the brownfields issue in this Nation,
knows that the opportunity for us to achieve great
environmental economic and community benefits from
revitalization of brownfields exists, and the time is now in
this Congress to get the work done.
NALGEP and local governments across the Nation thank you
for the opportunity to talk with this subcommittee on this
important issue. Together we should be able to help things get
better in our Nation's brownfields in a manner consistent with
the goals of this committee and this Congress. I will be happy
to answer any questions.
[The prepared statement of Donald J. Stypula follows:]
Prepared Statement of Donald J. Stypula, Manager of Environmental
Affairs, Michigan Municipal League, on Behalf of the National
Association of Local Government Environmental Professionals
Mr. Chairman and distinguished members of the Subcommittee, my name
is Donald Stypula, and I am the Manager of Environmental Affairs for
the Michigan Municipal League, which proudly represents 534 cities and
villages across the State of Michigan. I am here today to testify on
behalf of the National Association of Local Government Environmental
Professionals. or ``NALGEP.'' NALGEP appreciates the opportunity to
present this testimony on the views of local government officials from
across the nation on the need for additional federal incentives to
promote the cleanup, redevelopment and productive reuse of brownfields
sites in local communities.
NALGEP represents local government officials responsible for
ensuring environmental compliance, and developing and implementing
environmental policies and programs. NALGEP's membership consists of
more than 120 local government entities located throughout the United
States, and includes environmental managers, solid waste coordinators,
public works directors and attorneys, all working on behalf of cities,
towns, counties and municipal associations. Our members include many of
the leading brownfields communities in the country such as Portland,
Salt Lake City, Dallas, Cuyahoga County and others. NALGEP members also
include communities represented by distinguished members of this
Subcommittee that are engaged in brownfields revitalization
initiatives, including Baltimore; Chicago; Lima, Ohio; San Diego; Des
Moines; Dade County, Florida; Denver; Milwaukee; Boston; and Los
Angeles. In Michigan, NALGEP members include 12 municipalities,
including Bangor, Bay City, Detroit, Escanaba, Farmington Hills, Grand
Rapids, Hudsonville, Ionia, Lansing, Troy, Washtenaw County and Wayne
County.
In 1995, NALGEP initiated a brownfields project to determine local
government views on national brownfields initiatives such as the EPA
Brownfields Action Agenda. The NALGEP Brownfields Project culminated in
a report entitled Building a Brownfields Partnership from the Ground
Up: Local Government Views on the Value and Promise of National
Brownfields Initiatives, which was issued in February, 1997. Since that
time, NALGEP has testified on brownfields issues to this Committee as
well as to the House Transportation and Infrastructure Committee and
the Senate Environment and Public Works Committee.
During the past two years, NALGEP has continued its work on
brownfields through coordinating work groups of local officials to
address the following issues: (1) Brownfields Cleanup Revolving Loan
Funds; (2) use of HUD Community Development Block Grants for
Brownfields; (3) building partnerships between business and local
government officials to reduce spill and promote smart growth; and (4)
implementing the Administration's Brownfields Showcase Community
initiative. As a result of these efforts, NALGEP is well qualified to
provide the Committee with a representative view of how local
governments, and their environmental and development professionals,
believe the nation must move ahead to create long-term success in the
revitalization of brownfields properties.
NALGEP's testimony today will focus on the following areas: (1) the
continued need for federal funding to support the cleanup and
redevelopment of brownfields sites across the country; (2) the need for
further liability clarification, including for State leadership on the
voluntary remediation of brownfields, to encourage the private sector
to step forward and revitalize more sites; and (3) the need to
facilitate the participation of other federal agencies (e.g., Army
Corps of Engineers, Department of Transportation, HUD) in supporting
local brownfields initiatives.
The cleanup and revitalization of brownfields represents one of the
most exciting, and most challenging, environmental and economic
initiatives in the nation. Brownfields are abandoned, idled, or under-
used industrial and commercial properties where expansion or
redevelopment is hindered by real or perceived contamination. The
brownfields challenge faces virtually every community; experts estimate
that there may be as many as 500,000 brownfields sites throughout the
country.
The brownfields issue illustrates the connection among
environmental, economic and community goals that can be simultaneously
fostered through a combination of national leadership, state
incentives, and the innovation of local and private sector leaders.
Cleaning up and redeveloping brownfields provides many environmental,
economic and community benefits including:
<bullet> expediting the cleanup of thousands of contaminated sites;
<bullet> renewing local economies by stimulating redevelopment,
creating jobs and enhancing the vitality of communities; and
<bullet> limiting sprawl and its associated environmental problems such
as air pollution, traffic and the development of rapidly
disappearing open spaces.
michigan's brownfields initiatives
The Michigan brownfields program is one of the most active and
successful in the nation, demonstrating the value of coordinated state,
local and federal regulatory incentives. In 1995, at the request of the
Michigan Municipal League and the state's mayors, the Michigan
Legislature adopted sweeping amendments to the state's contaminated
site cleanup law that have accelerated the identification, assessment
and cleanup of environmentally impacted properties and fostered the
reuse and redevelopment of those parcels for job-producing enterprises.
The new Part 201 of our state environmental code clarifies
liability to ensure that those responsible for contamination are liable
for its cleanup. The 1995 amendments also yielded a more common sense
approach to cleanup criteria and gave municipalities and redevelopers
an expanded menu of cleanup remedies that tailor site cleanups to
zoning and land uses.
The results of these changes to Michigan's law were stunning and
immediate. Within hours of the Governor's signature on the package of
bills, the City of Ionia, Michigan signed an agreement to remediate and
redevelop a parcel of abandoned industrial property considered the
``gateway'' to the city. Where once visitors were greeted by a
contaminated and rusting industrial eyesore, they now lodge at a new
hotel and dine at new restaurants.
In 1996, again at the urging of the state's mayors, the Legislature
enacted a unique brownfields financing mechanism that allows
municipalities to create brownfields redevelopment authorities to
``capture'' property tax revenues on targeted parcels for up to five
years and use that revenue to finance remediation and redevelopment
activities. Finally, in November, 1998, Michigan voters overwhelmingly
approved a $675 million, six-year bonding program that funnels more
than $300 million into brownfields remediation and redevelopment
activities.
Over the past four years, a large number of Michigan's 534 cities
and villages and 83 counties have taken advantage of one of more of
these new tools to identify, investigate, remediate and spur the
redevelopment of abandoned industrial complexes, auto repair shops and
dry cleaners. For example, in 1996, the City of Lansing used the new
Michigan law to investigate and remediate a collection of contaminated
parcels and developed a new minor league baseball stadium that draws
more than 6,000 spectators to nightly games. Earlier this year, the
City of Marquette partnered with redevelopers to convert a long-
abandoned and contaminated industrial complex into new upscale housing,
shops and restaurants on the shores of Lake Superior. And, as I present
this testimony, the City of Detroit is using Michigan's Part 201
cleanup program to remediate a large parcel of property in the heart of
downtown that will soon be home to more than 6,000 new, highly-paid
employees of a global computer software firm relocating from the
western suburbs.
According to survey data from just 33 Michigan cities, compiled by
the Michigan Department of Environmental Quality (MDEQ), the state's
brownfields program has channeled significant levels of private
investment into Michigan's core cities. Projected development in the 33
cities surveyed in 1999 totaled $1,024,988,000 in private investment,
an increase of 223 percent over 1997. More importantly, this private
investment on brownfields sites led to the creation of 4,796 jobs, an
increase of 40 percent over the projected 1997 job creation numbers.
Despite these dramatic gains, however, some urban redevelopment
projects ranging from large factory sites in Detroit to corner gas
stations in small Upper Peninsula towns, are still hampered by a lack
of financial resources and the fear of Superfund liability.
As a founding member of NALGEP, the Michigan Municipal League
strongly supports NALGEP's view on the need to clarify Superfund
liability for state-administered brownfields programs, facilitate
participation of and coordination with other federal agencies in
brownfields revitalization efforts, and provide federal financial
resources to communities across the nation that seek to remediate and
encourage redevelopment of brownfields sites.
brownfields legislative needs
I. Ensuring Adequate Resources for Brownfields Revitalization
NALGEP finds that to ensure long-term success on brownfields, local
governments need additional federal funding for site assessment,
remediation and economic redevelopment. The costs of site assessment
and remediation can create a significant barrier to the redevelopment
of brownfields sites. In particular, the costs of site assessment can
pose an initial barrier that drives development away from brownfields
sites. With this initial barrier removed, localities are much better
able to put sites into a development track. In addition, the allocation
of public resources for site assessment can provide a signal to the
development community that the public sector is serious about resolving
liability issues at a site and putting it back into productive reuse.
The use of public funds for the assessment and cleanup of
brownfields sites is a smart investment. Public funding can be
leveraged into substantial private sector resources. Investments in
brownfields yield the economic fruit of increased jobs, expanded tax
bases for cities, and urban revitalization. And the investment of
public resources in brownfields areas will help defer the environmental
and economic costs that can result from unwise, sprawling development
outside of our urban centers.
The following types of federal funding would go a long way toward
helping local communities continue to make progress in revitalizing our
brownfields sites:
<bullet> Grants for Site Assessments and Investigation: EPA's
Brownfields Assessment Pilot grants have been extremely
effective in helping localities to establish local brownfields
programs, inventory sites in their communities, investigate the
potential contamination at specific sites, and educate key
stakeholders and the general public about overcoming the
obstacles to brownfields redevelopment. Additional funding for
site assessments and investigation is needed to help more
communities establish local brownfields programs and begin the
process of revitalizing these sites in their communities.
<bullet> Grants for Cleanup of Brownfields Sites: There is a strong
need for federal grants to support the cleanup of brownfields
sites across the country. The U.S. Conference of Mayors' recent
report on the status of brownfields sites in 223 cities
nationwide indicates that the lack of cleanup funds is the
major obstacle to reusing these properties. For many
brownfields sites, a modest grant targeted for cleanup can make
the critical difference in determining whether a site is
redeveloped, creating new jobs and tax revenues, or whether the
site remains polluted, dangerous and abandoned.
<bullet> Grants to Capitalize Brownfields Cleanup Revolving Loan Funds:
In addition to grants, federal funding to help localities and
states to establish revolving loan funds (RLFs) for brownfields
cleanup is another effective mechanism to leverage public and
private resources for redevelopment. EPA deserves credit for
championing brownfields RLFs as a mechanism for helping
communities fill a critical gap in cleanup funding.
Unfortunately, the effectiveness of the EPA's current
brownfields cleanup RLF program is severely undermined by the
lack of new federal brownfields legislation. Under current law,
localities are required to jump through and over numerous
National Contingency Plan (NCP) bureaucratic hoops and hurdles
to establish their local RLFs. These NCP requirements were
originally established for Superfund NPL sites and not for
brownfields sites. Consequently, we strongly recommend that any
new legislation make it clear that local brownfields RLFs are
not required to meet the NCP requirements established for
Superfund sites.
II. State Leadership on Liability Clarification at Brownfields Sites
On the issue of federal Superfund liability associated with
brownfields sites, NALGEP has found that the Environmental Protection
Agency's overall leadership and its package of liability clarification
policies have helped establish a climate conducive to brownfields
renewal, and have contributed to the cleanup of specific sites
throughout the nation. It is clear that these EPA policies, and
brownfields redevelopment in general, are most effective in states with
effective voluntary cleanup programs. Congress can enhance these
liability reforms by further clarifying in legislation that Superfund
liability does not apply to certain ``non-responsible'' parties such as
innocent landowners, prospective purchasers and contiguous property
owners.
NALGEP has also found that States are playing a critical lead role
in promoting the revitalization of brownfields. More than forty states,
like Michigan, have established voluntary or independent cleanup
programs that have been a primary factor in successful brownfields
cleanup. The federal government should further encourage States to take
the lead at brownfields sites. States are more familiar with the
circumstances and needs at individual sites. Moreover, it is clear that
U.S. EPA lacks the resources or ability to provide the assistance
necessary to remediate and redevelopment the hundreds of thousands of
brownfields sites in our communities.
The effectiveness of state leadership in brownfields is
demonstrated by those states that have taken primary responsibility for
brownfields liability clarification pursuant to ``Superfund Memoranda
of Agreement'' (MOAs) with U.S. EPA. These MOAs defer liability
clarification authority to those states. In order to further facilitate
brownfields cleanups across the country, NALGEP finds that Congress
should create clear legal standards under which States that meet
minimum criteria can assume the primary role for resolving liability
and issuing no further action decisions for brownfield sites.
Legal authority for qualified states to play the primary role in
liability clarification is critical to the effective redevelopment of
local brownfields sites. A state lead will increase local flexibility
and provide confidence to developers, lenders, prospective purchasers
and other parties that brownfields sites can be revitalized without the
specter of Superfund liability or the involvement of federal
enforcement personnel. Parties developing brownfields want to know that
the state can provide the last word on liability, and that there will
be only one ``policeman,'' barring exceptional circumstances.
At the same time, local officials are also concerned about too much
cleanup authority too fast to states that have not clearly demonstrated
the ability to play a primary role. States vary widely in the technical
expertise, resources, staffing, statutory authority and commitment
necessary to ensure that brownfields cleanups are adequately protective
of public health and the environment. If brownfields sites are
improperly assessed, remediated or put into reuse, it is most likely
that the local government will bear the largest impact from any public
health emergency or contamination of the environment. NALGEP believes
that the U.S. EPA has a role to play in ensuring that liability
authority over brownfields sites should only be delegated to states
that demonstrate an ability and commitment to ensure protection of
public health and the environment in the brownfields redevelopment
process.
To foster expanded redevelopment of brownfields sites while
ensuring the protection of public health and the environment, NALGEP
finds that there should be three components to federal law giving
States the ability to play the lead role in brownfields liability
clarification. First, the law should clearly distinguish between
Superfund NPL sites and other sites subject to enforcement under CERCLA
or RCRA on one hand, and the remaining sites that can be put on a
``brownfields track.'' The delegation of liability authority to states
should focus on these ``brownfields track'' sites. Putting sites on a
brownfields track will allow the application of policy tools
specifically designed to foster expedited, cost-effective brownfields
redevelopment.
Second, NALGEP finds that liability authority over brownfields
sites should be granted only to state cleanup programs that can ensure
protection of public health and the environment. NALGEP suggests the
following types of criteria that should be demonstrated by states
desiring to play the lead role in brownfields liability clarification:
1. Mechanisms to ensure adequate site assessments early in the process.
Good site assessments will help prevent unanticipated problems
from surfacing, and facilitate efforts to direct particular
sites into a ``brownfields track.''
2. Adequate state technical expertise, staff and enforcement authority
to ensure effective implementation of cleanup activities.
3. Use of risk-based cleanup standards, that can be tied to reasonably
anticipated land use, established through an adequate public
approval process.
4. Institutional controls such as deed restrictions, zoning
requirements or other mechanisms that are enforceable over time
to ensure that future land uses tied to certain cleanup
standards are maintained.
5. Commitment to establish community information and involvement
processes.
6. Commitment to build the capacity, through training and technical
assistance, of local government health and environmental
agencies to effectively participate in the brownfields
development process and ensure protection of public health and
environment.
7. Adequate mechanisms to address unanticipated cleanups or orphaned
sites where liability has been eliminated.
NALGEP believes that it is appropriate for legislation to require U.S.
EPA to review and approve the certification of qualified states for
lead brownfields authority. However, such an EPA approval process
should not have the effect of delaying qualified states from stepping
forward, nor impose ``one-size-fits-all'' requirements on states with
different needs and different effective approaches to brownfields
redevelopment.
Finally, NALGEP believes that EPA's ability to reopen its
involvement at a particular brownfields site in a certified state
should be limited to situations where there are exceptional
circumstances and the state is not effectively addressing the problem.
An EPA reopener for particular sites is necessary to ensure that EPA
can become involved at any sites at which the state is unable or
unwilling to adequately respond to a substantial and imminent threat to
public health or the environment. At the same time, the reopener must
be sufficiently limited to permit the state to take the lead role at
brownfields sites, and to give confidence to developers, prospective
purchasers, lenders and local governments that EPA will not improperly
hinder or interfere in state liability decisions.
Therefore, in delegating brownfields authority for non-NPL caliber
sites to the states, NALGEP proposes that: EPA should provide that it
will not plan or anticipate further action at any sites unless, at a
particular site, there is: (1) an imminent and substantial threat to
public health or the environment; and (2) either the state response is
not adequate or the state requests US EPA assistance.
III. Facilitating the Participation of Other Federal Agencies in
Brownfields Revitalization
The cleanup and redevelopment of a brownfields site is often a
challenging task that requires coordinated efforts among different
government agencies at the local, state and national levels, public-
private partnerships, the leveraging of financial resources from
diverse sources, and the participation of many different stakeholders.
Many different federal agencies can play a valuable role in providing
funding, technical expertise, regulatory flexibility, and incentives to
facilitate brownfields revitalization. For example, HUD, the Economic
Development Administration, the Department of Transportation, and the
Army Corps of Engineers have all contributed important resources to
expedite local brownfields projects. The U.S. EPA and the
Administration have provided strong leadership through the Brownfields
Showcase Community project that is demonstrating how the federal
government can coordinate and leverage resources from many different
federal agencies to help localities solve their brownfields problems.
Congress can help strengthen the national brownfields partnership
by further clarifying that the various federal partners play a critical
role in redeveloping brownfields and by encouraging the agencies to
work cooperatively to meet local needs. For example, Congress should be
commended for legislation passed last year to clarify that HUD
Community Development Block Grant funds can be used for all aspects of
brownfields projects including site assessments, cleanup and
redevelopment. This simple step has cleared the way for communities
across the country to use these funds in a flexible fashion to meet
their specific local needs. Similarly, Congress should consider
clarifying that it is appropriate and desirable for the Army Corps of
Engineers to use its resources and substantial technical expertise for
local brownfields projects. In addition, Congress should consider
clarifying that Department of Transportation funds can be used for
cleanup activities associated with various transportation projects.
Congress also should work with EPA to determine how other agencies can
help facilitate more brownfields revitalization. By taking these steps,
Congress can give communities additional tools, resources, and
flexibility to overcome the many obstacles to brownfields
redevelopment.
conclusion
In conclusion, local governments are excited to work with the
federal government to promote the revitalization of brownfields,
through a combination of increased federal investment in community
revitalization, further liability clarification and authority for
qualified States, and other mechanisms to strengthen the national
partnership to cleanup and redevelop our communities. It is clear that
there is substantial agreement among the parties and the many
stakeholders seeking further brownfields revitalization in our
communities. NALGEP thanks the Committee for this opportunity to
testify, and looks forward to working with you as the process moves
forward.
Mr. Greenwood. Thank you, Mr. Stypula.
Ms. Kerbawy, please proceed.
STATEMENT OF CLAUDIA KERBAWY
Ms. Kerbawy. Good morning, members of the subcommittee. I
am Claudia Kerbawy. I am chief of the Michigan Superfund
program, and I am also primary spokesperson for reauthorization
issues for ASTSWMO. I am here today representing both ASTSWMO
and NGA.
State regulatory agencies have the primary responsibility
for ensuring the remediation of the vast majority of
brownfields. Our goal here today is to ensure that Federal
legislation is enacted which will help facilitate, not
complicate or impede the cleanup of non-NPL universe of sites.
We believe this goal can be achieved by clearly defining
the role of the Federal Superfund program in the future,
clearly defining which governmental agency will be given the
responsibility for determining when a site is fully remediated
and providing the means for State agencies to maintain the role
of primacy of brownfields sites.
It is ASTSWMO and the NGA's position that Governors should
be given the statutory right to concur with any new NPL listing
in their State. A recent ASTSWMO survey found that more than 90
percent of an identified universe of over 27,000 sites were
being addressed under 33 State programs. States today employ a
triage system whereby the worst sites are addressed first, and
most sites that could qualify for listing on the NPL are
already being worked on.
The question before the subcommittee is what should be the
appropriate role of the Federal Superfund program in the
future. Although more than 40 States have State Superfund or
voluntary cleanup programs, Federal Government assistance will
still be warranted in situations where States choose not to
develop a program or where there are sites that, due to either
technical or legal complexity or cost, a State cannot or would
prefer to have the Federal Government address. In addition,
there will always be the need for the Federal Government to
serve as the gorilla in the closet.
With the current status of State programs, the choice as to
whether a site is addressed by the Federal Government or the
State government should be determined by the State. While it is
current U.S. EPA policy to routinely seek concurrence from the
Governor before a site is listed on the NPL, it is not
mandatory that that concurrence be received. Although it is
rare when a dispute does occur, cleanup of the site gets
delayed and both the State and Federal Government can lose
credibility.
H.R. 2580 succinctly mandates that U.S. EPA must receive a
Governors' concurrence prior to listing a facility on the NPL.
We support this provision as it is clear, unambiguous, and
satisfies our goal of clarifying the role of the Federal
Superfund program in the future.
On the other hand, ASTSWMO and NGA do not support the NPL
listing provisions of H.R. 1300 and 1750, which both contain
more cumbersome and intrusive mechanisms for addressing this
issue that do not accommodate the variety of successful State
cleanup program provisions.
Today the Federal Superfund statute technically applies to
any site where a release occurs. However, the reality is that
the States are responsible for ensuring the remediation of all
the sites that do not score above 28.5 under the hazard ranking
system. Congress needs to decide definitely whether U.S. EPA
should retain a role in the remediation of non-NPL sites.
Although the majority of these typically brownfields sites will
never be placed on the NPL, they are still subject to CERCLA
liability even after a site has been cleaned to State
standards. States should be able to be released from both
Federal and State liability once a site has been cleaned to
State standards. Emergency actions should be the only
exceptions from any releases from Federal liability.
It appears to States that both H.R. 1300 and H.R. 2580
satisfy the goal of clarifying which governmental entity is and
should be responsible for deciding when a cleanup is complete
and when a party is released from liability. H.R. 1750's
provisions regarding finality are not satisfactory to the
States. ASTSWMO and NGA do not support the provisions requiring
State voluntary cleanup programs to be approved by the U.S.
EPA. In addition, the exceptions provided for by the language
in 1750 are not clear or precise.
If a State agency can effectively address the contamination
from a non-NPL site, that is one less site that will require
Federal resources. The results of a recent ASTSWMO survey
indicate that 33 responding States alone have completed 6,768
sites in just the last 4 years, and that they are working on
approximately 4,700 sites at any given time. Clearly, providing
Federal resources to State agencies to maintain their
infrastructure will ultimately save Federal resources and
ensure that sites are returned to productive use in an
efficient manner.
Both H.R. 1300 and 2580 provide grants to States for
brownfields site assessments and for establishing revolving
loan funds for response actions. H.R. 1750 does award grants to
States, but only if the administrator determines that a grant
to the State is necessary in order to facilitate receipt of
funds by one or more local units of government. We do agree
that local units of government should be allowed funding. That
should be provided. However, we don't think that Congress
should overlook the efficiency factor in using well-established
programs at the State level.
ASTSWMO and NGA appreciate the opportunity to testify today
on a topic of extreme importance to the States. We are
encouraged that the subcommittee is examining these issues and
look forward to working with you as you continue in the process
of developing brownfields legislation. I would be happy to
answer any questions you may have.
[The prepared statement of Claudia Kerbawy follows:]
Prepared Statement of Claudia Kerbawy, Chief, Environmental Response
Division, Michigan Department of Environmental Quality on Behalf of the
Association of State and Territorial Solid Waste Management Officials
Good morning Mr. Chairman and members of the Subcommittee. I am
Claudia Kerbawy and I am the Chief of the Michigan Superfund program. I
am also the primary spokesperson on reauthorization issues for the
Association of State and Territorial Solid Waste Management Officials
(ASTSWMO) and am here today representing both ASTSWMO and the National
Governors' Association (NGA) with whom this statement was jointly
prepared. ASTSWMO is a non-profit association which represents the
collective interests of waste program directors of the nation's States
and Territories. Besides the State cleanup and remedial program
managers, ASTSWMO's membership also includes the State regulatory
program managers for solid waste, hazardous waste, underground storage
tanks, and waste minimization and recycling programs. Our membership is
drawn exclusively from State employees who deal daily with the many
management and resource implications of the State waste management
programs they direct. As the day-to-day implementors of the State and
Federal cleanup programs, we believe we can offer a unique perspective
to this dialogue and thank you for recognizing the importance of the
State perspective.
We understand that the subject of today's hearing is Brownfields.
State regulatory agencies are responsible for ensuring the remediation
of the vast majority of Brownfield sites, therefore, our primary goal
is to ensure that federal legislation is enacted which will help
facilitate the cleanup of the non-NPL universe of sites. We believe
this goal can be achieved by 1) clearly defining the role of the
federal Superfund program in the future; 2) clearly defining which
governmental entity will be given the responsibility for determining
when a site is fully remediated; and 3) providing the means for State
agencies to maintain a role of primacy at brownfield sites. I will
focus my testimony on these three issues and examine how they are
addressed in H.R. 2580, ``The Land Recycling Act''; H.R. 1300, ``
Recycle America''s Land Act of 1999''; and H.R. 1750, ``The Community
Revitalization and Brownfield Cleanup Act of 1999.''
The Future Role of the Federal Superfund Program:
ASTSWMO supports the National Governors' Association position that
Governors should be given the statutory right to concur with any new
National Priority Listing (NPL) in their State. We believe the facts
support that position. States today employ a triage system whereby the
worst sites are addressed first. For example, only 8.9 percent (2,426)
of the total sites (27,235) identified by a recent ASTSWMO survey were
classified as inactive. (Summary of results contained in Attachment A).
It is, therefore, the strong belief of the ASTSWMO membership that most
sites that have been identified within a State that could qualify for
listing on the NPL are already being worked on by the State.
We believe the views of our membership were also validated by the
recent U.S. General Accounting Office (GAO) Report entitled,
``Hazardous Waste: Unaddressed Risks at Many Potential Superfund
Sites.'' In this report the GAO reviewed the status of 3,036 sites that
had pre-scored above 28.5 but for a variety of reasons, had not been
placed on the NPL. Out of a total of 3,036, sites only 7.6 percent
(232) were estimated by both the U.S. Environmental Protection Agency
(U.S. EPA) and State officials to potentially warrant listing on the
NPL. This confirms that the U.S. EPA regional staff had utilized good
judgment in not placing the vast majority of these sites on the NPL; it
also confirms that the hazard ranking system could be improved.
Therefore, the question before this Subcommittee is what should be
the appropriate role of the federal Superfund program in the future?
While there may be forty-plus States with State Superfund programs and
Voluntary Cleanup programs, there will always be States that choose not
to develop a program and federal government assistance may be
warranted. There will also be sites that due to either technical or
legal complexity or cost, a State either cannot address or may prefer
to have the federal government address, and there will always be the
need for the federal government to serve as the ``gorilla in the
closet.'' The point I wish to stress is that with the current status of
State programs the choice as to whether a site is addressed by the
federal government or State government should be determined by the
State. A Governor should be able to make the determination of whether a
site will be listed on the NPL. While it is U.S. EPA policy to
routinely seek concurrence from the Governor before a site is listed on
the NPL, it is not mandatory that the concurrence be received. If a
dispute should arise between U.S. EPA and a Governor, the process
within U.S. EPA is to have the Assistant Administrator for OSWER make
the final determination. Frankly, that is not a satisfactory policy.
Fortunately, there are very few sites where the States and U.S. EPA
disagree; however, when a dispute does occur the site quickly becomes
high profile and both the State and federal government can lose
credibility. As indicated by the ASTSWMO survey and GAO survey, the
States have clearly become the primary regulators for overseeing site
remediation. The NPL should be reserved for those sites that both the
State and federal governments believe warrant expenditure of federal
resources. The NPL is no longer reserved for the ``worst of the worst''
sites; rather the NPL has shifted to a venue for remediating sites
which require federal resources. The criteria for listing sites on the
NPL may quickly shift from one based solely on risk determinations to
one that considers resource needs.
H.R. 2580: H.R. 2580 succinctly mandates that U.S. EPA must receive
a Governor's concurrence prior to listing a facility on the National
Priorities List. We support this provision as it is clear, unambiguous
and satisfies our goal of clarifying the role of the federal Superfund
program in the future.
H.R. 1300: H.R. 1300 requires the President to generally defer
listing on the National Priorities List facilities at which a cleanup
that provides ``long-term protection of human health and the
environment is underway at that facility under a State response
program.'' H.R. 1300 also allows the President to defer listing of ``a
facility on the National Priorities List if the State is attempting to
obtain an agreement from a person or persons to perform a remedial
action that will provide long-term protection . . .'' Unlike the
language in H.R. 2580, this provision does not clearly address the
future role of the federal Superfund program. For example, we question
what the terms ``underway'' and ``attempting'' actually mean? Must the
``agreement'' in the State Voluntary Cleanup program be enforceable?
Many State Voluntary Cleanup programs enter into agreements that are
non-binding on either party; in other words, either the State or
voluntary party can exit the site from the State voluntary cleanup
program and the site will then be subject to traditional State
Superfund enforcement. H.R. 1300 also allows the President to place the
site on the NPL if, after a one-year time deferral, the State has not
made reasonable progress in obtaining an ``agreement''. States
routinely perform work on a site, including completion of the remedial
investigation/feasibility study, without responsible party involvement.
States are reimbursed for their costs once the responsible party enters
into an agreement with the State. This arbitrary one year period does
not account for work completed by the State, and we cannot support this
provision.
H.R. 1750: H.R. 1750 states the President shall not list ``a
portion of a facility subject to a response action plan approved under
a State program qualified under subsection (i)'' while ``substantial
and continuous voluntary response actions are being conducted in
compliance with the plan at that portion of the facility; or after
response activities conducted in compliance with the plan at that
portion of the facility have been certified by the State as complete.''
Again, this provision is not as clear as H.R. 2580. For example, this
provision states that States must approve a response action plan. Many
States approve response action plans prior to commencement of work, and
many merely review the plans but provide certifications upon
completion. As we read this language, only a site at which a response
action plan has been approved could be remediated free of U.S. EPA
interference. A State that only certifies a cleanup is complete could
be subject to having its sites listed on the NPL during remediation
activities. Also, this provision is only available to States that have
had their voluntary cleanup programs approved by the U.S. EPA. Both the
National Governors' Association and ASTSWMO oppose provisions which
allow the U.S. EPA to review and approve existing, established State
voluntary cleanup programs. There is no comparable voluntary cleanup
program model at the federal level and we question why programs which
were developed without federal government interference and with local
stakeholder involvement should be subject to federal approval? We
cannot support this provision.
The Issue of ``Finality''
Today the federal Superfund statute technically applies to any site
where a release occurs. However, the reality is that States are
responsible for ensuring the remediation of all sites that do not score
above 28.5 using U.S. EPA's Hazard Ranking System (HRS)--the cutoff for
federal listing on the NPL. The U.S. EPA removal program is able to
address some sites that are not listed on the NPL, but the program is
designed to stabilize a site, not to ensure its full remediation. The
U.S. EPA can not expend fund money for remediating a site not listed on
the NPL. Consequently, the State is often still responsible for
completing the remediation of a site even after an U.S. EPA removal
action has been performed at a site.
It is our belief that Congress needs to decide definitively whether
U.S. EPA should retain a role in the remediation of non-NPL sites.
While in practicality U.S. EPA has little or no role at these sites and
as our survey indicated, the States are addressing the large universe
of non-NPL sites, the statute still maintains a role for U.S. EPA in
theory. Although the majority of these sites (typically brownfield
sites) will never be placed on the NPL, they are still subject to
CERCLA liability even after the site has been cleaned up to State
standards. It is our belief that we can no longer afford to foster the
illusion that State authorized cleanups may somehow not be adequate to
satisfy federal requirements. The potential for U.S. EPA overfile and
for third-party lawsuits under CERCLA is beginning to cause many owners
of potential Brownfields sites to simply ``mothball'' the properties.
We believe it is imperative that Congress seek to clarify the State-
Federal roles and potential liability consequences under the federal
Superfund program. States should be able to release sites from both
federal and State liability once a site has been cleaned up to State
standards. In situations that are deemed emergencies and in which the
State requests assistance, we believe the federal government should be
able to address the site and, if necessary, hold the responsible party
liable consistent with liability assigned under State cleanup law.
Emergency actions should be the only exceptions to such releases from
federal liability.
This has been a very contentious issue and we understand that
objections have been raised to provisions of this nature. We do not
agree with the basis for these objections for several reasons. First,
U.S. EPA does not have the ability to compel parties to take remedial
actions at sites not listed on the NPL, except for removal actions.
Second, the majority of these sites will never be listed on the NPL;
therefore, U.S. EPA does not have authority to spend fund money at
these sites to perform the necessary remedial actions. Third, if a
State should release a site from State liability (of course, all States
have standard reopener provisions contained in their liability
releases), and a situation should develop that warrants federal
attention, the State can be trusted to act responsibly and contact U.S.
EPA. It is in the State's financial interest to contact U.S. EPA should
a situation develop that exceeds the State's financial or technical
capabilities. While it is clear in emergency situations that U.S. EPA
should have the ability to enter a site, we believe the second prong of
the condition must also be met, i.e., the State must concur, similar to
our recommendation for listing sites on the NPL. We wish to avoid
duplication as much as possible and therefore believe that if a State
is capable of addressing the emergency then there is no need to utilize
U.S. EPA's resources. The States have proven they act responsibly in
these situations, and it is to the State's advantage to notify U.S. EPA
when either the State's financial, legal or technical resources are not
sufficient to adequately address the problem.
We believe the universe of sites to be addressed by State Cleanup
(State Superfund and State Voluntary Cleanup) programs and the sites
eligible for releases from federal liability is the non-NPL universe of
sites. It seems only practical to officially exclude proposed and
listed NPL sites simply for the fact that much work has already ensued
in order to place these sites on the NPL. Some suggest that the non-NPL
universe can be divided into two categories, NPL-caliber and low risk
sites. We are the primary regulators for non-NPL sites and we can
assure you that there is no clear line that differentiates such
categories of sites. Many would suggest the bright line should be a
score of 28.5 (as determined by the HRS), but there are two problems
with using this arbitrary cutoff. First, 28.5 is the quantitative
scoring factor used to determine if a site qualifies for placement on
the NPL. However, this figure is based on an arcane hazard ranking
system which many U.S. EPA and State managers admit is flawed, so much
so, that U.S. EPA and State managers in the GAO study identified only
7.9 percent of the 3036 pre-scored universe of sites for potential
listing on the NPL. Second, in order to use the quantitative NPL-
caliber designation, States would have to score sites prior to
admitting them to a voluntary cleanup program (a suggestion we
understand one U.S. EPA Region has made to a State). Clearly, the pre-
scoring of a site as a condition for entering a State Voluntary Cleanup
program would be a huge disincentive for marketing a State Voluntary
Cleanup program and would not serve to move this large universe of
sites to cleanup nor to facilitate economic redevelopment of
brownfields. Essentially, the program has operated for years on a ``you
know it when you see it basis'' in identifying NPL-caliber sites. This
is bad public policy and should not be acceptable for differentiating
State and U.S. EPA roles and for providing certainty to the process. If
a site is not to be listed or proposed for listing on the NPL, then the
State should be free to address the site without U.S. EPA interference
and the site should be eligible for the same benefits as any other
site, such as liability releases. We believe legislation is needed and
hope that Congress chooses to recognize the benefits of State programs
which have had over 18 years to grow and mature and which clearly have
become the leaders in site remediation today.
H.R. 2580: It appears to States that H.R. 2580 satisfies the goal
of clarifying which governmental entity is and should be responsible
for deciding when a cleanup is complete and when a party is released
from liability.
H.R. 1300: It appears to States that H.R. 1300 satisfies the goal
of clarifying which governmental entity is and should be responsible
for deciding when a cleanup is complete and when a party is release
from liability.
H.R. 1750: H.R. 1750's provisions regarding ``finality'' are not
satisfactory to States for the following reasons. First, as indicated
in our previous comment, ASTSWMO and NGA do not support any provision
requiring State Voluntary Cleanup programs to be approved by the U.S.
EPA. Second, the exceptions provided for by this language are not clear
or precise. For example, in both exceptions (C) and (D), either the
Administrator or the State may determine that, due to the conditions,
the response action does not protect human health or the environment.
Our goal is to achieve finality and to expressly decide once and for
all which governmental entity will be vested with the authority to
determine a cleanup is complete. The language in H.R. 1750 will not
resolve this issue or achieve true finality. For example, what will
happen in situations in which the State and U.S. EPA disagree? Lastly,
H.R. 1750 will exclude ``NPL-Caliber'' facilities from being eligible
to receive finality determinations. In this case, NPL-Caliber is
defined as ``a facility for which the President, in consultation with
the State concerned, has prepared or is preparing a hazardous ranking
system scoring package or that satisfies such other definition as the
Administrator may promulgate by regulation.'' In 1997, U.S. EPA
proposed federal guidance on developing memorandum of agreements
between State Voluntary Cleanup programs and the U.S. EPA. To determine
NPL-Caliber sites, the Agency proposed a tiering system for sites.
ASTSWMO, the Environmental Council of States and the National Governors
Association strongly opposed the provisions in this guidance,
particularly the proposed tiering system of categorizing sites and the
guidance was ultimately withdrawn. We have no reason to believe that
under the language provided for in H.R. 1750 that U.S. EPA would not
seek to repropose the same language.
Funding for State Programs addressing Brownfields:
From our perspective as State Waste Managers and Governors, we view
State programs as effective ``NPL prevention'' programs. If a State
agency can effectively address the contamination from a non-NPL site,
that is one less site that will require federal resources. The results
of a recent ASTSWMO survey of 33 States indicated that States have
completed 6,768 sites in the last four years alone (1993-1997) and that
they are working on approximately 4,700 sites at any given time. We
conclude from these results that providing federal resources to State
agencies to maintain their infrastructures will ultimately save federal
resources and ensure that sites are returned to productive use in an
efficient manner.
H.R. 2580: H.R. 2580 provides grants to States for Brownfield site
assessments and for establishing revolving loan funds for response
actions. We concur with these provisions.
H.R. 1300: H.R. 1300 provides grants to States for Brownfield site
assessments and for establishing revolving loan funds for response
actions. We concur with these provisions.
H.R. 1750: H.R. 1750 only awards grants to State governments for
site assessments if ``the Administrator determines that a grant to the
State is necessary in order to facilitate the receipt of funds by one
or more local governments that otherwise do not have the capabilities,
such as personnel and other resources, to manage grants under the
program.'' U.S. EPA should receive credit for assisting the majority of
States (40+) in establishing effective site assessment programs. These
programs are limited in their ability to perform work only by a lack of
resources. It does not make sense that Congress would propose to fund
States for site assessments only if a local unit of government could
not perform the task. State programs have been established and should
be utilized to their maximum potential. We agree that local units of
government should be provided funding, but Congress should not overlook
the efficiency factor in using well established programs. For these
reasons, we do not support the funding provisions contained in H.R.
1750.
conclusion:
ASTSWMO and NGA appreciate the opportunity to testify today on a
topic of extreme importance to States. We are encouraged that the
Subcommittee is examining these issues and look forward to working with
you as you continue the process of developing Brownfields legislation.
Mr. Greenwood. Thank you for your testimony.
Mr. Towns said he is beginning to see the wisdom of my
legislation.
For the benefit of the members, I think we can allow Ms.
Mills to complete her testimony, and then we will break for the
vote and return as soon as the vote is over. Ms. Mills, please
proceed.
STATEMENT OF TERESA MILLS
Ms. Mills. Thank you to the committee for the opportunity
given to me today. My name is Teresa Mills. I represent the
Buckeye Environmental Network. We are a network of grassroots
groups across the State of Ohio working with other citizens to
address their environmental concerns.
Our experience with the Ohio Voluntary Action Program has
been very discouraging for the citizens of Ohio. I am here to
ask that you maintain a strong Federal oversight role in these
programs to prevent the breakdown in the public confidence that
the citizens of Ohio have had to endure.
Ohio's VAP program is completely unbalanced in favor of
corporations hoping to avoid their cleanup responsibilities as
cheaply and as secretly as possible. It is a nightmare program
for the neighborhoods around these facilities, with their
dubious cleanup options, lack cleanup standards, negligible
State oversight, lack of public notice and participation, and
extensive secrecy provisions provide no reasonable confidence
that a site addressed by these programs will not continue to be
a health or environmental danger. The program is dangerous and
badly needs to be overhauled from top to bottom.
The Ohio program authorizes private contractors working
solely for the polluters to design and implement both the site
investigation and the remedy, with no involvement by the State.
To keep the secrecy privilege, the facts discovered must be
kept secret from both the government and the neighborhood. At
the conclusion of the site work, the contractor is simply to
file a brief document with the State, certifying that he has
followed the State's broad regulations on the site and that no
further action is needed. Based only on this letter, the Ohio
EPA is then required to issue an order granting a covenant not
to sue to the contractor's employer within 30 days. The only
oversight of this program is a random audit system where the
Ohio EPA is to review 1 site out of 4. There IS minimal funding
for this oversight and, at best, it is a review of the
contractor's paperwork.
There is no provision whatsoever for the community
surrounding the site to be made aware of the cleanup or its
long-term impact on their neighborhood. There is no public
notice, no provision for a public hearing, and no provision for
comment from local governments, health professional or
individual citizens. The affected citizens are left out of this
process.
Over the past 7 years, I have asked both the Ohio EPA and
the U.S. EPA the same question on several occasions. My
question has been: Name me one site in the State of Ohio that
has been cleaned up that was not prompted by a citizen. To
date, my question remains unanswered. The Ohio program gives
the party conducting the cleanup a right to keep all
information and documents generated completely secret even in
court proceedings. This is true even if the ``no further action
letter or covenant'' are not issued. The surrounding community
will never know what contaminants were at the site, the extent
of the contamination, or the amount of contamination that
remains after the remedy is complete.
In short, the Ohio program purposely keeps the public in
the dark about critical issues regarding their own health, and
their rights as State citizens are voided. I do not remember
ever giving up my right to know what was in my community or
what my family was exposed to. When did this happen? You can
see why some citizens in the State of Ohio consider this
program to be sinister and ethically perverse.
In 1989 the Ohio EPA created the Division of Emergency and
Remedial Response. Our State lawmakers agreed to add a $1 tax
per every ton of waste generated in the State of Ohio. This was
to go into a quick cleanup fund. Our State legislature took $11
million from the fund and never replaced it. The citizens of
Ohio know all too well when a good idea goes bad. When State
agencies put the interest of the polluter over the interest of
the public, it is the same as a law enforcement officer taking
the word of a mugger over the word of a victim.
I still have more of my testimony, but I see my time is
running short.
Scores of sites in Ohio have now received release of
liability under the State law. You have it in your power to
protect the families who live around these sites by ensuring
that Federal law will stay securely in place, not only for
protecting the public health from environmental contamination,
but also to ensure that the right of Americans to participate
in the public decisions where they have a vital personal
interest will be honored by the State legislatures.
I believe that Ohio's sorry experience with VAP proves that
minimum Federal standards for public participation, openness of
information, protective cleanup standards, reliability of
remedy, adequacy of Federal and State oversight, must be
guaranteed to all Americans. We do not support the restrictions
on citizens or the Federal Government's enforcement authority
that are contained in any of the bills being considered by the
subcommittee. We pray that the Members of Congress will keep
our health and welfare in mind when considering legislation.
Thank you.
[The prepared statement of Teresa Mills follows:]
Prepared Statement of Teresa B. Mills, Buckeye Environmental Network
Thank you Mr. Chairman for the opportunity to address this
committee. My name is Teresa Mills, I represent the Buckeye
Environmental Network. We are a network of grassroots groups across the
state of Ohio working to assist citizens with their environmental
concerns.
Our experience with the Ohio Voluntary Action Program (VAP) has
been very discouraging for citizens of Ohio. I am here to ask that you
maintain a strong federal oversight role in these programs to prevent
the breakdown in public confidence that the citizens of Ohio have had
to endure.
Ohio's VAP program is completely unbalanced in favor of
corporations hoping to avoid their clean up responsibilities as cheaply
and as secretly as possible. It is a nightmare program for the
neighborhoods around these facilities as its dubious cleanup options,
lack clean up standards, negligible state oversight, lack of public
notice and participation, and extensive secrecy provisions provide no
reasonable confidence that a site addressed by the program will not
continue to be a health or environmental danger. This program is
dangerous and badly needs to be overhauled from top to bottom.
The Ohio program authorizes private contractors working solely for
the polluter to design and implement both the site investigation and
the remedy with no involvement by the state. To keep the Secrecy
Privilege, the facts discovered must be kept secret from both the
government and the neighborhood. At the conclusion of the site work,
this contractor simply is to file a brief document with the state
certifying that he has followed the state's broad regulations on the
site and that no further action is needed. Based only on this letter
the Ohio EPA is then required to issue an order granting a covenant not
to sue to the contractor's employer within thirty days. The only
oversight of this program is a random audit system which the Ohio EPA
is to review one site in every four. There is minimal funding for this
oversight so at best the review is only a review of the contractor's
paperwork.
There is no provisions whatsoever for the community surrounding the
site to be made aware of the cleanup or its long term impact on their
neighborhood. There is no public notice, no provision for a public
hearing, and no provision for comment for local governments, health
professionals, or individual citizens, the effected citizens are left
out of the process. Over the past seven years I have asked both the
Ohio EPA and the US EPA the same question on several occasions. My
question is, can you name me one site in Ohio that has been cleaned up
that has not been prompted by a local citizen? My question remains
unanswered.
The Ohio program gives the party conducting the cleanup a right to
keep all information and documents generated completely secret, even in
court proceedings. This is true even if the ``no further action letter
or covenant'' are never issued. The surrounding neighborhood will never
know what contaminants were at the site, the extent of the
contamination or the amount of contamination that remains when the site
``remedy'' is complete.
In short, the Ohio program purposely keeps the public in the dark
about critical issues regarding their own health while their rights as
state citizens are voided. I don't remember giving up my right to know
what was in my community or what my family is exposed to. When did this
happen? You can see why many Ohio citizens consider the program to be
sinister and ethically perverse.
In 1989 the Ohio EPA created the Division of Emergency and Remedial
Response. One of the goals of this division was to clean up
contaminated sites faster. State lawmakers agreed to a $1 per ton tax
on all solid waste generated in Ohio. Up to $14 million a year was to
be placed in a cleanup fund. While this might sound like a lot of
money, in the 10 years that this tax has been in place only 10 sites
have been cleaned. In 1992, in order to avoid a budget shortage the
General Assembly took $11 million from the fund never replacing it.
Little by little the people of Ohio see the fund dwindle. The fund is
used for programs that have very little to do with cleaning up Ohio's
1,192 contaminated sites. Last October, the Columbus dispatch conducted
an extensive investigation and the headlines of one article read,
``Ohio's toxic tally: 10 cleaned up 1,192 to go''. (see attached) The
Ohio EPA has acknowledged publicly that its clean up program failed to
meet expectations.
Citizens of Ohio know all too well what happens when a good idea
goes bad. When state agencies put the interest of the polluter above
the interest of the public it is the same as a law enforcement officer
taking the word of a mugger over the word of the victim. I'm sure these
laws can work well, but only if they maintain a balance between
corporate and community interests and produce reliable and adequate
results. We've missed an excellent opportunity for real environmental
progress in Ohio because our program serves only a narrow economic
interest while the broad public interest is excluded. Ohio's weak VAP
program can promote deceit within the corporate community while giving
no peace of mind to Ohio's mothers and fathers that a contaminated site
is no longer a source of the worst sort of anxiety they should ever
have to bear. A traditional VAP would be welcomed by Ohio's citizens.
This would apply to sites with low-level contamination, offer the
benefits of a streamlined bureaucracy (but with some oversite), the
benefits would be given in exchange for redevelopment (under Ohio's Law
there is no quid pro quo required).
Scores of sites in Ohio have now received a release of all
liability under state law for contamination that is likely still there.
You have it in your power to protect the families who live around these
sites by insuring that federal law will stay securely in place, not
only for protecting the public health from environmental contamination,
but also to insure that the right of Americans to participate in public
decisions where they have a vital personal interest will also be
honored by state legislature. I believe that Ohio's sorry experience
with the VAP proves that minimum federal standards for public
participation, openness of information, protective clean up standard,
reliability of remedy and adequacy of state and federal oversight must
be guaranteed to all Americans.
Citizens who live around these sites oppose any restricting or
weakening of existing federal enforcement authority. Later this week a
report titled ``Hidden from the Public'', the distortion of the Ohio
EPA's mission will be released. Part of this report is testimony taken
from a citizens public hearing on their dealings with different
programs in Ohio EPA. I will forward a copy of this report when it is
released.
We do not support the restrictions on citizens or the federal
governments enforcement authority that are contained in any of the
bills that are being considered by the Subcommittee. We pray that the
members of Congress will keep our health and welfare in mind when they
consider this legislation.
Thank you for your time, I will be happy to answer any question you
might have.
Mr. Greenwood. Thank you for your testimony, Ms. Mills.
The subcommittee will recess for the vote and return at
approximately 10 to 1.
[Brief recess.]
Mr. Oxley. The subcommittee will reconvene.
Mr. Curtis, I understand that you are the next witness.
Mr. Curtis. Yes, sir.
Mr. Oxley. You may proceed.
STATEMENT OF JONATHAN G. CURTIS
Mr. Curtis. Mr. Chairman, members of the subcommittee, my
name is Jonathan Curtis. I am president and CEO of CDM Federal
Programs Corporation in Fairfax, Virginia. I am here today in
my capacity as president of the Environmental Business Action
Coalition, EBAC, formerly known as HWAC.
EBAC is a national business trade organization whose
mission is to serve and promote the interests of firms
practicing in multi-media environmental management. Our firms
employ over 60,000 professionals trained in all aspects of the
environmental field, and have extensive experience and
knowledge in hazardous waste cleanup.
Let me clarify the position from which we speak. We are the
implementers of the hazardous waste laws and regulations. Let
there be no misunderstanding on anybody's part: We are not
polluters. We typically do not own or operate the sites where
Superfund or brownfields cleanups are to be performed. We were
not involved in the generation of the waste. We are the firms
hired to perform cleanup actions at sites across the country,
and our clients are interested in hazardous waste cleanup and
environmental protection.
We commend this subcommittee and its chairman and the full
Commerce Committee for the tireless efforts undertaken to
examine ways to make the Superfund program more readily
implementable and to seek enactment of comprehensive and
workable Superfund reform legislation.
Turning now to the purpose of this hearing, brownfields
redevelopment is one area, I hope all agree on a bipartisan
basis, where more needs to be done to spur reuse of abandoned
and underutilized properties throughout this country. This
testimony focuses on the brownfields provisions of H.R. 2580,
Congressman Greenwood's Land Recycling Act of 1999. EBAC is
already on record as strongly supporting H.R. 1300, which also
contains strong brownfields provisions as well as overall
reforms to Superfund.
The other brownfields bill that is under consideration by
this committee is H.R. 1750. While my testimony only addresses
2580, I am prepared to answer questions regarding components of
all three bills.
Mr. Chairman, as you referred to in our written testimony,
our clients fear that EPA will second-guess State-approved
brownfields cleanups. Moreover, there remains the potential
downstream liability associated with reuse that further retards
the process. Willingness by EPA to negotiate prospective
purchaser agreements on a case-by-case basis is not enough.
H.R. 2580's provisions in section 3 provide the finality in
brownfields decisions that are truly needed if this market and
the actual cleanups are to accelerate. Decisions made by
certified States would not be subject to second-guessing by
EPA. We believe this provision is very important to spurring
increased voluntary cleanup actions at brownfields sites across
the country and reducing possible risks to nearby populations
that are currently not addressed, expressly because of the fear
of Federal liability.
The permit waiver for onsite response actions that is
contained in H.R. 2580 would remove the barriers to actual
onsite cleanup posed by the often-conflicting provisions of
RCRA and Superfund. I must go on record with EBAC's strong
disagreement with the requirement of H.R. 2580 for innocent
landowners to undertake environmental site assessment in
accordance with the standards set forth in the ASTM Standard
E1527-94 titled ``Standard Practice for Environmental Site
Assessments Phase 1 Environmental Site Assessment Process.''
We do not believe that this is an appropriate standard for
the brownfields situation. We recommend that you drop the
requirement for using ASTM Standard E1527-94. We urge that the
legislation require EPA to undertake a rulemaking, using an
open, transparent process and incorporating substantial input
from the professionals who practice in this field to identify
the professional judgment required for qualification as an
innocent landowner within a limited specific period of time
after passage of the bill.
In terms of the liability net of Superfund, EBAC
understands the need for any brownfields legislation to define
innocent landowners and bona fide prospective purchasers as
well as provide liability relief. However, letting everyone off
the hook for liability relief can have the unintended
consequence of only leaving one entity responsible for site
liabilities, and that is the cleanup firm. We know Superfund's
harsh liability consequences, and the provisions that have been
presented in H.R. 1300 are vital for encouraging and
accelerating brownfields cleanups and Superfund cleanups.
We continue to support the provision of financial and
technical assistance to States to develop and administer
brownfields programs and grants. Although remedy selection is
not the subject of this hearing, EBAC is convinced that reform
and remedy selection provisions in Superfund is critical to
accelerating any program, including brownfields. We hope to be
invited back to a subsequent hearing to discuss why the remedy
reform provisions of H.R. 2580 will accelerate cleanups while
ensuring protection of human health and the environment and
should be adopted by this committee.
In conclusion, EBAC appreciates the opportunity to testify
before your subcommittee today. We believe that the time to
legislate on brownfields and overall Superfund reform is now,
before the program funding that remains in the Superfund trust
fund is exhausted and the total burden of the Superfund program
falls to the States. The health, safety, and economic well-
being of the country are more important than politics.
I remain available to answer any questions you may have.
Thank you.
[The prepared statement of Jonathan G. Curtis follows:]
Prepared Statement of Jonathan G. Curtis, President, Environmental
Business Action Coalition
Mr. Chairman, members of the Subcommittee, my name is Jonathan
Curtis. I am President and Chief Executive Officer of CDM Federal
Programs Corporation in Fairfax, Virginia. I am here today in my
capacity as President of the Environmental Business Action Coalition
(EBAC), formerly known as the Hazardous Waste Action Coalition (HWAC).
As you know, EBAC is a national, Washington, D.C. based not-for-profit
business trade organization whose mission is to serve and promote the
interests of engineering, science and construction firms practicing in
multimedia environmental management and remediation. EBAC operates as a
coalition of the 5,000 firm American Consulting Engineers Council.
The multimedia environmental industry employs more than 1.3 million
Americans and generates $181 billion annually in products and services.
EBAC members include many of Engineering News-Record Magazine's Top 200
environmental firms, who alone generate $24.1 billion of that revenue.
EBAC members employ over 60,000 engineers, hydrologists, geologists,
chemists, and other specialists trained in all aspects of the
environmental field. Our members have vast experience and extensive
knowledge in hazardous waste cleanup. We have pioneered improved
methods of waste management and remediation in this country, and today
we are developing and implementing tomorrow's solutions for
environmental problems worldwide.
Let me clarify the position from which we speak. We are the
implementers of the hazardous waste laws that you enact and the
regulations that EPA develops. Let there be no misunderstanding on
anyone's part--we are not the polluters. We typically do not own or
operate the sites where Superfund or Brownfields cleanups are to be
performed. We were not involved in the original generation of the waste
that has resulted in the need for a site investigation or cleanup. We
are the firms hired to perform cleanup actions at sites across the
country--from the highly complex sites on the National Priorities List,
to the high level waste and mixed waste sites operated by the
Department of Energy, to the former and current military bases and
facilities operated by the Department of Defense, to state-listed
sites, to manufacturing and commercial facilities, landfills, and other
environmental projects. Our clients are the federal government, state
governments, private commercial and industrial customers, local
governments, citizens groups, and others interested in hazardous waste
cleanup and overall environmental protection.
We commend this Subcommittee and its Chairman, as well as Chairman
Bliley of the full Commerce Committee, for the tireless efforts
undertaken to examine ways to make the Superfund program more readily
implementable from an engineering, scientific, and construction
viewpoint, and to seek enactment of much-needed, comprehensive, and
workable Superfund reform legislation. We appreciate being called back
to testify this year after testifying last year in favor of Chairman
Oxley's comprehensive Superfund reform legislation, H.R. 3000. In our
testimony last year, we stated that H.R. 3000 ``will ensure that
innovations are applied to cleanups, will provide incentives for new
technologies at hazardous waste sites, and will spur essential state
and local voluntary cleanup programs that sometimes languish due to the
shadow of potential CERCLA liability that runs from the Beltway to
every Brownfields site in this country.'' Mr. Chairman, last year you
quoted directly from our testimony in your opening statement. Your
opening statement indicated that the cleanup contractors believe that
``from a technical, scientific, and engineering perspective, this bill
will do more to spur environmental cleanup in a safe and protective
manner than could possibly be accomplished under current law.''
We are proud to be here and able to provide our technical
engineering expertise to the complex, and often emotional, debate
regarding hazardous waste cleanup. Our overriding concern is protection
of human health and the environment. We believe that the federal
Superfund law and related cleanup activities, including Brownfields
activities, should focus primarily on cleanups. All too often, the
debate becomes lost amid the ``who pays'' rhetoric. As the CEO of one
of our largest members said most eloquently several years ago,
``Superfund is not designed to fix problems, it is a program designed
to fix blame.''
Turning now to the purpose of this hearing, which is Brownfields
redevelopment. Brownfields is one area I hope all agree, on a
bipartisan basis, where more needs to be done to spur reuse of
abandoned or underutilized properties throughout this country. This
testimony focuses on the Brownfields provisions of H.R. 2580,
Congressman Greenwood's Land Recycling Act of 1999. EBAC is already on
the public record as strongly supporting H.R. 1300, the bipartisan
Recycle America's Land Act of 1999 introduced by Chairman Sherwood
Boehlert containing over 60 cosponsors. It also contains strong
Brownfields provisions as well as other, much-needed overall reforms to
the Superfund program (including remedy and liability reforms) that
would significantly improve the program's operations. The other
Brownfields bill that is being considered by this Committee is H.R.
1750, the Community Revitalization and Brownfields Cleanup Act of 1999.
While this written testimony only addresses H.R. 2580, I am prepared to
answer your question regarding the Brownfields components of all three
bills.
The U.S. Conference of Mayors, who you will also be hearing from
today, has been compiling Brownfields statistics for the past several
years. Their most recent Brownfields report <SUP>1</SUP> indicates that
180 cities alone estimated that they have over 19,000 Brownfields
sites. The report points out that the largest obstacles to Brownfields
cleanups are (1) funding problems, (2) liability concerns associated
with redevelopment, and (3) the need to determine the extent of
contamination at the sites identified.
---------------------------------------------------------------------------
\1\ A National Report on Brownfields Redevelopment, Volume II
(April 1999), published by the U.S. Conference of Mayors.
---------------------------------------------------------------------------
Our members have been analyzing the Brownfields marketplace for the
past several years. In 1998, EBAC released the ``Environmental Market
Report and Market Survey.'' The survey results indicated that survey
respondents anticipate an average 27% growth in Brownfields cleanups in
the next five years. State clients identified the highest expectations
for Brownfields cleanups in the next five years, indicating that the
market is likely to grow by 57% in that time period.
I am here to tell you that, in actuality, the true Brownfields
market has not kept pace with expectations. Why? We have been asking
our clients just that. Our clients' responses are fairly unanimous.
They fear that EPA will ``second-guess'' Brownfields cleanups, and
require costly site rework at a later date to reach a different site
cleanup standard so they ``hold onto'' lightly contaminated parcels
instead of turning them over to beneficial reuse. Moreover, there
remains the potential down-stream liability associated with reuse that
further retards the process. These concerns result in owners of such
properties not undertaking redevelopment efforts at viable Brownfields
sites. While EPA has indicated a willingness to enter into, on a case-
by-case basis, prospective purchaser agreements at Brownfields sites,
the process to enter into those agreements is quite time consuming and
there is no certainty in the end that EPA will agree to a prospective
purchaser agreement.
H.R. 2580's provisions in Section 3 provide the finality in
Brownfields decisions that are truly needed if this market, and the
actual cleanups, are to accelerate. Under the bill, states self-certify
that they have enacted a Brownfields program that is adequately funded
and appropriately staffed, and will result in cleanups that are
protective of human health and the environment. Brownfields decisions
made by certified states would not be subject to second-guessing by EPA
under the authority of either the federal Superfund law or the federal
RCRA law. This provision is very important to spurring increased
voluntary cleanup actions at Brownfields sites across the country and
reducing possible risks to nearby populations that are currently not
addressed, expressly because of the fear of federal liability.
Another significant problem associated with cleanup activities is
the often conflicting provisions of RCRA and Superfund during site
cleanup activities. Of particular note is the need to obtain permits
for management of remediation waste during cleanup activities.
Remediation waste management is the subject of RCRA reform discussions
that your staff and EBAC have been involved in for some time. The
permit waiver for on-site response actions that is contained in H.R.
2580 would remove the barriers to actual on-site cleanup and
significantly increase the pace of Brownfields cleanups. Cleanup
actions would still be protective of human health and the environment
and subject to regulatory review and approval, of course, under such a
scenario.
I must go on record with EBAC's strong disagreement with the
requirement of H.R. 2580 for ``innocent landowners'' to undertake
environmental site assessments ``in accordance with the standards set
forth in the American Society for Testing and Materials (ASTM) Standard
E1527-94, titled `Standard Practice for Environmental Site Assessments:
Phase I Environmental Site Assessment Process.' '' Please note that
this standard is also proposed to be codified in Chairman Boehlert's
bill, H.R. 1300, and in H.R. 1750. EBAC, ACEC, and other professional
organizations strongly disagree with the premise that the so-called
ASTM Phase I ``standard'' is actually a ``standard.'' A practice
labeled as a ``standard'' implies that it is a ``tried and true''
practice which, if followed, yields reliable and trustworthy results
and is endorsed by the professionals who use it. Nothing could be
further from the truth. The scientists and engineers who, for the last
several decades, have investigated contaminated sites know that it is
foolish, even dangerous, to assume that using ``cookbook'' assessment
procedures will uncover all significant contamination. Except for a few
simple sites, the technology required to peer underground and locate
all significant sources of contamination has not been invented.
Left with these uncertainties, the right thing to do is let the
practitioners apply professional judgement to what is truly needed for
responsible site cleanup. We recommend that you drop the requirement
for using ASTM Standard E1527-94. If some kind of assessment guidelines
are deemed necessary, then we ask that they be developed by EPA, using
an open, transparent process, and incorporating substantial input from
the licensed engineers who practice in this field.
The legislation allows EPA to set up an ``alternative standard''
through a formal rulemaking process. However, as long as the
legislation identifies the specific ASTM standard that qualifies for
``innocent landowner'' status, we believe that EPA will never get to
the rulemaking stage to create an alternative standard. We urge that
the legislation delete the ASTM standard, and require EPA to undertake
a rulemaking to identify the professional judgment required for
qualification as an ``innocent owner'' within a limited, specific
period of time after passage of this bill.
In terms of the liability net of Superfund, EBAC understands the
need for any Brownfields legislation to define ``innocent landowners,''
and ``bona fide prospective purchasers,'' as well as to provide
liability relief for contiguous property owners and state and local
governments. Letting everyone off the hook for liability for site
cleanup is good public policy for it will enable reuse of these
valuable properties and revitalization of urban areas. However, letting
everyone off the hook for liability for site cleanup could have the
unintended consequence of leaving only one involved participant with
any potential responsible for site liabilities--the cleanup firms. We
would be remiss in this testimony by not adding here, briefly, that the
federal Superfund law's harsh liability consequences have resulted in
imposition of unfair liability on cleanup contractors merely because of
their involvement in site cleanups. Last year's H.R. 3000, and this
year's Superfund legislation sponsored by Chairman Boehlert of the
Water Resources and Environment Subcommittee (H.R. 1300), thankfully
included provisions that would address contractor liability issues.
These protections are vital for encouraging and accelerating
Brownfields cleanups and Superfund cleanups. We look forward to
robustly addressing contractor liability and remedy selection issues
with you in further detail at a subsequent hearing, and discussing why
addressing these issues will help spur Brownfields cleanups and other
environmental remediation activities.
H.R. 2580 requires EPA to provide financial and technical
assistance to states to develop and Administer Brownfields programs, as
well as continues the funding of Brownfields grants. EBAC strongly
supports both of these initiatives. State assistance and Brownfields
grants will help ensure that strong Brownfields programs continue to
operate across this country. While we recognize that tax matters are
not the responsibility of this Committee, EBAC urges the Congress to
explore maximum use of economic and other incentives to assure that
developers will become eagerly engaged in the process of transforming
currently wasted and under-utilized urban properties into productive
ones. Please note, however, that we expect that the proposed lien on
facilities in the amount of the unrecovered response costs could pose a
continued obstacle to Brownfields cleanup efforts.
Finally, please note that the fact that we have not addressed
Section 9 of H.R. 2580--the Remedy Selection portion of the bill--in
this testimony is not an oversight. Remedy selection is not the subject
of this hearing. However, as our testimony last year on H.R. 3000
demonstrates, EBAC is convinced that reforming key remedy selection
provisions in Superfund is critical to accelerating any cleanup
program, whether it be Brownfields cleanups, voluntary cleanups, or
Superfund cleanups. We hope to be invited back to a subsequent hearing
to be able to inform this Subcommittee, in detail, why Section 9's
remedy reform provisions should be adopted by this Committee and the
full Commerce Committee, and why these provisions will accelerate
cleanups while ensuring protection of human health and the environment.
In conclusion, EBAC greatly appreciates the ability to testify
before your Subcommittee today on H.R. 2580. We believe that the time
to legislate on Brownfields and overall Superfund reform is now, before
the program funding that remains in the Superfund Trust Fund is
exhausted, and the total burden of the Superfund program falls to the
states. The health, safety, and economic well-being of the country are
more important than politics. I remain available to answer any
questions that you may have.
Mr. Oxley. Thank you.
Ms. Florini.
STATEMENT OF KAREN FLORINI
Ms. Florini. On behalf of the Environmental Defense Fund
and its 300,000 members, thank you for this opportunity to
testify.
Mr. Oxley, I would like to ask if perhaps rather than
hearing from me, you might wish to hear from Ms. Mills, as you
were not in the room, or at least you were not in the chair
when she presented her testimony. I can summarize my remarks in
about 30 seconds and I would--I think it is extraordinarily
important that you personally hear her remarks.
Mr. Oxley. I read her testimony, so if you would proceed.
Ms. Florini. All right.
Before turning to the specific bills under discussion
today, I would like to make four general points:
First, the Environmental Defense Fund and all members of
the environmental community think that proper reutilization of
brownfields is a very good idea, for the reasons stated a
number of times. It not only improves the quality of life and
communities otherwise that have these underutilized properties,
but also, of course, prevents the redevelopment or the
development in greenfield sites.
But the lessons of history make plain that Superfund is not
the sole cause or even the primary cause of urban blight. Slums
existed long before Superfund did. It is axiomatic in real
estate that the three most important factors are location,
location, location. Everything else, including preexisting
contamination, comes a distant fourth.
Third, the term ``brownfields'' means different things to
different people, and we have already observed that today. To
some, it means every formerly used property, regardless of
whether the property is grossly contaminated or virtually
pristine. To others. Brownfields properties are only those that
have low levels of contamination. Whichever way the term is
used, it is essential to the protection of public health and
the environment that we not wind up with policies that are
suitable only for low-contaminationsites also being applied to
more highly contaminated sites.
Fourth, State programs vary significantly in quality. In a
study released by the Conference of Mayors just 3 months ago,
nearly one-third of the responding cities gave a low rating to
their State's voluntary cleanup program; 23 percent rated it as
not very good, and 6 percent as poor. Another 44 percent rated
their State's program as merely satisfactory. In short, the
mere existence of a State program is no guarantee of a trouble-
free outcome.
This leads to my most important point. Brownfields
redevelopment must not be used as an excuse to roll back
protections and safeguards provided under Federal law. In
particular, the Environmental Protection Agency, local
governments, and citizens must retain their ability to respond
to an imminent and substantial endangerment as provided by
existing law. It is a necessary Federal safety net in those
instances where cleanups under State programs don't work. Where
they do work, there will not be any imminent substantial
endangerment and the question will not arise.
With those general points, I will turn to the three bills
under discussion today. First, we strongly oppose H.R. 2580. We
regard it as an extreme bill. It would dramatically limit the
ability to use Federal statutory authorities at sites subject
to cleanup under a State program. This approach eviscerates the
Federal safety net. It says that federalism is more important
than public health. This is a values question and one where the
Environmental Defense fund believes that it is essential to
come down squarely on the side of saying public health and
environmental protection is more important than federalism, not
vice versa.
In addition, H.R. 2580 would effectively repeal portions of
other environmental authorities, including key provisions
relating to cleanup, or corrective action, as it is known at
hazardous waste treatment, storage and disposal facilities. It
also eliminates permanent requirements for onsite activities
occurring under State cleanup programs, thus eviscerating
public participation.
And as we have heard from Ms. Mills in Ohio, there is no
other mechanism for public participation under a State cleanup
program. Lack of permits also turns compliance with substantive
requirements under these programs into a ``trust but don't
verify'' situation in many instances.
The supposed protections built into H.R. 2580 are
profoundly inadequate. There is no review of the State
programs, just a requirement that States provide a one-time
self-certification. EPA cannot reject the certification either
initially or at a later time, even if the State program is
entirely defunded.
And as indicated in my written testimony, a participant in
the Ohio brownfields program at the local government level
testified before the Ohio legislature, indicating that already
due to inadequate funding, there has been substantial attrition
in the State program.
Finally, we oppose the requirement for Governors'
concurrence. We believe this is a solution in search of a
problem, as EPA already routinely consults with Governors.
Making Governors' concurrence mandatory, we regard simply as a
further erosion of the Federal safety net.
We have also got serious concerns with a number of H.R.
1300 brownfields-related provisions. Chief among our concerns
are the inadequate reopeners, which again cut holes in the
Federal safety net. It also has got innocent party provisions
which are far more sweeping than those in 2580 or in 1750.
Finally, we think that H.R. 1750 is much more focused and
contains sensible criteria for approving State programs and
appropriate reopeners and avoids the sins of commission and
omission in the other bills. Thank you.
[The prepared statement of Karen Florini follows:]
Prepared Statement of Karen Florini, Senior Attorney, Environmental
Defense Fund
On behalf of Environmental Defense Fund (EDF) and its more than
300,000 members, I appreciate this opportunity to testify regarding the
brownfields provisions of H.R. 2580, H.R. 1300, and H.R. 1750. Most of
my testimony focuses on the relationship between brownfields
legislation and other federal environmental statutes, including
Superfund and the Resource Conservation and Recovery Act (RCRA). EDF
has been actively involved in the Superfund reauthorization process,
serving on EPA's NACEPT Committee on Superfund and on the National
Commission on Superfund, and testifying repeatedly on Superfund during
the last three Congresses. We have also long participated actively in
matters affecting RCRA, the nation's hazardous waste statute.
i. introduction: brownfields--causes, effects, and the context of state
cleanup programs.
In the last several years, the term ``brownfields'' has become
widely used to mean abandoned or under-utilized urban areas with known
or suspected contamination from prior industrial or commercial use.
(There is considerable confusion about whether this term refers to
sites with only minor contamination, or to the full range of
contaminated sites.) In some circles, it is fashionable to assert or
imply that, but for Superfund and other federal laws, these properties
would be restored to productive use forthwith.
Such an assertion is nonsense. Urban properties become abandoned or
under-utilized for a variety of complex reasons, of which environmental
contamination--real or perceived--is only one, and typically a minor
one at that. Anyone familiar with the writings of Charles Dickens, not
to mention American history, is well aware that slums existed long
before Superfund did. It is axiomatic that there are three things that
matter in real estate: location, location, and location. Crime
patterns, availability of transportation and other infrastructure, and
contamination concerns follow along behind.
That said, however, carefully crafted legislation may provide some
incremental benefit in promoting brownfields redevelopment--an
objective we support for many important reasons. First and foremost,
abandoned and under-utilized urban properties impair quality of life
for urban communities. Getting those sites back into beneficial use can
provide jobs, services, or recreational opportunities to local
residents (though siting polluting facilities near residences can be
far worse than leaving the site unoccupied).
In addition, failure to redevelop in existing urban areas also
creates greater pressure for development on new ``greenfield'' sites in
rural areas. Doing so disrupts farmland and wildlife habitat (habitat
loss is the primary threat to biodiversity, including endangered
species). It also contributes to sprawl, which in turn means more
traffic, which means more tailpipe emissions of global warming gases,
smog precursors, and toxic air pollutants. Indeed, on a national basis,
about half of the health risk from air toxics comes from mobile
sources.<SUP>1</SUP>
---------------------------------------------------------------------------
\1\ See the Hazardous Air Pollutants section of EDF's Scorecard web
site, www.scorecard.org. Scorecard is a free public information service
based on more than 250 electronic data sets, including data from the
Environmental Protection Agency's Cumulative Exposure Project (CEP),
which provides localized estimates of exposures to 148 air toxics.
Scorecard multiples the exposure levels by chemical-specific potency
values based on authoritative sources to present county-specific health
risks from mobile, area, and point sources of air toxics. (CEP is based
on a 1990 emissions inventory, but comparison of the CEP exposure
levels with available monitoring data for the late 1990s shows close
agreement. See http://www.scorecard.org/env-releases/def/hap--
compare.html.)
---------------------------------------------------------------------------
In short, redeveloping brownfields--if done well and with
meaningful community involvement--provides a host of community, public
health, and environmental benefits.
At the same time, however, it is important to note that the word
``brownfield'' is just that: a word. Calling a site a ``brownfield''
does not lessen its toxicity by one iota. You can't fool Mother Nature;
ignoring contamination does not detoxify it. Indeed, if brownfields
programs result in more-intensive utilization of still-contaminated
properties, they can result in increased exposure to toxics.
With land, as with lead-acid batteries and many other materials,
bad recycling is worse than no recycling. What's needed are good
recycling programs for land--ones that (i) assure adequate cleanups
before the site is put into use, (ii) build in safeguards because
cleanups sometimes don't work as expected, and (iii) fully involve the
affected community.
The Committee is to be commended for having a hearing on the right
topic: brownfields, as opposed to Superfund reauthorization. The
Environmental Defense Fund concurs with the Administration and with the
U.S. Chamber of Commerce that the time for comprehensive
reauthorization has come and gone. Rather than continuing to hold
brownfields legislation hostage to the chimera of Superfund
reauthorization, it is time to move forward with legislation that
serves the legitimate needs of the public, business, and all levels of
government.
But while the brownfields problem warrants Congress's attention, it
cannot become an excuse for rollbacks of important environmental
safeguards and evisceration of the polluter-pays principle.
Unfortunately, one of the bills under consideration in this hearing,
H.R. 2580, would have just such an effect. H.R. 1300, though less
draconian, would also have serious adverse consequences. By contrast,
H.R. 1750 is a sensibly tailored approach to the specific issues. All
three bills are discussed in more detail below.
Before turning to those bills, it is useful to remind ourselves
that state voluntary programs differ substantially in their quality.
Indeed, in a study released by the Conference of Mayors just three
months ago, nearly one-third of the responding cities gave a low rating
to their state's voluntary cleanup program (23% rate it as ``not very
good'' and 6% as ``poor'').<SUP>2</SUP> Another 44% rates their states
program as merely ``satisfactory''. In short, cities themselves are
less than ecstatic about most state brownfields programs, making clear
the continuing need for a federal safety net.
---------------------------------------------------------------------------
\2\ U.S. Conference of Mayors (April 1999). Recycling America's
Land: A National Report on Brownfields Redevelopment, Volume II, p. 12.
---------------------------------------------------------------------------
Further illustration of this point comes from a recent study of
voluntary programs by the General Accounting Office. <SUP>3</SUP>
Although the majority of 17 states surveyed typically use standards
based on industrial-use scenarios in cleaning up sites, only two
monitor the land-use restrictions that must be concomitantly imposed on
such sites to keep non-industrial uses from occurring.<SUP>4</SUP>
Likewise, in 8 of the 17 states, most cleanups use non-permanent
cleanup methods but received only limited monitoring, primarily in the
form of periodic reports by the facility owners.
---------------------------------------------------------------------------
\3\ U.S. General Accounting Office (April 1997). Superfund: State
Voluntary Programs Provide Incentives to Encourage Cleanups. GAO/RCED-
97-66.
\4\ Id. p. 39.
---------------------------------------------------------------------------
In addition, resource constraints can pose serious problems. Just
two months ago, the manager of the Brownfields Redevelopment Project
for Ohio's Cuyahoga County Planning Commission testified that the
pending budget for Ohio's voluntary cleanup program ``reflects no
commitment to staff the program''. Since the beginning of the year, the
[voluntary program] has been in a mode of attrition. As of this week
staff has been cut--reducing its size from 25 to 16 FTEs statewide.''
<SUP>5</SUP>
---------------------------------------------------------------------------
\5\ Testimony of Virginia Aveni Before the Senate Finance and
Financial Institutions Committee, May 26, 1999, p. 3.
---------------------------------------------------------------------------
In short, the existence of a state cleanup program is no guarantee
that cleanups under that program will prove effective. When they
aren't, federal authorities must be available to provide a safety net
for communities.
ii. h.r. 2580: undercutting the federal safety net for brownfield
cleanups
Unfortunately, H.R. 2580 eviscerates the federal safety net.
Sections 3 and 4 are particularly objectionable.<SUP>6</SUP> Our
opposition to these provisions dramatically outweighs our longstanding
support for the concept of bona fide prospective purchaser protections
such as those in section 6. Likewise, while we support protection of
innocent parties, section 5 of H.R. 2580 should be strengthened by
adding requirements (such as those in H.R. 1750) that the purchaser
take reasonable steps to prevent ongoing or future releases, and
cooperate with parties conducting a cleanup at the site.<SUP>7</SUP>
---------------------------------------------------------------------------
\6\ In addition, section 1's ``Findings'' contain a number of
seriously erroneous and misleading statements, and fail entirely to
acknowledge the dangers of improperly conducted brownfields cleanups
for both current and future generations. Likewise, Section 8's
provisions on contiguous properties suffers from several important sins
of omission, such as failure to require (i) use of appropriate care in
stopping ongoing releases and exposures, (ii) provision of notice,
(iii) no exacerbation of release, and (iv) appropriate inquiry at the
time of acquisition.
\7\ While we do not oppose liability protections for contiguous-
property owners, we prefer the provisions in H.R. 1750 to those in H.R.
2580, since the former are less susceptible to abuse.
---------------------------------------------------------------------------
Our major concerns with sections 3 and 4 are set forth below.
a. H.R. 2580's Inappropriate Limitations on Federal Authority at State
Voluntary Cleanup Sites.
Section 3 bars EPA, citizens, and local governments from bringing
an action under Superfund and parts of RCRA with regard to a release at
a facility that is or has been the subject of a response action under a
state program.
Such restrictions go far beyond the Superfund liability protection
for bona fide prospective purchasers, a concept which EDF has long
supported as noted above. Those provisions allow parties that have no
prior connection to the site, and that meet certain common-sense
requirements, to be assured that they will not become liable as an
owner/operator under Superfund for pre-existing contamination at the
site. This provision should help further spur brownfield redevelopment.
Unfortunately, Section 3 of H.R. 2580 goes much further. It not
only limits all Superfund enforcement authorities, but also key RCRA
enforcement authorities--ones that enable both EPA and citizens to take
action against parties that are mismanaging solid or hazardous wastes
to the extent of presenting an ``imminent and substantial
endangerment.''
At the same time, it is far from clear what ``release at a facility
that is, or has been, the subject of a response action pursuant to a
State program'' actually means. Does the prohibition apply even if the
State response action covered a completely different release at a
facility (i.e., does ``subject'' modify ``release,'' or does it modify
``facility'')?
Likewise, what does ``the subject of'' mean? What if the response
action was planned years ago, but no steps to implement it were ever
taken? Or if action stopped after initial studies were completed? Or if
a cleanup was carried out, but failed to achieve required cleanup
levels? Or wasn't maintained as required by the state cleanup plan?
These questions will also require years of litigation to resolve.
Polluters will seek the broadest possible construction of these
phrases to escape liability under Superfund and RCRA. As discussed
below, these concerns are particularly acute in light of the breadth of
Section 3's scope, as well as the profound weakness of its
certification and re-opener provisions.
1. Letting Federalism Trump Public Health
Remarkably, Section 3 limits EPA from taking any action at all--
even at its own expense--at sites where action under a state program
has proven ineffective.
This provision is based on a fundamentally flawed premise: that
contaminated sites addressed under state cleanup programs should be
above the law, immune from all Superfund and some RCRA enforcement
authorities, unless certain limited conditions are met. The result is
that private cleanups with no governmental oversight can completely bar
use of RCRA and CERCLA safeguards--no matter how serious a threat the
site poses.
This approach undercuts the federal safety net for cleanups and
elevates principles of federalism above protection of public health and
the environment. If cleanups under state programs don't work, the
federal government should be able to act, under the same standard that
applies across the board. There is not a shred of evidence that,
following action under a state program, EPA has insisted on post-
cleanup cleanups that serve no purpose to protect health and
environment. Indeed, EPA has seldom if ever required additional action
following completion of a cleanup under a state program, except where
the state itself has requested EPA intervention.
Simply put, it is not acceptable to restrict the ability of federal
and local governments and citizens to respond to imminent and
substantial endangerments at sites where cleanups under State programs
have occurred. By definition, those cleanups didn't work--if they had,
the site would not be presenting an imminent and substantial
endangerment.
2. Undercutting Incentives for Effective Voluntary Programs
Under current law, the authority of EPA, local governments, and
citizens to act following an unsuccessful state cleanup itself creates
an important incentive for more-rigorous cleanups, and for minimizing
abuses within state cleanup programs. The very fact that this authority
now exists decreases the likelihood it will be needed. Conversely,
removing or limiting that authority makes it more likely that problems
will arise--and be harder to deal with.
Superfund clearly creates powerful incentives for action. The
Cleveland Plain Dealer recently ran a story about the Ashtabula River
Partnership, a group working to avoid a potential Superfund listing by
creating what they regarded as ``a better-than-Superfund cleanup plan''
for the river's heavy-metal and PCB contamination problems. The paper
quoted Rep. Steve LaTourette (R-OH) as remarking that ``[t]he prospect
of a Superfund designation has proven to be a more effective tool than
the Superfund itself. Without Superfund, however, most parties wouldn't
even be at the table.'' <SUP>8</SUP> Similarly, GAO noted that State
program managers ``pointed out that a major incentive for private
parties to clean up sites is to avoid having their properties added to
the list of the most contaminated sites in the country.'' <SUP>9</SUP>
---------------------------------------------------------------------------
\8\ ``Toxic Cleanup: Ohioans Aim to Skirt Superfund Listing,''
Greenwire (electronic newsletter), June 14, 1995 (synopsis of story
from June 11 Cleveland Plain Dealer).
\9\ GAO, p. 3.
---------------------------------------------------------------------------
Just as Superfund creates incentives for voluntary action, so
continued applicability of Superfund reinforces incentives for high-
quality voluntary action. These incentives should not be discarded.
3. Granting Windfall Waivers of Liability.
In addition, Section 3 provides a windfall waiver of Superfund
liability for current and past owners and operators of the site, as
well as all generators and transporters, who would otherwise be liable
for cleanup costs at the site. Even if one accepts the argument that
current site owners will be reluctant to re-develop or sell their
property unless States can relieve them of liability under federal
law--an argument we find singularly unpersuasive--there is no
justification whatsoever for extending the waiver of liability to past
owners, or to generators or transporters.
Relieving current owners of liability is itself highly
objectionable, since in many instances it is these very parties who are
most responsible for conditions at the site. In EDF's view, the only
liability limitations that are warranted are those for bona fide
prospective purchasers. Even without prospective-purchaser limitations,
the private market is increasingly providing mechanisms for moving
forward with brownfield redevelopment today.<SUP>10</SUP> Until and
unless objective evidence demonstrates that liability relief for bona
fide prospective purchasers is insufficient to promote adequate
brownfields redevelopment, this provision can only be regarded as a
give-away to parties who have known they were potentially liable for
two decades.
---------------------------------------------------------------------------
\10\ See for example, Coffey, ``Environmental Firms Assume Cleanup
Risks,'' Seattle Daily Journal of Commerce, 02/11/97 [Retrieved from
ttp://www.djc.com/data/news/19970211/10020180.htm 2/27/97]. The article
describes a ``radically different approach to soil and groundwater
cleanups that is slowly catching on in the environmental industry. A
handful of firms are guaranteeing cleanup costs for their clients and,
in some cases, providing definite dates for when the cleanup work will
be finished.'' The article continues, ``Not only are these companies
promising to bring sites up to [Washington] Department of Ecology
standards within a certain amount of time, they also are assuming the
financial risks involved if the schedules for site closures can't be
met. This new approach is being hailed as the missing link needed to
get the state's hundreds of abandoned contaminated properties, or
`brownfields,' cleaned up and redeveloped.'' Similarly, conferences
with titles such as ``Realizing Profits in Brownfields,'' which
advertise a ``unique opportunity for all parties involved with
Brownfields properties to locate and initiate their next profit making
real estate deal,'' are increasingly common. [Flier for conference
scheduled for April 10-11, 1997, Philadelphia PA].
---------------------------------------------------------------------------
Finally, it must be noted that the approach taken in Section 3
substantially undercuts the prospective-purchaser provisions in Section
6 of H.R. 2580, since liability is blocked even if Section 6's
requirements are not met.
b. H.R. 2580's Implicit Repeals of Other Environmental Authorities.
Unlike other brownfields bills, H.R. 2580's limitations on
Superfund and RCRA enforcement authorities apply to a wide range of
sites at which there is a clear pre-existing federal interest. For
example, H.R. 2580 fails to provide that sites cannot be diverted into
state programs once they have been proposed for listing on the National
Priorities List, providing opportunities for gaming the system.
In addition, the bill fails to preserve the applicability of a host
of other federal environmental important laws that may affect
contaminated sites:
<bullet> RCRA authorities, e.g., relating to corrective action and
closure of land-disposal units (such as liners, leachate
collector systems, and landfill covers);
<bullet> TSCA authorities, e.g., for cleanup of PCB contamination;
<bullet> Clean Water Act authorities, e.g., relating to wetlands; and
<bullet> Safe Drinking Water Act authorities, e.g., relating to
underground injection.
These glaring omissions means that state voluntary programs which
may completely lack public participation and substantive standards to
trump provisions of other major federal environmental laws--each of
which has evolved specific implementing regulations, with extensive
public participation, over many years.
Most egregiously, H.R. 2580 undercuts the RCRA corrective action
program. Since enactment of the 1984 amendments to RCRA, owners and
operators of hazardous waste facilities have known that they have a
legal obligation to clean up existing messes at their facilities in
conjunction with getting their facility permit. Under H.R. 2580, these
15-year-old requirements arguably could be circumvented by a far weaker
voluntary cleanup with no public participation. Such a rollback of
existing federal requirements is completely unacceptable.
The scope of this issue is significant, as approximately 3,700 RCRA
sites may require corrective action.<SUP>11</SUP> EPA recently
designated 1,712 corrective action sites for priority attention through
2005.<SUP>12</SUP> A state that wants primacy in directing action at
these sites (and other RCRA corrective action sites) has a clear means
of obtaining it: become authorized to administer the corrective action
program, as 30-plus states have done already.
---------------------------------------------------------------------------
\11\ See http://www.epa.gov/epaoswer/osw/cleanup.htm#ca program.
\12\ See http://www.epa.gov/epaoswer/osw/cleanup.htm#baseline.
---------------------------------------------------------------------------
Exacerbating all these problems, H.R. 2580 contains a sweeping
exemption to permitting for all on-site activities conducted under a
voluntary response plan [Sec. 3(e), p.7]. This provision offers a
massive loophole for evading requirements of RCRA, the Clean Air and
Clean Water Acts, and a variety of other federal protections.
In many instances, eliminating permit requirements eliminates
public participation--and H.R. 2580 conspicuously fails to require that
state programs provide meaningful participation (or indeed any at
all).<SUP>13</SUP>
---------------------------------------------------------------------------
\13\ Nor does H.R. 2580 have any mechanism for assuring the
adequacy of a state's public participation program, even if it the
state nominally has one.
---------------------------------------------------------------------------
Although the bill purports to require that the substantive
standards be met, this is meaningless since the only way the public (or
state or federal regulators) are likely to be able to tell if the
standards are met are through inclusion of specific standards in the
permit. Under many of the affected statutes, the substantive regulatory
standards have been promulgated in relatively general form, so that
they may be applied in a site-specific manner through the permit (or
provides for site-specific exceptions to generally-applicable
standards). Obviating the permit will often leave site owners with
unfettered discretion to pick a numerical standard that allows them to
minimize the cost of cleanup. At the same time, H.R. 2580 fails to
require any active state oversight. This is a recipe for disaster.
This provision is by no means analogous to Superfund's exemption
for permitting for on-site activities. Under Superfund, there is a high
level of active governmental oversight and public participation, making
the Superfund remedy-selection process at least the equal of federal
permitting processes other environmental programs (indeed, Superfund
exceeds all other programs inasmuch as it allows citizens to obtain
Technical Assistance Grants.) By contrast, H.R. 2580 conspicuously
fails to assure any level of public participation in state voluntary
programs, just as it fails to require any level of active state
supervision of the cleanup. Moreover, under Superfund it is EPA that
makes cleanup determinations--the same body that develops the
substantive standards underlying the waived permits. In the brownfields
context, it is States or site owners that make cleanup determinations--
groups that may have little interest in assuring that the underlying
substantive standards are indeed met.
In short, even if one assumes that federal Superfund authorities
should be limited at some sites in order to promote brownfield
redevelopment (an assumption we do not share), that constitutes no
justification for indirectly repealing significant portions of other
major federal laws. Any limitations on Superfund authorities must be
accompanied by explicit preservation of authority under these other
major federal environmental programs, as well as by adequate
certification and re-opener provisions as discussed in the next
section, and retention of existing permit requirements.
c. H.R. 2580's Inadequate Certification and Re-opener Provisions
1. Weak Self-Certification Provisions
Although Section 3's reach is purportedly limited by provisions
that set both preconditions (State certification) and criteria for re-
openers, both sets of provisions are seriously flawed.
The State certification requirements are almost meaningless. The
state need only submit a three-part self-certification: that a
voluntary response program has been enacted; the State has committed
financial and personnel needed to carry it out; and such program will
be implemented in a manner protective of human health and the
environment (Sec. 3(b), p.4). For all the bill says to the contrary,
the Governor could write these phrases on a post card and mail it to
Administrator Browner--and achieve automatic, irrevocable, permanent
designation as a State response program for purposes of barring EPA,
citizen, and local government action under Superfund and RCRA's
imminent-hazard provisions.
EPA has no authority to reject the self-certification, no matter
how inaccurate. Moreover, there is no requirement for public
participation of any kind in the State program (much less provision of
technical assistance resources), nor is there any opportunity for the
public to provide EPA with comment on the adequacy of the state
program. Nor is there any requirement that the state provide any
oversight of private parties' cleanup activities. And even if the State
has committed adequate resources at the time of the certification,
there is no requirement for regular re-certification, or notifying EPA
if resources cease to be adequate (e.g., due to dramatic budget cuts).
2. Inadequate Re-openers.
The appropriateness of the re-openers is one of the most vital
aspects of any ``finality'' provision--and an area where H.R. 2580 is
particularly flawed (Sec. 3(d), p.5). The finality provision (which
applies even to sites already proposed for listing under Superfund) is
limited only where:
<bullet> The site has been listed under Superfund (but unlike all other
brownfields bills, not for sites already proposed to be
listed);
<bullet> The Governor requests EPA action;
<bullet> The site is a federal facility;
<bullet> Prior to commencement of action under a state program, a
federal administrative or judicial order was issued under
Superfund, RCRA, the Clean Water Act, TSCA, or the Safe
Drinking Water Act; or
<bullet> ``response actions are immediately required to prevent or
mitigate a public health emergency and . . . the State is not
responding in a timely manner.''
This last proviso is a plum ripe for corporate litigators to pluck,
again and again, first as to its general meaning, and then as to its
applicability in specific factual settings whenever their clients want
to circumvent attention by EPA, citizens, or local governments. What
does ``immediately'' mean? What is a ``public health emergency''? Why
is there no consideration of the environment? What is a state
``response''? What is a ``timely manner''?
All this fodder for the litigation mill is unnecessary. EPA should
be able to act without restriction at voluntary cleanup sites, just as
it can anywhere else. Where a voluntary cleanup is efficacious, EPA
will have no need (or motive) to act--but where the cleanup doesn't
work, a federal safety net should be readily available, under the
familiar ``imminent and substantial'' standard (which is also found in
numerous state cleanup laws <SUP>14</SUP> and in Memoranda of Agreement
between EPA and several states regarding state voluntary programs
<SUP>15</SUP>). In addition, prior testimony to this committee by the
National Association of Local Government Environmental Professionals
has also endorsed the inclusion of a reopener based on the ``imminent
and substantial'' standard.<SUP>16</SUP>
---------------------------------------------------------------------------
\14\ See, e.g., Arizona (Arizona Statutes Sec. 49-287(E)); Arkansas
(Arkansas Statutes Sec. 8-7-409(a)); California (California Superfund
act, Sec. 25358.3(a)); Colorado (Colorado Statutes Sec. 25-15-
301(4)(a)); Hawaii (Hawaii Statutes Sec. 128(D)-4(2)); Louisiana
(Louisiana Revised Statutes 30:2275(A)); Maryland (MD Environmental
Statutes Sec. 7-222 (2)(iii)); Michigan (Michigan Statutes
Sec. 324.20119(1)); Minnesota (Minnesota Statutes 115B.18 Subdivision
2); Montana (Montana Statutes 75-10-711(1)(a)); New Hampshire (New
Hampshire Statues Annotated Sec. 147-A:13); New Mexico (New Mexico
Statutes Annotated Sec. 74-4-13(A)); Oregon (Oregon Statutes
Sec. 465.260(5)(b)); Pennsylvania (Pennsylvania Statutes 35,
Sec. 6020.501(g)); South Carolina (South Carolina Statutes Annotated
Sec. 44-56-50); Texas (Solid Waste Disposal Act Sec. 361-272(a)); West
Virginia (West Virginia Statutes Sec. 22-18-18)a)).
\15\ E.g., Memorandum of Agreement Between the Texas Natural
Resource Conservation Commission and the U.S. EPA, Region 6; and
similar agreements in Colorado, Illinois, Michigan, Minnesota,
Missouri, Wisconsin.
\16\ Statement of David Levy before the Subcommittee on Commerce
and Finance of the House Commerce Committee, Committee Print p. 114.
---------------------------------------------------------------------------
d. Disempowering the Public: Governor's Concurrence
In another highly objectionable feature of the bill, new sites can
be added to the Superfund list only upon the concurrence of the
Governor of the State in which the site is located [Sec. 4, adding
CERCLA Sec. 105(h), p.8].
While it may be appropriate to give states ``first dibs'' on
cleanups at sites that will be appropriately addressed through state
action, this provision goes much too far. A state could, through simple
inaction, bar action under Superfund even though the site will not
otherwise be cleaned up. This invites potential abuses (if, for
example, a major potentially responsible party at the site also
happened to be a campaign contributor to a high-ranking State
official).
This provision effectively repeals section 105(d) of CERCLA, under
which citizens and local governments can petition EPA to list sites on
the NPL. Where prompt state action has been forthcoming, no such
petition is needed. But where it is lacking, Governors should not be
able to cut a hole in the federal safety net. Notably, the majority of
NPL sites in Louisiana have resulted from citizen petitions,
highlighting the importance of this mechanism.
As above, EPA's authority to list absent the Governor's concurrence
serves as a useful incentive, and makes it less likely that EPA will
actually have to do so. In 1995, EPA established a formal policy for
coordinating with states in deciding whether to list. Since that time,
no site has been listed over a Governor's objection. However, if EPA
were unable to list absent concurrence, states would find themselves
under much greater political pressure to object to NPL listing--even if
the state's program was indeed strapped for resources.
In short, the requirement for the Governor's concurrence is a
solution in search of a problem--and one that will itself create a
number of problems.
iii. h.r. 1300: another set of holes in the federal safety net.
Though the brownfields-related provisions of H.R. 1300 are less
extremist than those of H.R. 2580, they are still far from acceptable.
Our most serious concerns involve the limitation on use of Superfund
authorities found in section 104 [adding CERCLA Sec. 129, p.17], in
tandem with the inadequate re-opener provisions. As discussed above
with regard to H.R. 2580, we oppose creating a more-restrictive
standard for action under Superfund, which will delay further action at
sites with ineffectual voluntary cleanups and also prompt litigation
over this new terminology (i.e., action is ``immediately required'' to
address ``an emergency'' and ``there is an immediate risk to public
health or welfare or the environment'' (p.19)).
These concerns are exacerbated by the fact that H.R. 1300 applies
its limitations on Superfund cost-recovery authorities to state
programs sight unseen. Those limits apply to any state law ``that
specifically governs response actions for the protection of public
health and the environment'' [p.18], regardless of whether those
programs actually achieve their objectives, have adequate resources, or
provide for any public participation at all. There is no opportunity
for EPA to review those programs, or gather communities' views on their
adequacy. As noted above, almost one-third of cities responding to a
survey for the U.S. Conference of Mayors rated their state voluntary
cleanup programs as less than satisfactory, so the blanket approval
awarded by H.R. 1300 is plainly unwarranted.
In addition, section 105's requirement for a one-year delay in
finalizing an NPL list is not desirable, since more-rapid listing may
be appropriate in some cases. (Sec. 105, adding CERCLA Sec. 105(h), p.
19]. We concur with the National Association of Attorneys General that
such provisions allow potentially responsible parties ``too many easy
routes to avoid enforcement or listing.'' <SUP>17</SUP>
---------------------------------------------------------------------------
\17\ Comments of the National Association of Attorneys General on
H.R. 1300, as transmitted by Lynne M. Ross, Deputy Director, NAAG, by
letter of May 24, 1999, to Chairman Sherwood Boehlert of the Water
Resources and Environment Subcommittee, p. 2.
---------------------------------------------------------------------------
In addition, we strongly oppose portions of the innocent-party
provisions of H.R. 1300, found in section 303. EDF has long supported
tailored provisions, such as those in section 202(a) of H.R. 1750 and
section 5(a) of H.R. 2580, that provide liability relief for truly
innocent parties, though we strongly prefer H.R. 1750 because it
appropriately requires that parties take reasonable steps to stop
ongoing and prevent future releases and exposures, and to provide
cooperation and access for the cleanup. By contrast, Section 303 of
H.R. 1300 changes Superfund's basic defenses to liability to include
consideration of ``generally accepted good commercial and customary
standards and practices at the time''--a sure-fire way to expand
litigation while everyone argues about what that means, and to shift
cleanup costs to the general taxpayer--and also contains an unworkable
site-specific basis for assessing whether the party made all
appropriate inquiry [section 303(a), amending CERCLA 107(b)(4), p.64].
In sum, while H.R. 1300 is less draconian than H.R. 2580, it is
still far from acceptable.
iv. h.r. 1750: a moderate and tailored bill
By contrast, H.R. 1750 takes a measured approach. Unlike H.R. 2580,
it places no restrictions on RCRA authorities; with regard to
Superfund, it limits only Superfund's cost-recovery provisions, but not
EPA's authority to take direct action. In addition, H.R. 1750 has much
more reasonable re-opener provisions. These include (among others) the
existing standard for action, namely ``imminent and substantial
endangerment,'' as well as new conditions that result in a lack of
protection of the environment.
Likewise, H.R. 1750 has far more robust criteria for state
programs. Rather than the one-time self-certification provided by H.R.
2580 (which blocks all use of Superfund and some RCRA authorities),
H.R. 1750's limitations on cost-recovery authority apply only if a
program is approved. Criteria for program approval include public
participation and technical assistance, protective site assessment and
cleanups, adequate oversight and enforcement, prior approval of cleanup
plans, and certification of completion of the cleanup.
In addition, H.R. 1750 provides that a previously-approved program
can be disapproved if changed circumstances warrant, a sharp
distinction to H.R. 2580's once-and-forevermore approach. In short,
H.R. 1750 avoids both the sins of omission, and the sins of commission,
found in H.R. 2580 and H.R. 1300.
v. conclusion
We appreciate this opportunity to testify.
Mr. Oxley. Mr. Garczynski.
STATEMENT OF GARY GARCZYNSKI
Mr. Garczynski. Mr. Chairman, my name is Gary Garczynski. I
am the Vice President and Secretary of the National Association
of Home Builders and the senior officer with oversight over the
Smart Growth Initiative. I speak to you today on behalf of
President Roma, who could not be here due to other business
concerns, and he apologizes to you and promises you a round of
golf, but watch his handicap.
Redeveloping brownfields revitalizes economically depressed
areas, and cleans up the environment as well. That is why we as
home builders have made brownfields redevelopment one of the
key components of our Smart Growth strategy. In fact earlier
this year, the Home Builders joined in an initiative with the
U.S. Conference of Mayors and HUD to produce 1 million homes in
the inner cities over the next decade. Fixing our brownfields
problem will go a long way toward promoting Smart Growth
initiatives throughout this country.
Last month, your House Real Estate Caucus hosted the
national real estate organization's Annual Conference on Smart
Growth. I strongly suggest you review that transcript. The last
hour of that meeting did nothing more than talk about the need
for legislative reform so that real estate companies and the
community can engage in cleaning up and redeveloping
brownfields sites. Taking advantage of brownfields would ease
pressure to develop on the fringes of the suburbs, thus slowing
the rate of suburban expansion.
We appreciate the opportunity to discuss the three bills
before you as well as some of our proposals that focus
exclusively on brownfields redevelopment.
First, legislation to promote brownfields redevelopment
does not necessarily need to be linked to legislation that
reauthorizes Superfund. Most Superfund bills, including the
ones before your subcommittee, are, by and large, aimed at
providing protection for a person who already owns or is
otherwise connected to a contaminated site through no fault of
his or her own. That is an important reform.
But as builders we don't look at brownfields purely in
terms of escaping liability. Indeed, we see brownfields as an
opportunity to get involved and turn unproductive land into
livable communities, promoting urban renewal, improving the
environment and giving communities more options in growth
smart.
It makes no sense for us to become involved in a site when
we face the added cost of cleanup and the legal uncertainties
of Superfund, not to mention a host of other Federal laws and
regulations. If Congress is genuinely interested in involving
us in the cleanup and reuse of sites, then it should take a
look at incentives and guarantees to make up for the risk
inherent in developing contaminated sites.
One principle which we can all agree upon is that State-run
programs are the most effective means for bringing about
brownfields cleanup. To date, over 35 States have adopted
legislation or promulgated regulations that use innovative
risk-based cleanup standards that drive down the cost of
cleanup while protecting public health and the environment.
These programs also give the necessary liability protections
and assurances to attract us builders. More States are creating
voluntary cleanup plans each year.
In encouraging the use of State programs, EPA's role must
be clearly defined in terms of its ability to interfere with
the cleanup that is underway, or reenter a completed plan. Any
developer's top priority before beginning a project is to
define. All potential costs or delays in a project. To that
end, the more certainty a builder has, the better he or she can
plan a project and the more likely he or she will engage in a
project.
With this in mind, we find Congressman Greenwood's and
Congressman Boehlert's bills the most useful. While all three
bills provide some certainty as to EPA's role in State
programs, both of these bills provide more certainty as to
exactly what circumstances allow EPA to get involved in a
particular State program.
Certainly we understand Congressman Towns would like EPA to
have oversight over State brownfields programs. However, we
worry that this will exact from States concessions that will
ultimately rob them of the advantages of their--that their
programs would offer.
It has been our experience that the EPA has been very
reluctant to give States the kind of guarantees that would
empower their voluntary cleanup programs to the extent
necessary to make them viable. We believe that EPA's role in
brownfields should be dependent upon the level of contamination
present on a site. It should retain authority over the most
contaminated sites, but less contaminated sites should simply
be removed from their authority all together.
In reality, few builders have the money or the technical
expertise to take on truly contaminated sites. These sites
require the expertise and deep pockets of a government agency
for remediation. But less contaminated sites can be effectively
remediated by developers or other interested parties by working
through a State program.
The National Priorities List, as created by Superfund, is
an excellent way of rating these sites and clarifying which
belong under the care of Superfund and which should not be part
of EPA's authority. Both Congressman Towns' and Congressman
Greenwood's bills implicitly acknowledge this principle.
If Congress truly wants to promote brownfields
redevelopment to its fullest extent, it should consider a
definition of brownfields that covers other contaminants not
covered by Superfund.
Foremost among these are contaminants that come from
petroleum products. Our estimation suggests that nearly half
the redevelopment brownfields sites in this country are
contaminated not with Superfund-related toxins but rather
petroleum-related toxins.
Unfortunately, none of the legislative proposals you are
considering address these sites. Indeed, to be thorough,
Congress should address not only petroleum contaminants----
Mr. Oxley. Could you summarize, please?
Mr. Garczynski. [continuing] but all federally covered
contaminants.
I am suggesting ultimately that Congress should recognize
that EPA does have a legitimate role in protecting the public
health and the environment, and it should not be hamstrung when
generally attacking these hazards for public safety. The most
hazardous sites should still be supervised by the agency since
it has the resources and expertise to make sure the cleanup is
done right, but those that actually cause the contamination
contribute their fair share to the cleanup.
But, in conclusion, brownfields redevelopment is a win-win
situation for everybody, and it is unfortunate that we have
not, as a Congress and administration and a community, been
able to channel our resources for solving this problem. I hope
that we are going to do that here and now.
Thank you. I am ready to answer any questions, Mr.
Chairman.
[The prepared statement of Gary Garczynski follows:]
Prepared Statement of Gary Garczynski, NAHB Vice President/Treasurer on
Behalf of the National Association of Home Builders
Mr. Chairman and members of the Subcommittee, I am pleased to
represent the 197,000 members of the National Association of Home
Builders today and talk about brownfields legislation.
Importance of Brownfields and Smart Growth
As you know, redeveloping brownfields not only revitalizes
economically depressed areas but cleans up the environment as well.
That is why the homebuilders have made brownfields redevelopment one of
the key components of our smart growth strategy. In fact, earlier this
year the homebuilders joined in an initiative with the U.S. Conference
of Mayors and the Department of Housing and Urban Development that will
produce one million new homes in cities and inner suburban rings over
the next decade. Solving our nation's brownfields problem would greatly
facilitate this effort by opening up to redevelopment areas that
desperately need economic revitalization.
In fact, fixing our brownfields problem would go a long way toward
promoting smart growth initiatives throughout the country. Last month
the House Real Estate Caucus hosted the National Real Estate
Organization's annual conference on Smart Growth. We spent most of the
last hour of that meeting talking about the need for legislative reform
so that the real estate community can engage in cleaning up and
redeveloping these sites. Taking advantage of brownfields would ease
pressure to develop on the fringes of our suburbs, thus slowing the
rate of suburban expansion.
Addressing H.R. 1300, H.R. 1750 and H.R. 2580
You have indicated today that you would like us to testify on three
bills your subcommittee will soon take up. H.R. 1300, sponsored by
Congressman Boehlert (R-NY); H.R. 1750, sponsored by Congressman Towns
(D-NY); and H.R. 2580, sponsored by Congressman Greenwood (R-PA). We
appreciate the opportunity to discuss these bills with the Subcommittee
as well as present our own proposal that focuses exclusively on
brownfields redevelopment.
NAHB has devoted significant time and resources toward finding the
best way to bring about brownfields redevelopment. Our first
observation is that legislation to promote brownfields redevelopment
does not necessarily need to be linked to legislation that reauthorizes
Superfund. Most Superfund bills, including the ones before your
subcommittee, are by and large aimed at providing protection for a
person who already owns or is otherwise connected to a contaminated
site through no fault of his or her own. This is important reform.
But our builders do not look at brownfields purely in terms of
escaping liability. Instead, we see brownfields as an opportunity to
get involved and turn unproductive land into livable communities. This
is something we want to do for all the right reasons: to promote urban
renewal, to improve the environment, and to give communities more
options in growing smart. But it makes no sense for us to become
involved in a site when we face the added costs of cleanup and the
legal uncertainties of Superfund, not to mention a host of other
federal laws and regulations. If Congress is genuinely interested in
involving us in the cleanup and reuse of these sites, then it should
look for incentives and guarantees to make up for the risks inherent in
developing contaminated sites. Fortunately, all three bills we are
discussing today acknowledge that fact to one degree or another.
The Importance of State Voluntary Cleanup Programs
One principle I which we can all agree upon is that state run
programs are the most effective means for bringing about brownfields
cleanup. To date over 35 states have adopted legislation or promulgated
regulations that use innovative risk-based clean-up standards that
drive down the costs of cleanup while protecting public health and the
environment. These programs also give the necessary liability
protections and assurances to attract builders. More states are
creating voluntary cleanup plans each year.
In encouraging the use of state programs, EPA's role must be
clearly defined in terms of its ability to interfere with a cleanup
plan that is underway or re-enter a completed plan. Any developers' top
priority before beginning a project is defining as best possible all
potential costs or delays in a project. To that end, the more certainty
the builder has, the better he or she can plan a project and the more
likely he or she will engage in a project.
With this in mind, we find Congressmen Greenwood and Boehlert's
bills the most useful. While all three bills provide some certainty as
to EPA's role in state programs, both the Greenwood and Boehlert bills
provide more certainty as to exactly what circumstances allow EPA to
get involved in a particular cleanup project sponsored by a state
program.
Certainly, we understand why Congressman Towns would like EPA to
have oversight over state brownfields programs--much as it exercises
this oversight in state Clean Water programs; however, we worry that
this will exact from the states concessions that will ultimately rob
them of the advantages their programs offer. It has been our experience
that EPA has been very reluctant to give states the kind of guarantees
that would empower their voluntary cleanup programs to the extent
necessary to make them truly viable.
EPA's Role in Cleanups
This brings us to another important principle that is implicit, to
varying degrees, in all three proposals before you today. We believe
that EPA's role in brownfields should be dependent upon the level of
contamination present on the site; it should retain authority over the
most contaminated sites but the less contaminated sites should simply
be removed from its authority altogether.
In reality, few builders have the money and technical expertise to
take on truly contaminated sites. These sites require the expertise and
deep pockets of a government agency for remediation. But the less
contaminated sites can effectively be remediated by developers or other
interested parties by working through a state program. The National
Priorities List, as created under Superfund, is an excellent way of
rating these sites and clarifying which belong under the care of
Superfund and which should not be a part of EPA's authority. Both
Congressmen Towns and Greenwood implicitly acknowledge this principle
in their bills.
A Definition of Brownfields that Includes Petroleum Contaminants
And finally, I want to discuss the definition of a brownfield.
Here, again, we see a distinction between legislation to reform
Superfund and legislation to encourage the development of brownfields.
Under both Congressmen Boehlert's and Towns' bills we find a definition
of brownfields based largely on the presence of toxins covered under
Superfund. However, these are not the only toxins that create the type
of uncertainty and liability risks that make a site unattractive for
redevelopment.
If Congress truly wants to promote brownfields redevelopment to the
fullest extent, it should consider a definition of brownfields that
covers other contaminants not covered by Superfund. Foremost among
these are contaminants that come from petroleum products. Our
estimations suggest that nearly half the redevelopable brownfields
sites in this country are contaminated not with Superfund related
toxins, but rather petroleum related toxins. Unfortunately, none of the
legislative proposals you are considering address these sites. Indeed,
to be thorough, Congress should address not only petroleum
contaminants, but any federally covered contaminant.
In addressing these other contaminants in a brownfields
redevelopment bill, Congress should follow the same principles I have
already mentioned. EPA should maintain authority over the more
contaminated areas. But in lesser contaminated areas, EPA should have
no authority, leaving the states to develop innovative and flexible
approaches to remediate these sites and make them productive. EPA's
resources would remain focused on finding and cleaning up the most
dangerous sites, and the agency would only be limited when it cannot
find severe contamination on a site.
In this regard, the approach I am suggesting is very close to
Congressman Greenwood's bill. While his bill does not cover all of the
contaminants we would like to see covered, it does establish in section
three a clear delineation of authority between EPA and the states based
primarily upon the level of contamination a site contains. His bill
also does not limit itself in defining brownfields under Superfund.
This simple approach leaves intact EPA's legitimate need to protect
human health and the environment while freeing states and developers to
tackle those sites that have much less contamination.
Finding a Political Compromise
Ultimately, if Congress and the Administration are serious about
promoting Smart Growth and, as part of that goal, cleaning up
brownfields, then we need to get past the rhetoric that has stood in
the place of reform. I think we all know the truth about promoting
brownfields redevelopment. Eventually, EPA will have to recognize that
just because it has not interfered with a state's voluntary cleanup
program in the past does not mean it will not get involved in the
future. Comfort letters and other promises cannot give us the certainty
we need before engaging in brownfields redevelopment, and it makes no
sense to get involved when we can build elsewhere without the cost or
risk that brownfields present. In fact, EPA's opposition to the legal
certainty we need is tantamount to telling the redevelopment community
that, indeed, our fears are legitimate.
At the same time, Congress should ultimately recognize that EPA has
a legitimate role in protecting the public health and environment, and
it should not be hamstrung when genuine hazards threaten public safety.
The most hazardous sites should still be supervised by the agency since
it has the resources and expertise to make sure the cleanup is done
right and those who actually caused the contamination contribute their
fair share to the cleanup.
Conclusion
In conclusion, let me reiterate our commitment to solving the
problems associated with brownfields and our desire to promote smart
growth. Brownfields redevelopment presents a win-win, and it is
unfortunate that we have not been able to get from Congress and the
administration the reforms homebuilders need so as to devote our
resources toward solving this problem.
I am grateful to speak to you today on this important issue, and I
await any questions you might have.
Mr. Oxley. Thank you, Mr. Garczynski.
The Chair would recognize himself for a round of questions.
Ms. Mills, I wasn't here for your testimony, but I did have
an opportunity to review it, and the charges that you made
against the Ohio cleanup program, from my perspective, simply
don't ring true. For those of us who have served at the Federal
and State level, my experience has been that our agencies and
our legislators have a core mission of public health protection
and, in fact, they take that very seriously. Do you actually
believe that Ohio's legislators and environmental agencies
have, quote, sinister motivations and want to cause intentional
harm?
Ms. Mills. Yes.
Mr. Oxley. And what do you have to back that up?
Ms. Mills. Mr. Oxley, my original environmental endeavors
when I started in Ohio was with the Columbus Trash Burning
Power Plant, the largest known single source of dioxin in the
country. The Ohio EPA did a risk assessment of our trash plant
that showed the trash plant only impacted one in a million
residents. We had to turn to the U.S. EPA. The U.S. EPA did the
same risk assessment and showed that the risk from the trash
burning power plant was 450 out of a million would actually be
impacted by the trash plant. I have worked with citizens across
the State of Ohio. We had generally almost always, on any
situation, not just brownfields but in our air division, always
had to rely on the U.S. EPA.
Mr. Oxley. So that there was a difference of opinion. As a
matter of fact, that trash burning power plant was closed down,
was it not?
Ms. Mills. Yes, sir, it was closed by a unilateral order by
the U.S. EPA.
Mr. Oxley. Was that the only example that you have? That
was a difference of opinion between the Ohio EPA and the
Federal EPA you believe that was somehow sinister?
Ms. Mills. Well, I don't know if I can answer if it was a
difference of opinion between Ohio and the U.S. What I am
saying----
Mr. Oxley. Are you saying the Ohio EPA deliberately misled
based on their study?
Ms. Mills. I don't think that the Ohio EPA necessarily
lied, but I don't think they necessarily gave us all of the
information that----
Mr. Oxley. How many years does that go back?
Ms. Mills. The plant itself or my involvement?
Mr. Oxley. Your involvement.
Ms. Mills. My involvement, 1993, but there were many other
issues. There is the Marion issue where there is a lack of
citizen trust in the Ohio EPA. There is Elyria, Ohio, with
chemical----
Mr. Oxley. Let us talk about Marion, Ohio. What is that all
about?
Ms. Mills. That is a former military site.
Mr. Oxley. I am aware of that.
Ms. Mills. Right.
Mr. Oxley. Do you live in Marion?
Ms. Mills. No, I do not, but I have worked with the
citizens in Marion.
Mr. Oxley. And so have I.
Ms. Mills. Okay.
Mr. Oxley. And there is a problem there, but it is being
dealt with.
Ms. Mills. It is being--well, I question how it is being
dealt with.
Mr. Oxley. You obviously have a right to your opinion.
Ms. Mills. Sure.
Mr. Oxley. But to come into this committee and say that the
Ohio EPA or the Ohio General Assembly has sinister motives or
that they want to cause intentional harm is frankly outrageous
and not backed up by any facts.
Let me ask you this.
Ms. Mills. That is my opinion. I am entitled to my opinion.
Mr. Oxley. You are entitled to that opinion. As wrong as it
may be, you are entitled to your opinion.
According to Ohio EPA, no further action letters were
submitted for 83 sites, of which 38 have resulted in covenants,
2 were denied, 8 with withdrawn and 35 are pending. This
appears to contrast with your testimony that only 10 sites have
been addressed by Ohio EPA under the voluntary action program.
The reality is that prior to the Ohio program, these sites
weren't being cleaned up at all; isn't that correct?
Ms. Mills. The 10 sites that were cleaned up were not
necessarily through the----
Mr. Oxley. None of these sites have been cleaned up before
the voluntary action program have been put into effect; isn't
that correct?
Ms. Mills. The 10?
Mr. Oxley. Any of them. Isn't it a fact that before the
voluntary action program was set up none of these sites had
ever been addressed?
Ms. Mills. Sites that I know--that I am aware of such as
Bakerwoods in Marion, such as the Stickles property in
Columbus, such as several other sites, the Ohio EPA has asked
the U.S. EPA to come in and do the cleanup, do the initial
cleanup.
Mr. Oxley. What happened before the voluntary action
program? What happened with these sites? Or were they just in
the middle of neighborhoods and were unattended and didn't have
any----
Ms. Mills. Possibly, I know of a couple that the company
took it upon themselves to go ahead and clean it up.
Mr. Oxley. So the question is, is it better to do nothing
as what happened for years or is it better to get these sites
cleaned up under well-accepted standards and put to productive
use as a new industrial site?
I visited one of these sites under a voluntary action
program in Columbus a couple of years ago.
Ms. Mills. Columbus Auto?
Mr. Oxley. Columbus, Ohio. Contaminated site, just north of
downtown.
Ms. Mills. Is that Columbus Auto? I was just clarifying, is
it Columbus Auto?
Mr. Oxley. It was an old copper smelting operation, and we
visited it. It had been cleaned up under the voluntary program
in Ohio. The employees I talked to were very pleased to have a
job and work in a safe environment, and the mayor was there and
other officials who went through the entire process of how this
was able to be cleaned up. I was very impressed, as well as the
other members of the committee who attended that hearing and
the site visitation. So I am a little concerned that----
Ms. Mills. May I clarify just one thing, Mr. Chairman?
Please do not misunderstand me that I do not think that these
sites should be cleaned up. Indeed, they must be cleaned up.
What I am so concerned of with the Ohio program is the lack of
public knowledge and public participation.
Mr. Oxley. Let me address that, if I can, because in your
statement you state that the Ohio program is shrouded in
secrecy and prevents the public from participating effectively.
The information about the sites in the program is not available
to the public.
However, based on information provided by the Ohio EPA,
that appears to be in error. According to information submitted
by Ohio EPA--which I offer for the record and without objection
is so ordered--information about Ohio's sites under the
voluntary action program is not secret.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T8513.001
[GRAPHIC] [TIFF OMITTED] T8513.002
[GRAPHIC] [TIFF OMITTED] T8513.003
[GRAPHIC] [TIFF OMITTED] T8513.004
[GRAPHIC] [TIFF OMITTED] T8513.005
[GRAPHIC] [TIFF OMITTED] T8513.006
[GRAPHIC] [TIFF OMITTED] T8513.007
[GRAPHIC] [TIFF OMITTED] T8513.008
Mr. Oxley. In fact, when Ohio EPA receives a no further
action letter, the letter and all supporting documentations
becomes part of the public record. This includes an
environmental site assessment and information regarding
remediation of site contamination.
As a matter of fact, when we visited that site in Columbus,
we saw a lot of that paperwork because they were trying to
explain to us how the program worked. And so I would suggest
you might want to go back and do your homework and that this
information is available to the public, to your group, to you
individually, to me as a Member of Congress or anybody else,
and I think it is important to point that out for the record.
My time has expired. Let me recognize the gentleman from
New York.
Mr. Towns. Thank you very much, Mr. Chairman.
Let me just ask Ms. Mills. Ms. Mills, are you saying that
U.S. EPA is more responsive to your calls and concerns than the
State of Ohio?
Ms. Mills. That would be correct, yes. The U.S. EPA has
been more responsive.
Mr. Towns. Why would you say that? I mean, could you
expound on it just a little?
Ms. Mills. I would have to go back again to my first
original issue with the Columbus power plant, Columbus Trash
Burning Power Plant. The remarks that I received when I first
approached the Ohio EPA with my concerns was--one EPA official
said, I don't understand, I don't drive by the trash plant and
see people falling over dead.
To me that was an insult to my intelligence. Of course, you
don't see people driving by dead. But that was the type of
response that we or I as a citizen received. Dioxin was no more
toxic than peanut butter. Well, I as a citizen know that that
was an insult to me.
However, when we approached the U.S. EPA, they were much
more receptive of our concerns on the trash plant. The U.S. EPA
was much more receptive on our concern on the Stickles property
which was an old junk yard that had quite a bit of
contamination on it. They were more receptive on Marion. They
were more receptive on a site that I had been working on in
Elyria, Ohio.
So I guess maybe the Ohio EPA doesn't like me for some
reason, but in any issue that I have been involved with, I have
always had much better reception from the U.S. EPA than from
the Ohio EPA.
Mr. Towns. Let me just ask you this, and then I am going to
leave that alone because that is Ohio, and the chairman
certainly will take care of Ohio. I am not even worried about
that. But, Ms. Mills, could you respond to the chairman's
statement that Ohio has adequate public participation? Could
you respond to that? He said that Ohio has adequate public
participation. Very briefly, if you could respond to that.
Ms. Mills. Do you mean in regards to the brownfields
program?
Mr. Towns. In the cleanup, in terms--he just used the
statement that Ohio has----
Ms. Mills. The one site that I am most well aware of is the
Nationwide Arena site which was the old State pen site. When we
contacted the VAP program in Ohio, we said we have known for
years that the pen site was highly contaminated. So we
immediately began to contact the VAP program coordinator
saying, you know, what is going to happen at the pen site? You
know, what is going to happen with the contamination? What kind
of contamination is there?
The response from the Ohio EPA says, we don't know, we
don't know if they are going to enter the voluntary action
program or not.
So you have citizens that knew that this site was
contaminated but could not get any information on it because
the Ohio EPA at that time didn't have any information on it.
My understanding from the voluntary action program in Ohio
is, yes, there is certain information that is available after
it is given to the Ohio EPA, but a company can go clear through
the process prior to giving that information to the EPA.
Mr. Towns. Thank you very much.
Let me just--Mr. Garczynski, let me say that my
legislation, H.R. 1750, covers more contaminants than the
others and also to say to you that I am willing to put
petroleum in, you know, now. So I want to let you know I have
no problem with that at all.
Mr. Garczynski. I appreciate that, Mr. Towns--or
Congressman Towns, because we find that petroleum-related
contaminants are on quite a number of sites that aren't highly
contaminated, but we feel that kind of goes back to if we can
define brownfields and expand the listing of contaminants, you
know, we can go a long way to revitalizing our cities, which is
our goal.
Mr. Towns. Mr. Curtis, very quickly, the light is on, so
ASTM, why do you oppose it?
Mr. Curtis. The ASTM, quote, standard was developed with a
prescriptive approach to site investigations and was originally
intended to be for real estate property transactions. We do not
believe that you can take one prescriptive approach and say it
fits sites of varying complexity, varying contaminants and that
professional judgment needs to be applied to the array of sites
rather than a prescriptive standard.
And we took great exception with ASTM in the development of
that standard. They have agreed with us that they would insert
some caveats, making it clear that this was not to be
universally applied without professional judgment. Yet those
caveats have not yet been inserted in the standard. So we have
very real concerns, as the professionals involved with
hazardous waste sites, that that standard was not appropriately
developed.
Mr. Towns. Could I have 30 seconds? I just want to ask Mr.
Stypula quickly, within the legislative recommendations
contained in your testimony, you recommended several types of
Federal funding for local communities seeking to assess and
clean up brownfields sites: A clear distinction between
Superfund, NPL sites and other sites subject to enforcement
under RCRA or CERCLA, and the remaining sites that can be put
on a brownfields track; also, the criteria for State cleanup
programs that should be demonstrated by the States and reviewed
and approved by the EPA and an assurance by the EPA that it
will not plan further action at a site unless there is an
imminent and substantial threat to public health or the
environment, and, No. 2, either the State response is not
adequate or the States request EPA's assistance.
Among the three bills that we are looking at today, which
bill most closely tracks your recommendations?
Mr. Stypula. Congressman, NALGEP normally doesn't take a
position on a piece of legislation, but we have reviewed all
three pieces of legislation and feel that our basic concerns
and the needs and desires of that have been identified by our
membership are addressed in one form or another in all three
bills, and that would include your piece of legislation, H.R.
1750.
Mr. Towns. I yield back Mr. Chairman. I definitely yield
back.
Mr. Oxley. The gentleman from Pennsylvania, Mr. Greenwood.
Mr. Greenwood. Thank you, Mr. Chairman.
We have heard testimony from--I would like to address this
question to Ms. Kerbawy. Mills is easy.
We heard testimony from other witnesses about the current
use of memorandums of agreement, MOAs, to establish deferral of
cleanup authorities to States, and I would like to submit for
the record correspondence between the Association of State and
Territorial Solid Waste Management officials and EPA, Mr.
Chairman, without objection.
Mr. Oxley. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T8513.009
[GRAPHIC] [TIFF OMITTED] T8513.010
[GRAPHIC] [TIFF OMITTED] T8513.011
[GRAPHIC] [TIFF OMITTED] T8513.012
[GRAPHIC] [TIFF OMITTED] T8513.013
[GRAPHIC] [TIFF OMITTED] T8513.014
[GRAPHIC] [TIFF OMITTED] T8513.015
[GRAPHIC] [TIFF OMITTED] T8513.016
[GRAPHIC] [TIFF OMITTED] T8513.017
[GRAPHIC] [TIFF OMITTED] T8513.018
[GRAPHIC] [TIFF OMITTED] T8513.019
[GRAPHIC] [TIFF OMITTED] T8513.020
[GRAPHIC] [TIFF OMITTED] T8513.021
[GRAPHIC] [TIFF OMITTED] T8513.022
[GRAPHIC] [TIFF OMITTED] T8513.023
[GRAPHIC] [TIFF OMITTED] T8513.024
[GRAPHIC] [TIFF OMITTED] T8513.025
Mr. Greenwood. I would like to ask if you could elaborate
on the problems that you see with that system as the primary
mechanism for redevelopment of the hundreds of thousands of
non-NPL brownfields.
Ms. Kerbawy. The memorandum of agreement process is being
utilized to try to fix a problem that is created by the current
law. The States have not been extremely satisfied with what
they can accomplish in the memorandum of agreement. We do have
one with Region 5 EPA. It is better than most States can get
now, but it still doesn't do what we would have liked to have
been able to, and I think that there still is a need to really
fix the law in dealing with who has authority at what sites.
The non-NPL universe isn't going to be addressed by EPA in
most situations. The removal program can do some work but
generally doesn't take a site for cleanup, and we are dealing
with a situation where we tried to reach closure with people
but if there is still a specter of EPA being able to come in at
some point in time, can we really cut the full deal? I think
that is a really big issue.
The MOA helps. We have been able to do more with it in
place than we were able to without it, but it doesn't do what
is really necessary.
Mr. Greenwood. And I take it you assume that the
legislation that I have introduced, Mr. Boehlert introduced,
enables you to get that finality----
Ms. Kerbawy. Yes, it does.
Mr. Greenwood [continuing] and to move forward.
If I could turn to Ms. Florini. You set up a duality which
was we have to somehow choose between federalism or public
health, that that is a choice, that somehow they are mutually
exclusive. Well, you did say that, as a matter of fact, that we
have to----
Ms. Florini. No. Actually, what I intended to say was if
there is a conflict, then public health should win.
Mr. Greenwood. Well, it presumes that there is a conflict,
and it seems to me to be an extraordinary choice. Because when
I think of my State and I think of the thousands of ways, as we
speak, that the State of Pennsylvania is protecting, is
responsible exclusively in a whole variety of arenas for the
protection of public health, hygienic standards at restaurants,
the health care of seniors in nursing homes, the quality of
care delivered in hospitals, variety of State regimes with
regard to solid waste and air and water, we are not making a
choice in Pennsylvania.
The State--we have federalism in place in more ways than
not and a very good record on protection in public health, and
it seems to me that the alternative here is we either allow
these 500,000 sites to sit with whatever contamination is
there, continuing to permeate into the water table, being
released into the atmosphere, because EPA will never get to
them, never get to them.
Ms. Florini. On the other hand, it is very clear from a
number of other witnesses' testimony today that, in point of
fact, in many other locations around the country under current
law brownfields redevelopment is indeed happening to a
significant degree.
The only point that I am making is we should not change the
law to take away the Federal safety net that now exists. I do
not believe it is necessary or appropriate to go that far. We
have supported and we continue to support provisions on bona
fide prospective purchasers, including the provisions that are
in your bill, provisions on innocent landowners, although we
think that there need to be some modest modifications to what
is in your bill, and the provisions on innocent landowners. We
are objecting strongly to two particular provisions of your
bill: section 3, which we think goes way too far in
undercutting the Federal safety net that now exists; and
section 4, which makes Governor's concurrence mandatory.
We think that there are things that can and should be done
with respect to other changes under existing law that would, in
fact, further facilitate brownfields, but we do not think it is
necessary or appropriate to take away the Federal safety net as
part of that.
Mr. Greenwood. The Federal safety net implies Federal
reopener, and it implies that that can happen at virtually any
time. If you believe any of the other witnesses who have
testified today, they said that is a chilling factor in their
ability to develop these brownfields site and clean them and
reclaim them. And that is the bottom line, and that is what the
disagreement is all about, and I don't know if we can bridge
it, but we will try.
My time has expired.
Thank you, Mr. Chairman.
Mr. Oxley. The gentleman's time has expired.
We want to thank all of you for your excellent testimony
and for sitting through some floor votes and some other
inconveniences, but we appreciate it very much.
And the Chair notes that some members may have additional
questions of this panel which they may wish to submit in
writing. Without objection, the hearing record will remain open
for 60-days for members to submit written questions to these
witnesses and to place their responses in the record and to
provide extraneous material for the record. So ordered.
Again, thank you; and this subcommittee is adjourned.
[Whereupon, at 1:40 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
[GRAPHIC] [TIFF OMITTED] T8513.026
[GRAPHIC] [TIFF OMITTED] T8513.027
[GRAPHIC] [TIFF OMITTED] T8513.028
[GRAPHIC] [TIFF OMITTED] T8513.029
[GRAPHIC] [TIFF OMITTED] T8513.030
[GRAPHIC] [TIFF OMITTED] T8513.031
[GRAPHIC] [TIFF OMITTED] T8513.032
LEGISLATION TO IMPROVE THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT
----------
WEDNESDAY, SEPTEMBER 22, 1999
House of Representatives,
Committee on Commerce,
Subcommittee on Finance and Hazardous Materials,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:10 a.m., in
room 2123, Rayburn House Office Building, Hon. Michael G. Oxley
(chairman) presiding.
Members present: Representatives Oxley, Gillmor, Greenwood,
Largent, Bilbray, Ganske, Shimkus, Wilson, Fossella, Blunt,
Ehrlich, Towns, Stupak, Engel, DeGette, Barrett, Luther,
Markey, and Pallone.
Staff present: Nandan Kenkeremath, majority counsel; Amit
Sachdev, majority counsel; Kristi Gillis, legislative clerk;
and Richard Frandsen, minority counsel.
Mr. Oxley. The subcommittee will come to order.
The Chair will begin with an opening statement.
Welcome to yet another legislative hearing on Superfund.
The difference is that I hope that this will be the last
legislative hearing we will need to hold in the Commerce
Committee after four Congresses.
We have seen many good proposals to reform this badly
broken program, and the House and Senate have held hearings on
these proposals. We know what needs to be done. We know that
there are members on both sides of the aisle who want to get
something done. So it is time for Congress to fulfill its
responsibility through bipartisan legislation.
The bills we continue to review today are strongly
bipartisan. The Greenwood-Hall bill has nine Democrat and seven
Republican cosponsors. The Boehlert-Dooley bill has 60 Democrat
and 60 Republican cosponsors. It was reported out of the
Transportation Committee with a 69-2 vote. Last Congress Mr.
Condit and I introduced strong bipartisan Superfund reform
legislation with 19 Democrats and 19 Republicans.
It is unfortunate that after 5 years of extensive process
and numerous opportunities of negotiation, the administration
has not been able to find agreement with any bipartisan
Superfund bill in any committee in either body of Congress.
Even today we find some of the unfortunate rhetoric about bills
that have attracted strong bipartisan support and only provide
incremental reforms.
Whether it is the Conference of Mayors, the Governors, the
State cleanup agencies, cleanup contractors, small businesses,
and many, many others, all support provisions in bipartisan
legislation to significantly reform Superfund. These groups can
tell us from firsthand experience that the current Superfund
program is wasteful and unfair. But what distinguishes these
groups is that they are willing to work to find constructive
solutions. The time has long since past when you can claim to
be for Superfund reform but against all bipartisan efforts.
Superfund continues to haunt individuals, small businesses,
and communities across the country. We must provide liability
relief and not unfairly shift costs to other parties at the
site. H.R. 3000 did this primarily by limiting liability to
those generators or transporters who provide significant
contributions of waste. Their overall amount would be picked up
by the Federal orphan share. Under this model, EPA would issue
orders to the significant parties, but neither those parties
nor EPA would have incentive to pursue further endless waves of
litigation. It was a practical and fair approach.
H.R. 1300 looks more at specific circumstances and
contexts. Nonetheless, it meets important criteria by getting
numerous parties out of the system and not unfairly shifting
responsibility to other parties at the site.
H.R. 1300, H.R. 2580, and H.R. 3000 from last Congress
focus on sound science, reasonably anticipated land use, and
site-specific risk management. H.R. 2580 and H.R. 3000 ensure
that the preference for treatment is guided by practicality,
and that it never overrides concerns to the health and safety
of the local community and workers. All of these bills
eliminate the needlessly bureaucratic and so-called relevant
and appropriate requirements and provide for reasonable points
of compliance.
These are important and reasonable changes that have been
supported by States, cleanup contractors, and many others.
These changes will streamline and improve remedy selection for
new sites added to the NPL for site cleanup secured under
section 104 or 106 and for sites that use contribution
authority under the liability provision of section 107. Unless
you are prepared to terminate funding under section 104,
administrative orders under section 106, or the liability
provisions of section 107, you cannot legitimately argue that
remedy selection does not need repair.
I note that we have a relatively short final hearing today.
Over the course of 7 years, however, we have had over 27
hearings and 275 witnesses appearing in the subcommittee, some
of them multiple times, like our friend from EPA today, Mr.
Fields. Moreover, numerous parties have submitted statements
for the record.
The basic point is that this has been an extraordinarily
open process that I am basing my position and efforts on, the
record taken as a whole. While my door has been open for
negotiations for nearly three consecutive Congresses, some 5
years, and I am getting old in the process, I believe we are at
this point where the major proposals out there to reform the
program are eminently modest and reasonable.
It is time that we moved past the rhetoric and right at
least a few of the Superfund wrongs. I look forward to hearing
from today's witnesses, particularly those who have or support
specific changes for significant reform.
The Chair's opening statements are completed. I now turn to
our distinguished ranking member, the gentleman from New York,
Mr. Towns.
Mr. Towns. Thank you very much, Mr. Chairman. And I want to
take that thank you back, really. What I would like to do is
applaud you for your determination and commitment. You know, I
am not sure after 27 hearings, you know, I am not certain that
I want to thank you for more hearings.
First of all, I would like to welcome our witnesses today
to our hearings on reauthorization of the Superfund program.
Mr. Chairman, as I have indicated previously, I believe it
would be unwise and counterproductive to make comprehensive
changes to the Superfund program at this point. Such changes
would also slow Superfund cleanups. This is a concern that we
will probably hear from some of our witnesses. This is a result
I hope none of us want.
Even though delay may suit the interests of some of those
responsible for contamination of certain sites, we should not
subscribe to it or support it. I hope the subcommittee members
can agree that where possible we should be treating or
eliminating the most toxic or mobile hazardous wastes at these
sites, and doing our utmost to provide permanent cleanups so
that our citizens and particularly our children do not have to
fear for their health.
According to the former head of the Agency for Toxic
Substances and Disease Registry, Dr. Barry Johnson,
approximately 1.3 million children under the age of 6 live
within 1 mile of a Superfund site. Cleanups will also assist
redeveloping these properties for the full economic benefit of
our communities, which I think is extremely important.
Just last week the General Accounting Office released a
report on their survey of all the non-Federal Superfund sites.
According to the GAO, half of all the sites have completed all
cleanup construction activities. The GAO results are consistent
with the U.S. Chamber of Commerce position that I now quote:
``The Federal hazardous site program established by the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 is expected to achieve its goal of
restoring the highest-priority cleanup sites to environmental
health within the next 3 to 5 years.'' With the significant
progress occurring in the Superfund program, I hope we can put
our forces on the Brownfields issue that were the subject of
our August hearing. Mr. Greenwood and I have agreed to try to
work out our differences in our two bills, H.R. 1750 and H.R.
2580. I hope that after this hearing we can again refocus on
our efforts to do that.
Mr. Chairman, I look forward to hearing from the witnesses,
and I am extremely pleased today that we have a witness from
Brooklyn, New York, who happens to be employed by the attorney
general's office and will be representing the attorney generals
across this country, Mr. George Johnson. I am anxious and eager
to hear from him, because he happens to reside in my district.
Thank you, Mr. Chairman. I yield back.
Mr. Oxley. The gentleman yields back.
The gentleman from Pennsylvania, and one of the authors of
the legislation we are dealing with.
Mr. Greenwood. Thank you, Mr. Chairman. I would first like
to thank you for holding today's hearing on the remedy
selection and the liability provisions in my bipartisan land
recycling act, H.R. 2580, as well as Mr. Boehlert's
legislation, H.R. 1300.
While I believe the legislation that I have introduced
represents a well-balanced approach to the issues at hand, I
still look forward to continuing to work in a bipartisan manner
toward an overall improvement in the Comprehensive
Environmental Response, Compensation and Liability Act, better
known as Superfund.
The Land Recycling Act represents an important first step
toward that goal. Mr. Chairman, as you know, last Congress the
remedy selection provisions in H.R. 3000, which was your
bipartisan Superfund reform bill, were based on extensive work
and the support of the National Governors Association, the
State cleanup agencies, and the trade association for cleanup
contractors. In fact, the Governors stated that the remedy
title would ``enhance the efficiency and quickness of
cleanups.'' The State cleanup agencies stated that the remedy
title ``seeks to promote a commonsense, streamlined approach to
remediating sites,'' and that ``we believe this title most
adequately reflects the lessons learned over the last 18
years.''
In addition, the Commission on Risk Assessment and Risk
Management stated that the risk principles would move us toward
a ``remedy selection process that is based on objective
science-based risk characterization.''
Finally, the cleanup contractors stated that H.R. 3000
would ``do more to spur environmental cleanup in a safe and
protective manner than could possibly be accomplished under
current law.''
As you may recall, the cleanup contractors specifically
supported provisions on scientifically objective risk-
assessment consideration of future land use, and modification
of the preference for permanence and treatment.
Mr. Chairman, based on aforementioned recommendations and
your work with all stakeholders, I have produced an important
subset of bipartisan remedy selection changes in H.R. 2580.
These changes are aimed at improving the cleanup process for
all manner of sites.
However, it is worth mentioning that any remedial action
under CERCLA must comply with section 121, regardless of
whether or not a site is on the National Priorities List.
Furthermore, under section 107, any non-Federal party cleaning
up a site and seeking to use CERCLA to obtain contributions
from potentially responsible parties must show that the
remedial action costs are ``consistent with the national
contingency plan.''
Therefore, even in the universe of voluntary cleanups,
CERCLA's remedy selection requirements can have legal relevance
in court.
Overall I firmly believe that H.R. 2580 will streamline the
Federal cleanup process by ensuring that regulators require
treatment to the extent practicable, consider future land use,
consider risks to the community and workers' health, require
compliance with drinking water standards at reasonable points
of compliance, are not hampered by needless bureaucratic
relevant and appropriate standards, and employ sound and
objective assessment practices.
While I am confident that the Land Recycling Act will go a
very long way, we in Congress have a larger task in hand,
improving the Superfund program in a way that is protective of
human health and the environment, reduces litigation,
unfairness, and waste, and removes the Federal barriers to
toxic waste cleanup. The Land Recycling Act of 1999 is only a
piece of the puzzle.
Once again, Mr. Chairman, I thank you for holding this
hearing, and I look forward to continuing to working in a
bipartisan committee on the issue, and, Mr. Towns, you and I
keep saying that we want to work this out together. When we get
our staff to come to the same level of agreement that you and I
have agreed to, I think we will get this done.
Mr. Oxley. The gentleman's time has expired.
The gentleman from New Jersey, Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman.
We are here again of course with many of the same witnesses
and members as at prior Superfund, and I just want to say that
my attitude about Superfund remains the same. I think the
Superfund program is now one of our most successful
environmental programs, particularly as a result of the efforts
of the Clinton administration, and therefore I believe we
should not be making substantial changes at this time that
could interfere with the progress that is well under way. That
is why 175 members have signed on to Mr. Towns' bill, H.R.
1705, the Brownfields bill, and I want to mention also Diana
DeGette's involvement in efforts on that, and that bill
addresses a combined set of issues that would facilitate
environmental cleanup and industrial development and that
enjoys widespread support here in the House.
However, if we are to make any changes to the Superfund
law, we must strengthen the program, not roll back years of
progress, and that is why just a few moments ago some of my
colleagues and myself held a press conference outside the room
to announce the impending introduction of the Children's
Protection and Community Cleanup Act of 1999, a pro-community
Superfund reform measure. Our bill would truly strengthen
current law by requiring real cleanups, making polluters pay,
ensuring environmental justice, and protecting children's
health. If this subcommittee insists on taking up broader
Superfund issues, we will insist on measures that uphold the
fundamental principles on which the Superfund was based, and
that is protection of human health and the environment.
Nearly a fourfold increase has occurred in the number of
Superfund sites that have been cleaned up--in other words,
where construction has been complete--since 1992, 592 sites,
including Federal facilities. A large number of the sites in my
home State of New Jersey at which work has been completed may
not have been deleted from the NPL only because long-term
monitoring is still ongoing or because long-term treatment of
groundwater is still under way. But such efforts are critical
to protect human health and resources for current and future
generations.
Remedial measures undertaken now will help minimize the
extent and cost of future remedial actions. Moreover, many
State officials have informed me and other Congress members
that the Federal framework with its liability and enforcement
mechanisms now provide important incentives for private
entities to voluntarily clean up these sites.
Particularly, Mr. Chairman, we have noticed in the
aftermath on the east coast of Hurricane Floyd, we are reminded
that we must be vigilant in ensuring that Superfund cleanup
efforts remain strong. Following the hurricane, officials are
confronting floating chemical containers, and we are still
waiting for officials to determine whether flood waters that
washed over hazardous waste sites carried contamination to
nearby land and subsequently into water pathways.
My point is that we can't allow Superfund site cleanup to
be held hostage to special interest groups, nor can we permit
sham Superfund reform legislation. Families need real cleanups
so that sites in their communities can be reused and
redeveloped, not simply capped and fenced off.
I wanted to say briefly that the legislation being
considered today by this subcommittee is opposed by nearly 60
groups--the Sierra Club, the Environmental Defense Fund, U.S.
PIRG--the list goes on. H.R. 1300 claims to be a Brownfields
bill, but only 18 pages of the bill's 166 pages fall within the
Brownfields title. Moreover, H.R. 1300 would seriously undercut
the ``polluter pays'' principle, increase litigation, slow the
pace of current cleanups, and weaken Brownfields provisions.
More specifically, H.R. 1300 would eliminate State maximum
contaminant levels, MCL's, for groundwater, that are more
stringent than Federal MCL's, and would eliminate State MCL's
where no Federal MCL exists when determining the standard for
ground water cleanup. The bill would eliminate the ability of
the Federal and local governments and citizens to bring
enforcement actions after any action has occurred under a State
voluntary cleanup program, even in situations that continue to
present an imminent and substantial endangerment.
Another important issue which was incorporated in a letter
initiated by Congressman Markey, DeGette, and myself to the EPA
sought clarification on the preference of treatment of the most
toxic or mobile hazardous substances as part of a remedy at
Superfund sites. Selection of treatment as part of a remedy has
dropped from 70 percent in the early nineties to 32 percent of
the sites in 1997.
The Greenwood bill would reduce the options available to
local communities for reuse and redevelopment. The preference
for treatment found in current law is supported by the EPA, the
Association of Metropolitan Water Agencies, and other
organizations and community representatives.
And finally, Mr. Chairman, my point is simply that we
cannot tolerate these rollbacks. We must support H.R. 1750, the
Towns bill, that provides real Brownfields cleanup and
community redevelopment provisions. If we are going to continue
to discuss the so-called Superfund reforms, we must ensure true
protection of children's health, inform communities about
exposure to toxic chemicals, encourage their participation in
the cleanup process, and make sure polluters pay for cleanups
and not the taxpayers.
Thank you, Mr. Chairman.
Mr. Oxley. The gentleman's time has expired.
The gentleman from Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. So many issues, so
little time on this Superfund debate, and most people know I
focused on the small business liability. So today I am pleased
to see that the committee has extended an invitation to Mr.
Mike Nobis of JK Creative Printers in Quincy, Illinois.
For those who have been following this issue in this
Congress, Quincy now is a community that is being well known
based upon the EPA's involvement with a site there, and I have
come to know Mike since the EPA went into Quincy earlier this
year and announced that 149 companies in this small town were
big polluters.
Mike, thanks for coming to Washington for this hearing.
Your testimony is important today, and it is good to see you
again. I hope that the EPA will stay around to hear your
testimony. I know that your written testimony is inserted in
the record, but also hearing the testimony is very important,
because by hearing, you really understand the emotive
background that the small businesses have had to fight in the
Quincy situation.
We will hear from Mike that most if not all the trash that
was contributed to the municipal landfill was legally deposited
and that the EPA cannot even tell my constituents exactly how
much of the trash they deposited was harmful.
But they have done zero to promote that issue. Thank you.
Mr. Oxley. Thank you.
Mr. Shimkus. Mr. Chairman, I think it should be an
interesting hearing. I yield back my time.
Mr. Oxley. The gentleman yields back. The gentleman from
Massachusetts, Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much, and I as
well am glad--you know, with the end of the baseball season
what they are able to do is begin to compare statistics for how
this season and the things that happened this season compared
with past seasons and with the lifetime statistics as well. I
always kind of enjoy that right at the end of the baseball
season, so I was trying to figure out if we have had more
lifetime hearings on electricity restructuring, Glass-Steagall
restructuring, or Superfund restructuring in the committee, and
it is tough because we are basically hitting that ``sixty
barrier'' on each one of the areas, but I don't think the
Superfund quite matches up to electricity restructuring,
unfortunately. It is kind of like the Sammy Sosa of this year,
you know?--just a little bit behind.
I want to thank you for taking up the Recycle America's
Land Act and without question I am all in favor of recycling
including recycling America's land by cleaning up and
redeveloping Brownfields sites, but H.R. 1300 merely recycles
provisions from old, failed Republican Superfund proposals.
It will leave toxic waste sites contaminated but clean up
polluters' regulatory rap sheets with a wide array of expensive
liability exemptions and limitations. These measures should be
dumped, not recycled. They have no further use.
Let us look at just what would happen if H.R. 1300 became
law. Suppose you discover dioxin-laden black sludge in your
basement, as at Love Canal. Or you realize your children and
your neighbors' children are dying of cancer, as happened in
Woburn--in my district in Massachusetts. You look across to the
malodorous cesspool next door and want to get the mess cleaned
up and make your children safe, so you go to the EPA, and after
the site is surveyed they declare it a Superfund site.
Now you think it is ready for cleanup, but you are wrong.
H.R. 1300 reduces incentives for polluters to settle, and for
many sites it requires a new and untested allocation process,
so while more ooze seeps into your basement, you may have to
wait for EPA to issue a cleanup order, or wait for polluters to
play ``hot potato'' over liabilities in the new process.
When financial arrangements are settled, it is finally time
to select a remedy, but does this mean that the waste actually
will be cleaned up? Despite the preference for treatment in the
Superfund law, the percentage of sites using treatment has
declined from 70 percent at the beginning of the decade down to
32 percent in 1997. H.R. 1300 would make it easier to avoid
treatment even if that would make the groundwater in the
neighborhood undrinkable, for relevant and appropriate
standards and would no longer apply.
So under H.R. 1300 they may decide just to cap that
cesspool and to leave it in place. Well, let us say that
against the odds the cesspool next door is cleaned up. Who will
pay? Of course, the polluter should, but under H.R. 1300 the
polluter is exempt if it is one of the vast majority of
businesses that are under the cutoff of 75 employees or $3
million in revenue, even if this small business left a large
mess.
The polluter is exempt if it is a used oil generator or
transporter even if it is as large as Exxon.
In addition, an owner that bought land it knew was
contaminated and would have to be cleaned up, that got a
bargain deal because the land was contaminated, is exempted
from any responsibility for the cleanup--a nice windfall for
owners that may have sat on toxic waste sites for a couple of
decades.
Under Superfund when the actual polluter cannot be held
liable, other polluters are supposed to pay through a pollution
tax, but this tax expired in 1995 and H.R. 1300 does not renew
it, so while the polluters are given a tax holiday other
taxpayers will be stuck with the bill. In other words, the
victims will have to pay for part of the cleanup of that toxic
black sludge in their basements.
We need a targeted bill to foster Brownfield cleanups and
help truly innocent parties reuse these sites, but H.R. 1300
will delay or prevent cleanups of Brownfields and Superfund
sites, let polluters off the hook and stick that hook in the
side of taxpayers.
I hope that after hearing about Superfund today that we
will return to the subject of a previous hearing and focus our
efforts on legislation to clean up Brownfields without making
taxpayers pay for the mess Superfund polluters have made.
I thank you, Mr. Chairman.
Mr. Oxley. The gentleman's time has expired. The gentlelady
from New Mexico.
Mrs. Wilson. I have no opening statement, Mr. Chairman.
Mr. Oxley. The gentleman from Ohio, Mr. Gillmor.
Mr. Gillmor. Thank you very much, Mr. Chairman, and I
appreciate you calling this hearing on a subject that has
plagued us now for nearly 20 years, and that is the operation
and the ramifications of Superfund, and this is not the first
time our panel has sought to take some action to reform the
program, and I am hopeful at some point the other end of
Pennsylvania Avenue will wake up to the need for real reform in
a failed program.
Superfund is the archetypical government program in that it
spends too much and it achieves too little. The program was
created in 1980 to clean up the worst hazardous waste sites in
the country. That is 19 years ago and the record is a program
that has (1) failed to achieve its purpose, (2) consumed
billions of dollars in the process of that failure, and (3)
spent less than half of those billions of dollars to cleaning
up the environment, with the rest going for regulatory costs
and attorney fees.
Today the plan is to focus on the core Superfund issues of
liability, remedy selection, and I believe these are two areas
that call out for legislative reform.
For example, I have long been a supporter of repealing
retroactive liability and as someone who cares about the
environment I think that is a very responsible position. After
listening to 8 years of testimony before this panel I have no
feeling other than to see this punitive system eliminated.
Our current system is designed to punish the innocent party
who followed the law at the time the material was disposed of.
I have introduced a bill in the past to create a standard
in which only those entities which caused the release would be
held liable. I first introduced that bill, as well as a bill to
require that more money be spent on actual cleanup, 2 years
ago, and I asked both the U.S. EPA and the Justice Department
for their input. I am still waiting.
The administration's approach has basically been to defend
the status quo and not to reform a failed program.
In regard to remedy selection, this again is an area where
Superfund has failed. Most of us had breakfast this morning. I
am a big fan of ``Shredded Wheat'' and I thought I would bring
in a box. From all that I have read and seen, this stuff is
supposed to be good for you. Well, you know, a simple reading
of the ingredients list on this box shows that if we dumped it
on the ground and we dropped a lot of boxes on the ground we
could participate in the designation of a Superfund site.
I have long supported science-backed, risk-based criteria
for determining what constitutes a danger and which methods
ought to be used to clean it. We do not need gold-plated
solutions to problems that can be safely solved for much less.
So Mr. Chairman, I again thank you for calling this
hearing. I think making Superfund work requires a person to ask
two simple questions, do I want to see hazardous waste
remediated, and the answer is yes, and the second question is
is the current system working, and the answer is clearly no.
Thank you, Mr. Chairman.
Mr. Oxley. The gentleman's time has expired. The gentlelady
from Colorado, Ms. DeGette.
Ms. DeGette. Thank you, Mr. Chairman.
Mr. Chairman, I am pleased that we are having this hearing
today to talk about the liability and remedy selections of H.R.
1300. I am concerned that, as we heard from Mr. Markey and
others, the provisions fail to adequately address some of the
needs in current law. We should find ways to make the Superfund
run more efficiently and effectively rather than undercut the
things that have made it successful.
For example, by the end of the year 2000 four times as many
sites will have finished construction in the 8 years of the
Clinton administration as compared to the first 12 years of the
program. I am particularly concerned that the bill seeks to
capitalize on the success of the Brownfields program by gutting
the Superfund in the name of Brownfields legislation.
Brownfields programs are successful in part because they
pick up where the Superfund leaves off, and they complement the
program. I do not think that it makes sense to gut one program
in favor of another one. As I have said in many of these
hearings, I don't think we need Superfund legislation, which
will be very difficult to pass on a bipartisan basis, to pass
successful Brownfields legislation.
We should not gut Superfund to pass Brownfields. I have
talked some to Mr. Greenwood and others. I think we can come up
with a bipartisan Brownfields bill. Our business communities
want it, our citizens want it, and we should do it.
I have got to say I think that we want to encourage the
successful aspects of Brownfields that promote cleanup of
previously ignored sites like inner city industrial sites, but
I do not think that by initiating cleanups we should absolve
polluters of all liability. Current liability provisions that
target polluters work and fewer Superfund sites have been
created since these provisions were enacted.
We should protect the people who want to do the right thing
and clean up polluted sites for reuse, like prospective
purchasers or innocent land owners, but we also need to ensure,
as Mr. Markey said, that polluters will clean up their mess
without leaving the taxpayers with the bill.
I don't think H.R. 1300 does enough to strike this balance.
I am also deeply concerned by H.R. 1300's alterations to
remedy selection provisions, particularly its attempt to
eliminate the relevant and appropriate provisions of CERCLA.
The relevant and appropriate definitions have proved useful in
avoiding disputes about applicability of solutions and provided
standards that ensure that remedies are protective. Relevant
and appropriate is by its nature site-specific, a critical
component to a successful remedy.
I point to the Shattuck Superfund site in my district as an
egregious example of a site where the ARARs were not met. As a
result, the remedy has completely failed the community. At
Shattuck the constituents contained within the contaminated
soils and waste materials were never adequately characterized
nor were groundwater ARARs ever attained as required. The
entire onsite disposal could be seen as a violation of cleanup
laws because of its failure to comply.
Now new reports indicate that even the EPA is beginning to
believe that the remedy at Shattuck is inadequate. I am sure
there are few people in this room who agree that leaving
radioactive waste capped with clay and stone in the middle of a
residential neighborhood in a large metropolitan area was
either a relevant or appropriate remedy for the people of the
Overland Park community.
The problem is because of that initial failure to follow
standards, the cleanup is going to be extra expensive mainly
for the taxpayers because now that this stuff has been scraped
onto a football field and covered up with some concrete it is
now going to have to be moved at a cost maybe twice what the
original cost was. That is why we need to get these statutes
right the first time, and that is why we need to enforce them
adequately.
I hope today's hearing is going to lead to a better
understanding of what works for Superfund today and that this
committee can work together to ensure that all of these pieces
of legislation, not just H.R. 1300, can adequately address the
real needs of environmental cleanup standards.
Thank you, Mr. Chairman. Oh, Mr. Chairman, by the way,
there is another hearing going on and I know many of our
colleagues would like to stay for this important hearing. I,
myself, am going to have to leave for this hearing after the
questioning and I just want to apologize in advance to the
witnesses, because I know this is very important.
Mr. Oxley. The gentlelady's time has expired.
The Chair would ask unanimous consent that all of the
members' opening statements be made part of the record. Without
objection, so ordered.
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. Billy Tauzin, a Representative in Congress
from the State of Louisiana
Mr. Chairman, I am very pleased that you are holding this hearing
today on an issue that many of us have been grappling with for almost a
decade. Clearly, Superfund needs to be reformed, and it needs to be
reformed now. I am pleased to see that several Superfund initiatives
this Congress include legislative language that I have introduced in
the past to ensure that certain small businesses are no longer burdened
by litigation under Superfund's draconian liability scheme.
Unfortunately, however, both H.R. 1300 and H.R. 2580 fail to
address the current inadequacies of the Natural Resource Damage (NRD)
program under CERCLA. Failing to address the current inadequacies of
the NRD program will, in my opinion, amount to replacing one litigation
nightmare with another. Let me explain.
No one, including the business community, opposes expeditious
restoration of natural resources. Unfortunately, trustees have been
more interested in maximizing damage claims than restoring resources.
Trustees have asserted claims for hundreds of millions of dollars and,
in a few cases, over a billion dollars based on theories that there was
necessarily compensable damage to the ``public psyche.'' These so-
called ``Non-use'' damages are simply unfair to named ``Potentially
Responsible Parties (PRPs)'' in that they impose a degree of liability
which, in most cases, exceeds the actual harm done. Mr. Chairman, the
result is a program mired in excessive litigation with few if any
success stories.
This problem has recently manifested itself in my home state of
Louisiana, where concerns over very low levels of pollutants in the
Sediments of the Calcasieu River have led to a near paralysis of
critical navigation projects, as well as essential environmental
restoration efforts to protect the marshes of South Louisiana. Efforts
by industry to step up to the plate and do the right thing have been
rebuffed in favor of a bureaucratic, litigious approach that will at
best leave the Calcasieu River-bed unrestored for a decade or more.
This is not the proper approach to the restoration of our critical
resources or a way to promote the nation's economic vitality.
We all know that the federal government, particularly the
Departments' of Defense and Energy, is liable for more contaminated
sites than any private party. An unreformed NRD program therefore also
poses a significant threat to the federal treasury and to national
security. This threat is already becoming a reality. One state, Mr.
Chairman, recently notified the Departments of Defense and Energy that
it intends to file a $260 million NRD claim against them at one site
for contaminated groundwater that these Departments are already paying
to clean up under Superfund. The total NRD liability could be very
large--as much as $20.5 billion for DOE alone according to GAO--and
GAO's estimate does not include DOE's largest and most expensive sites.
Given this threat to our nation's environmental and fiscal health I
believe that reform of the NRD program, in addition to more general
Section 107 reforms, is essential to any meaningful Superfund
legislation.
Thank you Mr. Chairman.
______
Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
Thank you, Mr. Chairman. Let me first commend you for your
continued diligence and persistence in continuing our long-standing
effort to reform Superfund.
I've said this many times--perhaps one of the hardest tasks in
politics is fixing a broken environmental program. The Superfund law is
a prime example of such a program. It is unjust, costly, slow,
unrealistic, and poses barriers to cleanups all across the Nation. Its
liability scheme has created a litigation nightmare which has hurt
individuals, small businesses, and communities, and has delayed the
cleanup of toxic waste sites. Superfund has created barriers to
voluntary cleanups and redevelopment of brownfields across the country.
Mr. Chairman, you only have to review the extensive record that your
Subcommittee has compiled over the past five years to know that
Superfund has been a public policy embarrassment.
I've said this too many times before, but I'll say it once again--
it is time to get on with the business of cleaning up America's toxic
waste sites. We have bipartisan legislation before the Subcommittee
that will go a long way towards making the federal program more fair,
effective and efficient, and that eliminates many of the barriers to
redevelopment and cleanup.
But unfortunately we are still at odds with the Administration.
Where I see a program that takes too long to identify and cleanup
hazardous waste sites, the Administration, and some of my colleagues,
see a program moving at a satisfactory pace. Where I see waves and
waves of unjust litigation, the Administration sees its ``polluter
pays'' principle in action. Where I see needless uncertainty and
counterproductive Federal rules, the Administration and the national
environmental groups see unprotective State cleanup programs.
The fact is that today there is simply no reason for politics to
continue to stand in the way of meaningful Superfund reform. Thanks to
the efforts on both sides of the aisle, there is already significant
bipartisan support in Congress for Superfund legislation. H.R. 1300,
the Recycle America's Land Act of 1999, introduced by our colleague
Sherry Boehlert, currently has 60 Democrat and 60 Republican
cosponsors. It was reported last month from the Transportation and
Infrastructure Committee by a vote of 69-2. H.R. 2580, The Land
Recycling Act of 1999, introduced by Mr. Greenwood, also enjoys strong
bipartisan support with 9 Democrat and 7 Republican cosponsors. States,
local governments, cleanup engineers, dozens of experts, and
Republicans and Democrats alike agree on the need for substantial
reform.
Today, we will be completing our legislative hearings on these two
bills. They contain provisions addressing the major components of the
Superfund program, including brownfields, the liability scheme, remedy
selection, public participation, and grant programs. These bills
represent the product of years of negotiating to achieve a workable
compromise. I look forward to hearing from today's witnesses, and to
moving forward with legislation to fix this broken program and save
countless others from the litigation nightmare that has befallen so
many of our constituents.
______
Prepared Statement of Eliot L. Engel, a Representative in Congress from
the State of New York
The Superfund has experienced many changes since it was created in
1980. The Congress has modified this important program a number of
times and is continuing in that tradition. Superfund is not a perfect
program; determining the party responsible for contamination is a slow
process, and the actual cleanup of a contaminated site takes even
longer. I, too, believe we must continue to streamline the Superfund
and make it as efficient as possible, but the proper structure is
already in place.
Targeted reforms, as proposed in Congressman Towns' bill, are the
appropriate means of refining the Superfund. The unnecessary reforms,
before the committee today, change Superfund's basic structure and will
diminish its ability to conduct cleanups.
Although off to a slow start through the 1980's, the Superfund has
experienced a tremendous increase in the number of construction
completions in the last six years. We must continue to move forward
with this program, not backwards. Unfortunately, the comprehensive
reforms proposed in H.R. 1300 will reverse the progress made over the
past 19 years. Many of the sites that would be cleaned under the
existing provisions, may be left untouched for many years. H.R. 1300 is
a regressive piece of legislation that overreaches and undercuts
Superfund's ability to effectively clean up contaminated sites. This
committee should be focusing on H.R. 1750, Congressman Towns'
legislation, which concentrates on brownfields cleanups.
H.R. 1750, institutes the brownfield assessment grants and
revolving loan fund grants programs, which help local governments
conduct inventory and make site assessments of brownfields. This
legislation also adds liability protection to innocent parties, such as
landowners who did not contribute to contamination of the site, as well
as prospective purchasers. Targeted reforms will make the Superfund
more efficient by providing better assessment and reduce litigation by
providing liability protection to innocent parties. These are the types
of reforms needed to make the Superfund a more effective program in the
future. Therefore, I urge this Committee to focus on the targeted
reforms in the Towns bill.
______
Prepared Statement of Hon. Lois Capps, a Representative in Congress
from the State of California
Thank you Mr. Chairman for holding this important hearing to
improve the Superfund program.
During hearings held by the Committee both in March and August, a
common theme emerged on brownfields. There appeared to be bipartisan
consensus for the Committee to act on targeted legislation on the issue
of brownfields. However, unfortunately, the legislation that we are
debating today goes further than merely addressing the issue of
brownfields, and in some instances threatens important provisions in
our nation's Superfund law to protect public health and the
environment. As you will hear today, the Administration and
environmental groups also share these concerns.
There is no question that the current Superfund program is in need
of reform and historically there has been frustration at the pace of
Superfund cleanup. Reform is needed to save in the cost and time of
cleanup of Superfund sites. There also exists a need in our country to
provide important incentives to redevelop brownfield sites, bringing
economic revitalization of neighborhoods across the nation. However,
this reform should be a targeted one. We have an opportunity to pass
consensus legislation in this Committee as long as we keep it focused
on brownfields.
I am proud to be a cosponsor of H.R. 1750, the Community
Revitalization and Brownfield Cleanup Act of 1999, along with a number
of my colleagues here on the Committee and urge other members on the
Committee to work together in a bipartisan fashion and move forward
with brownfields legislation.
I think it is safe to say that we all share the same goal of
cleaning up our nation's waste sites as quickly and cost effectively as
possibly. We should pass legislation to provide incentives for
prospective redevelopment of Superfund sites, particularly as it
relates to brownfields. But let's not weaken our nation's laws to
protect public health and the environment in the process.
I look forward to working with my colleagues in the Committee to
pass important brownfields legislation.
Mr. Oxley. The gentleman from Oklahoma, Mr. Largent.
Mr. Largent. No.
Mr. Oxley. The gentleman from Wisconsin, Mr. Barrett.
Mr. Barrett. No opening statement.
Mr. Oxley. We will then turn to our witness, Mr. Tim
Fields, Assistant Administrator for the Office of Solid Waste
and Emergency Response, from U.S. EPA. Mr. Fields, welcome back
and you may begin.
STATEMENTS OF HON. TIMOTHY FIELDS, JR., ASSISTANT
ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE,
U.S. ENVIRONMENTAL PROTECTION AGENCY; ACCOMPANIED BY STEVE
HERMAN, ASSISTANT ADMINISTRATOR, OFFICE OF ENFORCEMENT AND
COMPLIANCE ASSURANCE
Mr. Fields. Thank you, Mr. Chairman. I have with me
Assistant Administrator Steve Herman from the Office of
Enforcement and Compliance Assurance at EPA. We will both make
brief opening statements, if you don't mind.
Mr. Oxley. Without objection.
Mr. Fields. Thank you.
We would like also to enter into the record our written
statement but we also have letters commenting on the subject
before us today from the Department of Justice, the Department
of Agriculture, and the Department of Interior. We would like
to have these letters into the record as well.
Mr. Oxley. Without objection, so ordered.
[The letters follow:]
Department of Agriculture
Office of the Secretary
August 4, 1999
The Honorable James L. Oberstar
Ranking Democratic Member
Committee on Transportation and Infrastructure
U.S. House of Representatives
2165 Rayburn House Office Building
Washington, D.C. 20515-6256
Dear Congressman Oberstar: In light of the Committee on
Transportation and Infrastructure markup scheduled for tomorrow on H.R.
1300, the Recycle America's Land Act of 1999, we would like to provide
you with an overview of the concerns of the U.S. Department of
Agriculture (USDA) and the U.S. Department of the Interior (DOI) with
this bill, as well as with the proposed Amendment in the Nature of a
Substitute to be offered by Subcommittee Chairman Sherwood L. Boehlert
and Subcommittee Ranking Member Robert A. Borski. We appreciate your
efforts to move the Superfund reauthorization process forward. However,
the USDA and DOI strongly oppose the bill for the reasons discussed
below.
USDA and DOI are seriously concerened by the loss of enforcement
authority on Federal lands that would result from H.R. 1300 and the
Substitute. In particular, Section 104 limits Federal authority when
there is State action; this provision would effectively undermine the
Federal Government's ability to manage and set priorities for
Federally-managed lands, and restrict the ability of the Federal land-
management agencies to respond effectively and efficiently to
environmental hazards.
As you may know, decisions about appropriate environmental response
activities must be coordinated with the full range of land-management
decisions that the Federal land-management agencies are charged with
making. It is critical that we have the ability to integrate
environmental response with the Agencies' overall mission. Although it
certainly makes sense to coordinate our response activities with those
of State authorities, the Federal land-management agencies must retain
their lead-agency enforcement authority under CERCLA with respect to
hazardous releases affecting Federal lands to ensure that appropriate
response activities are carried out effectively along with other land-
management responsibilities. Given the limited amount of appropriated
agency funds that are available to perform environmental response
activities on Federal lands, it is essential that the Federal land-
management agencies retain enforcement authority under CERCLA in order
to induce the responsible parties to either undertake or pay for the
site cleanups for which they are responsible. Without adequate
enforcement authority we will be unable to maintain the current pace of
cleanup on Federal lands, and the ``polluter pays'' principle will be
undermined.
In addition, we strongly oppose Section 301 of the bill and the
Substitute, which would prevent an agency from using its delegated
authority under Section 106 of CERCLA to address a release or
threatened release of hazardous substances at a site where the agency
may be a potentially responsible party (PRP) under CERCLA. The Federal
land-management agencies' ability to address serious threats to human
health and the environment is enhanced by this authority.
At the same time, there are a number of significant existing
safeguards which ensure that the Federal land managers' enforcement
authority under CERCLA Section 106 is exercised in a prudent and
reasonable manner. In 1998, the Federal land managers entered into a
Memorandum of Understanding (MOU) with the Environmental Protection
Agency (EPA), the Coast Guard and the Department of Justice. The MOU
ensures that the Federal land managers' authority under CERCLA Section
106 may only be used with EPA or Coast Guard concurrence. Federal land
managers may not issue unilateral orders to avoid responsibility for
their own share of response costs. Where there may be the potential for
any claim of this nature, Justice Department concurrence also is
required. Section 301 of H.R. 1300 and the Substitute are thus both
counterproductive and unnecessary.
Finally, we have significant concerns about several other
provisions of this bill and the Substitute, including but not limited
to those relating to certain key cleanup requirements and the States'
role at Federal facilities. For example, we believe that the provisions
significantly expanding the role of States at Federal facilities lack
essential safeguards to ensure there would be no disruption of ongoing
cleanup activities. This could undermine the ability of agencies to
continue to use risk-based prioritization systems for allocating
increasingly scarce cleanup funds. In addition, the liability
exemptions, as drafted, would undermine the ``polluter pays''
principle.
For all of the above reasons, we strongly oppose not only H.R. 1300
as currently written but also the Boehlert-Borski Amendment in the
Nature of a Substitute.
The Office of Management and Budget has advised that there is no
objection to the submission of this letter from the standpoint of the
Administration's program.
Sincerely,
Dan Glickman, Secretary
U.S. Department of Agriculture
Bruce Babbitt, Secretary,
U.S. Department of the Interior
cc: The Honorable Sherwood L. Boehlert, Chairman
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure
U.S. House of Representatives
Washington, D.C. 20515
The Honorable Robert A. Borski
Ranking Democratic Member
Subcommittee on Transportation and Infrastructure
U.S. House of Representatives
Washington, D.C. 20515
______
Department of Agriculture
Office of the Secretary
August 4, 1999
The Honorable Bud Shuster
Chairman
Committee on Transportation and Infrastructure
U.S. House of Representatives
2165 Rayburn House Office Building
Washington, D.C. 20515-6256
Dear Mr. Chairman: In light of the Committee on Transportation and
Infrastructure markup scheduled for tomorrow on H.R. 1300, the Recycle
America's Land Act of 1999, we would like to provide you with an
overview of the concerns of the U.S. Department of Agriculture (USDA)
and the U.S. Department of the Interior (DOI) with this bill, as well
as with the proposed Amendment in the Nature of a Substitute to be
offered by Subcommittee Chairman Sherwood L. Boehlert and Subcommittee
Ranking Member Robert A. Borski. We appreciate your efforts to move the
Superfund reauthorization process forward. However, the USDA and DOI
strongly oppose the bill for the reasons discussed below.
USDA and DOI are seriously concerened by the loss of enforcement
authority on Federal lands that would result from H.R. 1300 and the
Substitute. In particular, Section 104 limits Federal authority when
there is State action; this provision would effectively undermine the
Federal Government's ability to manage and set priorities for
Federally-managed lands, and restrict the ability of the Federal land-
management agencies to respond effectively and efficiently to
environmental hazards.
As you may know, decisions about appropriate environmental response
activities must be coordinated with the full range of land-management
decisions that the Federal land-management agencies are charged with
making. It is critical that we have the ability to integrate
environmental response with the Agencies' overall mission. Although it
certainly makes sense to coordinate our response activities with those
of State authorities, the Federal land-management agencies must retain
their lead-agency enforcement authority under CERCLA with respect to
hazardous releases affecting Federal lands to ensure that appropriate
response activities are carried out effectively along with other land-
management responsibilities. Given the limited amount of appropriated
agency funds that are available to perform environmental response
activities on Federal lands, it is essential that the Federal land-
management agencies retain enforcement authority under CERCLA in order
to induce the responsible parties to either undertake or pay for the
site cleanups for which they are responsible. Without adequate
enforcement authority we will be unable to maintain the current pace of
cleanup on Federal lands, and the ``polluter pays'' principle will be
undermined.
In addition, we strongly oppose Section 301 of the bill and the
Substitute, which would prevent an agency from using its delegated
authority under Section 106 of CERCLA to address a release or
threatened release of hazardous substances at a site where the agency
may be a potentially responsible party (PRP) under CERCLA. The Federal
land-management agencies' ability to address serious threats to human
health and the environment is enhanced by this authority.
At the same time, there are a number of significant existing
safeguards which ensure that the Federal land managers' enforcement
authority under CERCLA Section 106 is exercised in a prudent and
reasonable manner. In 1998, the Federal land managers entered into a
Memorandum of Understanding (MOU) with the Environmental Protection
Agency (EPA), the Coast Guard and the Department of Justice. The MOU
ensures that the Federal land managers' authority under CERCLA Section
106 may only be used with EPA or Coast Guard concurrence. Federal land
managers may not issue unilateral orders to avoid responsibility for
their own share of response costs. Where there may be the potential for
any claim of this nature, Justice Department concurrence also is
required. Section 301 of H.R. 1300 and the Substitute are thus both
counterproductive and unnecessary.
Finally, we have significant concerns about several other
provisions of this bill and the Substitute, including but not limited
to those relating to certain key cleanup requirements and the States'
role at Federal facilities. For example, we believe that the provisions
significantly expanding the role of States at Federal facilities lack
essential safeguards to ensure there would be no disruption of ongoing
cleanup activities. This could undermine the ability of agencies to
continue to use risk-based prioritization systems for allocating
increasingly scarce cleanup funds. In addition, the liability
exemptions, as drafted, would undermine the ``polluter pays''
principle.
For all of the above reasons, we strongly oppose not only H.R. 1300
as currently written but also the Boehlert-Borski Amendment in the
Nature of a Substitute.
The Office of Management and Budget has advised that there is no
objection to the submission of this letter from the standpoint of the
Administration's program.
Sincerely,
Dan Glickman, Secretary
U.S. Department of Agriculture
Bruce Babbitt, Secretary,
U.S. Department of the Interior
cc: The Honorable Sherwood L. Boehlert, Chairman
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure
U.S. House of Representatives
Washington, D.C. 20515
The Honorable Robert A. Borski
Ranking Democratic Member
Subcommittee on Transportation and Infrastructure
U.S. House of Representatives
Washington, D.C. 20515
______
U.S. Department of Justice
Office of the Assistant Attorney General
September 23, 1999
Honorable Edolphous Towns
Ranking Minority Member
Subcommittee on Finance and Hazardous Materials
Committee on Commerce
U.S. House of Representatives
Washington, D.C. 20515
Dear Congressman Towns: This letter is to provide the views of the
Department of Justice on H.R. 1300, the ``Recycle America's Land Act of
1999,'' as ordered reported by the Committee on Transportation and
Infrastructure on August 5, 1999. The Department of Justice previously
expressed strong opposition to H.R. 1300, as introduced, in a letter of
May 11, 1999 to the Honorable Sherwood L. Boehlert. Although minor
changes were made to the bill subsequent to its introduction, these
changes did not address the Department's fundamental concerns with the
bill and thus, the Department of Justice remains strongly opposed to
H.R. 1300.
We believe the approach in this bill would not improve the federal
Superfund program and will only serve to undercut the significant
improvements achieved by EPA through its administrative reforms over
the past few years. Furthermore, we believe comprehensive
reauthorization legislation is not needed and would be
counterproductive. Instead, we support a narrow approach that would
address brownfields issues and provide targeted liability relief for
certain innocent parties. However, even on these more limited issues,
H.R. 1300 goes too far.
Below is a brief summary of the major reasons the Department of
Justice strongly opposes H.R. 1300. Our comments here address five
primary areas: the allocation process, bars on federal enforcement
authorities, new liability exemptions and expanded defenses, the impact
on litigation, and the shift of major new costs to the Fund. While this
letter provides only the main concerns we have identified, we would be
happy to share a more detailed analysis with you and your staff.
The New Allocation Process Will Discourage Settlements and Slow
Cleanups
Section 310 of H.R. 1300 would add a new section to the
Comprehensive Environmental Response, Compensation, and Liability Act
(``CERCLA'' or ``Superfund'') establishing a prescriptive, mandatory
allocation process. We believe this new section is not needed, in light
of the significant improvements we have made in adopting a more
equitable enforcement approach over the past four years. Just one
example of this is the expanded use of ``orphan share'' settlements.
Since issuance of EPA's ``orphan share'' policy in 1996, more than 85
settlement offers have been made that would include a government
contribution to the ``orphan share,'' amounting to more than $160
million.
If enacted, H.R. 1300's allocation system will generate litigation,
not settlements, pulling lawyers back into the process and miring
cleanup in litigation and transaction costs. It will also drag exempt
and already-settled parties (including the smallest parties) through
the allocation process and greatly increase their transaction costs.
Finally, it would slow down or stop ongoing response actions, and could
force the federal government to rely primarily on Fund-lead cleanups to
avoid disruptions in the remediation process.
Under current law, the United States resolves most of its CERCLA
claims through settlement, not litigation. Approximately 70% of all
cleanups are performed by potentially responsible parties (PRPs)
through such settlements. Under these settlements, PRPs generally agree
to perform the cleanup and determine an allocation of cleanup costs
among themselves. H.R. 1300's allocation provisions, however, would
change the landscape by requiring that an allocator first quantify the
PRPs' liability. This will slow the pace of cleanup.
H.R. 1300 also will slow cleanups because it will remove incentives
for PRPs to promptly enter into settlements to perform work. We believe
a PRP will rarely, if ever, agree to perform the entire cleanup under a
settlement when it could wait for an allocation and only be required to
perform or pay for its assigned share of cleanup. Even then, a
settlement to clean up a site will be difficult, if not impossible, to
obtain if even one party refuses to settle, since there is no incentive
for any party to pick up another's allocated share. Instead parties
will, seek ``cash out'' settlements for their assigned share of cleanup
costs rather than agree to perform the entire cleanup. H. R. 1300 would
further discourage settlements by rewarding parties that refuse to
settle. The bill would entitle parties that have declined to settle and
are performing under a Unilateral Administrative Order (UAO) to full
reimbursement for costs in excess of their allocated share.\1\ Our
previous experience in the Superfund program indicates that response
actions proceeding under an adversarial UAO approach will not produce
quick, high-quality cleanups. Moreover, under H.R. 1300 parties that
choose to perform under a UAO preserve the right to challenge EPA's
remedy, undercutting the current bar on preenforcement review. As a
result, to get complete cleanups done'' in a timely manner, the Fund
may well have to pay for the entire cleanup in the first instance.
---------------------------------------------------------------------------
\1\ Further, parties who maintain their right to challenge a remedy
get only a little less reimbursement than parties who have settled all
outstanding claims. Sec. 131(o)(4), p. 129, 9. Again, this places
nonsettlers in the drivers' seat and encourages them to continue to
litigate.
---------------------------------------------------------------------------
Another way H.R. 1300 would discourage cleanup settlements is by
undermining joint and several liability. Despite language apparently
intended to avoid this result, PRPs would certainly attempt to convince
courts that in light of the new statutory allocation provision, the
allocator's report provides a basis for finding that environmental
contamination at a site is ``divisible'' and thus that defendants
cannot be held jointly and severally liable. Without the threat of
facing joint and several liability if they end up in court, parties
would have little incentive to settle prior to an allocation (or
perhaps even after the allocator's report is issued).\2\
---------------------------------------------------------------------------
\2\ As both Republican and Democratic Administrations have
repeatedly testified, as well as individual states and the National
Association of Attorneys General, joint and several liability is
critical to getting settlements, to getting cleanups done and to
ensuring that the public is made whole. Given a choice for settling for
an approximation of a share now and for paying a share after years of
allocation and litigation, parties will elect to wait. If joint and
several liability is undermined, we will obtain many fewer settlements
and many fewer cleanup settlements in the first instance--let alone
after allocation. Instead, we will be forced to litigate in many more
cases.
---------------------------------------------------------------------------
In addition to undermining settlements, H.R. 1300 penalizes small
parties and settlers by dragging them through the allocation process.
The bill vests the allocator with authority to determine who qualifies
for an exemption as a small business, a recycler, a service station
dealer, or a generator or transporter of municipal solid waste (MSW) or
municipal sewage sludge (MSS), and leaves these parties ``in'' the
process until the allocator acts. Because these parties' shares must be
assumed by the Fund,\3\ remaining PRPs have a strong incentive to
identify as many additional parties as possible. Even if the small
parties are ultimately exempt from liability, these parties will
nevertheless be forced to spend substantial time and money hiring
lawyers to respond to information requests and subpoenas.
---------------------------------------------------------------------------
\3\ Under the bill, however, an allocator would not attribute any
response costs to include homeowners, certain small businesses, and
small non-profits who disposed only MSW/MSS; see Sec. 131(j).
---------------------------------------------------------------------------
H.R. 1300 Would Restrict the U.S.'s Ability to Respond to Imminent and
Substantial Endangerments
We clearly want to encourage well-qualified states to take the lead
in getting sites cleaned up and to establish good cleanup programs. At
the same time, however, we believe that there is a need to preserve
federal authority at sites where states are administering the cleanup
program so that we can ensure adequate protection of human health and
the environment for everyone in this country. In that respect,
Superfund should remain consistent with every other major federal
environmental law and preserve federal authority to keep the safety net
intact for everyone. This is especially important because every state
is different and their cleanup program abilities vary considerably.
We believe the federal enforcement bar in section 104 of this bill
fails to protect human health and the environment for a number of
reasons. First, the reopeners in section 104 are simply inadequate to
protect human health and the environment. Under the bill, the U.S.
could only respond where it determines that action is ``immediately
required to prevent, limit, or mitigate an emergency.'' Rather than
preventing harm to the public or the environment in the first place, as
current law would provide, the U.S. would be forced to wait for harm to
occur before it could take action. Even then, the U.S. must first
determine whether the state intends to respond. Thus, as a practical
matter, the U.S. would not be able to take an enforcement action unless
there is a state request--even if the State is a PRP or if it ignores a
community expressing serious concern. Second, this new ``emergency''
standard differs from imminent and substantial endangerment, ignoring
nearly twenty years of established case law. The bill will bring on a
new round of litigation to interpret the new standard and in the
process will delay federal intervention, putting public health at risk.
Third, section 104 would delay cleanups and waste resources by cutting
off federal enforcement authority as soon as ``response action''
commences. Finally, the enforcement bar is exacerbated by the total
absence of criteria for EPA to evaluate and approve state response
programs, including any requirement for meaningful public involvement
in the process. Overall, the bill radically departs from the usual
mechanisms for establishing federal/state partnerships under all other
federal environmental laws.
New Liability Exemptions and Expanded Defenses Are Over Broad
H.R. 1300 contains a number of new exemptions and defenses from
CERCLA liability. While we support some narrow, targeted liability
relief, the bill would provide exemptions that are far too broad.
Several of the more troubling provisions are discussed below.
For example, section 303 of the bill would create a new defense to
liability for certain current owners or operators, even those that
bought with knowledge of the contamination at a substantially reduced
purchase price to account for this. Such relief would undermine
longstanding principles of common law which recognize that owners often
are in the best position to address hazards on their property, even if
not created by them. Minor changes made in H.R. 1300's owner/operator
provision that address development, redevelopment, or expansion at
property that an owner bought after 1980 with knowledge that it was
contaminated do little to relieve this problem.
In addition, the bill would grant an exemption to a larger group of
small businesses, which could include businesses that contributed large
amounts of highly toxic wastes. The only ability to restrict this
exemption is for the U.S. to prove that the small business contributes
or contributed significantly to the cost of the cleanup. Given the
complexities found at many sites, it will be difficult for the U.S. to
satisfy this standard with certainly. Even where possible, this
provision will, at a minimum, lead to extensive litigation and
transactions costs.
Furthermore, the municipal solid waste (MSW) exemption is not
consistent with EPA's recently issued MSW settlement policy and would
provide inappropriate relief to large waste generators and commercial
haulers. Among other things, it would exempt from liability all past
contributors of MSW or MSS to a landfill. The only exception would be
for large commercial waste haulers transporting material containing
hazardous substances that contributes significantly to overall response
costs, whose costs would be arbitrarily capped at 10% of response
costs. Post enactment, the liability of all persons who arranged for
the disposal or transportation of MSW or MSS, even large commercial
haulers, is capped at an aggregate 10% of response costs.
Finally, we have concerns with the reach of the bill's recycling
provision. Among other things, it extends coverage to generators and
transporters of used oil and byproducts of copper productions, and
would shift the share of cleanup up costs attributable to exempt
recycling parties to the Fund.
H.R. 1300 Would Result in a Significant Increase in Litigation
We have worked hard over the past few years to reduce the amount of
litigation associated with the Superfund program. We have implemented a
more equitable enforcement program and emphasized settlements instead
of lawsuits. It is disappointing, therefore, to see a Superfund
reauthorization bill that would put the lawyers back into the forefront
by creating numerous new standards and terms that will guarantee
extensive new litigation.
The bill introduces many new terms and concepts--from affirmative
defenses to exemptions, from changes to remedy selection provisions to
risk assessments provisions--and will invite a new round of expensive
litigation over what is meant by all of them. In addition, the bill's
changes to existing remedy selection provisions in CERCLA will require
revisions to the National Contingency Plan (NCP). The last round of NCP
revisions resulted in extensive litigation. During the revision process
and litigation, uncertainty over the ultimate outcome of cleanup
requirements will further chill settlements with private parties, as it
did during the last round of revisions after the 1986 Superfund
amendments. Furthermore, nothing in the bill would make the changes
prospective only in application. Private parties (especially those
covered by the new allocation process) will be free to seek to re-open
already-signed RODs or modify not-yet-signed RODs, and will be free to
challenge the remedies selected in those RODs. The bill would create
new terms and criteria for making remedy selection decisions, all of
which would require judicial interpretation.
Each of these changes (and many more I have not described in this
letter) would invite litigation over how the new law should be
interpreted. This process would substantially increase transaction
costs as courts would be asked to revise eighteen years of established
case law in response to significant changes to the current law. I fail
to see the value in this approach, especially where we have strived to
reduce litigation and where we have seen such dramatic improvements in
the cleanup program over the past few years.
The Bill Would Shift Major New Costs to the Fund
Congress has failed to reinstate the Superfund tax authority which
expired on December 31, 1995. Since that date, industry has benefitted
from a windfall of approximately $4 million a day in unpaid taxes.
At the same time, H.R. 1300 shifts major new costs to the Fund.
Under the new allocation scheme, the Fund must assume the costs of all
of the following: insolvent and defunct parties, newly exempt parties
(including small businesses, most MSW/MSS generators and transporters,
service station dealers, and recyclers), the differential between what
ability-to-pay parties are assigned and actually pay, as well as the
differential between what MSW/MSS parties pay and their actual share of
liability. In addition, the Trust Fund would assume a pro rata share of
responsibility, with site PRPs, for materials for which no
responsibility can be attributed.
In summary, we believe H.R. 1300 would not result in improvements
to the federal Superfund program. To the contrary, the bill would
increase litigation, slow down cleanups, and disrupt the progress we
have made through administrative reforms. I hope our analysis of this
bill is helpful, and would be pleased to discuss our concerns with you
further.
The Office of Management and Budget has advised that there is no
objection to the submission of this letter from the standpoint of the
Administration's program.
Sincerely,
Jon P. Jennings
Acting Assistant Attorney General
______
U.S. Department of Justice
Office of the Assistant Attorney General
September 23, 1999
Honorable Michael G. Oxley
Chairman
Subcommittee on Finance and Hazardous Materials
Committee on Commerce
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman: This letter is to provide the views of the
Department of Justice on H.R. 1300, the ``Recycle America's Land Act of
1999,'' as ordered reported by the Committee on Transportation and
Infrastructure on August 5, 1999. The Department of Justice previously
expressed strong opposition to H.R. 1300, as introduced, in a letter of
May 11, 1999 to the Honorable Sherwood L. Boehlert. Although minor
changes were made to the bill subsequent to its introduction, these
changes did not address the Department's fundamental concerns with the
bill and thus, the Department of Justice remains strongly opposed to
H.R. 1300.
We believe the approach in this bill would not improve the federal
Superfund program and will only serve to undercut the significant
improvements achieved by EPA through its administrative reforms over
the past few years. Furthermore, we believe comprehensive
reauthorization legislation is not needed and would be
counterproductive. Instead, we support a narrow approach that would
address brownfields issues and provide targeted liability relief for
certain innocent parties. However, even on these more limited issues,
H.R. 1300 goes too far.
Below is a brief summary of the major reasons the Department of
Justice strongly opposes H.R. 1300. Our comments here address five
primary areas: the allocation process, bars on federal enforcement
authorities, new liability exemptions and expanded defenses, the impact
on litigation, and the shift of major new costs to the Fund. While this
letter provides only the main concerns we have identified, we would be
happy to share a more detailed analysis with you and your staff.
The New Allocation Process Will Discourage Settlements and Slow
Cleanups
Section 310 of H.R. 1300 would add a new section to the
Comprehensive Environmental Response, Compensation, and Liability Act
(``CERCLA'' or ``Superfund'') establishing a prescriptive, mandatory
allocation process. We believe this new section is not needed, in light
of the significant improvements we have made in adopting a more
equitable enforcement approach over the past four years. Just one
example of this is the expanded use of ``orphan share'' settlements.
Since issuance of EPA's ``orphan share'' policy in 1996, more than 85
settlement offers have been made that would include a government
contribution to the ``orphan share,'' amounting to more than $160
million.
If enacted, H.R. 1300's allocation system will generate litigation,
not settlements, pulling lawyers back into the process and miring
cleanup in litigation and transaction costs. It will also drag exempt
and already-settled parties (including the smallest parties) through
the allocation process and greatly increase their transaction costs.
Finally, it would slow down or stop ongoing response actions, and could
force the federal government to rely primarily on Fund-lead cleanups to
avoid disruptions in the remediation process.
Under current law, the United States resolves most of its CERCLA
claims through settlement, not litigation. Approximately 70% of all
cleanups are performed by potentially responsible parties (PRPs)
through such settlements. Under these settlements, PRPs generally agree
to perform the cleanup and determine an allocation of cleanup costs
among themselves. H.R. 1300's allocation provisions, however, would
change the landscape by requiring that an allocator first quantify the
PRPs' liability. This will slow the pace of cleanup.
H.R. 1300 also will slow cleanups because it will remove incentives
for PRPs to promptly enter into settlements to perform work. We believe
a PRP will rarely, if ever, agree to perform the entire cleanup under a
settlement when it could wait for an allocation and only be required to
perform or pay for its assigned share of cleanup. Even then, a
settlement to clean up a site will be difficult, if not impossible, to
obtain if even one party refuses to settle, since there is no incentive
for any party to pick up another's allocated share. Instead parties
will, seek ``cash out'' settlements for their assigned share of cleanup
costs rather than agree to perform the entire cleanup. H. R. 1300 would
further discourage settlements by rewarding parties that refuse to
settle. The bill would entitle parties that have declined to settle and
are performing under a Unilateral Administrative Order (UAO) to full
reimbursement for costs in excess of their allocated share.\1\ Our
previous experience in the Superfund program indicates that response
actions proceeding under an adversarial UAO approach will not produce
quick, high-quality cleanups. Moreover, under H.R. 1300 parties that
choose to perform under a UAO preserve the right to challenge EPA's
remedy, undercutting the current bar on preenforcement review. As a
result, to get complete cleanups done'' in a timely manner, the Fund
may well have to pay for the entire cleanup in the first instance.
---------------------------------------------------------------------------
\1\ Further, parties who maintain their right to challenge a remedy
get only a little less reimbursement than parties who have settled all
outstanding claims. Sec. 131(o)(4), p. 129, 9. Again, this places
nonsettlers in the drivers' seat and encourages them to continue to
litigate.
---------------------------------------------------------------------------
Another way H.R. 1300 would discourage cleanup settlements is by
undermining joint and several liability. Despite language apparently
intended to avoid this result, PRPs would certainly attempt to convince
courts that in light of the new statutory allocation provision, the
allocator's report provides a basis for finding that environmental
contamination at a site is ``divisible'' and thus that defendants
cannot be held jointly and severally liable. Without the threat of
facing joint and several liability if they end up in court, parties
would have little incentive to settle prior to an allocation (or
perhaps even after the allocator's report is issued).\2\
---------------------------------------------------------------------------
\2\ As both Republican and Democratic Administrations have
repeatedly testified, as well as individual states and the National
Association of Attorneys General, joint and several liability is
critical to getting settlements, to getting cleanups done and to
ensuring that the public is made whole. Given a choice for settling for
an approximation of a share now and for paying a share after years of
allocation and litigation, parties will elect to wait. If joint and
several liability is undermined, we will obtain many fewer settlements
and many fewer cleanup settlements in the first instance--let alone
after allocation. Instead, we will be forced to litigate in many more
cases.
---------------------------------------------------------------------------
In addition to undermining settlements, H.R. 1300 penalizes small
parties and settlers by dragging them through the allocation process.
The bill vests the allocator with authority to determine who qualifies
for an exemption as a small business, a recycler, a service station
dealer, or a generator or transporter of municipal solid waste (MSW) or
municipal sewage sludge (MSS), and leaves these parties ``in'' the
process until the allocator acts. Because these parties' shares must be
assumed by the Fund,\3\ remaining PRPs have a strong incentive to
identify as many additional parties as possible. Even if the small
parties are ultimately exempt from liability, these parties will
nevertheless be forced to spend substantial time and money hiring
lawyers to respond to information requests and subpoenas.
---------------------------------------------------------------------------
\3\ Under the bill, however, an allocator would not attribute any
response costs to include homeowners, certain small businesses, and
small non-profits who disposed only MSW/MSS; see Sec. 131(j).
---------------------------------------------------------------------------
H.R. 1300 Would Restrict the U.S.'s Ability to Respond to Imminent and
Substantial Endangerments
We clearly want to encourage well-qualified states to take the lead
in getting sites cleaned up and to establish good cleanup programs. At
the same time, however, we believe that there is a need to preserve
federal authority at sites where states are administering the cleanup
program so that we can ensure adequate protection of human health and
the environment for everyone in this country. In that respect,
Superfund should remain consistent with every other major federal
environmental law and preserve federal authority to keep the safety net
intact for everyone. This is especially important because every state
is different and their cleanup program abilities vary considerably.
We believe the federal enforcement bar in section 104 of this bill
fails to protect human health and the environment for a number of
reasons. First, the reopeners in section 104 are simply inadequate to
protect human health and the environment. Under the bill, the U.S.
could only respond where it determines that action is ``immediately
required to prevent, limit, or mitigate an emergency.'' Rather than
preventing harm to the public or the environment in the first place, as
current law would provide, the U.S. would be forced to wait for harm to
occur before it could take action. Even then, the U.S. must first
determine whether the state intends to respond. Thus, as a practical
matter, the U.S. would not be able to take an enforcement action unless
there is a state request--even if the State is a PRP or if it ignores a
community expressing serious concern. Second, this new ``emergency''
standard differs from imminent and substantial endangerment, ignoring
nearly twenty years of established case law. The bill will bring on a
new round of litigation to interpret the new standard and in the
process will delay federal intervention, putting public health at risk.
Third, section 104 would delay cleanups and waste resources by cutting
off federal enforcement authority as soon as ``response action''
commences. Finally, the enforcement bar is exacerbated by the total
absence of criteria for EPA to evaluate and approve state response
programs, including any requirement for meaningful public involvement
in the process. Overall, the bill radically departs from the usual
mechanisms for establishing federal/state partnerships under all other
federal environmental laws.
New Liability Exemptions and Expanded Defenses Are Over Broad
H.R. 1300 contains a number of new exemptions and defenses from
CERCLA liability. While we support some narrow, targeted liability
relief, the bill would provide exemptions that are far too broad.
Several of the more troubling provisions are discussed below.
For example, section 303 of the bill would create a new defense to
liability for certain current owners or operators, even those that
bought with knowledge of the contamination at a substantially reduced
purchase price to account for this. Such relief would undermine
longstanding principles of common law which recognize that owners often
are in the best position to address hazards on their property, even if
not created by them. Minor changes made in H.R. 1300's owner/operator
provision that address development, redevelopment, or expansion at
property that an owner bought after 1980 with knowledge that it was
contaminated do little to relieve this problem.
In addition, the bill would grant an exemption to a larger group of
small businesses, which could include businesses that contributed large
amounts of highly toxic wastes. The only ability to restrict this
exemption is for the U.S. to prove that the small business contributes
or contributed significantly to the cost of the cleanup. Given the
complexities found at many sites, it will be difficult for the U.S. to
satisfy this standard with certainly. Even where possible, this
provision will, at a minimum, lead to extensive litigation and
transactions costs.
Furthermore, the municipal solid waste (MSW) exemption is not
consistent with EPA's recently issued MSW settlement policy and would
provide inappropriate relief to large waste generators and commercial
haulers. Among other things, it would exempt from liability all past
contributors of MSW or MSS to a landfill. The only exception would be
for large commercial waste haulers transporting material containing
hazardous substances that contributes significantly to overall response
costs, whose costs would be arbitrarily capped at 10% of response
costs. Post enactment, the liability of all persons who arranged for
the disposal or transportation of MSW or MSS, even large commercial
haulers, is capped at an aggregate 10% of response costs.
Finally, we have concerns with the reach of the bill's recycling
provision. Among other things, it extends coverage to generators and
transporters of used oil and byproducts of copper productions, and
would shift the share of cleanup up costs attributable to exempt
recycling parties to the Fund.
H.R. 1300 Would Result in a Significant Increase in Litigation
We have worked hard over the past few years to reduce the amount of
litigation associated with the Superfund program. We have implemented a
more equitable enforcement program and emphasized settlements instead
of lawsuits. It is disappointing, therefore, to see a Superfund
reauthorization bill that would put the lawyers back into the forefront
by creating numerous new standards and terms that will guarantee
extensive new litigation.
The bill introduces many new terms and concepts--from affirmative
defenses to exemptions, from changes to remedy selection provisions to
risk assessments provisions--and will invite a new round of expensive
litigation over what is meant by all of them. In addition, the bill's
changes to existing remedy selection provisions in CERCLA will require
revisions to the National Contingency Plan (NCP). The last round of NCP
revisions resulted in extensive litigation. During the revision process
and litigation, uncertainty over the ultimate outcome of cleanup
requirements will further chill settlements with private parties, as it
did during the last round of revisions after the 1986 Superfund
amendments. Furthermore, nothing in the bill would make the changes
prospective only in application. Private parties (especially those
covered by the new allocation process) will be free to seek to re-open
already-signed RODs or modify not-yet-signed RODs, and will be free to
challenge the remedies selected in those RODs. The bill would create
new terms and criteria for making remedy selection decisions, all of
which would require judicial interpretation.
Each of these changes (and many more I have not described in this
letter) would invite litigation over how the new law should be
interpreted. This process would substantially increase transaction
costs as courts would be asked to revise eighteen years of established
case law in response to significant changes to the current law. I fail
to see the value in this approach, especially where we have strived to
reduce litigation and where we have seen such dramatic improvements in
the cleanup program over the past few years.
The Bill Would Shift Major New Costs to the Fund
Congress has failed to reinstate the Superfund tax authority which
expired on December 31, 1995. Since that date, industry has benefitted
from a windfall of approximately $4 million a day in unpaid taxes.
At the same time, H.R. 1300 shifts major new costs to the Fund.
Under the new allocation scheme, the Fund must assume the costs of all
of the following: insolvent and defunct parties, newly exempt parties
(including small businesses, most MSW/MSS generators and transporters,
service station dealers, and recyclers), the differential between what
ability-to-pay parties are assigned and actually pay, as well as the
differential between what MSW/MSS parties pay and their actual share of
liability. In addition, the Trust Fund would assume a pro rata share of
responsibility, with site PRPs, for materials for which no
responsibility can be attributed.
In summary, we believe H.R. 1300 would not result in improvements
to the federal Superfund program. To the contrary, the bill would
increase litigation, slow down cleanups, and disrupt the progress we
have made through administrative reforms. I hope our analysis of this
bill is helpful, and would be pleased to discuss our concerns with you
further.
The Office of Management and Budget has advised that there is no
objection to the submission of this letter from the standpoint of the
Administration's program.
Sincerely,
Jon P. Jennings
Acting Assistant Attorney General
Mr. Fields. Thank you very much.
Mr. Chairman and members of the subcommittee, we thank you
so much for being here. It is a pleasure again to be here at
another Superfund hearing. We are pleased to have the
opportunity to be here with you to discuss the current progress
of the Superfund program and to give the administration's views
on H.R. 1300, H.R. 2580 as well as Congressman Shimkus's bill.
We would be happy to discuss these small business elements at
well of his bill, a plan to discuss remedy and several other
provisions, and Assistant Administrator Herman will discuss
liability and allocation issues.
We believe, Mr. Chairman and members of the subcommittee,
that Superfund is a fundamentally different program after three
rounds of administrative reforms to that program. Since 1996 we
have increased the pace of cleanup to 85 construction
completions per year, as compared to 65 sites a year more than
3 years ago. Today Superfund has 629 sites where construction
is complete, another 459 sites where construction is underway,
214 sites where removal construction has occurred, so therefore
more than 90 percent of the current Superfund sites have
cleanup construction completed or underway. Both the time and
cost has been reduced by 20 percent.
So given the significant progress that is going on in
cleaning up toxic waste sites, the last thing we need is
legislation that would undermine our current cleanup progress.
I am convinced that comprehensive Superfund legislative reform
like the bills before us today, even if well-intentioned, would
halt or delay the cleanup progress we see in the program today.
That result is simply unacceptable to the Clinton
administration and would be a disservice to the American people
who live around these toxic waste sites.
The remedy provisions in H.R. 1300 and H.R. 2580 would
undermine the current level of human health and environmental
protection in the Superfund program. I am sure that is not the
intent of the subcommittee members, however I am afraid that
that would be the result. Both bills would replace the current
cleanup goal to restore contaminated groundwater to beneficial
uses with a lower standard. Both bills would eliminate the
current statutory need for Superfund cleanups to meet Federal
and State relevant and appropriate regulatory requirements.
These requirements often result in a cleanup remedy that is
tailored to the particular conditions at a site, thereby adding
an additional level of protection.
The Clinton administration also opposes provisions that
limit the authority of EPA to list toxic waste sites on the
Superfund National Priorities List. H.R. 2580 prevents the EPA
from listing toxic waste sites on the NPL without a Governor's
concurrence even when the State is a liable party, even when
toxic waste has crossed State lines or even when toxic waste
has contaminated tribal lands.
EPA currently works well with States when proposing sites
for the listing on the NPL. Statutory NPL limitations are
unnecessary and could weaken protection of human health and the
environment.
I would refer the members to EPA's written statement for a
more detailed discussion of the impacts of the remedy
selection, the listing, and other elements of our program.
I would now refer the remainder of our testimony to
Assistant Administrator Herman.
Mr. Herman. Thank you. Good morning, Mr. Chairman and
members of the committee. I am pleased to appear here today to
identify some of the concerns that the administration has with
the liability and allocation provisions of H.R. 1300 and the
liability provisions of H.R. 2247.
The Superfund liability system is the engine that drives 70
percent of Superfund long-term cleanups. EPA has continued its
use of an enforcement first strategy in securing commitments
from responsible parties for the cleanup of Superfund toxic
waste sites. Through fiscal year 1998 responsible parties have
committed more than $15.5 billion to clean up response and cost
recovery. That is $15.5 billion that did not have to be
collected from the taxpayers or appropriated by Congress.
While EPA and the Justice Department continue to secure
cleanup funding from responsible parties, we do not ignore the
effect Superfund liability may have on small parties. The
agency has aggressively sought to promote fairness in the
liability system by reaching settlements with more than 18,000
small volume waste contributors, more than 65 percent of these
settlements occurring in the last 4 years.
To date we have also offered more than $170 million in
Orphan Share Compensation by forgiving past costs and oversight
costs at more than 90 Superfund sites. The President's fiscal
year 2000 budget request asks for $200 million for Orphan Share
funding at Superfund sites and the administration supports the
enactment of legislation that would authorize EPA to use those
dedicated funds without reducing the pace of cleanups.
Turning to liability and allocation issues, the
administration continues to have very serious concerns with
provisions in H.R. 1300 and the small business exemption in
H.R. 2247. Some of the liability exemptions would do more harm
than good. The so-called Innocent Landowner Exemption in H.R.
1300 is both misnamed and bad policy in that it effectively
repeals Superfund liability by exempting owners of contaminated
property who purchased the property knowing it was
contaminated. EPA's written statement goes into much greater
detail about our specific concerns with liability exemptions in
the bills.
The administration also has serious concerns with the
allocation provisions in H.R. 1300. These provisions would
undermine the Superfund settlement process, a process that as I
said has generated billions of dollars in cleanup funding.
EPA's experience with allocation pilots has given us on-the-
ground experience and has taught us that a prescriptive,
mandatory allocation process does not promote timely
settlements and may encourage recalcitrant parties to delay
performing cleanup work while waiting for an allocation.
Parties will inevitably dispute their fair share of cleanup
costs, requiring EPA to issue many more cleanup orders to
maintain the current pace of cleanup. Issuing cleanup orders is
a far more adversarial process than reaching settlements and
will undoubtedly lead to an increase in litigation and
transaction costs, the very result the administration and the
Congress has sought to avoid. It will particularly be harmful
to the small parties whom we are trying to exclude from this
process.
Finally, I want to stress that the administration does
support responsible legislative provisions on Superfund
liability. We support vigorous Brownfields development through
provisions directed toward prospective purchasers, legitimately
innocent landowners and contiguous property owners. We also
support a liability exemptions for small businesses that
generated and transported trash and small amounts of hazardous
waste. The targeted provisions that the administration supports
have generated consistent bipartisan support and have appeared
in one form or another in Superfund legislation for the past
three Congresses.
The provisions the administration supports build upon the
success of EPA's administrative reforms without delaying
cleanups and without unfairly shifting cleanup costs to
Federal, State or local governments or the taxpayers. The
targeted, focused provisions we support could garner bipartisan
support quickly.
In closing, Mr. Chairman, the administration stands ready
to work with Congress to enact responsible Brownfield and
Superfund legislation that builds upon the administrative
reforms, recognizes the current status of the program and does
not undermine the current cleanup progress. Unfortunately, as
currently written, the administration must strongly oppose H.R.
1300, 2580, and 2247.
Thank you, Mr. Chairman. Assistant Administrator Fields and
I will be happy to answer any of your questions.
[The prepared statement of Timothy Fields, Jr. and Steven
A. Herman follows:]
Prepared Statement of Hon. Timothy Fields, Jr., Assistant
Administrator, Office of Solid Waste and Emergency Response, and Steven
A. Herman, Assistant Administrator for Enforcement and Compliance
Assurance, U.S. Environmental Protection Agency
introduction
Good morning, Mr. Chairman, and Members of the Committee. We are
pleased to have this opportunity to appear before you today to discuss
H.R. 1300, the ``Recycle America's Land Act of 1999,'' as well as the
Agency's record of accomplishments over the past several years in
fundamentally improving the Superfund program. The Superfund program
plays a key role in the Administration's goal of building strong and
healthy communities for the 21st Century.
superfund progress
The Superfund program continues to make significant progress in
cleaning up hazardous waste sites and protecting public health and the
environment. EPA has significantly changed how the Superfund program
operates through three rounds of administrative reforms which have made
Superfund a fairer, more effective, and more efficient program. As of
September, 1999, 90% of the sites on the final NPL are either
undergoing cleanup construction (remedial or removal) or are completed:
<bullet> 623 Superfund sites have reached construction completion.
<bullet> 459 Superfund sites have cleanup construction underway;
<bullet> An additional 214 sites have had or are undergoing a removal
cleanup action.
Nearly 31,000 sites have been removed from the Superfund inventory
of potentially hazardous waste sites to help promote the economic
redevelopment of these properties.
EPA's ``Enforcement First'' strategy has resulted in responsible
parties performing or paying for approximately 70% of long-term
cleanups, thereby conserving the Superfund Trust Fund for sites for
which there are no viable or liable responsible parties. This approach
has saved taxpayers more than $15.5 billion to date--more than $13
billion in response settlements, and nearly $2.5 billion in cost
recovery settlements.
Through the commitment of EPA, State, and Tribal site managers,
other Federal agencies, private sector representatives, and involved
communities, EPA has made Superfund faster, fairer, and more efficient
through three rounds of administrative reforms. Several years of
stakeholder response indicates that EPA's Superfund Reforms have
already addressed the primary areas of the program that they believe
needed improvement. EPA remains committed to fully implementing the
administrative reforms and refining or improving them where necessary.
reauthorization
As stated on March 23, 1999 in testimony before this committee, the
success of EPA's administrative reforms and the resulting improvements
in the Superfund program have fundamentally altered the need for
Superfund reauthorization legislation. Many of the provisions in the
bills under discussion today are designed to fix problems that have
been addressed through the Superfund Administrative Reforms.
As the result of the progress made in cleaning up Superfund sites
in recent years, and the program improvements resulting from
administrative reforms, there is no longer a need for comprehensive
legislation. Comprehensive legislation could actually delay clean ups,
create uncertainty and litigation, and undermine the current progress
of the program. As a result, the Clinton Administration believes only
provisions that provide narrow, targeted liability relief for qualified
parties that builds upon the current success of the Superfund program
are appropriate. Let me reiterate the provisions the Clinton
Administration would support. In addition to legislation to reinstate
the Superfund taxes, and provide EPA with access to mandatory spending
for orphan shares, Superfund reauthorizing legislation should be
limited to provisions dealing with:
<bullet> prospective purchasers of contaminated property
<bullet> innocent landowners
<bullet> contiguous property owners, and
<bullet> the liability of small parties
hr 1300, hr 2580, and hr 2247 weaken the current program
The Administration has reviewed H.R. 1300--the ``Recycle America's
Land Act'' as reported out of the House Transportation and
Infrastructure Committee, H.R.2580--the ``Land Recycling Act of 1999,''
and H.R. 2247--the ``Small Business Superfund Fairness Act.'' Each of
these bills would undermine the current progress being achieved in the
Superfund program. As a result, the Clinton Administration is opposed
to these bills. After several years of administrative reforms,
Superfund has been fundamentally improved. Overhauling Superfund at
this stage of the program with a significantly changed statute will
erode many of the improvements we have achieved. Superfund legislation
should be narrowly targeted and build upon the success of Superfund
Administrative Reforms. Legislation should focus on provisions that
have generated broad Congressional and Superfund stakeholder consensus.
Unfortunately, significant provisions in each of these bills lack this
consensus. By contrast, the Administration strongly supports H.R. 1750,
the Community Revitalization and Brownfields Cleanup Act of 1999.
cleanups less protective
Superfund cleanups must be protective of human health and the
environment over the long term. Unfortunately, a number of provisions
in H.R. 1300 and H.R. 2580 weaken current law and could result in a
Superfund program that would not adequately protect human health and
the environment.
H.R. 2580's remedy title weakens current law and could result in a
Superfund program that would not adequately protect human health and
the environment. Under the current statute remedies are required to
``utilize permanent solutions and alternative treatment technologies or
resource recovery technologies to the maximum extent practicable.''
Under H.R. 2580, the word ``maximum'' is stricken. This change
effectively eliminates the importance of selecting permanent remedies
and permanent protection for communities. Also, under H.R. 2580, the
preference for treatment does not apply to treatment remedial
alternatives ``that would increase risk to community or to worker's
health''. Under the current law, protection of community and workers is
already addressed under : (1) the National Contingency Plan (NCP)
remedy selection criteria of protection of human health and the
environment, and short-term effectiveness, (2) the ARAR waiver of
greater risk to human health and the environment, and (3) worker
protection standards. This imposition of a separate test for treatment
remedies may weaken long term protection of remedies by reducing
treatment, inviting additional litigation, and delaying cleanups.
relevant and appropriate requirements
The provisions in H.R. 1300 and H.R. 2580 that eliminate the
current statutory requirement to attain or waive Relevant and
Appropriate requirements (RARs) represents an attempt to address a
problem that does not exist. Dated Superfund reform legislation
eliminated RARs in conjunction with States having the option of
repromulgating State RARs as Applicable standards. Superfund
Administrative reforms and further Agency and State experience
selecting cleanup remedies have eliminated the need for legislative
changes to remedy provisions in current law. Further, the use of RARs
often result in remedies tailored to site specific conditions,
providing an additional tool to ensure protection of human health and
the environment.
groundwater not protected
Contaminated ground water is a problem at more than 85 percent of
Superfund sites. With roughly fifty percent of the U.S. population
relying on ground water for their drinking water, the Administration
strongly believes that this critical resource must be protected. The
citizens of this nation want and deserve a safe and reliable supply of
water for drinking and household use, industry and agriculture,
recreation, and many other beneficial uses, and to know that they will
continue to have such a supply available for future generations.
For example, H.R. 1300 and H.R. 2580 replace the current Superfund
program goal to restore contaminated ground water to beneficial uses,
wherever practicable, with a much lower standard. Both HR. 1300 and HR
2580 protect groundwater only for its ``reasonably anticipated use'',
rather than its ``current or potential beneficial use.'' Reliance on
this land use concept may create a perception of a bias against
protecting uncontaminated ground water. Furthermore, under H.R. 2580
there is no requirement to clean up ground water to beneficial use.
Remedies selected under H.R. 2580 would not keep contaminated ground
water from spreading to uncontaminated ground water. By including the
term ``reasonable point of compliance,'' the bill invites disputes over
whether drinking water standards should be met in the groundwater or at
the tap--potentially delaying cleanup and leaving valuable groundwater
resources unprotected. Superfund legislation should not weaken the goal
of restoring ground water to beneficial uses, wherever practicable.
Under the current program, EPA is using ``smart'' ground water
remediation to provide appropriate levels of protection at lower cost.
In the early days of the program, we relied almost solely on extraction
and treatment of ground water to achieve cleanup objectives. In 1995,
60% of our ground water cleanup decisions reflect extraction and
treatment being used in conjunction with other techniques, such as
bioremediation, underground treatment walls, or monitored natural
attenuation, which is often used to reduce low levels of contaminants.
In 1995, about 25% of Superfund ground water remedies included
monitored natural attenuation of contamination.
cleanups may be delayed
Under both H.R. 1300 and H.R. 2580 new and confusing provisions and
terminology regarding ground water, and risk assessment will delay
cleanups and generate costly new litigation. For example, new risk
assessment terms and requirements may require EPA, States, and
contractors to change the way a Superfund cleanup remedy is chosen. New
risk provisions requiring consideration of information, regardless of
reliability, quality, or whether the information is representative of
site conditions, is unnecessary and will delay remedy selection
decisions.
New terminology could also cause time consuming and costly
litigation as the meaning and relevance of new terms are fought over in
the courts. For example, defining when data is ``reasonably
obtainable'' or if the scientific and technical information is the
``best available'' would be debated and litigated, leading to delayed
cleanups.
the liability provisions of h.r. 1300 and h.r. 2247 will increase
litigation and exempt many parties who should pay for cleanup
Though changes were made to H.R. 1300 subsequent to its
introduction, the bill passed by the Committee on Transportation and
Infrastructure remains unacceptable and is strongly opposed by the
Administration. The bill would roll back current cleanup progress and
undermine the critical ``polluter pays principle. EPA, along with the
Department of Justice, has already expressed strong concerns regarding
the prohibitions on EPA's ability to provide protections to all
communities, regardless of the State in which they are located, at the
August 4, 1999 hearing before this Committee. Our concerns remain the
same on those issues. In addition, the Administration remains concerned
about the other liability provisions in the bill.
Specifically, H.R. 1300 still requires mandatory allocations at
many sites where they are unwarranted, thus significantly increasing
transaction costs. In addition, while H.R. 1300 attempts to address the
need for limitations on liability for prospective purchasers, innocent
landowners and contiguous property owners, H.R. 1300 goes beyond these
reforms needed to foster redevelopment, and includes a number of overly
broad liability exemptions which may result in the transfer of
responsibility for large cleanups to the Trust Fund. H.R. 2247 also
suffers from this problem by promoting an overly broad exemption for
moderately sized businesses, even if they sent hazardous waste to a
site. As a result, the liability provisions of H.R. 1300 will increase
transaction costs and litigation, and H.R. 1300 and H.R. 2247 will
exempt many parties who should help pay for the costs of cleanup.
h.r. 1300 would require costly time consuming allocations, and remove
incentives for settlement
Over the past 18 years, we have learned that settlements with
responsible parties are the most effective way to achieve timely
cleanups. A large measure of the program's progress derives from the
fact that over two-thirds of the work is done by responsible parties,
most of it through settlements. We want to continue that achievement.
The current law provides significant incentives for parties to reach
agreement at the negotiating table, and to move quickly to cleanup
without resorting to adversarial, unilateral orders. As described
below, we believe H.R. 1300 severely reduces or eliminates these
incentives to step forward and agree to perform cleanups voluntarily.
Lessons learned from EPA allocation pilots have shown that
prescriptive, mandatory allocations can prevent reaching timely
settlements. The Administration believes that the allocation process in
H.R. 1300 remains overly burdensome and could discourage settlements,
rather than promoting them. In addition, because of the broad nature of
eligible response actions, EPA will be forced to expend considerable
resources providing allocated ``fair share'' settlements and
reimbursing parties that expended costs above their ``fair share,''
even for actions concluded in prior administrative settlements.
Of greatest concern is the structure of the allocation and
settlement processes. Within these processes, the concept of joint and
several liability--which has been instrumental in bringing parties
together at the negotiating table to conduct cleanups--could be
severely weakened. As a result, if just one party decides not to
settle, it is unlikely that any settlement will occur, as there is no
incentive for any other party to pick up this share. Because parties
will be unwilling to settle until they are allocated a ``share''
pursuant to a time-intensive allocation, EPA's only means of securing a
timely cleanup, short of funding the cleanup itself, is to issue
parties a cleanup order. This immediately places the Agency in an
adversarial relationship with these parties, and has the added
detriment of allowing parties to challenge the cleanups--effectively
circumventing the current bar on pre-enforcement review. In addition,
because parties are allowed under the bill to seek reimbursement for
costs expended above their ``fair share,'' even when performing under a
CERCLA section 106 cleanup order, parties would be discouraged from
cleaning up sites through a settlement. Instead of resolving its
outstanding costs up-front, as well as how future problems will be
dealt with, EPA will be forced to resolve such disputes as they occur
before a judge, and will also be required to file separate legal
actions to collect its costs, resulting in both a loss of efficiency,
as well as a significant increase in transaction costs and multiple
delays in the cleanup process.
H.R. 1300 attempts to address the Administration's concerns over
reopening existing Superfund settlements and orders. However, we don't
believe the language as written meets this intended purpose. In cases
where an allocation may be required and a party has entered into a
prior settlement for other response actions at the site, such as prior
operable units, those parties may have an opportunity to argue before
the allocator that their previous settlements were in excess of their
share and request an adjustment in the settlement subject to the
allocation based on the prior settlement amount. This revisiting of
issues at sites with previous settlements will result in disputes among
the same parties arguing over the same previously resolved issues. For
example, after years of negotiations over Operable Unit 1 between EPA
and 18 PRPs at the York Oil Superfund Site in Franklin County, NY that
settled over $20 million in cleanup and past costs, a mandatory
allocation for the second Operable Unit, valued at about $4 million,
could undermine all of EPA and the parties' efforts to settle this
site.
pulling parties back into allocation disputes
In addition to revisiting issues from prior settlements, the
requirement to allocate shares for the response action will result in
dragging exempt or settled parties back through the allocation process,
even if they had previously settled. The intent of the Administration
has always been to prevent these parties, such as the over 18,000 de
minimis parties that have settled their liability, from being faced
with Superfund again. H.R. 1300 reverses that objective. Because the
Fund is responsible for the share of exempt parties, as well as
insolvent, and defunct parties, H.R. 1300 places a premium on these
parties, encouraging other responsible parties subject to the
allocation to perform a ``witch hunt'' to identify such parties in
order to reduce their share. Even though such parties may not be liable
for the site costs, they will be forced to expend substantial time and
money to hire lawyers to respond to information requests and subpoenas.
over broad allocation provisions undermine ``polluter pays'' principle
Though H.R. 1300 was revised to limit in some cases the types of
sites to which the allocation provisions would apply, it will still
require allocations at numerous other sites where an allocation is
unwarranted or simply not necessary. For example, while the bill
attempts to limit the number of ``chain of title'' sites where an
allocation would be required, it creates a large loophole by bringing
back into the process, sites where the current owner is insolvent or
defunct, or where the current owner has a defense and the previous
owner is insolvent and defunct. At a site such as the Copperhill mining
site in Tennessee, an allocation could result in the transfer of a
$100+ million cleanup to the Trust Fund if the current owner,
Occidental Chemical, successfully claims an innocent owner defense,
because the previous owner, Tennessee Chemical Company, is insolvent.
Because many current owners would likely be exempt under H.R. 1300, and
because many prior owners would likely be insolvent, these provisions
would potentially bar very few owner/operator-only sites.
Aside from the fact that issues at most chain-of-title sites are
burdened not by questions of hazardous waste contributions, but instead
by legal questions of corporate successorship, and thus not
particularly suited for a traditional allocation, the requirement for
an allocation at owner/operator sites could amount to a windfall for
these parties at an enormous cost to the Superfund Trust Fund. At many
of these sites, the owner acquired the property at a reduced purchase
price to reflect the presence of contamination at the site and with the
intent to continue the same or similar operations that gave rise to the
contamination. It is consistent with long-standing principles of law
and not unfair to hold landowners responsible for the hazardous
conditions on their property.
liability exemptions are over broad and will increase costs and
litigation
The Administration supports liability reform for small volume
contributors and generators and transporters of household municipal
solid waste. Such reform should take the form of clearly defined
exemptions or limitations on liability to ensure that the transaction
costs imposed on these parties is minimized. As amended, however, H.R.
1300 will still be extremely difficult to implement, will generate
substantial new litigation and will result in significant transaction
costs. Further, many of the liability provisions are over broad,
exempting parties that should remain responsible for the cost of
cleanup.
over broad innocent landowner exemption
H.R. 1300 continues to provide a liability defense to current
owners of contaminated sites if the current owner did not ``cause or
contribute'' to the release, exercised ``appropriate care,'' and
depending on when the property was purchased, performed some limited
redevelopment. This provision effectively repeals strict, joint and
several liability for these parties, and replaces it with a new
causation and appropriate care standard. This new standard would be
difficult, if not impossible, to determine because of the ``toxic
soup'' of waste that exists at most Superfund sites, thus leading to
expensive litigation. In many cases, this provision would exempt
experienced and knowledgeable large parties, that acquired hazardous
wastes sites with full knowledge of site conditions, as well as full
knowledge of their responsibility to clean the sites up. In some cases,
these may be the only parties available to conduct cleanups, which will
place an enormous drain on the Trust Fund. At sites such as the San
Fernando Valley Superfund sites in California, which are contaminated
by VOC's from over fifty years of aerospace and defense manufacturing,
a significant portion of liability at the site is borne by current
owners who purchased contaminated property at depressed prices. If
these parties are suddenly relieved from liability, the $220+ million
cost of remediation could be passed to the Fund. In addition, relieving
these parties of their liability places other similarly situated
property owners that fulfilled their obligations under CERCLA by
performing a cleanup at a competitive disadvantage. Instead of
promoting redevelopment, such as through prospective purchaser
provisions, these provisions affect only those parties who should be
required to conduct a cleanup.
over broad small business exemptions in h.r. 1300 and h.r. 2247
While the Administration continues to support legislative
provisions that address the liability of small parties, the
Administration is concerned with the small business exemption in H.R.
1300. The exemption in H.R. 1300 is available to a small business that
contributed large amounts of highly toxic wastes. In order to hold such
a business liable, EPA must show that the waste contributes or
contributed significantly to the cost of cleanup. This language
represents a change from several previous bills, which required only
that the President determine that the waste may contribute
significantly to the cost of cleanup. The absence of the word ``may''
represents an important shift in the burden of proof. Because of the
``toxic soup'' of wastes at most sites, it will be difficult, if not
impossible, to show that a party's waste actually contributes or
contributed significantly to the cost of cleanup. As a result, it is
unlikely that any business meeting the requirements of H.R. 1300's
definition of a small business will be held accountable, even for
highly toxic waste. Further, such a standard will result in increased
litigation and transaction costs.
While H.R. 2247 retains the same problematic ``contribute
significantly'' language of H.R. 1300, it is particularly troublesome
because it omits any restriction on the financial assets of the
business claiming the exemption. H.R. 2247 exempts businesses based
solely on their number of employees--in this case, 100 or less.
Historically, the rationale touted in support of a small business
exemption is that it would act as a surrogate for an ``ability-to-pay''
analysis. H.R. 2247 rejects this rationale by failing to include a
revenue ceiling. For example, at the Laurel Park Site in Connecticut,
EPA has identified a business with 75 employees, but with over $4
billion in annual revenues.
EPA has made significant efforts to administratively address the
concerns of small businesses by offering ability to pay, de minimis and
de micromis settlements, as well as developing a municipal solid waste
settlement policy. To date, EPA has entered into de minimis settlements
with more than 18,000 parties and continues to take into consideration
a party's ability-to-pay in our settlement processes. In addition, the
Administration's legislative proposals for innocent landowners,
prospective purchasers, contiguous property owners and small quantity
generators of household MSW would provide further liability protection
for parties.
over broad municipal solid waste (msw) exemption
As a threshold issue, the MSW settlement policy is working. The
Agency continues to support the policy because it is a fair and
reasonable method to address the fact that MSW alone generally does not
create Superfund sites, and will continue to defend it against any
challenges. While the Administration sees no need to codify the policy,
any attempt to codify the policy in legislation should properly do so.
We will strongly oppose improper attempts to codify the policy, such as
the provision in H.R. 1300.
While H.R. 1300 has been amended to address the problematic
definition of municipal solid waste in the introduced version, we
believe that the provision is still flawed. The provision exempts past
contributors of MSW, unless the President determines that the person is
engaged in the business of transporting such waste, AND the
contribution of MSW contributes or contributed significantly to the
cost of cleanup. The first condition is overly limiting, in that it
applies only to commercial municipal waste haulers, exempting large
waste generators of the same type and volume of waste, but in a
different business. The second condition is troublesome for the same
reasons as described above. As a result of this high burden, it is
unlikely that even commercial waste haulers could be held accountable
for their contribution, beyond the 10% cap.
over broad recycling exemption
Finally, while the Administration has supported exempting parties
for legitimate recycling transactions, H.R. 1300 goes too far. In
previous legislative proposals, the allocated shares of liability
attributable to recyclers were not shifted to the Superfund Trust Fund
but rather were borne by other responsible parties at the site.
H.R.1300 would shift the share of cleanup responsibility attributable
to these parties to the Trust Fund and/or the taxpayer, and in many
cases, the remaining owners/operators are insolvent and defunct, which
means the Trust Fund must cover the entire cost of cleanup.
Additionally, the Administration continues to oppose exempting parties
who disposed of used oil. There are fundamental differences between
used oil and other materials addressed under the bill's recycling
provisions. Used oil is toxic, and generally very mobile, and thus
presents unique obstacles to cleanup. In addition, ``recycling'' of
used oil commonly involves the burning the oil, which leaves large
volumes of heavy metals and contaminants behind.
Further, the bill's provisions extend the used oil exemption to
essentially all petroleum products and could provide liability
exemptions to large shipyards, ports and motor pools. Some used oil
sites have been virtual pools of contamination that have been extremely
harmful to the environment and difficult to clean up. Many of the
parties at these Superfund sites should remain liable for the cleanup
for which they are responsible. Targeted legislative provisions
protecting small businesses, small volume parties, and parties with
limited ability to pay should address the liability issues at these
sites. Finally, the Administration has concerns regarding the scope and
applicability of the newly-added provision addressing copper production
byproducts, and believes that this language ventures far beyond the
original intent of the recycling provision (e.g., to remove unnecessary
obstacles to post-consumer use of recycling efforts).
epa's ability to recover it's costs is restricted
H.R. 1300 inserts a new cap on oversight costs EPA can collect,
which will make it difficult for EPA to ensure cleanups are protective.
If parties provide EPA with an accounting of the direct and indirect
costs incurred at a site, EPA may only recover oversight costs up to
10% of total cleanup costs. The amount of oversight necessary at a
given site is in no way related to the cost of the cleanup, or the
costs incurred by PRPs. In many cases, it is PRP expertise or community
concern that dictates the amount of EPA oversight required. As a
result, EPA's oversight costs should not be arbitrarily capped based
upon what PRPs are spending at a site.
pre-emption of state laws
Current law already affords favorable treatment for response action
contractors (RACs). Under Superfund, RACs are subject only to a
negligence standard. EPA is also authorized to indemnify contractors
for liability arising out their negligent performance, unless the
conduct was grossly negligent or constituted intentional misconduct.
H.R. 1300 would change current law and pre-empt state negligence laws
and statutes of repose. This provision is unnecessary and is not
supported by the Administration.
other liability concerns
As stated in previous testimony, the Administration remains
concerned with the ``Brownfields'' provisions of some of these bills
(H.R. 1300 and H.R. 2580) which limit EPA's authority to protect public
health and the environment at certain sites. In addition, the
Administration is concerned with additional provisions of the liability
title in H.R. 1300, including, but not limited to, the inclusion of
special interest exemptions for ``dipping vats,'' the limitations on
enforcement of 106 orders, the requirement to provide final covenants,
and the unreasonable time limits in the expedited settlement process.
npl listing
The Clinton Administration continues to oppose provisions that
restrict EPA's ability to list sites on the NPL without a Governor's
approval. EPA has worked closely with States and seeks Governor
concurrence before listing, but needs the ability to list otherwise
eligible sites opposed by States--in the case of Natural Resource
Trustee issues, tribal or interstate migration of contamination, or
where the State is a PRP.
While a Governor's concurrence is not mandatory under H.R. 1300,
the bill does require a one year wait for final NPL listing upon
request from a State that is attempting to obtain an agreement to
perform remedial action. In addition, H.R. 1300 generally defers
listing a facility on the National Priorities List if remedial action
that will provide long term protection is underway at the facility
under a State response program.
H.R. 2580 requires State concurrence before EPA can list a site on
the NPL. This approval requirements applies even in situations where
Tribal, local community, or interstate impacts exist, or where the
State is a PRP. In addition, HR 2580 prohibits listing of sites to the
NPL if a Governor assures the site is being addressed or will be
addressed in the future. The bill has no provision for when in the
future a promised action to address contamination might occur.
expiration of tax
The Superfund tax authority expired December 31, 1995. The
President's fiscal year (FY) 2000 Budget requests reinstatement of all
Superfund taxes (including excise taxes on petroleum and chemicals, and
a corporate environmental tax). The Trust Fund balance (unappropriated
balance) was roughly $2.1 billion at the end of fiscal year 1998. The
Trust Fund balance will be approximately $1.3 billion at the end fiscal
year 1999.
In the absence of the taxes, we estimate a windfall of
approximately $4 million per day for those parties that would normally
pay the tax. To date, the Trust Fund has lost approximately $5 billion
as a result of the failure of Congress to reinstate the taxes. This $5
billion windfall has been passed on to those that would normally be
funding cleanups. It is important that Congress reinstate the Superfund
tax authority.
conclusion
The Superfund program has been fundamentally improved through
administrative reforms and is faster, fairer, and more efficient. The
significant progress the Clinton Administration has achieved in
protecting public health and the environment through the clean up of
toxic waste sites must not be undermined by the passage of ill
conceived Superfund legislation based upon outdated information and
misconceptions about the current program. EPA's administrative reforms,
and the resulting Superfund cleanup progress, have eliminated the need
for comprehensive Superfund legislation. We look forward to working
with Congress to reinstate the Superfund taxes and enact the narrowly
targeted Superfund legislation that we described in our testimony that
builds upon the success of administrative reforms.
Mr. Oxley. Thank you, gentlemen, for your excellent
testimony as usual.
Let me begin the questioning Mr. Fields.
I have heard your testimony and there is simply no evidence
in my mind that any of the administration's actions in the
106th Congress indicates that the administration is getting the
message. Sixty Democrats from the House are sending you a
message. They no longer want to pursue this strategy where the
administration can only say nice things about purely Democrat
bills and otherwise oppose meaningful bipartisan efforts. We
should probably also add about 10 or so of the 19 Democrats
that cosponsored H.R. 3000 with the last Congress to this list.
That gets us to about 70 Democrats who are supporting
bipartisan legislation. A strong bipartisan majority in the
House wants meaningful Superfund reform and based on your
testimony and that of your colleague, Mr. Herman, today, if I
heard it correctly, you oppose all of the bipartisan bills and
only support the Democrat alternative.
Based on your testimony in August and today, the
administration is out of touch with the Governors, out of touch
with the Conference of Mayors, out of touch with the Conference
of Black Mayors, out of touch with the cleanup agencies, out of
touch with small businesses, out of touch with recyclers, out
of touch with service station dealers, out of touch with the
cleanup contractors, out of touch with realtors and
homebuilders and out of touch with labor unions.
If I read the Allied Signal case properly, the
administration is out of touch with the courts in claiming to
have solved problems that could only be solved by real
statutory reform.
Where the agency does seem to be in perfect synch is the
national activist groups. What I read in your testimony is the
unending movement of the goalposts. Provisions that were part
of your Superfund reform principles last Congress are now the
object of your criticism.
Now Mr. Fields, can you name an area in the last 2 years
that the administration has moved in our direction? Is there
any area that you would cite that you have moved toward our
efforts?
Mr. Fields. I think there are several.
I would cite the agreements around Brownfields cleanup and
redevelopment where----
Mr. Oxley. But you have opposed Mr. Greenwood's bill, is
that correct?
Mr. Fields. We said we could work with Congressman
Greenwood and Congressman Towns and try to get some
reconciliation among their bills. That is what we said at the
last hearing, and there have been meetings that we have
participated in with your staff and our staff, working together
to see if there can be some agreement.
We agreed that prospective purchasers, innocent landowners,
and contiguous property owners ought to be given liability
relief. We have indicated that we agree that small generators
and transporters of municipal solid waste ought to be given
liability relief. I think those are several examples where we,
the administration, have agreed that we could benefit from
targeted legislation in that regard and we have indicated at
the last hearing that Congressman Towns' bill is a great start
for the kind of legislation that we, the administration, would
be for.
Mr. Oxley. Can you name the areas in H.R. 1300 or H.R. 2580
that you support without significant modification? What areas
of commonality do we have in those two pieces of legislation?
Mr. Fields. Well, we have some significant issues that we
have discussed in our testimony with H.R. 1300----
Mr. Oxley. I am looking at areas that you could agree to
without modification.
Mr. Fields. We could look at some of the elements of
liability relief and look at accepting some of that.
Mr. Oxley. Some of the liability relief?
Mr. Fields. Yes. But we can't----
Mr. Oxley. And what about the allocation?
Mr. Fields. Allocation? No. We have serious problems with
the mandatory allocation----
Mr. Oxley. Isn't it a fact though that in the past you
supported allocation?
Mr. Fields. But Mr. Chairman, as we have indicated, we have
learned a lot from the 103d Congress and allocation policy
we've done. We found the prescriptive, one-size-fits-all
allocation process does not work and now in the 106th Congress
we believe that that type of allocation process described in
H.R. 1300 is not the way to go. We have learned a lot in the
last 6 years of implementing our administrative reforms.
Mr. Oxley. What specific liability relief issues would you
support?
Mr. Fields. The ones that we have gone on record indicating
that we support.
Mr. Oxley. In 1300, in the legislation that has already
passed the Transportation Committee, what can you support?
Mr. Fields. Well, the types of liability relief that is
provided for prospective purchasers, innocent landowners,
contiguous property owners--we would look at working with you
to try to carve out appropriate liability relief for those
types of parties.
Mr. Oxley. My time has expired. The gentleman from New
York, Mr. Towns.
Mr. Towns. Thank you very much, Mr. Chairman.
Many of the provisions you have posed in 1300 look as if
they are trying to fix problems the agency has already fixed.
It seems that if the problems are fixed administratively we
don't need sweeping Superfund reform.
I have a two-part question. First, the statute need a lot
of amending, No. 1, and the second one, what does the program
need to further improve it?
Mr. Fields. The first part of your question, Congressman
Towns, we do not believe the statute needs a lot of amending.
We no longer support comprehensive reform of the Superfund
statute. We believe that narrowly targeted legislative reform
is all we need at this time. We believe that the types of
liability relief that are in your bill, H.R. 1750, is the type
of liability relief we could support as well as the Brownfields
grants and loans program that is provided there as well.
Further, we would support liability relief for generators
and transporters of municipal solid waste.
Those are the types of legislative reform we think would
further the program. We don't need changes to remedy, for
example, as proposed in 2580 or H.R. 1300.
Mr. Towns. All right, thank you. I wanted to first applaud
you really for the improvements in the Superfund program, the
progress made in the cleanups. You are to be commended.
Given the progress currently going on in the Superfund
program, what specific provisions would or could undermine the
progress of the program?
Mr. Fields. I just want to add one other thing to your
previous question, and I would like Mr. Herman to add to this
one as well. I would just add that an additional element that
is probably most important for legislative change and that the
administration really needs is a reinstatement of the Superfund
taxes that expired on December 31, 1995. I would like Mr.
Herman to address some of the areas of concern that would
undermine the current program.
Mr. Herman. If I may, Mr. Chairman, one of the primary
objections that we have, Mr. Towns, is to the mandatory
allocations process laid out in H.R. 1300. As mentioned before,
we piloted an allocations process several years ago at sites,
and what we found was prescribing one-size-fits-all to all
sites results basically in a gridlock at the site.
As written, the mandatory allocation scheme in 1300 does
several other things. First of all, rather than getting small
parties and small businesses out of the process, it inevitably
will bring them into the process. Even if they are exempt, the
parties who may be on the hook for a share will bring in the
small parties to determine what share they should be allocated
so that the other parties will not be charged for that share.
This will involve them with lawyers, it will involve them with
litigation. The allocations will eliminate the incentive to
settle and get on with the cleanup. There will be no incentive
to resolve things first. The allocations will be very, very
time-consuming and resource-consuming.
Allocations are provided for at all sites. There are some
sites, owner-operator sites, some others, where an allocation
system is totally inappropriate. What you have are some serious
legal questions as to potential liability, but certainly not
factual situations.
Finally it will actually encourage litigation because
everything will have to be done to get the allocation process--
it will have to be done under the auspices of a court, and to
the extent that we have been able to drive the great majority
of sites and speed cleanup through settlement and get PRP's to
do the work, this will hinder and in some cases cripple that
effort.
Mr. Towns. Litigation. Could you sort of be specific in
terms of ways that H.R. 1300, you know, would do that, increase
litigation?
Mr. Herman. Increase litigation?
Mr. Towns. Yes.
Mr. Herman. Yes, sir. Well, first of all, there is--there
are several things. One is the allocation process, which
basically does not reward people who settle; people who settle
and people who litigate can wind up pretty much even. So you
have an advantage in holding out and litigating. Second, there
are new terms used in the legislation which have not been used
before in the 20 years of Superfund. These will have to be
defined further by the courts in litigation. It will open up a
whole area that is basically settled now.
Mr. Oxley. The gentleman's time has expired.
Mr. Towns. Thank you, Mr. Chairman.
Mr. Oxley. The gentleman from Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
Mr. Fields, in the testimony you mention 18,000 settlements
with small business. What are the parameters of each of these
settlements?
Mr. Fields. These are de minimus settlements that we have
entered into at a variety of sites across the country. We have
entered into these settlements in more than 400 Superfund sites
across the country.
Mr. Shimkus. Let me----
Mr. Fields. 18,000. And we have offered----
Mr. Shimkus. Let me ask, if you have had 18,000
settlements, why will not the administration come forward with
legislation to codify the parameters of these exemptions and
allow us to remove some small business liability? I mean, if
you have the parameters because you have exempted 18,000, then
just give us the parameters so that we have a basis to start on
a legislative remedy for small business, because obviously you
have the facts.
Mr. Fields. Yes, I will start, and Mr. Herman should
definitely add to this.
We obviously have done a lot through our administrative
reforms to address small businesses. We have come out very
strongly in support of further legislative change that would
also----
Mr. Shimkus. Do you have the language for those further
legislative changes?
Mr. Fields. Small generators and----
Mr. Shimkus. Mr. Fields, the language. I am involved in
another legislative issue.
Mr. Fields. Right.
Mr. Shimkus. And you can--the administration can talk
policy----
Mr. Fields. Right.
Mr. Shimkus. And how you have been in favor of small
business liability protection from day 1.
Mr. Fields. Right.
Mr. Shimkus. But if you don't come to the table with
language, we don't know where the starting point is to get some
negotiation. So when you talk about you have been to the table
and you have come to staff----
Mr. Fields. Yes.
Mr. Shimkus. And you haven't brought language, you have
brought zero.
Mr. Fields. No, no. I beg to differ, Mr. Congressman. We
actually have discussed----
Mr. Shimkus. Well, then give me----
Mr. Fields. Since the 103d Congress.
Mr. Shimkus. Okay, let me reclaim my time. Then what is the
exact language for small business liability protections that
this administration has brought to this committee?
Give me one piece.
Mr. Fields. During the 103d Congress we, the
administration, supported 50 or fewer employees and $2 million
in annual revenue as being a definition of what small
business----
Mr. Shimkus. So would the administration support that now?
Mr. Fields. No, we are now--because there is a lot of
disagreement. Your bill, for example, includes, as you know,
less than 100 employees and no revenue cutoff.
Mr. Shimkus. But you had 50 and $2 million.
Mr. Fields. Some people have proposed $3 million, and----
Mr. Shimkus. So will the administration support 25 and
750,000?
Mr. Fields. Well, that is something that is going to have
to have a lot more discussion. We within the administration are
not prepared to offer up a precise----
Mr. Shimkus. Okay. Then let me ask this question.
Mr. Fields. Number of----
Mr. Shimkus. I know I am hot, but I have got businesses in
Quincy that are going under. You all have 18,000 cases of
documentation where you have absolved them of responsibility.
Mr. Fields. Right.
Mr. Shimkus. And you have settled with them.
Mr. Fields. Right. We settled, yes.
Mr. Shimkus. Now, that would tell me that you have some
criteria by which you are exempting these small businesses.
Draft legislation based upon that 18,000 caseload and get it up
to our committee so that we can evaluate it. Because I am not--
if you don't codify this, the exemptions you have given to a
small business in Gettysburg, how do I know that that's the
same exemption that you have given to my small businesses in
Quincy, Illinois? There is no assurance. It is in some little
black box stowed away in the EPA that you only know.
Mr. Fields. Many of these businesses would be exempted
under what we proposed----
Mr. Shimkus. We don't know that.
Mr. Fields. No, no, many small businesses are included in
those who send generators and transporters of municipal solid
waste, we have proposed in our legislative reform agenda that
those----
Mr. Shimkus. Do you have language for your proposed
legislative agenda?
Mr. Fields. We have provided language on that to members of
this committee.
Mr. Shimkus. Have you presented it to me?
Mr. Fields. We would be happy to share it with you
personally. That language is something we support, and we
believe many small businesses would be exempted by that type of
legislative reform. That is one example of the benefits to
small businesses.
Yes, we have supported de minimus and de micromus liability
relief. Those are elements of the small business liability
relief question. There is some disagreement among Members of
Congress and the administration as to how you precisely define
a small business, but what we have proposed as an
administration would provide liability relief for a lot of
small businesses that are impacted by Superfund liability.
Mr. Herman.
Mr. Shimkus. I will spare--I will pause and I will yield
back my time.
Thank you, Mr. Chairman.
Mr. Oxley. The gentleman's time has expired.
The gentlelady from Colorado, Ms. DeGette.
Ms. DeGette. Thank you, Mr. Chairman.
Mr. Fields, you know that a lot of the elected officials
and citizens of Denver and I have been worried for a long time
that this Shattuck remedy is inadequate. Now we get these
reports that the mound is sinking, that cap has cracked;
contamination might have already seeped into both the
groundwater and the Platte River.
Last Thursday your emergency response team issued a summary
of a report that said that the Shattuck site is susceptible to
long-term degradation. It went on to say that this cap that is
supposed to last 200 years ``will not survive more than 15
unless a costly monitoring and maintenance system is
installed.'' That was in the Denver Post this Saturday.
And then the director of your ERT said to assume that it
would last any longer is foolhardy. The newspaper said that the
monitoring system will cost as much as the EPA estimated that
it would cost to remove the waste in the report I asked for
last spring.
Now in response to this report, the Denver Post said that
you said that this new information ``raises significant
questions about the cleanup remedy at Shattuck,'' and then you
went on to say, at least as quoted in the Denver Post, there
will have to be ``at a minimum some significant changes to the
current remedy or a complete alternative remedy as opposed to
the option of letting the waste stay onsite.''
So I guess my question to you today is do you have a
concept of what those significant changes are, and does that
mean that the EPA will now move this waste offsite as many of
us believe should have been done.
And by the way, I always point out this remedy was not a
Clinton administration remedy. It was done in 1991, but the
Region 8 EPA seems to have adopted this remedy as its own
child, which I don't understand. But my question is, what do
you mean when you say significant changes?
Mr. Fields. Well, there has been a review, several reviews
have been done of the current remedy. The U.S.----
Ms. DeGette. I know what the reviews are----
Mr. Fields. Geological survey----
Ms. DeGette. Yes.
Mr. Fields. The 5-year review----
Mr. Greenwood. What do you mean----
Mr. Fields. Those reviews are all going on, and those
reviews indicate at a minimum you are going to need 17 more
groundwater monitoring wells around the current remedy, because
the groundwater monitoring system is not adequate----
Ms. DeGette. Mr. Fields, I only have 5 minutes.
Mr. Fields. All right, I am just trying to respond to your
question.
Ms. DeGette. I know what they have all done, yes, but if
you can tell me what do you mean when you think you are going
to have to look at an alternative remedy or a modification? Do
you think you are going to move it?
Mr. Fields. This is what I am referring to.
Ms. DeGette. Okay.
Mr. Fields. I am referring to the fact that in order to
modify--in order to address the current remedy, you have to put
at a minimum new groundwater monitoring systems in place, you
are going to have to put in place a cap that has greater long-
term protection, because right now the 5-year-review contractor
has raised concerns that the current cap would not comply with
the UMTRCA regulations that require 200-to-1,000-year
protections in the long term.
The contractor has also raised issues about whether or not
long-term groundwater protection would be provided with the
current remedy. So there are two alternatives. Either you fix
the current remedy in a way that allows you to comply with the
UMTRCA 200-to-1000-year requirements, or you decide that the
remedy is going to be so costly to fix that you move it to an
alternative location.
The contractor is going to be coming in on October 1 and 2
to give us a detailed briefing on this, and then we will make a
judgment after that as to which of those two alternatives we
will be implementing. One of those two is where we are going to
go. The issue is which one. That has not been decided. The
further technical data coming in early and mid-October will let
us decide whether or not we should--we can fix the current
remedy, is that feasible, or do we have to move it in order to
protect the citizens of Denver.
Ms. DeGette. So when is it you are looking to make some
kind of announcement as to which remedy you are going to be
recommending?
Mr. Fields. We will be making an announcement I would say
the third or fourth week of October. All the information will
be in by mid-October, and then we would be making a decision by
the third or fourth week as to which of those alternatives is
the one we select for that remedy.
Ms. DeGette. Okay. Thank you.
Now following up quickly on my opening statement, the issue
of the relevant and appropriate standard. H.R. 1300 and 2580
eliminate the use of State and Federal environmental standards
that are both of these things.
Mr. Chairman, may I have unanimous consent for another 1\1/
2\ minutes to ask this question?
Mr. Oxley. Without objection.
Ms. DeGette. Thank you.
There is a change in current law in both of these bills
that State officials and community representatives strongly
oppose, and we are going to hear that from the second panel
today.
If you can quickly tell us, Mr. Fields, what effect this
change to current law would have on EPA's ability to ensure
that cleanups are protective of human health and the
environment and things like Shattuck don't happen in the
future.
Mr. Fields. Dropping relevant and appropriate requirements
would have a major impact we believe on the protectiveness of
Superfund cleanups. There are many Superfund sites like the
Shattuck remedy that you referred to, Glen Ridge, Montclair,
which is another Superfund site in New Jersey, the J&L landfill
site in Michigan. These are all sites where we have used
relevant and appropriate requirements.
There are sometimes State standards, there are sometimes
Uranium Mill Tailing Control Act requirements. There are
sometimes RCRA requirements that were relevant and appropriate.
We would have to develop a whole new paradigm and new cleanup
requirements for those many sites where we adopt relevant and
appropriate requirements.
So we think that dropping relevant and appropriate
requirements would be a major mistake from current law. We
worked very carefully and quite cooperatively with States over
the last 6 years. We are implementing RAR's. We think State
standards, we think other Federal agency requirements, RCRA
requirements are very appropriate for cleanup at Superfund
sites, and dropping RAR's would have a major impact we believe
on defining appropriate cleanup requirements for many Superfund
sites.
Mr. Oxley. The gentlelady's time has expired.
The gentleman from California, Mr. Bilbray.
Mr. Bilbray. Thank you, Mr. Chairman.
Mr. Fields, when we talk about the issue of appropriate
mitigation or treatment, does your department consider at all
the adverse impacts of the implementation of the existing law,
adverse environmental impacts? I am not talking about economic.
Mr. Fields. When we are evaluating alternatives for cleanup
we do look at the impact of various remedies, of various
alternatives when deciding on what remedy to select at a
Superfund site. We work carefully with the health officials in
Atlanta, the Agency for Toxic Substances and Disease Registry
in looking at what impacts a remedy might have. Would an
incineration option, for example, cause air emission impacts to
that community? That is part of our consideration.
Mr. Bilbray. I know from when I was serving on the State
Air Resources Board in California, the remediation of a lot of
sites ended up becoming such an identified problem in
nonattainment areas that we specifically had to develop
criteria and try to mitigate the adverse air pollution impacts
of a lot of remediation. Not specifically to Superfund, but
Superfund was part of that problem. And I think that one of the
concerns that we had was how much of the Federal Government
allowed a no-project option based on the fact that the best
environmental health approach was not to do anything at that
site except cap.
One of the problems with that proposal of capping, and I
think you have run into those, is then you end up creating a
Brownfield. I mean, how much discussion is there about the huge
environmental damage of creating a Brownfield? The fact is you
destroy five-to-one ratio of Greenfields in lieu of utilizing a
Brownfield. And how much is your department involved in this
issue of saying we have got to stop mandating a lot of this
sprawl because we have basically outlawed reuse of the inner
city core?
Mr. Fields. Well, that is a concern. We have certain types
of sites that we have no alternative for but to leave it in
place, the waste in place, and capping. There are 20 percent of
the Superfund sites as you know are landfills, industrial,
municipal waste landfills that we typically cap, put in place a
groundwater monitoring system, containment, and you leave waste
in place. There are mining sites where it is not feasible to
remove the material. So in some cases we do not have an
alternative.
But we have implemented a major initiative using the
Brownfields model over this past summer where we have
discovered that more than 150 Superfund sites have had major
reuse and redevelopment. And so now while we are cleaning up
Superfund sites, we are applying the Brownfields model and we
are looking at how we can find ways to reuse, recycle,
redevelop for economic, ecological, or recreational uses many
of these Superfund sites after the cleanup job is done, even in
those cases where we have waste left in place, like the
Anaconda Superfund site near Butte, Montana, where--I was there
on Monday, and we created a world-class Jack Nicklaus golf
course on top of contamination that existed at the ARCO
Superfund site there.
So just because sometimes wastes are left in place, it does
not have to be a Brownfield that is not available for reuse. We
have created metroplexes, you know, shopping centers on these
former Superfund sites even in those cases where waste has been
left in place.
Mr. Bilbray. I can only imagine the challenge of trying to
explain taking a Superfund site and then doing all the
irrigation and putting all the water on top of it that it
takes. One of the big reasons why landfills are no longer
allowed to be converted to parks, at least in the West, is over
that issue.
Mr. Fields, you were talking about changing the liability
aspect of it. My concern is that we had a situation in
Clearwater, Florida, where you had a company, a small company,
that was basically being held liable as a major contributor
mostly because its 55-gallon drums of polyester which had been
left out in the sun for over 2 years, and thus had solidified
and did not constitute, should not have been considered as
hazardous material, was held as a major, major contributor
mostly because it was one of the few that they could find to
that site, basically almost a joint and several liability
issue. You are the only one that we can identify your material
in here, we are going to nail you.
What are you doing to stop that kind of abuse of the system
where you have somebody that not only is not a major
contributor, but from the data that we got from this individual
really wasn't a contributor, was a contributor of metal and
basically solidified polyester, which I think you and I would
not constitute as hazardous, but because it was in the middle
of hazardous materials, somebody in the Department decided the
was a waste stream, and thus they were going to nail whoever
they could?
Mr. Fields. I will let Mr. Herman respond.
Mr. Herman. Mr. Bilbray, several things. First of all, I am
not familiar with that specific fact pattern, but will get, you
know, more information on that site for you.
However, let me say this. First, with regard to a
contributor like yours, we do have the de minimus settlement
policy which gets small contributors out. We have de micromus
policy where we settle out for----
Mr. Bilbray. Let me stop you right there.
Mr. Herman. Yes.
Mr. Bilbray. But the settlement policy that he was offered
was to pay for cleanup, a portion of cleanup, and he was not--
his waste stream was not a problem. Any scientist would tell
you that. But the problem was he was hit with a large hit, and
one of the arguments was he was one of the few that we had to
be able to go after.
Go ahead.
Mr. Herman. In terms of one of the few we had to go after,
I don't know what, you know, what his--what the size was or
what his ability to pay was. We have instituted ability to pay
policies to take care of a situation like that. In terms of his
being caught in the legislative web, somebody thought that he
played a part in polluting that site, and that is what the
process is supposed to do, is to get----
Mr. Bilbray. I agree.
Mr. Herman. And we are trying to kick those people out.
Mr. Bilbray. I think the ability to pay was the problem. He
had the ability to pay. And all I can say is I read the report
and the recommendations from the Department of what he should
have done with his waste stream, and what he should have done,
according to them, is use, you know, acetone or MEK as a
solvent and cleaned out those cans before he disposed of it.
The fact is anyone who knows the qualities of polyester
knows that 6 months to a year in the Florida sun kicked it off
and solidified it to where it wasn't a waste stream. So what
was recommended by the Department was more environmentally
damaging than what the company did. But that didn't follow suit
for them. They had a policy that if you don't handle this the
way we think it should have been handled, we don't want to sit
down and talk with you. And frankly, I thought it was
outrageous that somebody who did the environmentally proper
thing was being held up. But what I sense was it was the
ability to pay. You go for the dollars.
Mr. Oxley. The gentleman's time has expired.
The gentleman from Wisconsin, Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman.
I think today it was indicated that we may be acting on
this piece of legislation or another piece of legislation in
the next week or two, and I certainly understand Mr. Shimkus'
frustration in not having the language that he would like to
see from the administration. So to the extent that that exists,
I would like a copy of that as well.
But because H.R. 1300 at least seems to be a train with a
lot of steam right now, I just want to take a look at a
specific section in this bill that raises some concerns with me
to get your read on it. And that is section 307, which I
understand creates a new 6-year statute of repose, and it is
established for the negligent conduct of cleanup contractors,
and that this would preempt State law. My understanding is it
does not apply to grossly negligent or wanton-type behavior.
But it still raises some questions for me.
According to the assistant attorney general of New York,
who will appear on the second panel, the bill, ``carves out a
radical and unfair new exemption for these parties and deprives
potential victims of rightful compensation where due to a
latency period that is often associated with exposure to
hazardous substances or for other reasons, the injury is not
discovered within the 6-year timeframe.'' I know Mr. Dingell
also had concerns, and he contacted the Acting Administrator
for the Agency of Toxic Substances and Disease Registry to ask
which chemicals off the top 50 of that agency's list may fit
within this category, and among those that were reported to him
were vinyl chloride, benzene, PCB's, and lead. All these
chemicals and others have latency periods for humans
potentially developing cancer at least 6 years after exposure
has ended. And that's what concerns me. If we are going to be
letting negligent parties off the hook for causing damage that
does not appear until 6 years later, yet their legal
responsibility ends at 6 years, are we creating a huge new
loophole?
Mr. Fields. We are concerned about some of the elements of
section 307, as you indicate, and for the reasons you indicate.
I want to say that, you know, the contractor community is an
integral part of our cleanup process, and they have done a very
effective job in helping us clean up sites. We though are not
clear as to why we need to expand response action contractor
coverage to what these areas--that are in 307.
We do not believe that it is appropriate to implement this
statute of repose after 6 years. We think that that along with
several other provisions in section 307 would preempt State
law, the changes in RAC liability proposed in 307 would extend
beyond Federal law to cover State laws. And we are concerned
about broadening the negligence standard and preempting State
action for this type of liability.
We believe that the issue of negligence should be left to
the States and remain a State responsibility. We believe that
the current section 119 indemnification requirements of CERCLA
have been implemented quite well. We have not had any new
claims in the last 5 years. So we don't think we need major
changes to response action contractor liability, and we would
be opposed to several of the elements, including the element
you just mentioned, about statute of repose, because of the
impact on State laws and the preemption of State laws in many
cases for several of these elements that are proposed in
section 307 of this draft legislation.
Mr. Barrett. Well, the section that I refer to does have a
modifying clause that says that the section shall not apply in
any State or political subdivision thereof if the State has
enacted a statute of repose determining the liability of a
response action contractor. So it would seem at least at my
initial reading here that if the State has any type of statute
of repose, whatever it is, that it is not going to be covered.
But my concern is wrongful-death actions, personal injury
actions----
Mr. Fields. Yes.
Mr. Barrett. And property damage actions, obviously more of
the wrongful death and the personal injury actions. And I
just--I want the record to be clear as to what this bill does
with regard to this issue.
Mr. Oxley. The gentleman's time has expired.
The gentleman from Maryland, Mr. Ehrlich.
Mr. Ehrlich. Obviously if there is a message here today, it
is that there is bipartisan frustration with--to put it
mildly--with the present statute and the way the present
statute is being implemented.
I understand fully, as most of the people in this room do,
that part of this discussion is simply a philosophical
disagreement that will never lend itself to a compromise
because we simply view these issues in such a different way,
and either we are going to lead or you are going to lead and
that will be a big difference, so--however, sir, given that as
someone who practiced in this area for a number of years, let
me ask you a couple of things.
You talked about contractor liability. You are familiar
with case law, I am sure, where contractors, cleanup
contractors have now been brought into Superfund litigation,
sued for contribution by potentially responsible parties, not
on the basis of negligent action by the contractor. These
contractors, as you know, face a joint and several liability
scheme, so you potentially have situations where non-negligent
parties are facing significant actions to defend from other
defendants in cross-claims where they have not been negligent.
My question to you is how fair is that, particularly in the
context of your previous statement that you see nothing
particularly wrong with the present statute with regard to
contractor liability.
Mr. Fields. Well, we have agreed in the past that amending
the statute in that area is an area that we could support----
Mr. Ehrlich. Where is your language?
Mr. Fields. We provided language during the 103d Congress
and we would be happy to share it with you again.
Mr. Ehrlich. We were not here in the 103d Congress, sir.
Mr. Fields. We will be happy to give you that language, but
the problem is that that is only one of seven elements of
Section 307. I cannot say I support a section when there are
several elements in the section that we have serious problems
with.
Mr. Ehrlich. I fully understand that, and we are all trying
to break these issues down to separate, independent issue
areas, as you know, and maybe that is one where we can come----
Mr. Fields. That's one we----
Mr. Ehrlich. [continuing] so I respectfully request
language from the administration with respect to innocent party
contractor cleanup and liability standards that in your view
should pertain thereto.
Mr. Fields. We would be happy to provide that language to
you, sir.
Mr. Ehrlich. With regard to statute of repose and State
pre-emption, is it your position that, putting aside the issue
of pre-emption, that there should not be a statute of repose
given--what my friend from Wisconsin was alluding to with
regard to potential long latency periods in some of these
disease processes.
I understand your point with regard to pre-emption and what
State statutes and what State legislatures in their wisdom have
done. Is it your position, however, that any statute of repose
is inappropriate in that context?
Mr. Fields. We would be opposed to a statute of repose.
Mr. Ehrlich. At any--20 years?--25 years? You would just be
opposed?
Mr. Fields. We believe that element of 307 is unnecessary
and we would be opposed to it.
Mr. Ehrlich. Okay, thank you.
With regard to an issue that--I have a lot of questions
obviously. I have 5 minutes, but let me get into something I
really have just recently been made aware of, and I do not have
a great deal of knowledge about, with regard to the issue of
recycling used oil.
You are familiar I think with case law, the National
Association of Auto Dealers and trucking associations and other
parties have I know proffered testimony and have positions with
regard to this issue, the issue obviously being liability
relief for a party that arranges for used oil to be recycled
rather than disposed of and then finds itself as the joint tort
leasor and brought in as a cross-claim in Superfund litigation.
Can you give me your present view of this situation?
Mr. Fields. Well, your question, do we believe that used
oil should be----
Mr. Ehrlich. Yes, sir.
Mr. Fields. [continuing] exempted?
Mr. Ehrlich. Yes, sir.
Mr. Fields. No. We do not believe that used oil should be
included in any kind of recycling exemption. Used oil is a
major problem in more than 130 Superfund sites, almost 10
percent of the sites on the list. It contains a lot of
hazardous substances that we are concerned about and we found a
lot of mismanagement of that material, so we would be opposed
to that type of exemption being included in a recycling
exemption.
Mr. Ehrlich. Well, if I could just have, you know, another
minute, Administrator Browner testified before the Water
Resources Subcommittee in 1999, the 106th Congress, that the
administration was not opposed to such a narrow exemption for
recycled oil, and my thought was that your testimony today
would comport with that testimony.
Mr. Fields. I am fully comportable with our Administrator,
but I want to clarify something of what the Administrator said.
There are various categories of recyclers of used oil. Some
of those are large recyclers including motor pools, large
shipyards and ports, which would be exempted under the
legislation before us today, and we would be very concerned
about that type of operation being included in a recycling
exemption, so we would have to go back and look at precisely--
we have obviously supported a recycling exemption in the past,
but we are concerned about making sure that the proper parties
are included in a recycling exemption and we would want to look
very carefully at used oil because of the problem that has
occurred at, as I said, more than 10 percent of our Superfund
sites associated with used oil operations.
Mr. Greenwood. The time of the gentleman has expired. The
gentleman from Michigan, Mr. Stupak, is recognized.
Mr. Stupak. Thank you, Mr. Chairman. I apologize for being
back and forth. I have been up at the radioactive plutonium one
we have been doing up with the other committee--Investigation
Oversight--so I have been back and forth.
I did come in on some discussion. First, I would ask
unanimous consent my opening statement be made part of the
record.
Mr. Greenwood. Without objection.
Mr. Stupak. I did come in on some of the discussions going
on here about small businesses being exempt and innocent
landowner protection and prospective purchaser protection.
I would just like to remind my colleagues at the last
Congress we had H.R. 2485, which has been endorsed by the EPA
publicly and everything else, and Mr. Goodling joined with me
on this bill, the Common Sense Superfund Liability Reform Act,
and it takes care of the small business exception that we need.
As we define small business it refers to any business entity
that employs no more than 100 employees and--and--is a small
business concern as defined under the Small Business Act, 15
U.S.C. 631.
Mr. Shimkus' questions to you I felt was a little unfair
because after I had that legislation last year, he came to us.
We tried to negotiate and work together on a bill, but he
wanted $3 million in revenue or 75 employees and our concern is
you could have a company with 60 employees or 75 employees and
have $3 billion in revenue, therefore they are not really a
small business.
So I think we have some common ground we could work from.
H.R. 2485--it's really a fantastic bill when it takes care of
your small business concerns, it takes care of the innocent
landowner protection that Mr. Ehrlich brought up. It also takes
care of prospective purchaser protection. Those are found in
Section 3 and 4 of this great bill.
I would suggest we take a look at it, and if we are going
to move legislation on Superfund reform, if that is truly your
concern, maybe we could then offer it as a bipartisan amendment
and strengthen some legislation that we on this side at least
have some very big concerns, so I am willing to work with Mr.
Ehrlich or Mr. Shimkus to that, but I think publicly EPA has
endorsed the small business exemption, the de minimis polluter
and try to give him some relief underneath Superfund.
My question though for Mr. Fields would be if we look at
the big picture, GAO has recently found that half of all
Superfund sites have all cleanup activities been completed and
at the 600 or so remaining sites, two-thirds of the cleanup
work is completed or underway.
If we go to my own State of Michigan at the end of this
Congress approximately 3 out of every 4, or three-fourths of
them, will be completed. The Chamber of Commerce says the
existing sites will be restored to environmental health within
3 to 5 years up there, so my question, Mr. Fields, the
administration and the States have criticized H.R. 1300 because
it will have an effect of delaying cleanups.
Can you provide me some specific ways which H.R. 1300 would
delay the cleanups?
Mr. Fields. Yes, Congressman. We believe that H.R. 1300
would have some significant impacts on the cleanup of those
remaining Superfund sites that still need to be construction
completed.
This particular bill has new terms on risk assessment and
requirements that are putt into the remedy selection title.
They, we believe, would open this remedies up for litigation
because of having to define new terms associated with how you
conduct and risk assessment would require revisions to the
current national contingency plan that would take several years
and we believe enter into further litigation.
We think that H.R. 1300 codification of the administrative
reforms that they have attempted to do is counter-productive.
One of the key benefits of the current administrative reforms
is the flexibility. We would rather not put them into law but
rather have the ability to see how they work and improve them
over time.
Putting them into law would not allow us to implement
further improvements to those reforms over time. We have
learned from experiences that some administrative reforms have
problems like allocation pilots we did several years ago which
taught us that prescriptive, one-size-fits-all allocation
processes are not appropriate, so those are the kinds of--H.R.
1300 underprotects groundwater. It backs off of the current
standard we use for restoring groundwater to beneficial uses--
so those are just a few examples of how H.R. 1300 would delay
cleanup and weaken, we believe, environmental protection in
cleanup of Superfund sites.
Mr. Stupak. Are there some ways that we could--I know this
administration has a good track record of cleaning up Superfund
sites. At least in my own State of Michigan it has been going
quite well.
Is there some suggestion though that you need legislation
that would further enhance or expedite cleanups? Are there some
things that you would like to see--``you'' being the EPA--I
mean besides my bill, anything else?
Mr. Fields. We said earlier that obviously want--we need to
have the tax reinstated. We want the Superfund tax reinstated
to move this program forward.
We talked about some liability relief that we would
support, but in terms of the remedy provisions, the cleanup
provisions of Superfund, we do not see a need for any changes,
for Congress to enact any legislative changes to the current
remedy provisions of the current law. We think those provisions
that are there now are all we need to move forward on effective
cleanup of Superfund sites.
Mr. Oxley. The gentleman's time has expired. The gentleman
from Pennsylvania.
Mr. Greenwood. Thank you, Mr. Chairman, and my questions
follow pretty precisely on your last comment.
In June 1995 Carol Browner stated to Congress that, ``The
administration supports the elimination of relevant and
appropriate requirements because they have proven to be a
source of delay and unnecessary expense in selecting remedies''
and I don't recall anybody calling that gutting Superfund or
rolling back protection.
In April, 1997, sir, you stated, ``We believe things like
the future anticipated land use that everybody agrees to, it
would really help to have that in law as opposed to just
guidance.''
You also stated at the time that we should drop the,
``relevant and appropriate'' requirement. The administration's
Superfund reform principles stated that we should use the MCLs,
which are drinking water standards, instead of requiring
cleanup below drinking water standards--and nobody accused you
of gutting Superfund or rolling it back.
In 1995 Patricia Williams of the National Wildlife
Federation testified, ``NWF also recommends that future land
use be considered in remedy selection. There should not be an
unfair paradox between environmental protection and economic
development. We believe that consideration of future land use
will be a further catalyst in putting abandoned industrial
waste sites back into economic reuse.''
No one accused her of rolling back protections.
In May, 1999 the National Association of Industrial and
Office Properties testified, ``Cleanup standards that are site-
specific, risk-based, and which take into account future land
use are important factors to unlocking the potential for
Brownfields revitalization.''
In August, 1999, the National Association of Local
Government Environmental Professionals listed the, ``use of
risk-based cleanup standards that can be tied to reasonably
anticipated land use'' as important criteria for cleanup
programs to help Brownfields redevelopment.
The State Governors, cleanup agencies and cleanup
contractors have supported these issues and more. They all have
stated that the remedy selection provisions H.R. 3000 from last
Congress would improve and speed up cleanups.
Some of these changes are elements of Section 9 of my bill,
H.R. 2580. Shouldn't we make these changes, such as reasonably
anticipated land use and elimination of reasonable and
appropriate remedies, which will improve remedy selection for
those sites both on and off the National Priorities List? Why
has the administration changed its position on issues like
reasonably anticipated land use, RARs and drinking water
standards? Aren't you just moving the goal posts on us year
after year?
Mr. Fields. Congressman Greenwood, I want to make clear
that in the 103d Congress when we proposed to drop RARs it was
in conjunction with the States having the option of
repromulgating State relevant and appropriate requirements that
are no longer required to be attained by Superfund. We did not
propose to drop relevant and appropriate requirements without
the States having the ability to repromulgate those as
applicable standards, but bottom line is we are--we have
changed, we have changed our position----
Mr. Greenwood. Let me just insert something there.
Mr. Fields. Yes.
Mr. Greenwood. Under the legislation that we are
considering under Mr. Boehlert's legislation and my legislation
the States would still nonetheless have the legal authority to
do that, would they not?
Mr. Greenwood. We do not see that in your legislation. We
see the dropping of relevant requirements but it does not
provide for the States repromulgating RARs that would be
dropped.
Mr. Greenwood. We don't require the States in our
legislation but we certainly don't prevent them from doing
that.
Mr. Fields. I do not know if your legislation would prevent
them but you do not explicitly come out and say that, but
bottom line I just want to clarify what our provision was in
the 103d Congress--the bottom line is the reason we do not
think we need changes to remedy now is where we are in this
program.
Half the sites have construction completion, 90 percent of
the remedies have already been chosen for Superfund sites. That
is where we are. That is the reality of where we are now. We
don't see a need to change the remedy provisions of Superfund
when 90 percent of the cleanup decisions have already been
made, half of the sites have construction complete and many
others have construction underway. Given where we are and given
the success of the administrative reforms over the last 6
years, we, the administration, are saying we no longer need
comprehensive reform. We only need a narrow set of changes, and
we believe it is not necessary to make changes to remedy now
given where we are in this program.
Therefore, we think we do not need to drop RARs. We don't
need to put in place specific requirements regarding land use
in remedy because of where we are with most--a lot of the job
done and the cleanup progress having been significantly
improved by the administrative reforms over the last 6 years to
cut costs by 20 percent, cut time by 20 percent. We think
remedy is not an area that Congress needs to focus on in terms
of legislative change to Superfund.
Mr. Greenwood. Mr. Chairman, I would ask unanimous consent
for an additional minute.
Mr. Oxley. Without objection.
Mr. Greenwood. Mr. Fields, Section 121 of CERCLA begins by
stating, ``The President shall select appropriate remedial
actions determined to be necessary to be carried out under
Section 104 or secured under Section 106 which are in
accordance with this section.''
Isn't it true, then, Mr. Fields, that any remedial action
under CERCLA must comply with Section 121 regardless of whether
the site is on the National Priorities List or not?
In addition, under Section 107 any non-Federal party
cleaning up a site and seeking to use CERCLA to obtain
contribution from a potentially responsible party must show
that the remedial action costs are, ``consistent with the
National Contingency Plan''--thus even in the universe of
voluntary cleanups CERCLA's remedy selection requirements can
have legal relevance in court.
Isn't it your reading that the remedy selection provisions
of the National Contingency Plan are relevant legal standards
for contribution actions under Section 107? As I understand it,
last year EPA added approximately 43 sites to the National
Priorities List. Is this number correct, and is EPA planning to
add fewer and fewer sites or continue at the current pace?
Mr. Fields. Mr. Congressman, we will get back to you with a
more complete response for the record. We agree that
contribution protection elements might apply, but we don't
believe that the remedy selection requirements would apply to
non-NPL sites. We will do further research with our counsel and
get back to you on the record on that point, but we are not, I
am not fully convinced right now that all the remedy elements
would apply to sites that are not on the NPL and I think that
is what you were indicating, that they would apply to non-NPL
sites. I am not sure that is quite correct, but we will----
Mr. Greenwood. In your written reply, I wish your staff or
your attorneys would particularly pay attention to 107.4 which
says, ``Any person who accepts or accepted any hazardous
substances for transport to disposal or treatment facilities,
incineration vessels, or sites selected by such person from
which there is a release or a threatened release which causes
the incurrence of response costs of a hazardous substance shall
be liable for (a) all costs of removal or remedial action
incurred by the U.S. Government or a State or an Indian tribe
not inconsistent with the National Contingency Plan and (b) any
other necessary cost of response incurred by any other person
consistent with the National Contingency Plan.''
Mr. Fields. We will review that, sir, and get back to you
through the record.
Mr. Oxley. The gentleman's time has expired. The gentleman
from Massachusetts, Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much.
Mr. Fields, I would like to inquire about the costs of all
of the many liability exemptions and initiatives, but I would
like to ask one question first, which is am I correct that H.R.
1300 creates mandatory spending for liability exemptions in the
amount of $300 million for 5 years and $200 million for the
next 3 years or $2.1 billion over the 8-year authorization
period of the bill?
Mr. Fields. That is correct, sir. That's right.
Mr. Markey. Does this violate the Balanced Budget Act of
1997?
Mr. Fields. We believe it would in the sense that the Act
provides for $200 million per year, expiring in the year 2002
and we believe that some of these exemptions would cost up to
$500 million, so we are concerned about that.
Mr. Markey. Now would that violate the Balanced Budget Act
of 1997?
Mr. Fields. Yes.
Mr. Markey. It would? Are there any offsets in H.R. 1300
for the mandatory spending?
Mr. Fields. We do not see offsets.
Mr. Markey. Are they required to come up with offsets?
Mr. Fields. I believe----
Mr. Markey. Let's turn to costs. What is the cost of the
small business generator-transporter exemption that they have?
Mr. Fields. We have estimated preliminarily $75 to $85
million per year.
Mr. Markey. What is the cost of the municipal solid waste,
municipal sewage sludge exemption for generator-transportors?
Mr. Fields. We estimate $51 to $57 million per year for
those costs.
Mr. Markey. What is the cost of the municipal owner-
operator cap on liability?
Mr. Fields. $25 to $28 million per year.
Mr. Markey. What is the cost of the recyclers' exemption?
Mr. Fields. Our cost estimate is $61 to $69 million
annually.
Mr. Markey. What is the cost of the ability to pay delta?
Mr. Fields. We have estimated $19 to $22 million per year.
Mr. Markey. What is the cost of the liability exemptions
for current owners?
Mr. Fields. $69 to $78 million per year.
Mr. Markey. What is the cost of the nonvariable defunct
party orphan share payment?
Mr. Fields. $116 million to $131 million per year is our
estimate.
Mr. Markey. Then H.R. 1300 also requires the Fund to pay
for the cost of private contribution claims against exempt
parties. What does that cost?
Mr. Fields. $69 to $96 million per year is the cost
estimate we have.
Mr. Markey. And these are just some of the exemptions in
the cost shifts in H.R. 1300, but am I correct that for just
the ones I mentioned the total cost of exemptions and
contributions and claim payments is $397 million to $528
million per year?
Mr. Fields. That is consistent with our estimates.
Mr. Markey. So at the same time this Congress is cutting
funding for the Superfund program, H.R. 1300 is breaking the
cleanup bank to pay for the liability of polluters, is that
right?
Mr. Fields. That is our reading, sir.
Mr. Markey. Okay, so this Congress is saying no to a
prescription drug benefit for seniors, no to increased funding
for education, no to increased funding for veterans, no to
increased funding for the environment--no, no, no--but in H.R.
1300 it is saying they can scrape together $397 million to $528
million a year, every year, in order to take the costs off of
the backs of polluters who are responsible for leaving messes
in hundreds of communities all over the country.
That is the priorities as far as I--is that a correct
analysis, Mr. Fields?
Mr. Fields. Our cost analysis is consistent with your
analysis.
Mr. Shimkus. Will the gentleman yield?
Mr. Markey. I will be glad to yield.
Mr. Shimkus. What if they are not polluters?
Mr. Markey. What if they are not polluters? Well, we are
talking here--I am going----
Mr. Shimkus. No, I am just, you know, what about the small
business in the Gettysburg, Pennsylvania issue where it was a
restaurant?
Mr. Markey. See, the exemptions and waivers are for people
who otherwise would have been identified as polluters
responsible for cleaning up the sites.
Mr. Shimkus. But there is no statutory language that
defines who a polluter is, so the problem with this is that
they go based upon trash haul to a site, not any standard or
proof that there was materials, and we are talking about small
businesses, and the other follow-up is how many businesses
have--based upon all the businesses have been under Superfund,
how many businesses have closed because they have gone bankrupt
trying to make the settlement payment? And then how much income
has no longer been generated by the Federal Government because
of the loss of these businesses?
If we are going to talk dollars and cents, we need to have
those answers.
Mr. Markey. Okay. I will reclaim my time just to say that
we are all willing a la Mr. Stupak's good questions to exempt
the household trash people, we are willing to go through and
exempt all the people who should be exempt, but what you are
talking about in your bill is you are exempting the people who
are clearly liable under the law. We will look at all the
innocent people, get them out of it, but that is not what you
are doing.
Do you understand, you are lumping the guilty and the
innocent, okay?--so if you want to put together a list of
people who you think should get out, I will work with you to
get those people out, but you are endorsing a bill that lets
out the guilty people too, so I am willing to work with you on
getting out the innocent people if you are willing to work with
us and nail the guilty people, and you are not willing to do
that.
Mr. Shimkus. Will the gentleman yield?
Mr. Oxley. The gentleman's time has expired. We can save
this debate for the markup.
The gentleman's time has expired.
Mr. Markey. Preview of coming attractions, thank you.
Mr. Oxley. The gentleman from Iowa is recognized.
Mr. Ganske. Thank you, Mr. Chairman, and I will be brief
because, like Mr. Stupak, I am juggling a couple hearings and
some other things too, and also I am battling a cold and a sore
throat so earlier in the year I had thought in looking over the
Superfund issue that maybe we just ought to move a more limited
Brownfields type piece of legislation and try to get a large
bipartisan consensus on that, because so many people have
worked so hard for so long on doing it, and I think there is
bipartisan concern about unintended consequences of CERCLA.
You can see that from comments of both sides, members from
both sides have made today, but I must admit that I am very
impressed with the movement that Mr. Boehlert has been getting.
I mean he was able to pass a pretty good bill through his
committee with only two dissenting votes. I mean that is
progress and I suppose I could spend my time debating Mr.
Fields but after I went head-to-head with an official from HCFA
last week in which he admitted that they clearly had made
mistakes on a funding formula, clearly had made big mistakes,
but, you know, they weren't going to go back and fix it, you
only have so much psychic energy to use in a week, and so I am
not going to try and score debating points.
Mr. Chairman, let us move quickly to a markup. I think that
we can develop a large bipartisan majority on a good bill. I
think it has been clearly demonstrated that there has been a
movement of the goalposts, so to speak, by the administration
on this, but if you put together a big enough vote then it
doesn't matter, and I thank you for your work on this issue and
Mr. Greenwood and Mr. Towns and a whole bunch of people who
have worked on this and I will yield back.
Mr. Oxley. I thank the gentleman and I thank him for his
comments and we are going to try to go along on this one and
that is exactly what that is all about.
The gentleman from New Jersey.
Mr. Pallone. Thank you, Mr. Chairman. Mr. Fields, I was not
here for your testimony but I understand that you basically
suggest that both H.R. 2850 and H.R. 1300 lower the standard
for restoration or cleanup of contaminated groundwater,
something that concerns me.
Both of these bills protect groundwater only for its
reasonably anticipated use, a change from the current law,
rather than current or potential beneficial use--which is the
standard today.
I wanted to ask how do these changes affect your ability,
first, to clean up contaminated groundwater and, second, to
prevent contaminated groundwater from spreading to
uncontaminated groundwater.
Mr. Fields. Well, these provisions would underprotect that.
We have--85 percent of the Superfund sites have contaminated
groundwater as a major problem and this bill would create a
bias against protecting uncontaminated groundwater by only
requiring groundwater to be protected, as you said, to
reasonably anticipated future use. We believe that it ought to
be current or potential beneficial uses that ought to be
protected.
We believe that that is a proper standard and this law
would change that and cause some groundwater not to be
protected and we believe that groundwater ought to be
protected, beneficial reuse ought to be the goal, and we don't
think we should back off of that--what is in the current
statute--and these provisions in the current remedy provisions
of H.R. 1300 would do that and we are very concerned about
that.
Mr. Pallone. Well, just so I understand, so you would then
support a provision that affirmatively protects the groundwater
that has not yet been contaminated? Is that part of what you
propose? In other words, for that groundwater that has not yet
been contaminated?
Mr. Fields. No, we are proposing that the current statutory
language be retained.
Mr. Pallone. Okay.
Mr. Fields. That provides all the flexibility we need to
implement our approaches to groundwater. We have a dual
approach to groundwater remediation which provides for
containment of the groundwater plume and then treatment to
prevent that contaminated groundwater from contaminating
uncontaminated groundwater.
All the flexibility we need for implementing that approach
in Superfund is in the current statute.
Mr. Pallone. Okay.
Mr. Fields. We do not believe that the remedy provisions
including the language that is in the current bill regarding
protecting reasonably anticipated future uses of groundwater is
necessary. We would be opposed to it because we think it is
unnecessary and it would be a backing off of what we are doing
in practice in Superfund cleanups.
Mr. Pallone. Okay. Well, let me ask you another question.
I have expressed concern that both H.R. 1300 and H.R. 2580
are designed to undermine the requirement for permanent
remedial solutions and the preference for treatment in current
law, and, you know, this is something that I am not just
opposed personally. My communities oppose it, and I think, you
know, it is the polar opposite of the intent of the Superfund
bill that I introduced today and that I talked about in my
opening statement.
But I wanted to know if you would comment on how H.R. 1300
and H.R. 2580 change these provisions of current law and the
effect these changes may have on your ability to select
remedies which permanently eliminate the hazards in a
community.
Mr. Fields. We think those two bills would significantly
change our preference for treatment and permanence. The current
law requires the treatment of waste be permanently and designed
to significantly reduce the volume, toxicity and mobility of
hazardous substances.
The preference for treatment in the current program
reflects public concern that cleanups be protected over the
long term and facilitate the return of previously contaminated
material to beneficial uses.
Treatment provides the only permanent protection for highly
toxic or highly mobile hazardous waste. EPA is willing to
recognize that treatment is not appropriate in all cases, but
EPA focuses on treatment of principal threats--those that are
most highly toxic or most highly mobile and we do not believe
that those goals and those requirements ought to be backed off
of, and both H.R. 2580, which changes the current preference
for treatment, as well as H.R. 1300 could cause the backing off
of both our permanence and preference for treatment goals and
we would be opposed to that because we do believe that
treatment is a critical element of assuring long-term
protection at cleanup of Superfund sites.
Mr. Oxley. The gentleman's time has expired.
Mr. Pallone. Is the chairman--could I just ask for 30
seconds to just----
Mr. Oxley. Without objection.
Mr. Pallone. You know, I just wanted to say I don't bring
these things up just in an abstract sense. I mean to give you
an example of the chemical insecticide site which is in Edison
in my district. They produced Agent Orange and the residue of
that is all over the place. A few years ago the community
really was very much opposed to the idea of just capping and
fencing the site, and they fought the battle and won. You know,
there would be a permanent solution and that capping and
fencing would only be temporary, but we would move to the
permanent solution, and this is what the community people say,
and that is why I have a problem with the legislation. Thank
you.
Mr. Oxley. The gentleman's time has expired. The gentleman
from New York, Mr. Fossella.
Mr. Fossella. Thank you, Mr. Chairman.
Mr. Fields, H.R. 1300 would appropriate significant funding
for the Superfund program and proposes to do so on a declining
basis, starting out with $1.5 billion per year, decreasing to
less than $1 billion per year in 2007.
Mr. Fields. Right.
Mr. Fossella. We have heard testimony at prior hearings
this year from GAO and others that the Superfund program should
begin to, ``ramp down''--are you familiar with that?
Mr. Fields. Yes, sir.
Mr. Fossella. Last year GAO estimated that no more than 232
sites would likely require listing on the NPL in the future.
Are you familiar with that?
Mr. Fields. Yes.
Mr. Fossella. Even more significantly, GAO also labelled
the Superfund program as one that is at high risk for waste,
fraud and abuse, specifically noting that EPA was paying
overhead costs as high as 78 percent at some sites and
continuing to pay contract overhead costs despite the fact that
there is not enough work to keep them busy.
Are you familiar with that?
Mr. Fields. Yes, sir.
Mr. Fossella. Given these findings, I am curious as to your
response as to why shouldn't appropriations to the Superfund
program be scaled back, and just as important, what is EPA
doing to respond to these documented concerns by GAO that EPA's
management of the Superfund program is exposing it to
significant risk of waste, fraud and abuse?
Mr. Fields. Thank you, Congressman Fossella.
On the three points you raise, we obviously are very
concerned about the funding level in the current H.R. 1300 We
have gone on record saying that we believe that we need a $1.5
billion budget a year for the next 5 years to allow us to
achieve our goal of getting to 1180 construction completions by
2005.
We think it is premature now to estimate what the cost
beyond that timeframe is. Both Congress, this House of
Representatives and the Senate have both recommended in their
appropriation bills that there be a 10-year study of the future
funding needs for the Superfund program. We agree with that and
we will be willing to work with Congress in projecting cost
beyond that, but we are concerned that the current legislation
would be a premature ramp-down of the Superfund levels--$1.4
billion in 2004 and $1.3 billion in 2005, et cetera.
We would be very concerned about that, and we really need
the $1.5 billion to allow us to achieve the cleanup pace that
we are operating in.
Second, we are not in agreement with the General Accounting
Office regarding their cleanup portions that go--in terms of
their studies of cleanup of Superfund. They obviously have done
several studies and we worked cooperatively with them, but we
don't share the same agreements regarding how you define
cleanup and what costs go to cleanup and we believe that there
is still quite a bit yet to be done.
We do agree with them on the 232--the estimate they did in
terms of the universe of sites in the pipeline--we do agree.
Our own internal estimates indicate that roughly 200 sites are
in that queue of sites that might potentially be listed over
the next several years. That is in the relative ball park of
where we are as well in terms of how many sites might be listed
on the NPL over the next several years.
But the Superfund program needs a firm base of funding and
we are concerned that the current legislation would not provide
sufficient funding, particularly in the out years, to allow us
to achieve our cleanup goals reflective of our administrative
reforms.
Mr. Fossella. I asked specifically about--that at some
sites, the overhead cost was as high as 78 percent and that
there was some contract over at COS that was being paid despite
the fact that there was not enough work to keep them busy. Do
dispute that portion of it? Do you disagree with it?
Mr. Fields. I disagree with those numbers. We've had
discussion with the General Accounting Office about that. We do
agree we've had a goal for the last more than 5 years now of
trying to achieve--make sure that oversight costs for Superfund
contractors is in the 10 to 15 percent range. We recognize that
in awarding new contracts, like we just--we just recently
awarded new response action contracts, that the overhead rate
is high when you initially award a contract. But once you start
hiring some hiring staff and that contractor begins to conduct
cleanup work in the field, those overhead costs go down.
And we believe we've put in place proper controls to assure
that overhead rates are maintained at a lower rate. We think in
the 10 to 15 percent range, it is an appropriate goal. And we
believe the rates right now are roughly, for those new
contracts, in the 20 percent ballpark. And we think as more
cleanup work is done, they will come back into the 10 to 15
percent range and that's what we think is appropriate.
Mr. Oxley. The gentleman's time has expired.
Mr. Fossella. Mr. Chairman, 30 additional----
Mr. Oxley. Without objection.
Mr. Fossella. Mr. Fields, a couple--the last point,
however, I don't think you answered. What is the EPA doing to
address what the GAO determines as a significant risk of waste,
fraud, and abuse with the Superfund program?
Mr. Fields. We've implemented a set of administrative
reforms. We've implemented controls on our contract processes,
putting in place a process for independent government cost
estimates, putting in place a program with--that program is
being done, by the way, with the U.S. Army Corps of Engineers,
who went to each of our 10 regions to look at how we can better
improve cost controls and program management costs and develop
better independent government cost estimates for what the cost
of jobs would be, so we would not be relying on contractor
estimates prior to initiating cleanup work. So, we've done a
lot over the last several years to better control costs and
make sure that we're properly managing our resources, including
contract resources that we're so dependent on in Superfund.
Mr. Fossella. But--okay, Mr. Chairman, thank you for your
time, but these statements are this year. I know----
Mr. Fields. Right, but those were the issues that the
General Accounting Office addressed: program management costs
and independent government estimates. And we have implemented
programs to try to reduce program management costs and make
sure that our staff are trained on preparing independent
government cost estimates, which are the two areas that the
General Accounting Office addressed in their report to us.
Mr. Fossella. Thank you. My time has expired. Thank you,
Mr. Chairman.
Mr. Oxley. The gentleman's time has expired. The panel
wants to thank you. The Chair wants to thank both of you for
being here for the better part of 2 hours. And once again, Mr.
Fields, it's always a pleasure to have you here. And this panel
is dismissed.
Mr. Fields. Thank you, very much, Mr. Chairman.
Mr. Oxley. The Chair would like to recognize our second
panel and will introduce each one of you. Our first witness,
Mr. Chris Jeffers, is City Manager for Monterey Park--let me
see, Monterey--is that Monterey Park, California?
Mr. Jeffers. That's correct.
Mr. Oxley. Okay, I guess we're supposed to know that, sorry
about that--representing the National Association of Counties;
Mr. Mike Nobis, JK Creative Printers, on behalf of the NFIB;
Mr. Gordon Johnson, Deputy Bureau Chief of the Office of the
Attorney General from New York State, and I understand one of
Mr. Towns's constituents, although you may not admit that on
the record; Ms. Jane Williams, Chair for the Waste Committee
from the Sierra Club; and I guess we're waiting for Dr.
Jackson.
Mr. Daniel. He'll be back in the room shortly.
Mr. Oxley. Okay. We'll begin with Mr. Jeffers. Mr. Jeffers?
STATEMENT OF CHRISTOPHER JEFFERS, CITY MANAGER, MONTEREY PARK,
ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES
Mr. Jeffers. Thank you. Mr. Chairman, representatives, the
distinguished members of this committee, thank you for allowing
me to appear before you today. As stated, my name is Chris
Jeffers. I'm the City Manager for Monterey Park, California.
I'm pleased to be here today to testify regarding the need for
local government--for municipal Superfund liability relief. I
am here representing nine national municipal organizations that
have worked together for many years to seek municipal Superfund
relief, so that we can resolve our involvement in these toxic
waste sites, reduce litigation, transaction costs, and to get
on with the business of cleaning up and recycling these
blighted sites into productive redevelopment parcels within our
community.
Local governments have a serious problem. We have been
saddled with years of delay, millions of dollars of liability
and legal costs under Superfund law, simply because we owned or
operated municipal landfills or sent municipal solid waste or
sewage sludge to landfills that also received industrial and
hazardous waste. Local governments have faced costly and
unwarranted contribution lawsuits from industrial Superfund
polluters seeking to impose an unfair share of cost on parties
that contributed no toxic waste to those so-called co-
disposable landfill sites.
We've estimated that as many as 750 local governments and
over 250 sites nationwide are affected by this co-disposable
Superfund issue. In my case, the city of Monterey Park has felt
the pain of Superfund issue. At the OII, Operating Industries,
Inc., Superfund site in our city, 29 cities were sued by
industrial PRPs, who contributed over 200 million gallons of
hazardous industrial waste to that landfill. The industrial
PRPs claimed that municipalities should pay 90 percent of the
estimated $500 million cleanup, despite the fact that
municipalities contributed only garbage and sewage sludge and
no hazardous waste.
More than 15 years later, the cities have spent more than
$9 million in legal costs and more than $34 million in
liability costs. The site still sits polluted and undeveloped.
Local governments that contributed no toxic waste to Superfund
sites believe the Superfund process can and should be better
and less costly.
Early in 1998, with our support, EPA finalized an
administrative settlement policy to deal with those municipal
Superfund issues. Policy sets a settlement amount of $5.30 per
ton for municipal solid waste and sewage sludge for generators
and transmitters and 20 percent overall site costs for
municipal owners and operators at co-disposable landfills.
However, as fair and appropriate as the administrative policy
has been, we strongly believe that legislative action is needed
to resolve municipal Superfund liability issue. The EPA policy
is subject to continuing threats of litigation. Local
governments have just not made much use of the policy, because
the status is so uncertain.
Indeed, just a month ago, a Federal district judge in New
York ruled that EPA settlement figures should not be applied
for--in relation to four very small localities involved in the
Sidney landfill site, but the liability should be determined
through trial. The estimated total liability of those
localities is likely to be less than 100,000. The delay in
transaction costs of rejecting municipal settlement just is not
fair.
For these reasons, we support legislative resolution of
municipal Superfund problem. It is clear that there's broad and
bipartisan consensus that the numbers set forth in the EPA
municipal policy are fair, equitable, and workable. We believe
that the time to enact these into law is now. Specifically, we
support the liability caps for generators and transporters, the
$5.30 per ton. We support the set liability caps for local
government owners and operators of co-disposable landfills,
based on a percentage apportionment of liability of 20 percent
or less. We, also, support the provisions that provide for
expedited settlement procedures and recognition of ability to
pay factors and protection from contribution suits.
I wish to conclude with some well-known words that convey
the need for municipal Superfund legislation and our hope that
the ability of Congress to move this ahead--these issues ahead
now. And if I may, too, I sort of brought one of my child's
books, called the Lorax. And what Dr. Suess sort of said in
here is, ``Now that you're here, the word of the Lorax seems
perfectly clear; unless someone like you cares a whole awful
lot, nothing is going to get better, it's not.``
We're at that point, now. Local governments across the
Nation thank you for the opportunity to talk before the
subcommittee on these important issues. We urge you to resolve
the municipal Superfund problem this year. I'd be happy to
answer any questions and, again, thank you, very much, for
listening to us.
[The prepared statement of Christopher Jeffers follows:]
Prepared Statement of Christopher Jeffers, City Manager, City of
Monterey Park, California on Behalf of National Association of
Counties; National League of Cities; American Communities for Cleanup
Equity; American Public Works Association; Association of Metropolitan
Sewerage Agencies; International City/County Management Association;
International Municipal Lawyers Association; National Association of
Towns and Townships; and Solid Waste Association of North America
Chairman Oxley, Congressman Townes, and distinguished members of
the committee, thank you and good morning. My name is Chris Jeffers. I
am the City Manager of Monterey Park, California, a city of 65,000 on
the coast of southern California that has experienced the problems of
Superfund. I am also the chairman of American Communities for Cleanup
Equity, or ``ACCE,'' which represents local governments across the
nation who are dealing with Superfund. I am pleased to be here today to
testify regarding the needs of local governments for municipal
Superfund liability relief.
I am here representing nine national local government organizations
that have worked together for many years to seek municipal Superfund
liability relief so that we can resolve our involvement at these toxic
waste sites, reduce litigation and transaction costs, and get on with
the business of cleaning up and recycling these blighted sites into
productive redevelopments in our communities. These organizations
include the National Association of Counties, the National League of
Cities, American Communities for Cleanup Equity, the American Public
Works Association, the Association of Metropolitan Sewerage Agencies,
the International City/County Management Association, the International
Municipal Lawyers Association, the National Association of Towns and
Townships, and the Solid Waste Association of North America.
Collectively, our organizations represent thousands of cities, towns,
counties, and local agencies across the United States. We are
responsible for the health, safety and vitality of our communities and,
at the same time, for fulfilling the governmental duty to provide for
municipal garbage and municipal sewage collection and disposal.
The nation's local governments are calling upon the Congress to
provide municipal Superfund liability relief now. There has been broad,
bipartisan, multi-stakeholder consensus on this municipal Superfund
relief issue for many years. EPA has developed a fair and equitable
municipal Superfund policy that provides a basis for legislation. The
Republicans and the Democrats in the Senate Environment and Public
Works Committee have proposed municipal Superfund legislation. We
believe that there is widespread, bipartisan agreement here in the
House on fixing the municipal Superfund problem. We hope that the
parties will continue to work to get this municipal Superfund issue
resolved, this year.
Local governments have a very serious problem. We have been saddled
with years of delay, and millions of dollars of liability and legal
costs under the Superfund law because we owned or operated municipal
landfills or sent municipal solid waste or sewage sludge to landfills
that also received industrial and hazardous wastes. Local governments
have faced costly and unwarranted contribution suits from industrial
Superfund polluters seeking to impose an unfair share of costs on
parties that contributed only municipal solid waste to these so-called
``co-disposal landfill'' sites. We estimate that as many as 750 local
governments at 250 sites nationwide are affected by the co-disposal
landfill issue. The costs that our citizens bear as a result are unfair
and unnecessary.
Local governments are in a unique situation at these co-disposal
sites. First, municipal solid waste and sewage sludge collection and
disposal is a governmental duty. It is a public responsibility to our
communities that we cannot ignore, and we make no profit from it.
Secondly, the toxicity of municipal solid waste and sewage sludge
bears virtually no relationship to the toxicity of conventional
hazardous wastes and, as such, represents only a small portion of the
cleanup costs at co-disposal landfills. EPA has recognized the
difference between MSW/MSS and the types of wastes that usually give
rise to the environmental problems at NPL sites. MSW is defined by EPA
as ``household waste and solid waste collected from non-residential
sources that is essentially the same as household waste.'' MSW is
generally composed of non-hazardous substances, such as yard waste,
food waste, glass or aluminum, along with small amounts of other types
of wastes. MSS, which is strictly regulated by Section 503 of the Clean
Water Act, is any solid, semi-solid or liquid residue removed during
the treatment of municipal waste water or domestic sewage sludge, but
does not include sewage sludge containing residue removed during the
treatment of wastewater from manufacturing or processing operations.
Although MSW/MSS may contain small concentrations of hazardous
substances, EPA has found that landfills at which MSW/MSS alone was
disposed of do not typically pose environmental problems of sufficient
magnitude to merit designation as NPL sites. With rare exceptions, only
when other hazardous wastes--such as industrial wastes--are mixed with
MSW/MSS, will landfills become Superfund sites.
The City of Monterey Park has experienced many years of costly
delay at a Superfund co-disposal site in our community. The Operating
Industries Incorporated, or ``OII'' Superfund site was first listed on
the National Priorities List in 1984. At this site, 29 cities were sued
for up to 90 percent of an estimated $500 million in clean up costs at
the site. In December, 1989 these 29 cities, the County of Los Angeles,
five county municipal solid waste disposal districts, and the State of
California Department of Transportation were sued for contribution by
64 corporate PRPs on the claim that the municipalities were liable for
the cleanup of the 190 acre site. The evidence in this case indicated
that the industrial generators dumped more than 200 million gallons of
liquid industrial hazardous waste on essentially non-hazardous garbage
from nearby municipalities, and that the garbage absorbed this waste,
creating a sodden mass of dangerous pollution. In many cases, the
municipal PRPs had no more direct connection to the garbage disposal at
the site than to issue business licenses and, in some instances,
franchises to private haulers, who in turn picked up the trash.
Claiming that municipal sites are expensive to clean up because of the
large volumes of municipal garbage, the industries argued that the
local governments should be made to bear a volumetric share of
liability for clean up costs, which translated into 90 percent of $500
million.
Five cities were eventually dismissed from the suit. Ten cities
arrived at de minimis settlements with EPA and the industrial waste
generators, in part to avoid substantial future litigation costs.
Fourteen other cities fought for several years, because each faced
enormous liability and could not afford the initial settlement offers.
For example, the City of Alahambra faced an initial settlement demand
of $11.6 million. Yet its General Fund budget was only $26 million.
After several years of hard-fought negotiations, those 14 cities
settled in 1995. In total, the 24 involved cities assumed a total
liability of $34 million, and the cities' waste haulers assumed an
additional liability of $11 million. In the aggregate, the cities paid
more than $5 million in legal costs for in-house and outside counsel.
In a number of cities, quality and quantity of municipal services
suffered because of the large costs associated with the Superfund site.
Today, the OII site is still not cleaned up. It is still a drain on
our community. We have not yet been able to redevelop the property as a
productive part of our tax base and economy.
I am here today because the organizations I represent believe that
the process of resolving liability and cleaning up Superfund co-
disposal sites can and should be better for municipalities. We believe
that legislative enactment of municipal co-disposal Superfund liability
relief will spare millions of dollars in transaction costs and many
years of delay for our local communities. That is why we support
legislative enactment of a Superfund law that will provide a simple,
expedited, and fair method for resolving local government liability
associated with these co-disposal Superfund sites.
Indeed, there is broad consensus that municipalities need and merit
liability relief. For nearly a decade, our coalition has worked with
you and other members of Congress, and with the U.S. Environmental
Protection Agency, to formulate a reasonable solution to the problem.
In February 1998, with our support, the EPA finalized an administrative
settlement policy to limit liability under Superfund for generators and
transporters of municipal solid waste and sewage sludge, and for
municipal owners and operators of co-disposal landfills. We continue to
support this reasonable and fair EPA policy.
However, as fair and appropriate as the administrative policy is,
we strongly believe that legislative action to resolve the municipal
Superfund liability issue is necessary and justified. First, the EPA
policy is only a policy, non-binding on the Agency and subject to
change or challenge.
Second, this policy has already been the subject of litigation, and
the real threat of further litigation involving local governments in
individual cases remains. Just a month ago, a federal district judge in
New York rejected the use of the EPA municipal policy to settle the
liability of four very small towns and villages involved in the Sidney
Landfill site. The judge ruled that the unit cost for municipal solid
waste set in the EPA policy should not be applied, but instead should
be determined at trial. Litigation and the associated transaction costs
are unnecessary when a fair, conservatively estimated settlement policy
figure could be applied in a way to quickly resolve municipal
involvement at these sites. While we will continue to defend the EPA
policy in court, as we did in federal court in 1998, and to advocate
its use by our members, we believe a change in the Superfund law to
address this issue is necessary to reduce the costly litigation and
delay that municipalities may continue to face at co-disposal sites.
Third, we believe that legislative enactment of municipal Superfund
liability provisions will give localities the certainty and confidence
to make use of this settlement mechanism--much as the codification of
lender liability Superfund provisions has provided certainty for the
banking industry.
For these reasons, we support a legislative resolution of the
municipal co-disposal liability problem. We believe the numbers used in
the EPA municipal Superfund settlement policy would accomplish that
objective. We urge the members of this committee to enact legislation
that codifies the figures used in the EPA policy, making those figures
solid and certain for municipalities across the nation that need a
settlement mechanism that provides more confidence than EPA's policy
can provide.
Specifically, we have following comments about the need for
municipal Superfund liability clarification:
<bullet> We support set liability caps for generators and transporters
of municipal solid waste and sewage sludge, based on a per ton
assessment. We believe that local governments who delivered
municipal solid waste or sewage sludge to a landfill in good
faith should have the option to settle out their liability at a
reasonable and fair rate that is set by legislation. The $5.30
per ton assessment in the EPA settlement policy was determined
based on an analysis of post-closure costs at RCRA Subtitle D
landfills--in other words, the best estimate for what it would
have cost the local government to close the facility if the
facility were not a Superfund site contaminated with other
parties' toxic waste.
<bullet> We support set liability caps for local government owners and
operators of co-disposal landfills, based on a specified
percentage apportionment of liability. We believe that local
governments should have the option to settle out their
liability for 20 percent or less of the total cost of site
cleanup. In addition, the liability share borne by local
governments should be aggregated when two or more local
governments, who owned or operated the facility either
concurrently or sequentially, are identified as potentially
responsible parties.
<bullet> The Environmental Protection Agency should be required to
notify municipalities if they are eligible for the municipal
solid waste and sewage sludge settlement mechanisms outlined
above. Likewise, we support the approach of providing expedited
settlement mechanisms to eligible municipalities. Finally, we
support the approach of precluding third-party contribution
suits or administrative Superfund orders against eligible
municipal parties prior to their opportunity to settle their
liability, or after they have settled their liability.
<bullet> We believe the ability-to-pay provisions of the law should
apply to local government parties utilizing the municipal
liability caps.
<bullet> We support legislative language that protects from liability
those owners and operators of publicly owned treatment works or
``POTWs'' that, at the time of a release or threatened release,
were in compliance with their Clean Water Act pretreatment
standards under Section 307 and were not otherwise negligent in
operating or maintaining their sewer system. Without specific
protection from liability, otherwise compliant POTWs can be
exposed to Superfund liability from industrial discharges into
the public sewer system.
In summary, the local government organizations on whose behalf I am
testifying today believe a legislative resolution of municipal co-
disposal Superfund liability is of critical importance. Thank you, Mr.
Chairman, for the opportunity to testify. I would be happy to answer
any questions you or other members of the committee might have.
Mr. Oxley. Thank you, Mr. Jeffers. Mr. Nobis?
STATEMENT OF MIKE NOBIS, JK CREATIVE PRINTERS, ON BEHALF OF
NATIONAL FEDERATION OF INDEPENDENT BUSINESS
Mr. Nobis. Mr. Chairman and distinguished members of this
committee, my name is Mike Nobis and I am from Quincy, Illinois
and I'd like to thank you for allowing me to speak today and
share my home town's experiences with a landfill that became a
Superfund site.
I'm the general manager and part owner of JK Creative
Printers. My company, which our family has owned for almost 30
years, employs 43 full-time people. We're proud to be members
of the National Federation of Independent Business, the NFIB,
and I am honored today to present this testimony on behalf of
the NFIB's 600,000 small owner members.
A few months ago, our town was hurt by a Superfund landfill
settlement forced onto us by United States EPA. It was a
terrible situation that was totally unfair and it held 149
small businesses responsible for the cost of cleaning up a
portion of a hazardous waste site at our landfill that we were
not responsible for. The waste that was found to be polluting
the surrounding area was linked to six large local
manufacturers; yet, 149 small businesses were forced to pay for
the cleanup of the site, even though what we put there over 20
years ago was totally legal and not hazardous.
For my company, it started in February 1999, when we
received a letter in the mail from the EPA that stated that the
six large local corporations and the city of Quincy were
looking to recover some of their costs for the cleanup of that
local landfill. And even though the majority of what we had
hauled there was only trash and legally disposed of at the
time, the EPA said that because our trash was sent to that
site, we were potentially responsible for paying our
proportional share of the cleanup.
It's important to understand that most of the 149 companies
forced to pay, they were widows, elderly people, retired small
one-person waste haulers, and small businesses with less than
five employees. The financial settlements forced onto us were
harsh and made it very difficult for some of our businesses to
continue. I'm confident that Congress did not intend for the
Superfund law to hurt so many small businesses, but that's
exactly what's happening at many of our Superfund sites today.
The small businesses in Quincy are looking to leaders like you
for help right the wrong on the Superfund law.
Small business should not have to--small business should
not have to face the threat of being dragged into Superfund for
legally throwing away our garbage that was over 20 years ago,
especially when the trash that is there is not what's driving
the millions of dollars it cost to cleanup the site. The EPA is
wasting the money that should be used to cleanup the Superfund
sites by having its government lawyers track down small
business owners, forcing us to hire attorneys and wasting more
money, and then the large companies are paying lawyers to hunt
down the small business and then forcing them into settlement.
All of this money should be used to cleanup hazardous waste
sites, but it isn't. Most of our money paid out in our
settlements went to the lawyers. Getting small business out of
Superfund is the right thing to do for fairness and for the
environment.
So, in conclusion, I say this: commend this committee for
looking seriously at this problem and hope that this is going
to be the year the small business owners will gain freedom from
this unfair system. Small business needs your help now. Please
change this law for the benefit of small business owners.
Please help restore some common sense to the Superfund law.
Thank you.
[The prepared statement of Mike Nobis follows:]
Prepared Statement of Mike Nobis, JK Creative Printers on Behalf of the
National Federation of Independent Business
Mr. Chairman and distinguished members of this committee, my name
is Mike Nobis and I am from Quincy, Illinois. I would like to thank you
for allowing me to speak to you today and to share my hometown's
experiences with a landfill that became a Superfund site. I am the
General Manager and part owner of JK Creative Printers. My company,
which our family has owned for almost 30 years, employs 43 full time
people. We are proud to be members of the National Federation of
Independent Business (NFIB) and are honored to present this testimony
on behalf of NFIB's 600,000 small business owner members.
Quincy is a small community of 42,000 people, located on the banks
of the Mississippi River just 150 miles north of St. Louis, MO. Our
town is a great place to live and to raise a family. We have enjoyed
years of good economic growth, good schools, strong community
involvement and good city leadership. Of all the expectations we have
for our town, having our local landfill declared a Superfund site was
not one of them. In 1993, the Mississippi River reached its highest
flood stages in history prompting our community to rally together and
beat back the flood and its effects. Now, my community has been forced
to band together again--to fight the unfairness of a Superfund law that
is punishing us for legally disposing of our trash. Companies that once
worked together to save our town from the flood, are now suing each
other because of this Superfund landfill. Companies who have worked
together for so many years are now suing one another.
For my company, it started on February 10, 1999 when we received a
letter in the mail from the EPA that stated 6 large local corporations
and the city were looking to recover some of their cost for the cleanup
of our local landfill. Even though the majority of what we had hauled
there was only trash and legally disposed of at that time, the EPA said
that because our trash was sent to that site, we were potentially
responsible for paying our proportional share of the cleanup.
When I read the letter, I felt sick. For me and the 148 other
companies that received the letter, it was unexpected and without
warning. At first, we had no idea of what the letter was telling us. It
was asking us, as small companies, to ``contribute'' 3.1 million
dollars. I laughed at the language they used, contribute. They weren't
asking us to contribute; they were threatening us to pay. My company's
designated amount to pay was $42,000, and I consider myself lucky.
There were several other companies and individuals being asked to pay
$70,000, $85,000 and some to pay over $100,000. As I read through the
list, I saw Catholic grade schools, our local university, bowling
allies, restaurants, small Mom and Pop trash haulers, furniture stores
and our local McDonald's listed to pay. Most of the companies named
only generated waste like plain office trash or food scraps. In the mid
70's, when our company's trash began to be put in the landfill, I was
in college. One of the owners of another company was only 7 when this
landfill was in use. Yet we are being held responsible. The document
made it sound as though we were major hazardous waste dumpers. Yet,
nowhere in the document did it list what waste we were accused of
dumping. It only said that our trash was hauled to the landfill during
the time in question and we now have to help pay for the cleanup,
regardless of the fact that there was no other place to dump our trash.
On February 24, 1999, the EPA sent one of their attorneys to Quincy
to help explain the letter and to answer questions. The meeting lasted
for over two hours. The EPA attorney tried to answer questions and to
comment on how the law was being applied. Many people stood up and
pleaded their situations and how unfair and un-American this whole
situation was. He admitted to everyone there that the law was probably
unfair and very harsh. He said it was intended to be harsh, but he
couldn't do anything about its unfairness. Even though the law seemed
unfair, he said that it was all he had to work with.
The EPA and the 6 major PRP's weren't concerned about the waste
that was sent to the landfill as being hazardous. The make-up of what
we sent there was irrelevant. It was the volume that we sent to the
landfill that they cared about, even if the trash was not dangerous.
They knew many of us didn't send hazardous waste and they knew we
couldn't afford to fight them. We became an easy money source for them
because of the real threat of litigation by the major PRP's. And when
you think about it, what small company can take on 6 large corporations
and the EPA alone and win? If we didn't accept the settlement offer,
the major PRP's would sue us for the entire cleanup cost. We were
stuck. Pay up or be wiped out. The attorney for the EPA admitted that
it would cost us more to fight them in court to prove we didn't haul
hazardous waste to the landfill than to just go ahead and settle. It
all came down to money . . . and they had more than we did.
Who were the small companies forced to pay this settlement? Most of
the companies were individual people. Some were independent trash
haulers; mom and dad hauling to help supplement their income to help
raise their families. If you talk to them, you will notice they didn't
make much money hauling trash. Others were small building contractors.
Some are people in their retirement years. Some are widows whose
husbands have passed away and they now have this settlement to deal
with. Some are sons whose fathers once owned the business and now,
years later, they have inherited the problem. We have business owners
who bought businesses a few years ago who had nothing to do with this
landfill, yet are being forced to pay up because they now own the
assets and are the present money source. If they could have known this
liability was going to be theirs in the future, they never would have
bought the business. Mothers and fathers would have been reluctant to
pass a family business--and its liability--to the next generation. We
have some men in their late 70's and early 80's that could lose their
life's savings when they should be enjoying their retirement years.
They are spending their time and money paying the EPA for something
they did 25 years ago that was legal. Are these the people Superfund
was designed to collect from or has something gone wrong? It is
needless business pressures like this that destroy small businesses and
cause undue pain and hardship. Victimizing small businesses is not
going to help speed the cleanup of Superfund sites.
Most of the cost contributed by our companies to this site didn't
clean one ounce of the landfill. The money went to attorneys. Of all
the money spent, the attorneys received the most. Consider how much the
EPA and the major PRP's paid attorneys in order to obtain a settlement
with the 149 small companies. The EPA itself admits that a major
portion of the money in the Superfund is spent on litigation, not
cleaning up the hazardous sites. In a 60 Minute documentary on the
Superfund problems in Gettysburg, PA, Mike Wallace from CBS reported
that \2/3\ of the money from the Superfund is spent on litigation, not
on clean-up costs. The estimate for the legal help that some of us
received in Quincy (not including the settlement amounts) is close to
$200,000. This is hard stuff. And for what? Who wins? The attorneys are
the winners. It has been reported in our local newspaper that the EPA
and the major PRP's are now suing many of those companies who didn't
settle, resulting in more business for the attorneys. As I understand
it, these companies will be allowed in later months to bring third
party lawsuits. Where will it end? I do not think this law's intent is
to place hardships on small business when the ultimate winners are the
attorneys, not the environment.
Today our country's leaders need to look again at the intent of
this law called Superfund. I don't believe you intended for it to
burden or destroy individuals and small businesses in order to clean up
hazardous sites. We have a chance to help small businesses get out from
under this problem by supporting the small business liability relief
language in HR 1300, ``The Recycle America's Land Act,'' and HR 2247,
``The Small Business Superfund Fairness Act of 1999,'' introduced by my
friend, Representative John Shimkus who has helped all of us in Quincy
get through this painful situation. A copy of the letter that I sent to
Chairman Boehlert is attached to my testimony.
I commend this Committee for looking seriously at this problem, and
hope that this is the year small business owners will gain freedom from
this unfair system. Small businesses need your help now. Please change
this law for the benefit of small business owners and help restore some
common sense to the Superfund law.
Mr. Oxley. Thank you, Mr. Nobis. Mr. Johnson?
STATEMENT OF GORDON J. JOHNSON, DEPUTY BUREAU CHIEF, OFFICE OF
THE ATTORNEY GENERAL, STATE OF NEW YORK, ON BEHALF OF THE
NATIONAL ASSOCIATION OF ATTORNEY'S GENERAL
Mr. Johnson. My name is Gordon Johnson. I'm the Deputy
Bureau Chief of the Environmental Protection Bureau in the
Office of New York Attorney General Eliot Spitzer. I'm
appearing today on behalf of Attorney General Spitzer and on
behalf of the National Association of Attorney's General. We
very much appreciate the opportunity to appear before the
committee and thank the committee and its members and staff for
their consideration and assistance. The Association has been
deeply involved in Superfund reauthorization for many years. At
its summer meeting in 1997, the sole resolution adopted by NAAG
addressed Superfund reauthorization. A copy is submitted with
our written statement.
While the State agencies that administer the cleanup
programs are very knowledgeable about the engineering issues
involved in the remedial process, it's the State Attorney's
General, who can best evaluate the legal consequences of
changes in the current statutory scheme, as how amendments are
likely to be interpreted by the courts and their effect on
enforcement, settlement, and cleanup. We're pleased to be able
to bring this knowledge to the committee.
Although there were significant problems in the Federal
implementation of CERCLA during the 1980's, the current statute
is now getting the job done. In New York, because of the powers
provided in CERCLA, the State has obtained cleanups at over 600
hazardous waste sites in New York. Responsible parties have
contributed more than $2 billion to site cleanups and two-
thirds of the sites are being cleaned up by private parties.
Most States have had similar results.
On a Federal level, some $15 billion of public money have
been saved, because 70 percent of remedial actions at Federal
Superfund sites are being performed by responsible parties. A
major reason for this success is the cleanup liability under
CERCLA is now clearly understood. Most PRPs understand the
statute and are now ready to settle their liability with
government and perform cleanups. EPAs practices have also
evolved, resulting in earlier settlements and quicker
implementation of remedial decisions. State Superfund programs
have matured, many of which are modeled on the Federal program
and use the Federal statute to get appropriate cleanups at
minimal taxpayer expense.
The message to us is clear. We must avoid changes in CERCLA
that will reignite courtroom battles over the meaning, scope,
and implementations of the law. At the same time, we must not
lose sight of our primary goal, clean up of sites and
protection of the public and future generations. We are pleased
the H.R. 1300, as reported for the Committee on Transportation,
modified the bill as introduced and is beginning to reflect our
conclusions on the direction for reauthorization. The bill
contains one revision we've sought for use, the cap at 10
percent for the State share of remedy operation and maintenance
costs. H.R. 1300, as reported, is also more selective than its
amendments. It doesn't amend the natural resource damage
provision to CERCLA and some of the more extensive and we
believe unnecessary and counterproductive amendments to remedy
selection provisions and the portions of the liability
provisions have now been removed. As a result, the defense bar
will have fewer opportunities for legal challenges than under
earlier bills.
Unfortunately, other needed revisions we have been seeking
for many years are still absent. One, we need clarification of
the sovereign immunity waiver regarding Federal facilities and
delegation to the States of EPA's authority over Federal
facilities in appropriate situations. Two, the statute should
make clear that remedies selected by States are reviewed on the
administrative record. And three, States should be protected
from counterclaims asserting liability on the basis of their
ownership as sovereigns of stream beds, rivers, and other
natural resources. One provision that was in H.R. 13, as
introduced, was removed when it was reported out and we ask
that it be restored. That was the portion authorizing the Fund
to pay State natural resource trustees assessment costs.
There are still serious problems with H.R. 1300's revisions
to liability and allocation provisions of CERCLA. While NAAG
supports limited exemptions from liability for truly micromus
parties and a reasonable limitation on the liability of
municipal solid waste disposal, many of the provisions of H.R.
1300 now go too far. Cleanups need to comply with the relevant
and appropriate State standards. The proposed mandatory
allocation process is unwise and rather than making settlements
easier and quicker, will complicate and delay settlements and
cleanups. Cleanups should come first, not arguments. We go into
greater detail in our written testimony.
Thank you, for your attention.
[The prepared statement of Gordon J. Johnson follow:]
Prepared Statement of Gordon J. Johnson, Assistant Attorney General,
State of New York
My name is Gordon J. Johnson, and I am a Deputy Bureau Chief of the
Environmental Protection Bureau in the office of New York Attorney
General Eliot Spitzer. I am appearing today on behalf of Attorney
General Spitzer and on behalf of the National Association of Attorneys
General (NAAG). We very much appreciate the opportunity to appear
before the Committee to comment on H.R. 1300, as reported out on August
3, 1999, by the Committee on Transportation and Infrastructure
(hereafter referred to as ``H.R. 1300, as reported'' or ``August
amendment''), and section 9, regarding remedy selection, of H.R. 2580.
The State Attorneys General have a major interest in Superfund
reauthorization legislation. As chief legal officers of our respective
states, we enforce state and federal laws in our states. We help
protect the health and welfare of our citizens, our environment and
natural resources. Because many steps in the Superfund cleanup process
necessarily involve legal issues, we often are called upon to advise
our client agencies--both response agencies and natural resource
trustee agencies--on how the law should be interpreted and implemented
to achieve the desired cleanup or restoration goals. We often are also
responsible for negotiating cleanup and natural resource damages
settlements, and when a settlement cannot be reached, it is our
responsibility to commence and litigate an enforcement action. We also
defend state agencies and authorities when Superfund claims are made by
the United States Environmental Protection Agency (EPA) and other
federal agencies against them.
NAAG also has been deeply involved in the Superfund reauthorization
process for many years. At its Summer meeting on June 22-26, 1997, the
sole resolution adopted by the state Attorneys General addressed
Superfund Reauthorization; a copy of this bipartisan Resolution is
attached. The Resolution directly addresses many of the issues that are
the subject of this hearing. The NAAG Resolution arose from the State
Attorneys General's recognition of the critical importance of the
Superfund program in assuring protection of public health and the
environment from releases of hazardous substances at thousands of sites
across the country. We want to make the tasks of cleanup and protecting
the public less complicated and more efficient, and to reduce the
amount of litigation and the attendant costs that result.
While the state agencies that administer cleanup programs are very
knowledgeable about the engineering issues involved in selecting
remedies and the cleanup process, it is the state Attorneys General who
can best evaluate the legal consequences of changes to the current
statutory scheme, such as how amendments likely will be interpreted by
the courts and the effect of the amendments on enforcement, settlement,
and cleanup. We are pleased that we will be able to bring to this
Committee our insights and experience in administering the Superfund
statute.
introduction
In New York, our office has been litigating Superfund cases since
1981. A major impetus for the passage of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (CERCLA)
was the chemical dumps exemplified by the infamous Love Canal and
related Hooker Chemical Company sites in Niagara Falls, New York.
CERCLA provided both the federal and state governments essential legal
tools to address the dangers posed by those and thousands of other
sites in New York and throughout the country.
Although there were significant problems in the federal
implementation of CERCLA during the 1980's, the current statute is now
getting the job done as intended. As a result of CERCLA, our office and
the State's Department of Environmental Conservation have been able to
obtain cleanups at over 600 hazardous waste sites in New York. While
state voters in New York approved bonding for and New York committed
$1.1 billion for site cleanups, because of the powers provided in
CERCLA, responsible parties have contributed more than $2.35 billion
toward site remediation and two-thirds of sites are being cleaned by
the private parties responsible for their creation. Most states have
had similar results. On the federal level, some $10 billion of public
money has been saved because 70% of all remedial actions at federal
Superfund sites are being performed by responsible parties.
A major reason for this success is that cleanup liability under
CERCLA is now clearly understood by responsible parties and government.
It was not always this way. In the 1980's, the meaning of numerous
terms, the reach of the liability provisions, and the application of
the remedy selection provisions were the subjects of contentious
litigation. These lawsuits caused delays in cleanups, imposed
substantial burdens placed on federal and state programs, and increased
everyone's transaction and cleanup costs. Those days are now over:
potentially responsible parties (PRPs) now know what the statute means
and where they stand, and thus most are ready to settle their liability
with the government. EPA's practices also have evolved, and it knows
what it can require of PRPs. Moreover, EPA has developed practices that
lead to earlier settlements and the quicker implementation of remedial
decisions. Finally, the states' own Superfund programs have matured.
Many of them are modeled on or mainly utilize the federal statute.
State officials too understand what CERCLA means and how to use it, and
can obtain appropriate cleanups at minimal taxpayer expense.
The message is clear: we must avoid changes to CERCLA that will
reignite the courtroom battles over the meaning, scope, and
implications of the law. At the same time, we must not lose sight of
our primary goal--cleanup of sites and protection of the public and
future generations. We have no desire to replay the 1980's, even though
we were generally successful in the courtrooms.
title i. brownfields revitalization
As stated in the NAAG Resolution, the Attorneys General support the
strengthening of state voluntary cleanup and brownfields redevelopment
programs by providing technical and financial assistance to those
programs, and by giving appropriate legal finality to cleanup decisions
of qualified state voluntary cleanup programs and brownfield
redevelopment programs. Therefore, we strongly support the provision in
H.R. 1300, as reported, for assessment grants, remediation grants and
technical and financial assistance to state voluntary cleanup programs.
Federal statutory provisions should be flexible enough to accommodate
different state voluntary cleanup laws. States should be able to self-
certify, subject to EPA's approval. After such approval, the state
should be authorized to issue a release from federal liability when a
volunteer complies with a federally-approved state brownfields program.
In this fashion state brownfields and voluntary cleanup programs can
work to their fullest potential.
However, there are a number of provisions in H.R. 1300 which do not
strengthen these state programs. For example, under the provisions of
Sec. 104 of H.R. 1300, as reported, a PRP can largely shield any site
against federal enforcement or cost recovery action just by commencing
a response action in compliance with ``a State law that specifically
governs response actions for the protection of public health and the
environment.'' That clause is ill-defined, and could be construed
easily beyond a typical brownfields redevelopment statute. Nor is there
any requirement that the response action necessarily result in cleanups
protective of the public health or environment. In contrast, we note
that one criterion for grants under Title I is the ``ability of the
eligible entity to ensure that a remedial action funded by the grant
will be conducted under the authority of a State cleanup program that
ensures that the remedial action is protective of human heath and the
environment.'' (Emphasis supplied) We are concerned that the vague
language in Sec. 104 of H.R. 1300, as reported, which varies from the
language governing grants, may leave the public unprotected.
In addition, there is no requirement for public participation in
the state cleanup programs that can shield a PRP from liability. New
York believes that public participation in the investigation, remedy
selection, and cleanup of hazardous substance sites is a bedrock of
CERCLA. H.R. 1300, as reported, undermines that bedrock.
title ii. community participation and human health
We support the public participation provisions of Title II which
provide affected communities, local governments and the states further
information, public meetings and the right to comment on various steps
in CERCLA response actions. We also support the ``Technical Assistance
Grants'' amendments, especially those making it easier for citizens to
participate in the often complicated processes involving CERCLA
cleanups.
We are also pleased that the August amendment to H.R. 1300, as
introduced, removed provisions in Sec. 202 directing the President to
provide the public with what often can be confusing and misleading risk
comparisons. However, it is important that a new provision requiring
disclosure of information concerning releases before and during a
removal action not cause delays in the initiation and completion of
removal actions, particularly in emergency situations. As currently
drafted, the language of proposed Sec. 117(b)(2)(i) regarding removal
actions is confusing with respect to when information must be
disclosed. We suggest that the provision be rewritten to excuse the
disclosure of information before and during the removal action when its
disclosure would delay the removal action or imperil public health or
the environment, and in such circumstances the information be made
available as soon as practicable after the initiation of the removal
action.
title iii. liability reform
The core liability provisions of CERCLA, and analogous liability
laws which have been enacted by the majority of the states, are an
essential part of a successful cleanup program. They provide strong
incentives for early cleanup settlements, and promote pollution
prevention, improved management of hazardous wastes, and voluntary
cleanups incident to property transfer and redevelopment.
Unfortunately, H.R. 1300, as reported, still would make substantial and
problematic changes to those core provisions. These changes will
trigger another decade of litigation, with the attendant drain of
government resources, escalation of private transaction costs, and
delays in cleanup.
A. GENERAL PROVISIONS
1. Amendments to Section 106--Sufficient Cause
Section 301(a) of H.R. 1300, as reported, provides that a liable
party must comply with an administrative order even if another party is
complying with the same or a similar order. This provision allows EPA
to issue ``participation and cooperation'' orders. EPA currently uses
such orders to require additional liable parties to contribute to a
cleanup that is already underway. However, at least one court has ruled
that such orders are unlawful after EPA has already obtained ``complete
relief'' from other parties. United States v. Occidental Chem. Corp.,
29 Envtl. L. Rep. (ELI) 20,276 (M.D. Pa. 1998), appeal argued July 27,
1999, No. 99-3084 (3d Cir. 1999).
The proposed amendment in Sec. 301(a) would allow EPA to issue
``participation and cooperation'' orders, effectively overruling the
contrary case law. Such orders increase the fairness of the CERCLA
liability scheme by helping ensure that all liable parties contribute
to the cleanup. The Attorneys General therefore support this provision.
The August amendment removed a provision formerly set out at
Sec. 301(a) of H.R. 1300, as introduced, that would have placed
inappropriate limitations on the issuance of administrative orders
under section 106. However, a related provision that would have the
same practical effect--Sec. 301(a)(4) of H.R. 1300, as reported, adding
a new Sec. 106(b)(1)(B)--remains. This provision effectively prohibits
enforcement of a Sec. 106 order pursuant to both Sec. Sec. 106(b)(1)
and 107(c)(3) of CERCLA against any parties not liable for response
costs under Sec. 107.
Administrative orders under Sec. 106 are a very important tool that
EPA has to compel cleanup actions and to protect public health and the
environment. Sometimes, albeit infrequently, it becomes necessary to
order a party not liable under Sec. 107 to take actions necessary to a
cleanup. For instance, the South Valley Superfund site in Albuquerque,
New Mexico, encompasses several square miles of industrial facilities
in the Rio Grande valley which produced a number of distinct plumes of
contamination in the aquifer that supplies the City of Albuquerque with
its drinking water. Several municipal wells have been taken out of
service because of the contamination. In 1990, EPA entered into a
consent decree with Univar Corporation to clean up a plume of
chlorinated solvents from Univar's Edmunds Street facility using
extraction wells. After Univar Corporation constructed and began
operating a system, the extraction wells began drawing a nearby plume
of petroleum contamination towards the Univar system. Had the petroleum
compounds entered the system, they would have ruined the Univar
treatment system. Under the petroleum exclusion in Sec. 101(14) of
CERCLA, the parties responsible for the petroleum plume were not liable
under Sec. 107(a). Nevertheless, on February 8, 1991, EPA issued a
unilateral administrative order (Docket No. CERCLA-VI-14-91) under
Sec. 106 of CERCLA against the parties responsible for the petroleum
plume, ordering them to take all necessary action to prevent the
petroleum compounds from interfering with the Univar remedial action.
The parties responsible for the petroleum plume, although not liable
under CERCLA, complied with the Sec. 106 order. Under the bill's
limitations on Sec. 106 orders, such an order could not be enforced
because the good faith belief in the absence of liability would become
a defense to the enforcement of such an order.
We note that Sec. 106(b)(2) of CERCLA already provides that a
person who complies with a Sec. 106 order but is not liable under
Sec. 107 is entitled to reimbursement of its reasonable costs in
complying with the order. It is important that, at a minimum, EPA be
able to enforce a Sec. 106 order pursuant to Sec. 106(b)(1) of CERCLA
under these and similar circumstances. Implementation of an order
predicated on the existence of an imminent and substantial endangerment
to public health, welfare, or the environment should not be stymied so
parties can litigate their good faith belief or their ultimate CERCLA
liability. To the extent that the federal government's current
enforcement powers at hazardous substance sites are significantly
curtailed, the states often are left with the costs of remediating and
taking enforcement action at such sites, and the states do not have the
resources to do so. We have seen no indication that EPA has abused the
authority to issue such orders, and see no reason to limit that
authority.
B. EXEMPTIONS AND LIMITATIONS TO LIABILITY
NAAG is pleased that the August amendment removed proposed changes
to Sec. 107(a) liability provisions of CERCLA. This deletion will save
all interested parties substantial transaction costs and resources.
Other problems remain, however.
1. Owners/Operators
Section Sec. 302 of H.R. 1300, as reported, would make substantial
modifications to the scope of defenses available to current owners
under Sec. 107 of CERCLA. The existing ``innocent purchaser''
protections, created through the definition of ``contractual
relationship'' in Sec. 101(35) of CERCLA, apply only to owners, while
H.R. 1300, as reported, extends these protections to owners and
operators.
Under current law, the definition of ``contractual relationship''
implicates current owners if they are related to a PRP through the
chain of title. In H.R. 1300, as reported, there is no definition for
``contractual relationship,'' and, under new Sec. 107(b)(5), a current
owner who is linked only by a chain of title is not liable.
Under existing law, current owners can escape liability by proving
they are ``innocent'' purchasers, i.e., they did not know or have
reason to know that the property was contaminated before they bought it
and complied with the ``due diligence'' requirements. Under H.R. 1300,
as reported, a current owner which knew before purchase that the
property was contaminated will escape all liability, even if the owner
paid a reduced price for the land because of the contamination.
Moreover, H.R. 1300, as reported, adds further protection for owners
which acquired a facility after March 25, 1999, exempting such owners
from any liability so long as they developed the commercial or
industrial facility under certain federal, state or local redevelopment
programs, even if such owners acquired the property fully knowing it
was contaminated. What constitutes an applicable redevelopment program
remains unaddressed, leaving a substantial hole for any current owner
to bury its liability for cleaning up a hazardous substance site.
Unless narrowed, this shifts to the taxpayers the costs and burdens of
cleanup, thereby improving properties owned by knowing purchasers at
governmental expense.
Under H.R. 1300, as reported, current owners and operators are
further insulated from any liability because of the new, substantially
relaxed standard of ``appropriate care.'' For instance, as long as the
government is conducting any ``response action,'' such as a Preliminary
Site Assessment, the owner/operator can avoid any liability by simply
letting the government onto the property and getting out of the way,
which conduct would constitute ``appropriate care'' under H.R. 1300, as
reported.
The effect of all these protections for current owners/operators is
to obliterate the current owner/operator category from CERCLA
liability. This is contrary to one of the important tenets of the
CERCLA liability scheme. In addressing an owner's liability, CERCLA was
intended not only to hold responsible those whose activities created
the contamination, but ``to provide incentives for private parties to
investigate potential sources of contamination and to initiate
remediation efforts.'' Foster v. United States, 922 F. Supp. 642, 656
(D.D.C. 1996). Moreover, CERCLA's provision for current owners is
modeled after common law tort liability rules that seek to address the
social cost of hazardous waste contamination by controlling the
behavior of landowners and other relevant actors. Indeed, landowners
have long had a duty under common law to maintain their properties free
of nuisances, such as chemical contamination, and upon learning of a
nuisance are required to abate it even when they did not create the
nuisance themselves. See, e.g., RESTATEMENT (SECOND) OF TORTS
Sec. Sec. 351 et seq. and Sec. Sec. 822 et seq.; State of New York v.
Shore Realty, 759 F.2d 1032, 1050-52 (2d Cir. 1985).
For the reasons stated, we oppose these amendments.
2. Governmental Entities, Contiguous Property Owners and Others
We support the intent of the changes to the long-standing
``Innocent Governmental Entities'' exception to liability under new
Sec. 107(b)(2)(D), Sec. 302(b)(1) of H.R. 1300, as reported, although
it is drafted too narrowly to address current abuses where, for
example, states are subject to counterclaims based on sovereign
interests in groundwater, stream and river beds and banks. Also, the
provision addressing Governmental Entities in H.R. 1300, as reported--
proposed Sec. 107(b)(2)(D)--was slightly changed from the similar
provision in H.R. 1300, as introduced, resulting in a distortion of the
meaning of the provision. We urge the Committee to return to the
previous language. We also support the relief for ``Contiguous Property
Owners'' amending Sec. 101(20) of CERCLA, Sec. 302(c) of H.R. 1300, as
reported.
3. Livestock Treatment
Section 304 of H.R. 1300, as reported, would amend Sec. 107(i) of
CERCLA to expand the exemption for pesticide application to cover any
release of a hazardous substance ``resulting from'' the application of
a pesticide for the treatment of livestock.
We believe this provision is overly broad. Pesticides are typically
applied to livestock in large ``dipping'' vats; the vats are filled
with water, pesticides, and solvents, and livestock are herded into the
vats, one at a time, for treatment. Eventually the dipping solution
becomes dirty or ``spent,'' and is replaced with fresh solution. The
spent solution, which often contains highly toxic pesticides, must be
disposed of, usually off-site. Under the bill's exemption, past
disposal of such pesticide solution, unless shown to be contrary to
law, would be exempted from CERCLA liability.
Our concern is not a theoretical one. For example, the Oklahoma
National Stock Yards Company arranged for the disposal of some 211,900
gallons of cattle dipping waste at the Royal Hardage site in Criner,
Oklahoma. Included in that waste was approximately 2,000 gallons of
toxaphene, a highly toxic pesticide which is listed as an acutely
hazardous waste under RCRA, 40 C.F.R. Sec. 261.33(e). Pursuant to a
court order, the Stock Yards Company is currently helping pay for the
clean up of the Hardage site. If this ``livestock treatment'' exemption
were to be enacted in its current form, the Stock Yards Company's
liability would be eliminated.
4. Small Businesses Exemption
Section 107 of CERCLA would be amended by Sec. 305 of H.R. 1300 to
include a new subsection (o), limiting liability at NPL sites for small
businesses which are generators or transporters. ``Small'' is a
business that had no more than 75 full-time employees, or equivalent,
on the average, and had $3 million or less in ``gross revenues'' over
the previous three years preceding the date of notification by the
President that the entity is a PRP. If the company qualifies, it
escapes liability for costs or damages, unless its hazardous substances
contribute significantly to the costs of the response action.
We oppose the proposed exemption in H.R. 1300 since the exemption
is based on the status of the PRP and applies no matter what volume of
waste was disposed. The exemption would eliminate many PRPs, especially
at municipal-owned, co-disposal facilities, and the Fund and the states
would have to make up for this share of liability. The states do not
have the resources to absorb these shares. Also, experience shows us
that it is often smaller companies that pay less attention to their
environmental responsibilities than larger companies.
As noted, H.R. 1300, as reported, provides that the exemption
applies to such small businesses unless its hazardous substances
contribute significantly to the costs of the response action.
Introducing this new standard into CERCLA litigation would undermine
the critically important strict liability provisions of existing law,
increase litigation and all its attendant transaction costs, and
undermine recovery of the public funds at CERCLA sites.
5. MSW Exemption
Section 107 of CERCLA would be amended by Sec. 305 to include a new
subsection (p), providing a liability exemption for generators and
transporters of municipal solid waste (``MSW'') and municipal sewage
sludge (``sludge'') at NPL sites, unless, in the case only of
transporters, the transporter's wastes contribute significantly to the
costs of the response action and the transporter is in the business of
transporting waste. Even such transporters, which disposed of waste
that significantly contributed to the cost, are provided further
protection, as the liability at an NPL site for all MSW generators and
transporters who are not exempt would be capped at ten percent.
Under H.R. 1300, as reported, MSW includes all waste generated by
households, hotels and motels, and by commercial, institutional and
industrial sources to the extent (i) such materials are essentially the
same as household waste, or (ii) the material is waste that is
collected with MSW and contains hazardous substances that would qualify
for de micromis exemption under Sec. 107(r). [110 gals. or 200 lbs.].
The term includes food, yard waste, paper, clothing, appliances,
consumer product packaging, disposal diapers, office supplies,
cosmetics, glass and metal food containers, wooden pallets, cardboard,
grade and high school lab waste, and household hazardous waste
(``HHW''). Exemption from liability is also provided for certain
residential property owners and lessees, small businesses, and
charitable organizations.
NAAG supports reasonable limitations on liability for disposal of
municipal solid waste. Unfortunately, the limitations provided under
Sec. 107(p) of H.R. 1300, as reported, are much too broad. A
substantial portion of PRPs would be relieved of liability if these
changes were adopted because the exemption applies to not just
households, but a wide, almost all-inclusive group of business,
commercial, institutional and industrial sources. For instance, at a
number of hazardous waste sites, cosmetic manufacturers have disposed
of sometimes substantial quantities of their waste containing a variety
of hazardous substances, e.g., acetone. Under H.R. 1300, as reported,
such PRPs would escape liability because their wastes, at least
arguably, are ``essentially the same'' as waste materials normally
generated by households, i.e., cosmetics thrown away by households. Or,
as another example, at municipal-owned co-disposal facilities, it is
common to have a large volume of MSW and then a small volume of waste
from commercial and industrial sources which is highly toxic. Many
commercial, institutional and industrial facilities have used solvents
in large quantities, and those wastes were often disposed in landfills
over the years. PRPs could argue that their solvents are ``essentially
the same as'' solvents used in households and, therefore, exempt.
The exemption applies regardless of the volume of the MSW waste as
long as the waste is essentially the same as household waste. While
NAAG historically has supported liability reforms for small MSW
generators, such broad-based exemptions, which would apply to major
waste handling companies, go too far.
6. Municipal Owners/Operators
Section 107 of CERCLA would be amended by Sec. 5 to include a new
subsection (q), limiting liability for municipal owners/operators at
NPL sites. With respect to facilities that are not subject to RCRA
subtitle D criteria and proposed for listing before March 25, 1999,
small municipalities (less than 100,000 in 1990 census) have an
aggregate liability for response costs incurred after March 25, 1999,
of the lesser of (i) 10% of total response costs at the facility, or
(ii) the costs of compliance with subtitle D, if the facility continued
to accept MSW through January 1, 1997. Large municipalities (100,000 or
more), under the same conditions, are limited to 20% or costs of
subtitle D, whichever is less.
NAAG supports provisions that recognize the burden on local
governments. However, it must be noted that to the extent that the
other exemptions are applicable, and the exempt and limited liability
parties avoid sharing in the costs of cleaning up these toxic waste
sites, that burden will fall on municipalities and the states, even
with the proposed limitations, should the Fund no longer be adequate to
pay for cleanups because of its assumption of the costs of the new
exemptions for generators of wastes. And the burden also will fall on
the states which will be responsible for a portion of the operation and
maintenance costs otherwise assumed by the Fund.
7. ``De micromis'' parties.
NAAG supports reasonable liability exemptions for truly ``de
micromis'' parties. However, it is important that these provisions be
narrowly and carefully written to avoid inappropriate releases from
liability. We note that CERCLA always allowed EPA to settle matters
quickly and in recent years EPA has been aggressively entering into
such settlements without any changes in the law.
Section 305(c) of H.R. 1300, as reported, adds a proposed
Sec. 107(r) which would exempt from liability ``de micromis'' parties
that sent less than 110 gallons or 200 pounds of material containing
hazardous substances to a NPL site. We support an exemption for truly
de micromis parties, such as Elk Clubs, pizza parlors, and Girl Scout
troops, that sent minimal amounts of low-concentration and low-toxicity
mixtures to a site. However, depending on site-specific circumstances
and the type of hazardous substances involved, 200 pounds of solid
material or 110 gallons of liquid (which is more mobile than a solid
material and will usually have a weight of approximately 880 pounds--
four times the weight exemption for solid materials) can constitute a
substantial contribution to a release. For instance, 110 gallons of a
spent solvent, such as trichloroethylene, could contaminate 10 billion
gallons of drinking water to levels twice the drinking water standard
for the solvent. We believe exempting such a party statutorily and
presumptively would be unfair and inappropriate, particularly without
full consideration of concentration or toxicity, and would lead to
extensive litigation by parties near the specified weight or gallonage.
While H.R. 1300, as reported, voids this liability exception when
the President determines that the material ``has contributed, or
contributes, significantly to the costs of response,'' the unfairness
of an exception to liability that ignores concentration of a chemical
and contains an exceedingly more favorable treatment of liquid wastes
remains.
8. Response Action Contractors
In Sec. 307 of H.R. 1300, as reported, the bill would limit the
liability of response action contractors. We oppose these limitations.
First, there is no evidence that contractors are reluctant to perform
cleanup activities under current law, and therefore there is no
compelling reason to radically rewrite the current law. Second, the
bill supersedes existing limitations of actions that run from the time
that an injury is discovered, and replaces it with a six year period
that is triggered by completion of the work. Thus, the bill carves out
a radical and unfair new exemption for these parties, and deprives
potential victims of rightful compensation where, due to a latency
period that is often associated with exposure to hazardous substances,
or for other reasons, the injury is not discovered within the six year
time frame. Because the amendment is not necessary, unfair, and
preempts state law unless a state has specifically legislated the
liability of response action contractors' liability, we oppose it.
9. Recyclers
Under the new Sec. 130 added by Sec. 309 of H.R. 1300, as reported,
there is no liability at any site for a person who arranges for the
recycling of recyclable material. ``Recyclable material'' is defined to
include (1) paper, plastic, glass, textiles, rubber (now including
whole tires) and metal (now including certain copper and copper alloy
operations byproducts), as well as minor amounts of material incident
to or adhering to such scrap; (2) spent batteries; and, (3) used oil.
Special rules are then provided for transactions involving these
different kinds of recyclable materials. Section 130 of the bill is
encaptioned a ``clarification of liability.'' It is not a
clarification, but is rather a substantive change in the law.
Preliminarily, it is unclear whether H.R. 1300, as reported,
intends that this change in law be retroactive. While Sec. 305(e),
which adds proposed Sec. 107(u), provides that the new limitations and
exemptions for small businesses, municipal sold waste and sewage
sludge, municipal owners and operators, and de micromis generators and
transporters shall have not affect settlements and judgements approved
by a court or any administrative action that has become effective not
later than thirty days after enactment, the bill is silent on the
recycling exemption. It would not be appropriate to reopen past
settlements and judgments that parties entered into in good faith,
particularly because that would require a wholesale shift and
reallocation of costs among parties. We urge the Committee to avoid
this possibility by amending proposed Sec. 107(u) to include recyclers.
While we agree that recycling activities should be encouraged, we
are nevertheless troubled by this exemption because it is too broad.
For instance, the exemption is particularly inappropriate as it applies
to spent lead-acid batteries. Such batteries contain large quantities
of lead, an especially toxic substance. Much of the lead in these
batteries is in the form of lead oxide and lead sulfate, compounds that
are relatively mobile and bioavailable in the environment. Moreover,
the sulfuric acid in these batteries (which has a pH approaching 0)
greatly enhances the solubility and mobility of these metals.
The secondary lead smelter industry has repeatedly argued that the
RCRA regulations--under either federal or state authority--do not apply
to spent batteries. These batteries, the industry argues, are raw
material; they are not discarded, and thus not solid wastes and not
subject to regulation under RCRA. See United States v. ILCO, Inc., 996
F.2d 1126 (11th Cir. 1993). The lead components of spent lead-acid
batteries would also fall within the definition of ``scrap metal.'' The
limitations on the exemption for scrap metal are significantly less
stringent than the limitations on the exemption for spent batteries. As
the exemptions are currently drafted, a person recycling the lead from
spent lead-acid batteries could take advantage of the less stringent
limitation for scrap metal. At a minimum, these problems need to be
addressed.
In addition, used oil is included as a recyclable material, yet
used oil often contains hazardous substances. The disposal of such
material has created many hazardous waste sites subject to CERCLA
enforcement action in the past, and was an activity often conducted by
parties not particularly attentive to environmental concerns. The
inclusion of waste oil, particularly waste oil intended to be burned,
in the exemption from liability is unwise.
10. Oversight Costs
Section 305(e) of H.R. 1300, as reported, would add an additional
limitation of liability directly affecting every state: a cap on
recoverable oversight costs incurred by any government at 10% of the
costs of the response action. This cap is unfair, for the cost of
appropriate oversight often does not bear a direct relationship to the
cost of the response action. Some PRP's implementation of response
actions requires very close monitoring, particularly when the PRP's
prior activities have not been conducted well or when the PRP is less
experienced. Oversight is needed to protect the public, and without
oversight public confidence in cleanups conducted by private parties
will be severely undermined. There should not be an artificial
limitation on oversight costs based on cost percentages.
Quite simply, state governments in particular do not have the
personnel and other resources needed to inflate or perform unnecessary
oversight. This provision will only encourage further litigation on
oversight and efforts to reclassify government activities as oversight
in order to fall within the cap, and might well result in some states
foregoing needed oversight. The result could well be fraudulent or
shoddy cleanups. This provision should be stricken.
C. ALLOCATION
NAAG supports reasonable statutory changes that encourage early
settlements with de minimis and de micromis parties that sent minimal
quantities of waste to a site. However, H.R. 1300, as reported, still
would create a mandatory process for allocating liability among
responsible parties at any NPL site, except some ``chain of title
sites,'' where the costs are estimated to exceed $2 million (likely
most sites) and there is no consent decree or administrative order by
March 25, 1999. While liability allocation can be worthwhile in some
cases, the decision to conduct such an allocation, and the timing and
procedure for allocation, should be left to agency discretion and
should not be prescribed by statute. Historically, most allocations
have been done by responsible party groups themselves, not by
government agencies. Moreover, recent experience with administrative
allocations conducted by EPA and by state agencies has demonstrated the
need for flexibility. The governments should be allowed to structure
allocation procedures to fit the particular facts of each case. While
the August amendment to H.R. 1300, as introduced, eliminated some of
the most serious obstacles to settlement created by the allocation
process imposed by that version of the bill, there still are
significant problems.
1. Delay of Cleanups
By creating a mandatory process for allocating liability among
responsible parties, H.R. 1300, as reported, will likely delay cleanups
and substantially increase costs. Under current law, the governments
are empowered to clean up first and protect the public, then allocate
responsibility and costs. The August amendment sensibly removed the
requirement that the President file a district court action to begin
the allocation process at all NPL sites. However, H.R. 1300, as
reported, still requires the President to ``ensure that a fair and
equitable allocation of liability is undertaken at an appropriate
time,'' language which is likely to lead to litigation when EPA fails
to proceed on a timetable desired by a PRP. Thus, the bill may well
require that liability disputes be resolved first, while cleanups wait
until later. This ``argue first, clean up later'' approach turns the
purpose of CERCLA on its head. In addition, the provisions are unfair
to those who have settled and to the governments with which they
settled, since the mandatory provisions could result in settling
parties being forced to participate in the allocation demanded by those
who refused to settle.
Besides this fundamental flaw in the allocation provisions, there
are a number of specific problems created by the bill. Our experience
has been that conducting time-consuming and expensive allocations
before cleanup delays the cleanup and discourages PRPs from
participating in the cleanup, particularly when, as allowed by H.R.
1300, as reported, parties which have accepted the allocation of
liability may still challenge the remedy. We expect that PRPs will
decline to perform cleanups and opt to wait for an allocation because
the government's ability to impose joint and several liability on major
PRPs is effectively eliminated by a mandatory allocation process.
We are opposed to any provision that delays cleanups, or that
impedes the mechanisms for enforcing cleanups, such as Sec. 106 orders,
consent decrees, or notice letters. The states cannot allow any further
delays in cleaning NPL sites given the risks they can pose for our
citizenry.
2. Inappropriate Liability Determinations
The provisions allow the allocator to make determinations of
liability. It is inappropriate for someone who is not a judicial or
adjudicatory officer to make legal determinations as to which parties
are liable under the statute. This provision is particularly
troublesome because, under the bill, the responsible parties
participate in the selection of the allocator. Moreover, the many
changes in the liability provisions will require a whole new set of
rulings on who qualifies for which exemption, limitation, and
clarification, and it would be a private party allocator making these
determinations in the first instance. Further, the bill expressly
provides that an allocation will apply to subsequent removal or
remedial actions ``unless the allocator determines'' that the
allocation should only address a limited number of response actions,
even if additional information on parties' activities, conditions at
the site, the identity of toxic substances, or additional costs caused
by a particular PRP's waste becomes available after the initial
allocation. In effect, the allocator becomes a judge in a setting
lacking the procedural and appellate protections afforded parties in a
courtroom.
Allocation of the share of liability for each PRP at sites with
multiple PRPs is possible because, and only because, the issue of who
is liable has been settled through the past twenty years of litigation.
Because H.R. 1300, as reported, significantly alters the liability
sections, it will be difficult if not impossible to sort out shares of
liability when the many questions about liability itself remain open.
An allocator cannot assign shares to ``liable'' parties before it is
determined who is ``liable.''
Furthermore, NAAG opposes the provisions to the extent they impose
a stay of any state enforcement action. The provisions on allocation
also bind the hands of the states to long and involved allocation
procedures without giving the state any influence or control over the
effect of offers or settlements. For instance, only the United States
can reject the allocator's report. Also, de micromis and exempt PRPs,
and PRPs which have a limited ability to pay their fair share likely
would be trapped in a complicated and time-consuming allocation.
3. Inappropriate Evidentiary Provisions
H.R. 1300, as reported, wisely removed the provision allowing a
court to use the allocation report as a basis for its allocation of
liability in the legal action, even if the report had been rejected by
the government. However, the bill should provide that the report may
not be used by any party in a legal proceeding. This will eliminate
likely efforts by PRPs (or the governments) to introduce the report
into evidence and obtain court approval for the specific allocation. If
an allocation report becomes a document that might be used in a legal
proceeding when the allocation does not result in a settlement, the
parties will turn the allocation into the very trial that allocation is
supposed to avoid, together with a trial's attendant costs and delays.
In sum, while we support the use of allocation in appropriate
cases, we oppose the prescriptive approach of H.R. 1300, as reported.
Especially when read with the liability changes, H.R. 1300's allocation
process will substantially increase all parties' costs, bind smaller
PRPs to a mandatory, unmanageable process, and delay both cleanups and
costs recovery efforts.
D. MISCELLANEOUS PROVISIONS
1. Windfall Liens
Only the United States gets the ``windfall'' lien to recover costs
under proposed Sec. 107(b)(6), added by Sec. 302(a). As a result, an
owner or operator could receive the protection against state
enforcement and enhancement of its property's value at no cost, but the
state would not get the lien's benefit allowing recovery of unrecovered
response costs when the property is sold. The states, which play a role
virtually identical to EPA's, also should be entitled to such liens.
2. Statutory Construction
Section 303 of H.R. 1300, as reported, modifies the provisions for
natural resources liability under Sec. 107(f) of CERCLA by adding a new
Sec. 107(f)(3) on ``Unitary Executive.'' Under this subsection, any
brief or motion filed by the United States defending against any action
seeking recovery for natural resources shall be admissible and deemed
the position of the United States with respect to the interpretation
and construction of this subsection in any other action at other sites
seeking recovery for natural resources damages.
The unitary executive provision of the bill violates fundamental
tenets of the doctrine of separation of powers as articulated by the
Supreme Court in Morrison v. Olson, 487 U.S. 654, 101 L.Ed.2d 569
(1988). It is inappropriate for Congress to dictate litigation
positions to be taken by the executive branch. Furthermore, by
requiring that environmental defense positions be deemed to be the
position of the United States, Congress would put an unreasonable
burden on states to either intervene in any federal natural resource
damages litigation to create or preserve precedents favorable to
trustees, or risk having an adverse body of case law. Assuming that the
approach was constitutional, there is no justification for choosing the
defense positions over the enforcement positions. Deeming enforcement
provisions to be the position of the United States would similarly
provide for a unitary federal position without harming the trustee
interests of the states.
title iv. remedy selection
As set forth in NAAG's Superfund Reauthorization Resolution, remedy
selection in a Superfund statute should contain certain minimum
requirements. Remedial actions should attain, at a minimum, applicable
state and federal standards. Cost-effectiveness should continue to be a
factor considered among other factors. While consideration of future
land uses is proper when selecting remedial actions, land use should
not be the controlling factor, and when remedial decisions are less
stringent because they are based on future land use, there must be
appropriate, enforceable institutional controls.
H.R. 1300, as introduced, corrected some of the deficiencies of
prior bills regarding remedy selection, for instance, foregoing
provisions creating cumbersome remedy review boards and continuing to
require that cleanups attain applicable state standards. We are pleased
that the August amendment to H.R. 1300 went further by retaining most
of the current provisions of Sec. 121 of CERCLA and approving certain
EPA guidance. In this fashion, seemingly endless litigation over the
meaning of new terms and the implications of the changes in remedy
selection is less a likelihood should the bill be enacted, and the
reforms undertaken administratively by EPA can continue. However, we
are still concerned about the changes H.R. 1300, as reported, would
bring in remedy selection.
A. ANTICIPATED USE OF LAND, WATER, AND OTHER RESOURCES
NAAG supports the consideration of future land uses in selecting
remedial actions, provided that future land use is not the controlling
factor. We are concerned about the downgrading of cleanups from those
accommodating all reasonably likely land uses, which is required under
the current NCP, to an apparent emphasis on cleanups which accommodate
existing uses. At sites where the existing use has been commercial and
industrial but the municipality and nearby residents might want to
convert the site to residential and recreational uses, it is important
that the PRP not be able to implement an incomplete cleanup that
thwarts future community objectives because the change in use had not
been planned or received any approvals. Many other sites may be in
their last years of industrial or commercial use, as indicated by clear
trends in the region or the neighborhood, and to limit cleanups to a
vestigial use is dangerous to public health, regressive for community
development, or both.
Thus, language in Sec. 401(c) H.R. 1300, as reported, which compels
identification of ``the current and reasonably anticipated uses of
land, water and other resources . . . and the timing of such uses''
must not be interpreted narrowly. By not cleaning property for any uses
other than those currently existing, there will be no other uses in the
future. Indeed, brownfields redevelopment often depends upon a
departure from current and anticipated uses; under the proposed
language, it is important that such redevelopment not be thwarted. We
understand that under the EPA guidance approved in the bill, the
reasonably potential uses of land also are identified when determining
site remedies so a truly informed decision on cleanup can be reached.
The provision should be read with that understanding.
Proposed language in Sec. 9 of H.R. 2580, which adds the clause
``to the extent practicable, considering the nature and timing of
reasonably anticipated uses of land, water, and other resources'' to
the first sentence of Sec. 121(b)(1) of CERCLA, is flawed and more
limited than that of H.R. 1300. The quoted language from H.R. 2580,
together with the elimination of the word ``maximum'' in the
penultimate sentence of Sec. 121(b)(1), also inappropriately modify the
current remedy selection process. H.R. 2580's proposed changes to
CERCLA contained in Sec. 9 should be rejected.
Under H.R. 1300, as reported, groundwater is protected only for its
``current and reasonably anticipated future use,'' and there is no
provision for protecting groundwater that has not yet been contaminated
but is not used, or has not yet been planned to be used, for drinking
water or otherwise. Such provisions fail to sufficiently protect future
groundwater supplies. We prefer the EPA's current requirement that
contaminated groundwater be restored to beneficial uses whenever
practicable, and that uncontaminated groundwater be protected. This
issue is particularly critical for the arid western states where
groundwater resources are scarce.
Moreover, we are concerned that the ``Special Rules for Ground
Water'' set out in Sec. 401(c)(2) of H.R. 1300 will result in
inappropriate federal oversight of state groundwater protection
programs. Before EPA can adopt determinations of a state comprehensive
groundwater protection program, the program must first receive ``a
written endorsement by the President,'' and up to $3,000,000 of
authorized funds may be spent per fiscal year on assistance to states
by EPA. See Sec. 601(a)(2), adding a revised Sec. 111(d)(11). EPA is
given no standards or criteria for making an ``endorsement,'' and
effectively a new, ill-defined federal mandate is being imposed on the
states. It would be more appropriate for the President to defer to
state determinations unless EPA demonstrates that the state has failed
to identify current and potential beneficial uses of its groundwater.
However, we do note that the presumption that groundwater is drinking
water is sound, and will help protect the quality of precious
groundwater aquifers. See proposed Sec. 121(d)(3)(D)(ii), added by
Sec. 401(c) of H.R. 1300, as reported.
B. PROTECTION OF PLANTS AND ANIMALS
Section 401(c)(2) adds a new subparagraph governing the
determination of the significance of impacts of a release on plants and
animals. The mandate that the President base biological protectiveness
determinations on the ``significance of impacts from a release or
releases of hazardous substance from a facility to local populations''
of biota or ecosystems could seriously undermine ecological
protections. For instance, if local populations of birds are high, PRPs
might well argue the impacts of releases that kill only a small
percentage of the birds must be ignored because the overall impact on
the local population is not ``significant.'' There is no reason to
create issues for litigation by enacting these limiting requirements.
C. REMEDY SELECTION CRITERIA
Section 401(c)(3), which amends a redesignated Sec. 121(d)(4)(A)
[currently Sec. 121(d)(2)(A) of CERCLA], is problematic in several
ways. Like Sec. 9 of H.R. 2580, while retaining compliance with
``legally applicable'' state standards as a minimum requirement for
remedies, remedies no longer would have to meet ``relevant and
appropriate requirements.'' Relevant and appropriate requirements
remain an important threshold criterion in remedy selection,
particularly with regard to state drinking water standards, solid and
hazardous waste laws, landfill remediation, radioactive waste
remediation, and mining reclamation standards, and should therefore be
retained. For instance, most landfill closure requirements are not
``legally applicable'' to land disposal sites unless the site received
waste after a date in the 1980's. Nevertheless, these requirements
establish important remedial requirements and represent the best
engineering judgment on protecting the public and the environment from
releases of toxic substances after inappropriate land disposal.
Eliminating ``relevant and appropriate'' standards from those which a
cleanup presumptively must meet will severely complicate the remedy
selection process, delay cleanups, and increase litigation costs as
regulators are compelled to justify remedy decisions over and over
again in each case that otherwise would be based on such standards.
Section 401(c)(3)(F) of H.R. 1300, as reported, appears to have
been drafted in order to eliminate the applicability of state
requirements at federal or other facilities that engage in activities
unlike those of other facilities in the state. It requires the
President to ``closely examine'' state requirements at those facilities
when deciding whether a standard is of ``general applicability.''
However, state requirements applicable to certain types of chemicals,
such as plutonium, sometimes will only apply to federal facilities
because they are the only facilities authorized to handle such
materials. The fact that the requirement only applies at that facility
is not an indicator that the state promulgated the standard in order to
penalize or impose unfair or overly stringent standards on a federal
facility. Rather than trying to devise a subjective test, Congress
should retain the objective standard under current law, i.e., the terms
of the standard alone should be examined to determine whether it is of
general applicability, and, as in current law, compliance can be waived
by the President if he demonstrates that the requirement has not been
applied consistently.
Section 401(c)(5) would add a new Sec. 121(d)(7), which excludes
compliance with standards that require reduction of contaminants to
concentrations below ``background levels.'' This provision creates
significant uncertainties that could adversely affect the cleanup of
sites near other sources of contamination. Throughout the country,
numerous smaller industrial concerns have contributed to the
contamination of the soils and groundwater in industrial parks and
areas of mixed commercial and residential use, particularly in low
income and minority neighborhoods such as the New Cassell site in
eastern Nassau County on Long Island, New York, or the Rocky Mountain
Arsenal site adjacent to Commerce City, Colorado. If background is
measured immediately off-site, EPA could not require any cleanups at a
particular facility because its neighbors have contaminated the
immediate background. Whole communities could remain contaminated
because cleanups could not be compelled at any facility. Current law,
Sec. 104(a)(3)(A) of CERCLA, forbids cleanup of naturally occurring
substances, and is sufficient to prevent the mandatory removal of
contaminants to levels below the true natural background.
D. INSTITUTIONAL CONTROLS
H.R. 1300, as reported, addresses institutional controls in several
significant respects. We strongly support the inclusion of a mandatory
review of the effectiveness of and compliance with any institutional
controls related to the remedial action when EPA undertakes a five-year
review under Sec. 121(c) of CERCLA. Similarly, the requirement that
institutional controls be ``effective, implemented, and subject to
appropriate monitoring and enforcement'' when a remedy leaves
contaminants on-site, and that reviews be conducted to ensure that they
remain so, is an important codification of common sense requirements.
Finally, we support the provision that only allows the President to use
institutional controls ``as a supplement to, but not as a substitute
for, other response measures at a facility, except in extraordinary
circumstances.'' See Sec. 401(b) of H.R. 1300, as reported.
As recognized by H.R. 1300, as reported, notice of and enforcement
of institutional controls and similar environmental easements integral
to a remedy cannot be left to chance. While the bill includes measures
to ensure the continued implementation of such controls and easements,
the provision providing for the recording of hazardous substance
easements acquired as part of a remedy is incomplete. Assignments by
the President must be recorded and approved by ``State or other
governmental entity.'' However, further assignments are not subject to
any review or approval process, nor even a recording requirement. Also,
the President could evade state approval of an assignment by seeking
instead the approval of the ``other governmental entity,'' an undefined
term. Such entities presumably could include local development agencies
and others whose interests in the use of sites are very different from
state agencies charged with protecting public health and the
environment. State approval should be a nonwaivable condition for the
transfer of any easement by any person or entity.
E. RISK ASSESSMENT PRINCIPLES, GUIDELINES AND REVIEWS
Section 403 of H.R. 1300, as reported, and Sec. 9 of H.R. 2580
would add provisions to CERCLA addressing principles to be followed
when conducting risk assessments. While the August amendment removed
some very troublesome clauses from the original section in H.R. 1300,
as introduced, the need for this type of provision in the first place
is not clear. Inclusion will probably not alter risk assessments
conducted by EPA or states, and instead could only provide fodder for
litigation. In any event, we do note that the language used by Sec. 9
of H.R. 2580 is overly restrictive, and the provision set out in
Sec. 403 of H.R. 1300, as reported, is less troublesome.
title v. general provisions
NAAG strongly supports Sec. 504, which amends CERCLA
Sec. 104(c)(3). This provision alters the cost-share formula to limit a
state's share to 10% of the remedial and operation and maintenance
costs at NPL sites. This change should result in swifter cleanups by
eliminating any tendency to shift cleanup costs to the states which,
under current law, are responsible for 100% of operation and
maintenance costs. We also support the modification of current law by
Sec. 505 of H.R. 1300, as reported, to provide that states, as well as
localities, are eligible for reimbursement for up to $25,000 for a
single response.
Section 506 of H.R. 1300, as reported, addresses the state role at
federal facilities. NAAG's Resolution regarding CERCLA reauthorization
called for clarification of the waiver of sovereign immunity and for
transfer of EPA's regulatory authority at federal facilities to states.
On July 26, 1999, forty-one Attorneys General reiterated the need for
clarification in a letter to the Senate Armed Services Committee, a
copy of which is attached. We strongly urge the adoption of language
that is contained in the DeGette/Norwood bill, H.R. 617, as it
represents the compromise reached between states and federal agencies
in 1994, and would clarify the waiver without disrupting the status quo
with regard to the issue of dual regulation at NPL sites.
We also urge that Sec. 506 include additional language to clarify
that states do not impair their independent enforcement authority by
entering into site-wide interagency agreements that combine state law
requirements with CERCLA requirements. Proposed language for such a
provision is contained in Sec. 5 of H.R. 617, and is necessary to
preclude any arguments that might be made by federal agencies based on
the decision Heart of America Northwest v. Westinghouse Hanford Co.,
820 F. Supp. 1265 (E.D. Wash. 1993). In Heart of America, an
environmental organization brought a citizen suit under the Clean Water
Act, among other claims, to force the Hanford facility to comply with
state water quality regulations as they pertained to a surface water
discharge at the facility. The discharge was specifically identified in
the Hanford Interagency Agreement (``IAG''), not as a CERCLA response
action, but rather as a discharge to be regulated under the state's
water quality program. Nevertheless, the court dismissed the citizen
suit on the ground that it constituted a challenge to a response action
under CERCLA, and was therefore subject to the bar on pre-enforcement
review in Sec. 113(h) of CERCLA.
This ruling could be utilized by federal agencies to argue that any
federal or state environmental requirement that is referenced in a
CERCLA IAG effectively becomes a CERCLA requirement and is therefore
subject to the bar on pre-enforcement review. Such an interpretation
could preempt the independent application of state law, even where such
authority is expressly preserved in the IAG. Although the Heart of
America ruling addressed only citizen suits, we are concerned that the
holding could be used by the federal government to oppose state
enforcement actions. On July 10, 1997, thirty-nine Attorneys General
signed a letter in support of H.R. 1195, which would have clarified
that state and federal governments can coordinate their cleanup
activities at federal facilities without risking loss of their
enforcement authorities. A copy of the letter is attached.
An additional provision is also necessary to provide for the
transfer of EPA's oversight authorities. Although H.R. 1300, as
reported, includes a provision at Sec. 506 for dispute resolution and
enforcement of state selected remedies, the provision is limited to
situations where ``the President's authorities under subsection
[104](c)(4) have been transferred pursuant to a cooperative agreement''
to a state. Neither CERCLA nor H.R. 1300, as reported, allows for this
transfer, and thus the provision is meaningless. Section 704 of H.R.
3595, introduced during the last Congressional session, included
delegation language that was acceptable to the states and would allow
for state decision-making. In addition, Sec. 120(g) of CERCLA should
clarify that the administrator's oversight authorities cannot be
delegated or transferred other than to states or other EPA employees.
Such a provision is necessary to prevent the executive's delegation of
these authorities back to the polluting federal agencies themselves,
and is predicated on the same concerns underlying the restriction on
the exercise of Sec. 106 powers by a liable federal agency contained at
Sec. 301(b) of H.R. 1300, as reported.
NAAG also strongly recommends that Congress establish independent
oversight of removals at federal facilities and strengthen protections
for states and communities when federal facilities undertake transfer
of contaminated federal properties prior to completion of cleanup
activities.
Section 507 of the bill calls for a Federal study to determine
Federal liability for natural resource damages based on a review of
pleadings filed by the Department of Justice on behalf of a federal
trustee seeking such damages from private parties. The study is
unlikely to produce accurate estimates of the liability of the federal
government for natural resource damages claims. In the fifteen-year
history of the natural resource damages program, few if any natural
resource damages claims have proceeded through trial and resulted in
damage payments required by trustee assessments. They are inevitably
settled for considerably less. To more accurately gauge the federal
liability, therefore, the study should examine settlements, not
pleadings.
Section 508 adds language reaffirming that Sec. 107 of CERCLA does
not preempt state law claims regarding recovery of response costs. That
concept is well established, and Sec. 302(d) of CERCLA already provides
that ``[n]othing in [CERCLA] shall affect or modify in any way the
obligations or liabilities of any person under other Federal or State
law, including common law, with respect to releases of hazardous
substances or other pollutants or contaminants.'' See also Sec. 114(a)
of CERCLA. However, by not including natural resource damages in the
section, the language of Sec. 508 might be read erroneously as
suggesting that claims for such damages under Sec. Sec. 107(a)(4)(C) or
107(f) preempt state law, unnecessarily creating an issue for
litigation by overly zealous PRP attorneys. We urge this Committee to
correct any misimpressions and eliminate an issue for litigation by
either including all claims under Sec. 107 within Sec. 508 or
eliminating the provision as unnecessary.
Mr. Shimkus [presiding]. Thank you, Mr. Johnson. And now
the committee will hear testimony from Ms. Jane Williams, Chair
of the Waste Committee of the Sierra Club. Welcome and, again,
your--the formal presentations are in the record and if you can
summarize, you have 5 minutes.
STATEMENT OF JANE WILLIAMS, CHAIR, WASTE COMMITTEE, SIERRA
CLUB
Ms. Williams. Thank you. Good morning, Honorable Chairman
and members of the committee. Thank you for the kind invitation
to testify before you today in the liability and remedy
selection provision of the Superfund.
As you know, the Sierra Club is an international and
environmental organization with more than half a million
members organized by chapters and groups in every State. The
Sierra Club believe that the cleanup of our Nation's toxic
waste sites is a critical issue for all Americans, especially
minority neighborhoods and our children. EPA data show that 10
million American children live within a bike's ride of a
Superfund site.
Repealing or weakening basic liability provisions of
Superfund undermines the public interest in two major ways. Any
costs shifted away from polluters will ultimately be paid by
taxpayers and strict liability provisions create disincentive
to polluters. As well, I want to talk about the comments of my
neighbor here. The collateral damage that would be done to
State cleanup programs that are non-Federal Superfund programs
is great. In the State of California, for example, the State
relies upon both NCP consistency and the strict--joint strict
and several liability provisions for State Superfund program.
So--and I know, as well, there are other many--there's many
other States in the union that do that, as well.
I, also, want to point out, I do have my prepared testimony
that I submitted to you. But, I come at this from a very
different perspective. I live next to a Superfund site. In
fact, I live next to two Superfund sites. And the one Superfund
site I live next to is the largest Superfund site in the
country. It's Edwards Air Force Base. It has 456 sites that
require cleanup. It's the size of a small State. It has PCBs,
exotic rocket fuels, nuclear materials, all kinds of stuff. And
we routinely fight with the Federal Government on the way in
which the site would be cleaned up and the time line that the
site would be cleaned up. The second site I live next to is a
site, which is contaminated with dioxin. And children were
riding their bikes next to the site and so we had to have an
emergency response come in. Right now, the site is fenced and
capped.
The small town that I live in, which is Rosemont,
California, is one of the most polluted towns west of the
Mississippi River. In one square mile area of the town, nine
children contracted cancer and died, five of them from medulla
blastoma, a brain cancer so rare you'd expect to find one case
in my town in a decade and we found 5 in 3 years. All of those
children died. Subsequently, 24 toxic sites were found in our
town, none of which, I might add, are Federal Superfund sites,
but are being cleaned up under our State Superfund program.
And so, I want to echo the comments of Mr. Pallone, and
that is that I sat for many years in California and also on
national committees looking at Superfund programs and RCRA
programs and cleanup programs and I think too often we lose the
face of the victim. We misunderstand that what we are talking
about when we talk about changing liability provisions is
slowing down a program that really has just hit strides. This
is not the time to put the brakes on cleanups and the current
provisions in H.R. 1300 would do just that.
The important provisions for the RARs, which are very
important in the State of California, that is how we manage to
protect groundwater. Groundwater is a very important resource,
not only in the State I come from, but across the United
States. And many of the provisions in H.R. 1300 can only be
termed the ``aqua for abandonment provisions,'' because they
require the President to find consistency with basin plans.
They roll back many provisions that States have taken to
protect groundwater.
And so it's for these reasons that we are not supporting
H.R. 1300, although we are very interested in working with the
members of the committee. You, yourself, Mr. Shimkus, brought
up very important and valid points about diminimus and micromus
parties. I think that the Sierra Club, as well as many other
environmental organizations, want to see the program be fair. I
don't think that anyone thinks that the program should be
unfair and to the extent that we can work together to make it
fair, but, also, not slow down the pace of cleanups, because
when we slow down those cleanups, there's a real cost to that
and that's measured in people's lives and in further economic
damage that already impact the communities.
Thank you for the opportunity to testify.
[The prepared statement of Jane Williams follows:]
Prepared Statement of Jane Williams, Chair, Waste Committee, Sierra
Club
introduction:
Mister Chairman and members of the Committee, thank you for asking
me to testify on this important topic. As you know, the Sierra Club is
a national environmental organization. We are a grassroots organization
with more than a half-million members, organized by chapters and groups
in every state.
The Sierra Club believes that clean-up of our nation's toxic waste
sites is a critical issue for all Americans, especially minority
neighborhoods and our children. EPA data show that more than 10 million
American children live within a bike's ride of a Superfund site.
Repealing or weakening basic liability provisions undermines the
public interest in two ways.
First, it flies in the face of longstanding common law that
pollution is not now, nor ever has been, legal. Changing the liability
system, whether by 50 or 100 percent or by any other political
tinkering undercuts the funding needed for the program. And if the
polluters don't pay for this, ultimately, the taxpayer will.
Second, strict liability insures that the program remains as a
disincentive to pollution. In other words, corporate actors will seek
to minimize their risk--and maximize their pollution prevention
efforts--if they know that hazardous waste clean-up costs will be borne
by them, and not the public at large.
Changes to remedy selection provisions will only serve to weaken
the environmental protections important for our land, air, and water.
As evidence mounts that chemical exposures are having adverse effects
on human health and the environment, we need to be ever vigilant to
keep the releases at Superfund sites minimized. The protection of
groundwater and air quality suffers already at Superfund site. It is
only through expeditious use of relevant and appropriate provisions of
state and federal statues that these important societal resources can
be restored and that releases to the environment minimized during this
restoration. And it is important to retain relevant state and federal
standards if we are to protect public health.
In short, the important features of existing Superfund law that
keep strict joint and several liability and the current remedy
selection requirements should be retained.
h.r. 1300's liability provisions
The liability provisions of H.R. 1300 make substantive changes to
the current liability provisions of Superfund. These provisions, which
maintain strict liability for polluters, have served the public well by
creating a disincentive to contaminate new lands--few new Superfund
sites have been created since the enactment of provisions which created
this strong tie between polluters and the wastes they produce.
Some states, for instance California, use the joint and several
provisions of the federal Superfund law in their state Superfund
programs exclusively because they have found that federal provisions
result in more expeditious cleanups.
1. Slowing the pace of cleanups by undercutting incentives to settle
without increasing federal cleanup resources, and mandating
time-consuming allocations.
One particularly disturbing feature of H.R. 1300 is the way it
undercuts existing incentives for settling, incentives that now prompt
polluters to use their own funds to clean up at about 70% of Superfund
sites according to EPA reports (EPA uses federal funds for the
remaining 30%).
Specifically, H.R. 1300 takes away one of EPA's most powerful
incentives for getting polluters to settle: the ability to offer
partial funding to settling parties, and only to settling parties. But
H.R. 1300 directs EPA to enter into agreements to provide ``mixed
funding''--i.e., dollars from the public trough--to parties who do not
settle, but who instead perform cleanup activities under an
administrative order (p. 127).
Under H.R. 1300, many parties will await issuance of a cleanup
order rather than settling. This will take much more time, and more EPA
resources, than is currently the case. Because Superfund's bar on pre-
enforcement review under section 113 is terminated by EPA enforcement
of an administrative order in court, it can also open the door for
litigation over the substance of the cleanup decision in advance of
conducting the cleanup, further delaying cleanups by years.
Alternatively, EPA could itself conduct additional cleanups itself.
But H.R. 1300 does not authorize any additional funding to enable EPA
to do so. (Even if the bill provided for increased authorizations,
which it does not, it seems unrealistic to anticipate that
appropriations to the Superfund program will grow significantly--indeed
both the House and the Senate FY 2000 appropriations bill would
decrease funding for Superfund.) The pace of cleanups will slow as a
result. Until the last several years, the pace of the Superfund program
has been roundly criticized, and rightfully so. Now that the program's
pace has picked up significantly, hitting the brakes by undercutting
settlement incentives is highly counterproductive.
In addition, H.R 1300 creates a new mandatory ``allocation''
process (section 310, p. 118) for a wide array of sites. Under the
bill, the allocation process determines the share of each party, as
well as the Superfund trust fund. The latter includes costs for
insolvent and defunct parties; for parties who settled for less than
their allocated share because of limited ability to pay; for parties
exempted as small businesses, service-station dealers, or recyclers;
and for municipalities and commercial waste-management firms who paid
less than their allocated share because of the bill's other provisions
(which generally limit these parties' liability to 10% of the cleanup
costs). Apart from the fact that some of these parties should not be
exempted (see below), the allocation process thus creates incentives to
identify every possible exempt or insolvent party and to pull them into
the allocation process in order to increase the share allocated to the
Trust Fund. This will result in a time-consuming process with high
transaction costs for all concerned.
Finally, while the bill nominally excludes from the allocation
process the chain-of-title sites (e.g., sites where all potentially
liable parties are current and former owner/operators, such as mining
sites)and thus excludes these site from access to the Fund--it
inexplicably provides that the exclusion doesn't apply to sites where
the prior owner is insolvent or defunct (section 310, p. 120). This
limitation on the exclusion potentially will impose massive costs on
the Fund, and is unjustifiable.
2. Weakening the polluter-pays principle through extensive liability
carve-outs and limitations.
Overview of H.R. 1300's financial implications.--Before looking at
H.R. 1300's liability exemptions, it must be noted that the bill as
written shifts about $11 billion in costs from polluters to the general
taxpayer, because it fails to re-impose the polluter-pays taxes that
provide the primary funding source for the Trust Fund. While the bill
contains a statement that ``it is the sense of the Committee on
Transportation and Infrastructure'' that the taxes should be re-imposed
for the period 2000-2007 (Section 701, p. 177), this provision has
absolutely no legal effect. In the meantime, industry continues its $4-
million-per-day tax holiday that began when the polluter-pays taxes
expired at the end of 1995--itself a major incursion on the polluter-
pays principle already totaling more than $5 billion.
In addition to the tax issues, the bill also contains numerous
liability exemptions and limitations. Theoretically, some of these will
not compete directly with cleanup resources because they are to be paid
from a segregated ``pot'' of funds within the Trust Fund (authorized at
$300 million annually for 2000-2004, then $200 million annually for
2005-2007) (section 601, p. 165). However, there is no assurance that
appropriators will not choose to fund the liability-relief pot in
preference to the general Trust Fund, particularly if budget pressures
are significant. And in any event, the liability-relief funds still
comes within the same appropriations subcommittee cap as all other EPA
programs, thus at least indirectly competing for resources.
At the same time, other provisions of H.R. 1300 impose additional
costs on the Trust Fund's cleanups monies. For example, the increased
need for EPA-lead cleanups caused by undercutting settlement
incentives, as well as additional transaction costs imposed on EPA by
the allocation process, will have to be met through Trust Fund monies.
In addition, H.R. 1300 shifts significant costs that are now borne by
the states onto the federal program as well. Under section 504 (p.
158), the States would pay only 10% of the cost of operation and
maintenance, rather than the 90% provided by current law, thus
decreasing the State's incentive to seek permanent remedies. And adding
insult to injury, the bill also limits EPA's ability to collect
oversight costs to 10% of the amount that the polluter spent on cleanup
(p. 85). This provision undercuts incentives for polluters to avoid
recalcitrant behavior that triggers greater EPA scrutiny, and indeed
provides the greatest benefit to the worst-acting parties.
Exemptions for owners that knowingly bought contaminated
property.--Under the guise of clarifying existing statutory protection
for innocent parties, H.R. 1300 creates a major new liability loophole
for owners who know that their property was contaminated when they
bought it. Specifically, the bill eliminates the current requirement
that the owner ``did not know and had no reason to know'' of the
contamination when the property was acquired (for pre-1980
acquisitions) (p. 55). Thus, some owners will evade any liability for
the cleanup of their own property, even if they bought the land cheaply
because of the contamination.
These provisions will likely shift substantial costs onto the
Superfund Trust Fund. To make matters worse, unlike many of the bill's
other exclusions or limitations on liability, it appears that these
costs are not among those to be paid from segregated ``pot'' of money
for exempted parties (section 601, p. 166 and section 131, p. 119).
Thus, these shifted costs will compete directly with cleanup dollars.
The bill also provides that owners can rely absolutely on a ``no
further action'' determination by a relevant governmental agency (p.
65) to satisfy the ``all appropriate inquiry'' element of the current
innocent-party defense. But such determinations are not necessarily
based on in-depth evaluation of the property, nor are they always
correct. This provision essentially turns the no-further-action
determination into a guarantee that the property is clean, thus
eliminating one of the few incentives that now exists for careful
evaluation of sites.
Other liability carve-outs are overly expansive.--In addition, H.R.
1300 contains a raft of inappropriate and overly broad liability carve-
outs, each of which undercuts the polluter-pays principle and shifts
more cleanup costs to the general public. These include exemptions for:
<bullet> ``small'' businesses with up to 75 full-time employees and $3
million in gross revenues (section 305, p. 74), even though
almost 90% of the nation's businesses have fewer than 20
employees;
<bullet> generators and transporters of used oil (p. 113) (given the
exemptions for small businesses and small-quantity generators,
this provision just exempts big businesses that generated
significant quantities of used oil);
<bullet> generators and transporters of copper by-products (p. 110),
which are industrial process wastes;
<bullet> huge commercial trash companies (such as Waste Management and
BFI), who are exempted from all liability in most instances for
wastes dumped prior to the bill's enactment. Even if EPA
determines that such companies dumped wastes containing
hazardous substances, their liability is capped at 10% of the
total cleanup costs (p. 74).
<bullet> negligent cleanup contractors, since the bill preempts general
state tort law except for suits brought within six years of
completion of work (p. 87, p. 89)--so that that sloppy cleanup
contractors will evade any responsibility for chronic diseases
with a latency period, such as cancer and developmental
disabilities;
<bullet> many mining-site operators, given the limitations on the
exclusion for the chain-of-title sites (p. 110), as noted
above.
<bullet> other carve-outs for special interests, such as to releases
from pesticide application (p. 72).
In addition, the bill caps the liability of all persons who generated
or transported municipal waste after enactment of the bill at 10% of
the cleanup costs (p. 75).
Shifting risks of long-term problems to taxpayers.--In addition,
the bill also revamps current provisions governing settlements under
Superfund, in ways that allow polluters to walk away from sites that
have not been fully cleaned up. Specifically, section 308 allows for a
complete waiver of future liability even at sites with waste remaining
in place if the settlement contains a ``premium to address possible
remedy failure or any releases that may result from unknown
conditions'' (p. 95). But as a practical matter, how is it possible to
calculate a premium for unknown conditions? And as a matter of public
policy, why should taxpayers bear the risk of remedy failure?
These concerns are exacerbated by the fact that the bill allows--
indeed, virtually requires--the use of less-than-complete cleanups. In
selecting remedies, it demands consideration of ``current and
reasonably anticipated land use'' (Section 401, p.136). In many cases,
this is likely to involve industrial uses, which means allowing less-
stringent cleanups than would be required if homes were to be placed on
the site. But industrial-use cleanups must be accompanied by
``institutional controls,'' measures that are designed to assure that
an industrial site stays industrial unless more cleanup is done first.
Such measures must be applied virtually in perpetuity. Moreover, most
cleanups today use containment-based remedies, rather than taking the
waste off-site or treating it on-site to permanently render it
harmless.
While industrial-use and containment-based cleanups are sometimes
appropriate, it is essential that polluters remain on the hook in case
those non-permanent remedies don't work. This legal structure both
protects the public fiscally, and creates powerful incentives for
polluters to take steps to keep these remedies from failing.
Put another way, complete releases should only be available
following complete cleanups.
In sum, many of H.R. 1300's liability provisions undercut good
prevention, create bad ones, and will lead to slower cleanups.
H.R. 1300's Remedy Selection Provisions-
Abolishing the Relevant and Appropriate Provisions of CERCLA.--H.R.
1300 deletes the current requirement (Section 121d (2)(A)) that
cleanups meet ``relevant and appropriate'' state and federal standards.
(page 140) Current law requires that cleanups meet legally applicable
state and federal standards or any environmental standard that is
relevant and appropriate under the circumstances of the release.
The relevant and appropriate standards are an important provision
of law since in many instances the ``legally applicable'' provisions do
not address state and federal standards for air pollution created
during cleanup activities, groundwater contamination, the integrity of
landfill liners, long-term monitoring of remedies, impacts to animals
and wetlands, and other important environmental and public health
safeguards. As well, the addition of ``relevant and appropriate''
standards avoids lengthy litigation over what is legally necessary and
what is not.
For example, it is becoming common practice to use dual phase vapor
extraction systems to extract contaminated groundwater and soil vapors
from Superfund sites, these contaminates are then burned in on site
incinerators (thermal oxidizers). These incinerators emit a host of
dangerous chemicals into the air of communities already overexposed to
chemicals from living on or near a Superfund site. At the Operating
Industries site in California, an incinerator installed to burn soil
vapors was required to meet the regulations for a hazardous waste
incinerator under the Resource Conservation and Recovery Act (RCRA). A
long battle over whether or not this statue was legally applicable was
avoided by identifying the requirement as relevant and appropriate.
Liners and caps are used at many Superfund sites to isolate waste
from the environment. The Resource Conservation and Recovery Act
(Subtitle C) requirements serve to set standards for liner integrity,
cap design, and vadose zone monitoring that help delay contamination of
groundwater until more permanent remedies can be found. These
provisions are crucial for groundwater protection, and in their
absence, air emissions from poorly constructed and maintained caps and
groundwater contamination from improperly installed and monitored
liners, could increase. They are another example of important
requirements that are relevant and appropriate.
State standards to protect drinking water and the beneficial use of
aquifers are commonly applied relevant and appropriate regulations. At
a mining site in Colorado, the beneficial use of a stream was protected
even though the final designation of the stream' beneficial use was
only in draft form. The designation was deemed relevant and appropriate
though not legally applicable because of the interim nature of the
state action.
The California State Water Board Resolution 9249 that applies
provisions of the Porter Cologne Water Quality Control Act to the level
of groundwater cleanup at Superfund sites are deemed relevant and
appropriate and are routinely included in Superfund remedies under the
auspices of the relevant and appropriate provisions of CERCLA, thus
avoiding a lengthy dispute on whether or not they are legally
applicable. Groundwater protection is extremely important in many parts
of the United States because of its use for drinking water and
agricultural production and states have a wide variety of laws enacted
that serve to preserve these waters' beneficial uses. These laws would
be ignored if the provisions for relevant and applicable were
abandoned.
A recent cleanup of DDT in Los Angeles complied with a state
designated particulate standard that mitigated blowing DDT-laden dust
in a highly impacted minority community. This standard was identified
by the local air board as relevant and applicable. In the absence of
this standard this blowing DDT-laden dust would not have had any
enforceable emission limit and the contractor would have had no
requirement to mitigate the impacts on the community from this obvious
public health threat.
H.R. 1300 fails to emphasize the return to beneficial use of
groundwater and creates incentives to litigate, instead of mitigate,
groundwater uses.--EPA issued guidance directing that ``reasonably
anticipated future use of the land'' be considered in determining the
appropriate extent of remediation. This directive does not apply to
groundwater beneath contaminated sites.
H.R. 1300 interjects new terminology tied to ``reasonably
anticipated'' future use of groundwater, which includes a requirement
that state water protection plans receive a written endorsement from
the President before being able to be considered as meeting the
designation of drinking water. This creates a new mechanism for the
designation of the beneficial use of water that requires federal
concurrence with the designation. (page 138)
The presumption that water is drinking water can be rebutted
through ``site-specific information identified through the analysis of
relevant factors under Subparagraph C (pg. 138)''. But there are no
``relevant factors'' identified in Subparagraph C only relevant
information such as the views of the interested parties. This creates a
loophole so large you could drive a Sparkletts truck through it. Given
the enormous costs of remediating groundwater, every responsible party
will analyze ``relevant factors'' conclude that nobody will every use
the water as drinking water, and it will be up to the President to
refute the claim.
Prohibitions on ``reductions below background'' can become an
excuse to do no cleanup.--Section 410(c) adds a new provision which
states ``the standards, requirements, criteria, and limitations
referred to in paragraph (4) shall not include any requirement for a
reduction in concentrations of contaminants below background levels.''
(page 141)
This provision will result in a lengthy debate determining what
background is and where. For instance, historic goldmining in the
foothills of the Sierras have resulted in arsenic and mercury
contamination. If some of these levels (which pose public health risks)
are considered background, arsenic and mercury would never require
cleanup at a Superfund site. In many communities, if background is
measured immediately offsite, EPA would not require cleanup because
nearby properties are also contaminated. This is often the case in
heavily industrialized areas of the inner city. Entire areas could
remain contaminated because the contamination was defined away as
``background''.
Provisions exist in the current statue to prohibit the cleanup of
naturally occurring substances; these provisions are sufficient to
prevent removal of contaminants to levels below true background.
In summary, we urge members of the Committee not to roll back key
provisions of the federal Superfund program that hold polluters
responsible for the pollution they have created, create incentives not
to pollute, and protect our precious groundwater, air quality, and
lands from degradation. The federal safety net that is embodied in the
current provisions of Superfund needs to be maintained for the
protection of our families and our future.
Mr. Shimkus. Thank you. And now we'll hear from Mr.
Jeremiah Jackson or Doctor, President-Elect of the
Environmental Business Action Coalition. Welcome, again. Your
formal testimony is inserted into the record; if you can
summarize and you have 5 minutes. Thank you.
STATEMENT OF JEREMIAH D. JACKSON, PRESIDENT-ELECT,
ENVIRONMENTAL BUSINESS ACTION COALITION
Mr. Jackson. Thank you. Mr. Chairman, members of the
subcommittee, my name is Dr. Jeremiah Jackson. I'm Director and
Principle Engineer of Q&S Engineering in Escondido, California.
I'm here today as President-Elect of the Environmental Business
Action Coalition, or EBAC. EBAC is a coalition of 60,000
professionals. Thank you for holding this important hearing. My
focus today is on three critical issues related to any
Superfund or Brownsfield legislation: first, remedy selection;
second, the so-called ASTM standard; and third, response action
contractor liability.
On remedy selection issues, from our perspective, more
flexibility in the law is needed. It is overly prescriptive and
affords too little opportunity to accelerate cleanups or
innovate with an existing Superfund processes. The goal should
be timely, appropriate, and efficient cleanups, based upon
intended use, instead of having to concentrate on producing
evidence for litigation.
H.R. 2580 contains improved remedy selection provisions.
While we fully support this well-crafted reform, the
subcommittee is strongly urged to expand their number. Our
added suggestions include the following eight: (1) implement a
risk-based approach; (2) address serious environmental threats
first; (3) promote cost effective remedies; (4) encourage
flexible cleanup approached; (5) make the assessment, cleanup,
and risk reduction process more streamlined, flexible, and
realistic; (6) allow for earlier participation by stakeholders;
(7) include future land use considerations in remedy selection;
and last, encourage testing and implementation of new and
innovative technologies.
As to the ASTM standard, EBAC again expresses strong
disagreement with the requirement contained in H.R. 2580 for
innocent land owners to undertake environmental site
assessments, in accordance with ASTM phase one environmental
site assessment process. We strongly disagree with the premise
that the so-called ASTM Phase I standard is actually a
standard. A practice labeled as a standard implies that it is
tried and true practice, which, if followed, yields
reproducible, reliable, and trustworthy results, which is not
true in this case. This so-called standard was finalized 5
years go, yet the profession has evolved significantly in the
past 5 years. The right approach is an assessment conducted by
qualified professionals, who allow the current standard of
care.
Finally, on contract liability issues, there's been a lot
of discussion in the Superfund reauthorization debate about the
fairness of the Superfund liability scheme. Our member
companies are directly involved in fixing the problems caused
by the hazardous waste releases of others. The law's liability
provisions ensnare contractors in the same liability scheme as
the PRPs. CERCLA does not differentiate among participants or
among degrees of error. To hold someone liable under the
current Federal Superfund law, all you need is proof that
someone was involved in the site, regardless if they were at
the site.
Is this fair? Does it result in a speedy and cost effective
cleanups? No. Does it hurt by business? Yes. In fact, it hurts
every professional engineering and scientific firm by
discouraging innovation, driving up cost, and delaying cleanup
action.
How can fairness be brought back into the law for the
cleanup firms? Well, begin by treating cleanup firms according
to their normal standard of care, simple negligence. In the
absence of fault or negligence, it is wrong to saddle cleanup
firms with the strict liability standard prescribed for the
PRPs. Additionally, the right answer is found in the RAC
liability provisions in last year's H.R. 3000, which you, Mr.
Chairman, sponsored in H.R. 1300. Significant among these
provisions are a negligence standard, a statute of repose, and
last, extension of Section 119's coverage to all response
actions.
In conclusion, EBAC greatly appreciates the ability to
testify before your subcommittee today. Thank you, very much.
[The prepared statement of Jeremiah D. Jackson follow:]
Prepared Statement of Jeremiah D. Jackson, President-Elect,
Environmental Business Action Coalition
Mr. Chairman, members of the Subcommittee, my name is Jeremiah D.
Jackson, Ph.D., P.E. I am Director and Principal Engineer of Q&S
Engineering, Inc., a Small Disadvantaged Business based in Escondido,
California. I am here today in my capacity as President-Elect of the
Environmental Business Action Coalition (EBAC), formerly known as the
Hazardous Waste Action Coalition (HWAC). My background is in
environmental technology and implementation of remedies at hazardous
waste sites. During my career, I have overseen cleanups at Federal and
state Superfund sites; some of these cleanups have won awards for
technical merit. I also lecture on site assessment and remediation at
the University of California.
EBAC, as you know, is a national, Washington, D.C. based not-for-
profit business trade organization whose mission is to serve and
promote the interests of engineering, science and construction firms
practicing in multimedia environmental management and remediation. EBAC
operates as a coalition of the 5,000 member firm American Consulting
Engineers Council.
EBAC's President, Jonathan Curtis, who is also President and CEO of
CDM Federal Programs Corporation, testified before this Subcommittee on
August 4, 1999 on EBAC's support for the Brownfields provisions
contained in H.R. 2580, Congressman Greenwood's Land Recycling Act of
1999. In addition, one of EBAC's former Presidents, Pat O'Hara,
testified before this Subcommittee in March of 1998 on the need for
remedy reform in Superfund reauthorization. Both Mr. Curtis and Mr.
O'Hara testified about contractor liability issues, and fielded
questions about the harsh inequities of the Superfund law's legal
impacts on cleanup firms. The record is therefore clear--in order to
facilitate cleanups, a combination of reforms to both the law's
liability system as it applies to the firms that perform cleanup
actions, and to the way remedies are selected and cleanups are
performed, is needed to help ensure that Superfund operates efficiently
and cost-effectively, while providing improved protection to human
health and the environment. I will testify today about the critical
issues of remedy selection, the ASTM language in H.R. 2580, and the
increased crisis it precipitates in the area of RAC liability.
Remedy Selection Issues
EBAC is proud to be here and able to provide our technical
engineering expertise to the complex debate regarding the selection of
remedies at hazardous waste sites. Our overriding concern is protection
of human health and the environment. We believe that the Federal
Superfund law and related cleanup activities, including Brownfields
activities, should focus primarily on effecting cleanups. All too
often, however, you hear fears of ``bottled water'' and ``fences''
discussed when remedy selection changes to the law are debated. As the
CEO of one of our largest members said most eloquently several years
ago, ``Superfund is not designed to fix problems, it is a program
designed to fix blame.''
I am here to tell you that, as a representative of the professional
community that recommends and implements cleanup actions, more
flexibility in the law is needed. The present law is overly
prescriptive and contains too little opportunity to accelerate cleanups
or initiate rework within the Superfund ``process.'' In addition, work
is often performed for the sake of ``producing evidence for
litigation'' instead of just to get on with cleanup.
Mr. Chairman, your bill last year, H.R. 3000, contained widespread
remedy reforms which EBAC strongly supported. In fact, in our testimony
we stated that H.R. 3000 ``will ensure that innovations are applied to
cleanups, will provide incentives for new technologies at hazardous
waste sites, and will spur essential state and local voluntary cleanup
programs that sometimes languish due to the shadow of potential CERCLA
liability that runs from the Beltway to every Brownfields site in this
country.'' Mr. Boehlert's legislation, H.R. 1300, which has widespread
bipartisan support, also has significant remedy reform changes that
will do a lot towards improving Superfund cleanups.
We are pleased that H.R. 2580, Congressman Greenwood's Land
Recycling Act of 1999, also contains some remedy reform provisions.
These provisions include:
<bullet> Consideration of future uses of land in remedy selection
decisions.
<bullet> Addressing the preference for treatment and permanent
solutions.
<bullet> Deleting the ``RA'' from ``ARARs,'' meaning that only
applicable requirements will apply. (Note: This is an important
change because it is often difficult to determine what is also
``relevant and appropriate'' cleanup requirements).
<bullet> Making risk assessments more realistic and based on scientific
evidence and site-specific information.
We fully support these well-crafted provisions. We understand that in
the nature of compromise the listing of remedy changes that have been
included in H.R. 2580 are relatively few. However, we strongly urge
this Subcommittee to expand this listing. Why do we feel this way? The
last time that Superfund was comprehensively reauthorized was in 1986
through the Superfund Amendments and Reauthorization Act (SARA). This
means that 13 years have passed without substantive statutory change to
``how'' cleanups are performed. And, in that 13 years, there have been
significant advancements in the professional practices of hazardous
waste cleanup. I am proud to say that these advancements have, in large
measure, resulted from the hard work, imagination, and innovative
approaches employed by the member companies comprising EBAC!
Here are our suggestions for other issues to address in the remedy
selection portions of any bill that is ultimately reported out of this
Subcommittee and your full Committee:
<bullet> The law should emphasize a risk-based approach to encourage
reduction of hazards associated with hazardous waste cleanup
sites in an economical manner.
<bullet> Obvious and serious environmental threats should be addressed
first.
<bullet> The goal should be to achieve the most risk reduction for the
cleanup dollar.
<bullet> Cleanup plans should be flexible in anticipation of unknowns
to allow for quick responses to newly discovered conditions
that invariable arise in the course of a hazardous waste site
cleanup.
All of the above recommendations are embodied in an engineering
technique called the ``Observational Method.'' This method was embodied
in H.R. 3000 last year, and is embodied in this year's H.R. 1300. More
specifically, the Early Evaluation and Phased Remedial Action section
of H.R. 3000 last year embodied this approach.
Other recommendations include the following:
<bullet> Make the assessment, cleanup and risk reduction process more
streamlined, flexible, and realistic.
<bullet> Allow for greater participation by stakeholders in the cleanup
process.
<bullet> Embody future land use considerations in remedy selection
determinations.
<bullet> Encourage testing and implementation of new, innovative
technologies in cleanup.
Finally, as EBAC testified last year, H.R. 3000 contained
``excellent'' criteria for selecting a remedy. The alternatives
considered and factors balanced included the following:
<bullet> Effectiveness of the remedy in reducing risk.
<bullet> Effectiveness at promoting source control.
<bullet> Long-term reliability.
<bullet> Risks that are posed by implementation of the remedy.
<bullet> Acceptability of the remedy to the community.
<bullet> The reasonableness of the difference in costs between
different remedial options.
We also have expressed support for requiring remedies to prevent or
eliminate any actual human ingestion of groundwater that has any
contaminant present above its Maximum Contaminant Level (MCL). We
believe that this is appropriate and protective of human health. We
have also expressed a desire to remove the preference for permanence
and treatment in the Superfund law because such a preference results in
favoring one cleanup strategy over another. This type of preference
artificially reduces the range of technical solutions without providing
additional protection. Finally, we support express legislative
codification of EPA's Administrative Reforms, to include legislative
embodiment of EPA's Remedy Review Board. It is only through legislation
that EPA's reforms will be uniformly and fairly applied on a consistent
basis.
H.R. 2580 would also allow for permit waivers for on-site response
actions, which would remove the barriers to actual on-site cleanup and
significantly increase the pace of Brownfields cleanups. Cleanup
actions would still be protective of human health and the environment
and subject to regulatory review and approval, of course, under such a
scenario. We support this inclusion.
ASTM Standard
I must reiterate previous EBAC testimony where we expressed strong
disagreement with the requirement of H.R. 2580 for ``innocent
landowners'' to undertake environmental site assessments ``in
accordance with the standards set forth in the American Society for
Testing and Materials (ASTM) Standard E1527-94, titled ``Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process.'' Please note that this standard is also proposed
to be codified in Chairman Boehlert's bill, H.R. 1300, and in H.R.
1750.
EBAC, ACEC, and other professional organizations strongly disagree
with the premise that the so-called ASTM Phase I ``standard'' is
actually a ``standard.'' A practice labeled as a ``standard'' implies
that it is a ``tried and true'' practice which, if followed, yields
reproducible, reliable and trustworthy results and is endorsed by the
professionals who use it. That is not the case here. The scientists and
engineers who, for the last several decades, have investigated
contaminated sites know that it is foolish, even dangerous, to assume
that using ``cookbook'' assessment procedures will uncover all
significant contamination.
Except for a few simple sites, the technology required to peer
underground and locate all significant sources of contamination has not
been invented. Moreover, as the ``94'' suffix indicates, this so-called
standard was finalized five years ago. As with the case of remedy
selection, practice in the hazardous waste field has evolved
significantly in the past five years; these lessons learned are not
reflected in this ``cookbook'' approach.
Left with these uncertainties, the right thing to do is let the
practitioners apply professional judgment to what is truly needed for
responsible site cleanup. We recommend that you drop the requirement
for using ASTM Standard E1527-94. We recommend instead that an
appropriate inquiry conducted by a duly licensed or equivalently
qualified professional who shall follow the current standard of care
appropriate for the location and nature of the inquiry involved. If
some kind of assessment guidelines are deemed necessary, then we ask
that they be developed by EPA, using an open, transparent process, and
incorporating substantial input from the licensed engineers who
practice in this field.
The legislation allows EPA to set up an ``alternative standard''
through a formal rulemaking process. However, as long as the
legislation identifies the specific ASTM standard that qualifies for
``innocent landowner'' status, we believe that EPA will never get to
the rulemaking stage to create an alternative standard. We urge that
the legislation delete the ASTM standard, and require EPA to undertake
a rulemaking to identify the professional judgment required for
qualification as an ``innocent owner'' within a limited, specific date
certain period of time after enactment of this Superfund reform/
Brownfields legislation.
Contractor Liability Issues
There has been a lot of discussion in the Superfund reauthorization
debate about the fairness of the Superfund liability scheme,
particularly as it relates to small businesses. My small business is
directly involved in fixing the problems caused by the hazardous waste
releases of others. My small business nevertheless has Superfund
liability issues, too. The law's strict, joint and several liability
provisions ensnare me in the same liability scheme as it does a
Potentially Responsible Party (PRP), rather than holding me
appropriately liable for the engineering and remediation work that I
perform. That's because the law does not differentiate among wrongdoers
or among degrees of culpability. To hold someone liable under the
current federal Superfund law, all you need is proof that someone was
involved at a site regardless of their role at the site.
EBAC has been compiling information about lawsuits filed against
those who have been performing cleanup activities for the past five
years. There is a significant body of established caselaw whereby
courts have allowed parties with direct CERCLA liability to bring suit
under CERCLA against Response Action Contractors (RACs), drawing
cleanup firms into the liability net without regard to fault or
negligence in selecting or implementing cleanup technologies.
The case-law that we have compiled is comprised of approximately 40
cases that have worked their way through the courts--not including the
cases that have been settled because the cost to litigate the claims
(even when the firms are innocent of wrongdoing) is extremely high.
Courts have allowed suits alleging that cleanup contractor activities,
because they involved moving site contaminants, classified the
contractor as site ``operators'' and ``transporters'' according to the
definitions of these words in the Superfund law. Courts have also
allowed nearby site residents to sue the government's cleanup
contractor for damages incurred by exposure to site contaminants. A
detailed listing of cases will be provided to this Committee for the
record.
What you have is a practice whereby the huge costs of Superfund
cleanups, and the absence of fairness in allocating the cleanup costs
among responsible parties, creates an environment where responsible
parties turn around and sue everyone else who may have touched a site
to obtain contribution for cleanup costs. Is this fair? No. Does it
hurt my business? Yes. In fact, it hurts every professional engineering
and scientific firm in business to clean up America's hazardous waste
legacy.
How can fairness be brought back into the law for the cleanup
firms--regardless of firm size? First, treat cleanup firms according to
their degree of negligence associated with a problem. If there is an
absence of fault or negligence, then do not saddle the cleanup firm
with strict liability. That's what the present Section 119 of Superfund
was intended to do when it passed in 1986. In fact, this Committee's
version of what was ultimately contained in the House-passed version of
1986 Superfund contained a preemptive negligence standard developed by
the then Majority of the Committee. Unfortunately, this language was
not contained in the final bill, having been one of the last issues
debated by the Conference Committee. However, because of other
omissions or loopholes in the law, PRPs have been able to circumvent
Section 119 and seek to hold cleanup firms responsible as site
operators, transporters, and generators.
It should also be noted that the present Section 119 allows EPA to
indemnify cleanup firms for the claims brought against them. If
indemnification is offered, a legislative change is needed that would
make Section 119 consistent with the other parts of Superfund. Namely,
the Superfund law applies to releases ``and threatened releases.''
However, Section 119, due to a technical drafting error, only applies
to ``releases.'' There should be as much incentive to address
threatened releases (i.e., BEFORE a release occurs) as there is to
remediate a release after-the-fact. I urge you to undertake this
technical correction.
What else is needed? You need look no further than the RAC
liability provisions in last year's H.R. 3000, which you, Mr. Chairman,
sponsored, and this year's Superfund legislation sponsored by Chairman
Boehlert of the Water Resources and Environment Subcommittee (H.R.
1300). Both pieces of legislation thankfully included provisions that
would address contractor liability issues. These provisions include the
following:
<bullet> Negligence standard for cleanup firms that applies to claims
brought under federal and state law.
<bullet> Statute of repose, which is common in the construction and
engineering sectors, cutting off claims after a period of
years.
<bullet> Extension of Section 119's coverage to ``all response
actions'' (which is particularly important given the
significant interest in Brownfields cleanups, voluntary
cleanups, and state-led cleanup actions).
<bullet> Clarification that Section 119 is the sole authority to
determine the liability of RACs.
I must point out that all of the above provisions are contained in
Chairman Boehlert's bill, H.R. 1300. H.R. 1300 has the bipartisan
support of over 120 members of this Congress, including Ranking
Subcommittee Member Robert Borski (D-PA) and Ranking Full Committee
Member James Oberstar (D-MN). RAC liability provisions are supported on
a bipartisan basis. We support these provisions, and we urge this
Committee to do the same.
Use of the ASTM standard referred to earlier in my testimony makes
it all the more imperative that the Response Action Contractor
liability provisions that I have just identified be included in any
Brownfields/Superfund legislation. This is because the ASTM standard
leaves the Response Action Contractors as the sole community left
``holding the bag'' as other groups receive liability relief
appropriate to their status as innocent of creating hazardous waste
pollution. This increases the already unfair liability exposure of the
engineering community and increases the imperative need for RAC
liability reform within this bill.
In conclusion, EBAC greatly appreciates the ability to testify
before your Subcommittee today on remedy selection provisions in H.R.
2580, and on Superfund in general. The time to act is now. Much hard
work has gone into moving H.R. 1300 on a nearly unanimous bipartisan
basis through the Transportation and Infrastructure Committee. We
encourage that it be the basis of this Subcommittee's markup vehicle.
Please don't let partisan politics or environmental scare tactics hold
up long overdue action on responsible Brownfields/Superfund legislation
any longer! Thank you, Mr. Chairman and Members of the Subcommittee,
for the opportunity to share the views of EBAC's membership on both key
issues and the need for moving this vital legislation forward.
Mr. Shimkus. Thank you, Dr. Jackson. Now, I will start with
my 5 minutes. Set the clock and move in regular order.
To no one's surprise, my first question will be to Mike.
Again, I'm sorry I missed your opening statement. We have the
congressional baseball game pizza party going on right now,
where we deliver the checks. And although I should be up there,
the coach of the team needs to be up there more than I do, and
that's the chairman. So, I'm a pinch hitter and so I missed
your opening statement. But, of course, I've read it and you
followed the discussion I had with the EPA.
The EPA seems to be readily--characterizes its
administrator reforms as being successful for small businesses,
and they cite their 18,000 cases. In particular, the Agency
cites to its use of the status comfort letter, to notify and
settle with small business over their liability before
contribution suits by larger PRPs are levied. From your
statement, I get the sense this form of settlement has done
anything but bring you comfort. Can you elaborate on how the
process works and why you believe, obviously as I do, that it
is so fundamentally unfair to the small businesses involved?
Mr. Nobis. First of all, there's two perspectives, I guess,
on success. If you're the EPA, and I've talked with--the people
that have been involved with us say, yes, it was a successful
settlement, in that they did get us to settle. From our
perspective, though, it wasn't a success, because about 149
companies in Quincy were not responsible for the hazardous
waste that caused the--our site to be declared a Superfund
site. They--we had a process that basically--and I used in my
testimony the word ``forced,`` and we were forced. I didn't use
the word ``blackmail,`` but----
Mr. Shimkus. I've used extortion before. You've heard me--
--
Mr. Nobis. Well, I don't want to use that, but we were
forced into it. Was it successful? Did they get the settlement
done? Yes, they did. But what happened was 149 companies that
had nothing to do with the hazardous waste in that site were
forced to pay a settlement. My company paid $43,000. Forty-
three-thousand dollars, that out of the gratis of my heart, I
had to give the EPA. And unfortunately, that money went to the
lawyers, because the site was already cleaned. The parties that
were involved in polluting that site had already agreed to
clean it up. It was already done. And then late in the process,
then the diminimus went through. And, basically, due to a time
problem in their statute of limitations, within a very short
period of time, a matter of just a short couple of months,
forced us into the settlement.
We were basically told that if we did not settle with the
amounts they gave us, then they--we would all be hauled into
Federal court and that our cost would be way beyond anything we
could ever imagine. And what do you do? And since we did not
have a time to really deal with the decision properly, many of
us were forced to settle and begrudgingly. And the EPA told us
that, well, you can settle. We're not saying you did anything
wrong, but we want this done.
So, was it successful? Yes. They point to Quincy as being a
success story. For the small business and those of us in
Quincy, we had to be involved. It was a disaster and very
difficult for our companies.
Mr. Shimkus. Thank you. Mr. Johnson, have you ever operated
a small business?
Mr. Johnson. No, but my father is a small businessman. I've
worked with him.
Mr. Shimkus. Okay, thank you. And, of course, you are in a
legal professional?
Mr. Johnson. Yes.
Mr. Shimkus. So, you understand burden of proof and you
understand evidence, whether--I'm not a lawyer--primary
evidence or circumstantial evidence. Would you feel it's right
to penalize a business, which there's no evidence to suggest
that they're responsible for polluting a site?
Mr. Johnson. I know that in my State, we are very careful
before we name any small parties as parties in a Superfund
cleanup case. We examine the facts. We look at the types of
material that may have been sent to the site.
Mr. Shimkus. Okay, but we're now addressing the--obviously
the--I did that myself, sorry--the Federal Government and our
Federal legislation. Would you think it was right, fair, and
just to hold small businesses, like Mr. Nobis, who has recycled
everything and there's no burden of proof through documentation
that would lend anyone to believe that his company was
responsible for the major industrial waste that was placed in
that municipal landfill?
Mr. Johnson. We, too, in the Attorney General's offices
throughout the country, support an exemption from liability for
small businesses.
Mr. Shimkus. Could you help us--since the EPA is very
reticent to try to define that, do you think you all would help
us define small business?
Mr. Johnson. I think we would be happy to sit down with the
committee and give you our comments on what is appropriate. Our
concerns, as we stated in the testimony, is that the status of
the parties should not necessarily be the sole criteria. For
instance, if a small business sent very toxic materials to a
site, where large quantities----
Mr. Shimkus. We're not addressing those--yeah, and, of
course, newer legislation, you put your markers down.
Mr. Johnson. Right.
Mr. Shimkus. And I don't think anyone wants to not hold
anybody responsible for polluting to pay for the cleanup of the
site. The question that we're debating is: what about those
parties, who have not polluted, and why should those businesses
be forced into bankruptcy through this process? And so, if you
could help with legislation--let me go on with this line of
questioning.
Although there were significant problems facing--actually,
you made a statement in your written documentation presented
that, although there were no significant problems facing the
Federal--there were significant problems facing the Federal
implementation of CERCLA during the 1980's, the current statute
is now getting the job done as intended. This would suggest
that the State prosecutors believe that the liability scheme is
fair--you just testified against that for small business--not
harming innocent parties, not causing unncessary litigation,
and not delaying cleanup, and not inhibiting redevelopment. Is
this the position of the Attorney General--is this the position
of the Attorney's General, that they have--I need to turn the
page--no recommendations for reform?
Mr. Johnson. We do have recommendations for reform and
we've addressed some of the things that we support in our
written testimony and we've, also, attached our resolutions on
the types of reforms that we think are appropriate. We think
that fundamentally, the core liability provisions of CERCLA are
sound and should be supported. We, also, agree with you,
Congressman, that there should be some changes, with respect to
certain aspects of that. We believe that a small business
exemption is appropriate under--with the proper safeguards to
make sure that it isn't abused. The same thing we feel with
respect to municipal solid waste disposal.
We have to be, though, very careful when we change language
of the statute, because too many lawyers will address language
changes and use--and try to use them in a process that
inevitably delays the cleanups and raises transaction costs,
rather than decreases them. And so, we think that we should
continue to rely on many of the administrative reforms that
have been reached in CERCLA. There are certain aspects, of
course, that we'd be happy to work with the committee and make
codified changes in the statute, as well, where there are--is
really a need for that. But, we have to be very careful in that
process.
Mr. Shimkus. You were passed and all the members of the
panel were passed a piece styled, ``Superfund is an unjust
litigation nightmare.`` I'd ask for you to look at that and I
ask that this be placed in the record. Without objection, so
ordered.
[The information follows:]
Superfund Is An Unjust Litigation Nightmare
``Most mayors will tell you that the major impediment in securing
private capital for the clean up and redevelopment of brownfields
is Superfund's liability regime. We believe that . . . [i]t is time
to free innocent parties, both public and private entities, from
Superfund's unfair liability strictures. Parties that had no part
in causing the contamination at individual sites should no longer
be held liable under federal law . . . It is time to create more
certainty for the current owners of contaminated properties--the
hundred of thousands of sites in every place in America that are
likely to be brownfields at some time in the future--by providing
them certainty in their cleanup costs and liability exposure.''
--The Honorable Jim Marshall in testimony before the United States
Senate Environment and Public Works Committee, May 25, 1999
``We have been living under a federal statute and its strict
liability regime--although well-intended and largely aimed at more
contaminated properties posing greater threats to the public--that
has dramatically slowed progress by all parties in coming to terms
with lesser contaminated properties, sites we generally describe as
brownfields . . . It has produced a legacy of inaction by property
owners, be they innocent or responsible parties, which we now
measure in terms of thousands of properties and millions of acres .
. . Rhetoric and political advantage will not cleanup one
brownfield, but bipartisan legislative action will . . .
``[F]inality'' must be provided to prompt current owners to move
forward and cleanup contaminated properties . . . The price of
keeping EPA over-empowered in this area is simply too high.''
--The Honorable Jim Marshall in testimony before the United States
Senate Environment and Public Works Committee, May 25, 1999
``There is no question that voluntary cleanup programs and
brownfields redevelopment are currently hindered by the pervasive
fear of federal liability under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) of 1980. Many
potential developers of brownfields sites have been deterred
because even if a state is completely satisfied that the site has
been properly addressed, and even if the site is not on the NPL,
there is the potential for EPA to take action against the
cooperating party under the CERCLA liability scheme . . . In
considering how to restore brownfields sites to productive use,
please remember the importance of state voluntary cleanup programs
in contributing to the nation's hazardous waste cleanup goals.''
--Tom Curtis, Director of the Natural Resources Group, National
Governor's Association, in testimony before the Senate Committee on
Environment and Public Works, May 25, 1999
``I am here to tell you that, in actuality, the true Brownfields
market has not kept pace with expectations. Why? We have been
asking our clients just that. Our clients' responses are fairly
unanimous. They fear that EPA will ``second guess'' Brownfield
cleanups, and require costly site rework at a later dat to reach a
different site cleanup standard so they ``hold onto'' lightly
contaminated parcels instead of turning them over to beneficial
reuse. Moreover, there remains potential down-stream liability
associated with that reuse which further retards the process. These
concerns result in owners of such properties not undertaking
redevelopment efforts at viable Brownfields sites. While EPA has
indicated a willingness to enter into, on a case-by-case basis,
prospective purchaser agreements at Brownfields sites, the process
to enter into those agreements is quite time consuming and there is
no certainty in the end that EPA will agree to a prospective
purchaser agreement.
``H.R. 2580's provisions in Section 3 provide the finality in
Brownfields decisions are truly needed if this market, and the
actual cleanups, are to accelerate . . . This provision is very
important to spurring increased voluntary cleanup actions at
Brownfields sites across the country and reducing possible risks to
nearby populations that are currently not addressed, expressly
because of the fear of federal liability.''
``The permit waiver for on-site response actions that is contained
in H.R. 2580 would remove the barriers to actual on-site cleanup
and significantly increase the pace of Brownfields cleanups.''
--The Cleanup Contractors, The Environmental Business Action
Coalition in testimony before the Subcommittee on Finance and
Hazardous Materials, August 4, 1999.
``H.R. 2580 succinctly mandates that U.S. EPA must receive a
Governor' concurrence prior to listing a facility on the National
Priorities List. We support this provision as it is clear,
unambiguous and satisfies our goal of clarifying the role of the
federal Superfund program in the future.''
``Both the National Governors' Association and ASTSWMO oppose
provisions which allow the U.S. EPA to review and approve existing,
established State voluntary cleanup programs. ''
``It is our belief that we can no longer afford to foster the
illusion that State authorized cleanups may somehow not be adequate
to satisfy federal requirements. The potential for U.S. EPA
overfile and for third party lawsuits under CERCLA is beginning to
cause many owners of potential Brownfields sites to simply
``mothball'' the properties''
``H.R. 2580 satisfies the goal of clarifying which governmental
entity is an should be responsible for deciding when a cleanup is
complete and when a party is released from liability.''
--The National Governors Association and the Association of State
and Territorial Waste Management Officials in testimony before the
Subcommittee on Finance and Hazardous Materials, August 4, 1999.
``It has been shown that Superfund's liability regime unfairly
threatens innocent parties and too often drives private sector
investors from brownfields to more pristine locations. And, we
recognize that this Act helps fuel a development cycle that imposes
increasing burdens on all of us.''
--The Honorable Marc Morial, Mayor of New Orleans, The Honorable
Michael Turner, Mayor of Dayton, The Honorable Jim Marshall, Mayor
of Macon, testimony before the Subcommittee on Water and the
Environment, May 12, 1999
``Another provision that is important to the nation's Governors
concerns the requirement for a Governor to request the listing of a
site before a state's site may be added to the NPL . . . Because
states are currently overseeing most cleanups, listing a site on
the NPL when the state is prepared to apply its own programs and
authorities is not only wasteful of federal resources, it is very
often counterproductive, resulting in increased delays and greater
costs. The Governors fear a case where there will be ``two
masters'' of the cleanup process . . . To avoid this we advocate
that Governors should be given the statutory right to concur with
the listing of any new NPL sites in their states.''
--Tom Curtis, Director of the Natural Resources Group, National
Governor's Association, in testimony before the Senate Committee on
Environment and Public Works, May 25, 1999
``One common incentive provided by these programs is liability
relief. Typically, the state will provide some form of liability
relief once it has approved a cleanup. In Ohio, relief comes in the
form of a ``No Further Action'' letter from the state EPA.
Unfortunately, there is no guarantee that the federal EPA will not
assert authority at a future date and require additional cleanup.
Without the certainty of knowing that they are protected from
federal as well as state liability, property owners and developers
are very reluctant to undertake development of a site which is or
might be contaminated. Let me illustrate with an example. I
recently had a contract as listing agent to sell a large warehouse
property. The property was adjacent to a government-owned landfill.
There were concerns about contamination on the property due to
migration of heavy metals from the landfill. If we only had to
comply with Ohio law, the government entities that owned the
landfill would have removed the contamination, and the property
would have been sold in a reasonable time. However, because of
uncertainty over federal liability, the lender and the purchaser
were reluctant to go forward. As a result, it took five years to
close the deal, and only after we found a new buyer and a new
lender willing to face the risk of future liability.''
--National Association of Realtors, May 12, 1999
``The Superfund liability scheme has clearly exacerbated the
difficulty of bringing brownfields back to productive use.
Moreover, that liability scheme itself is responsible for the
creation of many brownfields. This system makes the owners of
contaminated properties liable for millions of dollars in cleanup
costs even if they had nothing to do with contaminating the site
and they purchased the property decades after the contamination
occurred. It exposes landowners not only to Superfund actions by
EPA, but also to lawsuits decades in the future by as-yet
unanticipated parties who incur costs to clean up the property.
Concerned about this ``trailing'' liability, owners of the
properties that may be contaminated hold these properties back from
the market. This practice has been referred to as ``mothballing,''
bringing to mind the useless hulks of rusting ships set aside by
the U.S. Navy after World War II. When properties which carry the
stigma of contamination become available for sale, most developers
avoid them out of concern for exposure to endless uncertainty and
undue financial liability.''
--Barry J. Trilling, National Association of Industrial and Office
Properties, testimony before the Subcommittee on Water Resources
and Environment, May 12, 1999
``The example of states like Pennsylvania, Michigan, Indiana, and
others with voluntary cleanup programs support this view. In
Pennsylvania, for example, NAIOP actively participated in the
legislative process that resulted in Act 2, the Land Recycling and
Environmental Remediation Standards Act. Under that statute,
parties may choose to clean up contaminated properties to one or
more of three different levels, after which they receive a release
from liability under state environmental laws. The remediation
standards of Act 2 apply both to voluntary cleanups and mandatory
remedial actions under the state's version of Superfund. The
Pennsylvania statute has been adopted as model legislation by the
American Legislative Exchange Council, an organization represented
by legislators from all 50 states. Under Pennsylvania's program, in
effect since July, 1995, 267 sites have already been cleaned up and
nearly 500 sites are in the process of remediation. State voluntary
remediation and revitalization efforts, such as Pennsylvania's, are
significant steps forward, but these state programs do not protect
our members from liabilities arising under the federal Superfund
statute.
--Barry J. Trilling, National Association of Industrial and Office
Properties, testimony before the Subcommittee on Water Resources
and Environment, May 12, 1999
``We know that Superfund's liability regime too often drives
private sector investors from brownfields to more pristine
locations. We know these rules punish innocent parties, fueling a
development cycle that is unsustainable. We know that current law
must be reformed to undo the bias toward new land resources over
recycling land that is already urbanized or developed. Mitigating
the effects of this nearly twenty-year Superfund policy will
require actions on several fronts.
``We have learned that liability under Superfund is their dominant
concern. Despite progress in securing ``comfort letters'' at many
sites, lender liability reforms and growing confidence in state
program efforts, there is real anxiety, and we would wish
otherwise, among bankers and other lenders on these issues. The
specter of Superfund liability severely limits their ability to
increase the flow of private capital into these projects.''
``We also strongly support liability reforms contained in H.R. 1300
and H.R. 2580 to address the many circumstances whereby cities and
other local governments have acquired brownfield properties in the
past. Under these provisions, cities and other public agencies are
rightly afforded innocent party relief in the performance of local
government functions.''
``We hope that the legislation that is adopted by this Committee,
as provided in H.R. 2580, will encourage states to use these funds
to place more priority on efforts to bolster state programs in
support of brownfield cleanups.''
``Without this certainty on state authority, we can't hope ever to
provide the necessary assurances sought by private investors in
brownfield sites, let alone secure final decisions on the hundreds
of thousands of brownfields sites we are seeking to clean up and
redevelop. Mr. Chairman, we also want to indicate our interest in
seeing provisions that would help accomplish more cooperation and
integration of applicable federal laws and standards. One of the
areas that H.R. 1300 does not address is the applicability of RCRA
and LUST specifically at brownfield sites. Mayors have been very
consistent in urging more attention in federal policies to a ``one-
stop'' brownfields regulatory program at the state level, where
states, which are vested with delegated authority, can provide more
coordinated and integrated programs. Such an approach would respond
to the realities of the contaminants and types of problems that
localities encounter at these sites.''
``I would note that H.R. 2580 provides authority for RCRA waivers
to allow states to integrate this law's permit requirements with
cleanups of brownfields. I understand that this provision does not
diminish or alter RCRA requirements, but is intended to give states
some flexibility in delivering a more responsive and coordinated
regulatory program in addressing brownfields. This or some variant
of this provision would be very helpful to those of us at the local
level who often find ourselves confronting increased complexity at
specific sites as we work to return them to productive use.''
--The Honorable Paul Helmke, Mayor of Fort Wayne, IN, on behalf of
the U.S. Conference of Mayors, testimony before the Subcommittee on
Finance and Hazardous Materials, August 4, 1999
``Legal authority for qualified states to play the primary role in
liability clarification is critical to the effective redevelopment
of local brownfield sites. A state lead will increase local
flexibility and provide confidence to developers, lenders,
prospective purchasers and other parties that brownfield sites can
be revitalized without the specter of Superfund liability or the
involvement of federal enforcement personnel. Parties developing
brownfields want to know that the state can provide the last word
on liability, and that there will be only one ``policeman,''
barring exceptional circumstances.''
``Therefore, in delegating brownfields authority for non-NPL
caliber sites to the states, NALGEP proposes that: EPA should
provide that it will not plan or anticipate further action at any
site unless, at a particular site, there is: (1) an imminent and
substantial threat to public health or environment; and (2) either
the state response is not adequate or the state requests U.S. EPA
assistance.''
--Donald J. Stypula, Manager, Environmental Affairs, testimony
before the Subcommittee on Finance and Hazardous Materials, August
4, 1999
`` . . . We all know it doesn't work--the Superfund has been a
disaster. All the money goes to lawyers and none of the money goes
to clean up the problem it was designed to cleanup.''
--Clinton speech to business leaders at the White House, February
11, 1993
``I'd like to use that Superfund to clean up pollution and not just
pay the lawyers.''
--President Clinton, State of the Union Address, Feb. 17, 1993
``On a site by site basis, it is clear that liability negotiations
consume a lot of time and delay completion of the site.''
--EPA Inspector General in testimony before House Subcommittee on
Government Reform and Oversight, May 1996
`` For nonfederal sites, the time required to complete cleanups
increased from 2.4 years in 1986 to 10.6 years in 1996 . . . EPA
officials also said that the effort to find the parties . . . and
to reach cleanup settlements with them can increase cleanup
times.''
--Government Accounting Office Report, Superfund, Times to Complete
the Assessment and Cleanup of Hazardous Waste Sites, March 1997.
``Superfund has been a bonanza for lawyers and consultants . . .
After over a decade of delay, cleanup is only now beginning at the
McColl site in Fullerton . . . cleanup was continually put off as
various defendants wrangled in court over how much they would
pay''.
--James M. Strock, California Secretary for Environmental
Protection, 1994.
``Hastings . . . has already spent roughly $1.1 million under
Superfund, yet the cleanup is far from completed. More that 90
percent of the money has been spent on consultants and legal
fees.''
--Governor Ben Nelson, Nebraska Journal March 1, 1996.
``[Superfund] has failed the efficiency test: of the $13 billion
spend by the governments and companies, one-fourth has gone to what
are euphemistically known as ``transaction costs''--fees to lawyers
and consultants, many of them former Federal officials who spun
through Washington's revolving door to trade their Superfund
expertise for private gain.''
--New York Times Editorial, February 7, 1994
``[Superfund] is generating intolerable injustices and needs to be
fixed . . . Many of these cases are grotesquely unfair, and all
invite furious litigation as small companies, big ones, banks,
mortgages holders, local governments and insurers all go after each
other . . . That is why a high proportion of the money spent so far
has gone not into clean-ups but into lawyer's fees . . .''
--Washington Post Editorial September 2, 1993
``[Superfund] has created a legal swamp, enriching lawyers while
accomplishing precious little cleanup.''
--Seattle Times Editorial Board, February 23, 1995
``Just about anyone who ever has been involved with a site can be
held liable. That encourages the parties to sue each other
endlessly to determine who pays.''
--Chicago Tribune Editorial, February 14, 1994
`` . . . Superfund is absurdly expensive, hideously complex, and
sometimes patently unfair. As a result, it invites litigation the
way dung attracts flies: not by seeking but just by being''.
--USA Today Editorial, February 2, 1994
``Far too much money is being spent on lawyers and not nearly
enough on cleanup. Our primary concern is that tens of thousands of
abandoned properties in urban areas lie contaminated and
unproductive because developers and local businesses fear getting
pulled into Superfund's far reaching liability system. Congress
must act this year to fundamentally reform the failed liability
system . . . Without these changes these properties will lie
dormant and critical economic revitalization opportunities will be
lost for cities nationwide.''
--Letter from Robert Ingram, President of the National Conference
of Black Mayors to Speaker Gingrich, October 1995
``Eliminate retroactive and strict liability prior to January 1,
1987 to prohibit liability for conduct that was not negligent,
illegal or in violation of regulations or permits at the time.''
--Recommendation of 1995 White House Conference on Small Business
`` . . . [A]ny meaningful reform of the liability scheme must
include elimination of retroactive liability for waste disposal
prior to January 1, 1987.''
--Acting Chief Counsel for Advocacy, U.S. Small Business
Administration, Letter to Leon Panetta, Director, Office of
Management and Budget, January 25, 1994.
``The current Superfund liability scheme of strict, joint and
several and retroactive liability is grossly unfair. We are
convinced that this must be rectified in the reauthorization of
Superfund. In reality, the current system is not a ``polluter pay''
system but instead a ``deep pocket pay'' system. The scheme imposes
significant impediments to redevelop contaminated sites and only
serves to dry up transaction costs at the expense of getting
cleanups completed.''
--Charles McIntosh, Office of the Governor, State of Michigan in
testimony before the House Commerce Committee, June 22, 1995.
``The ABA position holds that CERCLA needs substantial revision as
Congress revisits this year. As presently written, interpreted, and
enforced, it results in massive. wasteful, and unproductive
litigation. In many instances, it has also resulted in the
imposition of liability grossly disproportionate to the conduct
involved, perverting rather than implementing the polluters should
pay principle. In many situations, it has not been cost-effective,
nor have the social benefits been equal to the costs imposed.
Finally, in the over fourteen years since its enactment, relatively
few sites have been cleaned up . . .
Government should generally avoid passing laws which provide for
the imposition of retroactive liability: that legislation which
creates a new obligation, imposes a new duty, or attaches a new
disability for past activities. Retroactive criminal legislation is
barred by our Constitution. Retroactive civil legislation is
contrary to the common law, and unknown in the civil law. It is
unfair and presents an additional major risk to business decisions,
because present activities which are legal may have uncertain
future consequences due to after the fact enactments of
unanticipated legal schemes. This added risk tends to discourage
new investments.''
--Statement of the American Bar Association presented to the House
Commerce Committee June 22, 1995.
``While massive, time-consuming litigation may perhaps provide
short-term pecuniary benefits to some in the legal profession, the
American Bar Association and the attorneys it represents have no
desire to stand by idly and profit from other people's misery.''
--May 21, 1997 letter from Robert D. Evans, Director of
Governmental Affairs, American Bar Association to Rep. Sherwood
Boehlert
``A vote for the Markey Amendment is a vote against Superfund
reform and in favor of the current, flawed Superfund Program . . .
Many innocent small-business owners are unjustly trapped in the
Superfund litigation nightmare even though they followed the law
and legally disposed of their wastes . . . No small business can
afford to stay in business when the average cleanup costs are $30
million . . . [T]he Markey amendment would prevent any possibility
of Superfund reform for Fiscal Year 1997 . . . Supporters of the
amendment are forgetting about the small businesses and
municipalities who are stuck in Superfund litigation . . . This is
a key vote for small businesses.''
``Adoption of the Markey amendment would condemn the Superfund
program to continue as a wasteful and failed environmental
program--something this country neither wants, nor can afford . . .
A vote for this amendment is a vote for the status quo, and against
the interest of small business and other innocent parties who have
been caught in the Superfund litigation lottery. After 15 years,
it's time for a real change that will get small business and other
innocent parties completely out of Superfund. Hazardous waste sites
can--and will--be cleaned up faster under the GOP reform plan.''
--Statement of Jack Farris, President of the National Federation of
Independent Businesses, the nation's largest small-business
advocacy group in a statement dated June 25, 1996.
``While it is no doubt convenient for the Government to assign
liability to all parties that have contributed to a Superfund site
irrespective of whether they were in compliance with existing laws,
doing so violates common standards of fairness while doing nothing
to deter future undesirable behavior. In some cases, parties held
liable were not only in compliance with laws existing at the time
of their action, but were in fact following the State government's
explicit directive to deposit the waste at the site.''
--from the text of the Treasury Department proposal on Superfund,
released on August 23, 1993
``As you will recall, this has been a matter which the Oversight
Subcommittee when I was the chairman of it, complained on many
occasions. We had a number of hearings about the inadequacies of
the administration and about the basic failures and the structural
failures which were built into Superfund law which defied even the
best of administrations. I believe that these are matters which
have to be corrected because it is intolerable that we would spend
so much money on litigation, so little money on cleanup. So much
time has been dissipated and wasted, and so little accomplishment
generally can be observed in what we have done.''
--Oral Statement of the Honorable John Dingell, Ranking Member,
Commerce Committee, during a hearing of the Commerce,
Transportation and Hazardous Materials Subcommittee, June 22, 1995
``It is easy to criticize the current liability scheme and the way
that it has been administered, and there has certainly been no
shortage of people who have been willing to do so. I agree with
many of those criticisms. We spend far too much money on litigation
and not enough on cleanups . . . there is no question though, that
the liability scheme is unfair, litigious and a policy disaster''.
--Opening Statement, Chairman Al Swift, Hearing before the
Transportation and Hazardous Materials Subcommittee, February 19,
1994.
``[W]e believe legislative changes are necessary so Superfund can
better protect human health and the environment and operate in a
more cost-efficient manner. Each of us has heard concerns from our
constituents that the pace of cleanup is too slow; that more money
is being spent on litigation than on cleanup activities; that
citizens are not properly involved in cleanup decisions; and that
program costs are unnecessarily high.''
--Letter from Senators Robert Byrd and John Rockefeller to Senator
John Chafee, Chairman Senate Environment and Public Works
Committee, dated June 25, 1997.
``A system that results in 50% of the costs going to lawyers--
although I am a lawyer--consultants, and transactional costs is a
system that begs for, we believe reform, fundamental reform, so
that more of the money goes to site remediation.''
--Statement of Michael Finnegan, Counsel to the Governor, State of
New York, before the Subcommittee on Finance and Hazardous
Materials, March 7, 1997.
``One site in particular has escaped the effectiveness of CERCLA
simply because there are 18 or more PRPs and CERCLA clearly
provides the right to litigate. The litigation is not aimed at the
regulatory agencies but instead at the PRPs themselves.
With over 20 million dollars spent on characterizing Fields Brook
at least half has been devoted to suing non-participating PRPs by
participating PRPs; PRPs against other PRPs to determine who put
how much into the Brook; Who's material was more toxic and should
they pay more than less toxic polluters: litigation against
insurance companies to pay for the disposed materials of PRPs they
insured and on and on.''
--Statement of Leonard E. Eames, Owner Operator Fish City Marina,
Ashtabula, Ohio before a Hearing of the Subcommittee on Finance and
Hazardous Materials, February 14, 1997.
``The Council is cognizant of the negative effect [Superfund] has
had upon the reuse and redevelopment of real estate in Ohio.
CERCLA's liability scheme, coupled with the staggering cost of
conducting and environmental cleanup in accordance with Superfund
program requirements and ill-defined cleanup standards has resulted
in a widespread reluctance to use or acquire ``so-called''
contaminated property. Manufacturers are reluctant to expand
operations into existing commercial and industrial properties,
developers are reluctant to acquire existing commercial and
industrial properties for redevelopment, lenders are reluctant to
loan on such properties and even public or non-profit entities shun
such properties . . .
The Ohio legislation establishes a liability scheme which exempts
those who neither caused nor contributed in any material respect to
the release of hazardous substances from liability for the costs of
investigation and cleanup.''
--Statement of James D. Donohue, Ohio Steel Industry Advisory
Council, before a Hearing of the Subcommittee on Finance and
Hazardous Materials, February 14, 1997.
`` . . . Superfund is unduly harsh on small businesses. Under this
liability scheme, any contributor to a site is potentially
responsible for the entire cost of a site, even if the volume of
waste they contributed to the site was minimal. Under retroactive
liability, small businesses can be held liable for clean-ups that
resulted from alleged waste management activities occurring years
or even decades ago. It need not be demonstrated that a small
business was negligent or at fault to establish liability.
Like many of my fellow dealers in Ohio and across the nation, I
sent my wastes to recycling facilities. The solvents in question
were stored in compliance with all applicable regulations in effect
at the time, not mixed with other chemicals, and were transported
by licensed haulers to licensed facilities which were designed to
recycle a resource for reuse . . .
My story is just one of many businesses that have been
unjustifiably burdened by an unfair system. I hope my statement
will give you and your colleagues a clearer picture of the
devastation wreaked on my dealership and America's small businesses
community by Superfund . . .''
--Statement of Richard Smith, President, Bob Daniels Buick Co.,
Columbus, Ohio, before a Hearing of the Subcommittee on Finance and
Hazardous Materials, February 14, 1997.
``The uncertainties, disagreements, and litigation produced by
these aspects of joint and several liability have imposed delay,
profound resentment, and high transaction costs on the basic
process of achieving cleanups . . . [t]he basic mechanism for
funding Superfund cleanups is fundamentally unfair and extremely
inefficient. This problem cannot be solved by EPA's administrative
reforms . . .''
--Statement of Michael W. Stienberg, on behalf of the Superfund
Settlements Project in a Hearing before the Subcommittee on Water
Resources and Environment, April 10, 1997.
``Superfund's liability provisions make brownfields more difficult
to redevelop, in part, because of the unwillingness of lenders,
developers, and property owners to invest in a redevelopment
project that could leave them liable for cleanup costs.''
--United States General Accounting Office Report to Congressional
Requesters, RCED-96-125, Barriers to Brownfield Redevelopment, June
1996, Page 2.
``Perhaps the greatest barrier to industrial site reuse, however,
is the 1980 Comprehensive Environmental, Response, Compensation,
and Liability Act--commonly known as Superfund.''
--``Restoring Contaminated Industrial Sites'' by Charles Bartsch
and Richard Munson, Issues in Science and Technology, Spring 1994
Issue.
``Superfund laws actually reduce the reuse, supply of, and demand
for brownfield properties''
--Unlocking the Brownfields: Overcoming Superfund Barriers to
Redevelopment, by Ross Macfarlane, Jennifer Belk and J. Alan Clark,
a Report Done By the Law Firm of Preston Gates & Ellis, Seattle,
Washington.
``The Superfund liability system needs to be reformed to reduce the
burden on small businesses and to ensure that more money goes to
clean-up not lawyers . . .''
--Statement of Carol Browner, Administrator, U.S. EPA, before of
hearing of the Subcommittee on Commerce, Trade, and Hazardous
Materials on March 16, 1995.
``We are all frustrated by the number of lawyers who are now
involved in Superfund. We want the lawyers out.''
--Statement of Carol Browner, Administrator, U.S. EPA, before of
hearing of the Subcommittee on Commerce, Trade, and Hazardous
Materials on March 16, 1995.
`` . . . We are paying a high price in terms of administrative and
cleanup costs incurred by EPA, and a high price in terms of the
transaction and cleanup costs incurred by companies and State and
local governments potentially liable for contamination. We are
paying a high price in terms of the basic fairness--or unfairness--
of the program. Finally, we are paying a high price in terms of the
anxiety and frustration of local communities concerned about delays
in cleaning up contaminated sites . . . Additional time is spent
negotiating and litigating over the responsibility for, and the
cost and extent of cleanup. These delays, even if sometimes
explainable, can add significantly to the total costs of cleanup.''
--Statement of Carol Browner, Administrator, U.S. EPA, before of
hearing of the Subcommittee on Transportation and Hazardous
Materials on May 13, 1993.
``One of the most significant delays that occurs in the Superfund
process is the allocation of liability among responsible parties.''
--Statement of Carol Browner, Administrator, U.S. EPA, before of
hearing of the Subcommittee on Transportation and Hazardous
Materials on May 13, 1993.
``I think we all agree that the transaction cost portion is one due
very serious evaluation and consideration. Again, I do not think we
could have predicted 12 years ago that the result of the law would
be that responsible parties suing responsible parties--insurance
companies, I mean, the level of legal actions that would take
place. We need to do something to address it.''
--Statement of Carol Browner, Administrator, U.S. EPA, before of
hearing of the Subcommittee on Transportation and Hazardous
Materials on May 13, 1993.
`` . . . [A] system which puts a premium on assessing liability
invites legal warfare, a result which is fundamentally at odds with
the goals of the statute . . . [I]t appears as if many, if not
most, of the 20,000 PRP's named so far are not the midnight dumpers
Congress has in mind in 1980. Instead they are thousands of small-
and medium-sized businesses, municipalities, individuals,
hospitals, and others who never broke any laws, who sent their
waste where they were told--often to government-permitted
facilities--and who did not and do not fit the popular definition
of irresponsible polluters . . . arly, the Superfund status quo is
unacceptable. We cannot tolerate a program which generates so few
cleanups, a program which encourages the responsible Agency, EPA to
concoct all manner of public relations schemes to inflate its
accomplishment, and a program which is disappointing to thousands
of citizens who live near Superfund sites.''
--Extension of Remarks of Congressman Mike Synar, October 9, 1992.
``When examining the few sites that have been cleaned up, the costs
associated with such cleanups, coupled with the staggering amount
of money that has gone directly to lawyers' coffers, its easy to
see that the fault and liability system currently in Superfund is
flawed. Congress may have envisioned a system that would only catch
the few, large, intentional or irresponsible polluters, however,
the reality has been very different. There have been over 100,000
different potentially responsible parties (PRPs) identified at
Superfund sites . . . The effect of the current liability system is
permeating all segments of the small business community. No issue
in this very complex public policy debate will have a more direct
impact on the present and future economic viability of many small
businesses . . . There isn't one segment whether it be a retail
store, a professional service business, or a construction business
that has not been touched.''
--Statement for the Record by National Federation of Independent
Business before the Senate Subcommittee on Superfund, Waste
Control, & Risk Assessment on March 5, 1997.
`` . . . EPA, under the current liability provisions, is now going
after hundreds of small service stations in my district who thought
that they were doing the right thing . . . This despite the fact
they had no knowledge of nor control over the facility's actions .
. . In fact, the EPA has taken unusual steps to `verify' which
services stations sent used oil to the Peak Oil site and how much
they sent. The de minimis parties involved in the Peak Oil site
were identified by a truck driver who worked for Peak Oil from 1955
until 1965 hauling used oil from various locations throughout
Florida . . . With EPA officials in a car, they drove around
Florida and he pointed to all the businesses from which he claimed
to remember picking up oil . . . Nevertheless, Yarborough Tire
Service has had to hire a lawyer to challenge the EPA `evidence'.''
--Congressman Mark Foley in testimony before the Subcommittee on
Finance and Hazardous Materials on September 4, 1997.
``[S]ound science must have a seat at the table. In determining the
appropriate remediation option, science must play a role in
distinguishing realistic scenarios under which public health and
safety would be at risk. Remediating a site under outlandish
assumptions not only creates fear within the community, but ties up
additional resources and prolongs the final clean-up.''
--Congressman John E. Peterson in testimony before the Subcommittee
on Finance and Hazardous Materials on September 4, 1997.
``Little did the community know then, that EPA's decision to
declare the plant a Superfund site was not the beginning, but the
end of efforts to clean up the plant. It was as if EPA had signed
the death warrant for the entire community . . . And they wait to
this very day. While in the middle of town there sits the plant--
almost 1 million square feed of prime industrial real estate . . .
Empty of jobs, empty of taxes for the local schools, and empty of
hope. Adding insult to injury, local economic development officials
tell me that they have had to refuse several offers to resume
industrial production at the site . . . And all of this because the
Superfund program--while admittedly well intentioned--has became an
almost impenetrable morass of red tape, liability litigation and
expense . . . No community should have to suffer through what has
happened to us.''
--Congressman Phil English in testimony before the Subcommittee on
Finance and Hazardous Materials on September 4, 1997.
``Each year since I have been elected to Congress, I have visited
each site on what I call my annual Superfund tour. I am accompanied
by employees of the EPA Superfund Region 2 division, and I am
joined in many cases at each site by local elected officials, town
administrators, and concerned members of the community. At each
site, the EPA site manager provides a status update on the site to
me and community representatives and, unfortunately, the updates do
not seem to vary much from year to year . . . In the 17 year
history of the program, only one of my 13 sites has been listed in
the ``Construction Completed'' category and none have been deleted
. . .''
--Congressman Rodney Frelinghuysen testimony before the
Subcommittee on Finance and Hazardous Materials on September 4,
1997.
``In New Jersey alone, 57 school districts have been assessed for
liability under Superfund . . . In one case in New Jersey,
involving the Gloucester Environmental Management Services Landfill
(GEMS), 53 school boards were assessed $15,000 each, not including
additional money associated with legal costs. As a result of the
tangled Superfund liability web, these precious dollars in a
school's budget were diverted away from educating children and into
the Superfund coffers.''
--Congressman Rodney Frelinghuysen in testimony before the
Subcommittee on Finance and Hazardous Materials on September 4,
1997.
``In drafting this statement, I came upon the Environmental
Protection Agency's Web Site. Curious, I decided to see if it
mentioned Operating Industries Incorporated (OII), a Superfund site
in my district that has been a red tape, bureaucratic nightmare for
ten years. Imagine my surprise to not only see it mentioned, but to
find it listed under the heading ``Superfund Success Stories''.
As you can see [EPA] lauds the Agency's settlement with the
responsible parties, the agency's quick action in formulating a
plan for the construction of two cleanup facilities, and the
Agency's close working relationship with the surrounding community.
I don't know where they EPA got its information, but it did not
talk to me, or the city manager or council members of Monterey
Park, where OII is located, or to the residents of the city, who
live with this toxic eyesore day in and day out . . . [T]he EPA
continues to drag its feet and throw up every obstacle possible to
prevent Monterey Park from moving forward with this project . . . I
for one, fail to see how preventing a community from cleaning up
and developing its land can be considered productive. I fail to see
how denying the community's request time and time again, and
preventing it from turning a blight into a benefit, can be
considered community cooperation.
I can't emphasize enough how frustrating it has been to deal with
such bureaucratic arrogance. The city of Monterey Park has bent
over backwards in its attempt to work with the EPA to achieve the
release of this land, which is actually a prime candidate for the
much-touted brownfield program. As a matter of fact, several local
developers have expressed interest in the land once minor cleanup
is completed. But instead of working with the community, the EPA
has fought it at every turn.''
--Congressman Matthew G. Martinez in testimony before the
Subcommittee on Finance and Hazardous Materials on September 4,
1997.
``[T]he Superfund program has become a tool to punish companies and
individuals, many of whose actions were not negligent, illegal or
in violation of any regulations at the time, rather than focusing
on cleaning up the nation's worst toxic waste sites--and the
biggest losers have been the American public.''
--Congressman Chris John in testimony before the Subcommittee on
Finance and Hazardous Materials on September 4, 1997.
``Liability reform comes closer to a real concept of ``polluter
pays'' by seeking to hold liable those parties which owned and
controlled sites and parties which violated disposal laws, rather
than pursuing everyone connect to the site. The goal is to secure
who is truly responsible for the pollution and hold them
accountable while reducing the number of parties at sites to a
relatively small number, each with clear liability.''
--Superfund Reform 105th Congress Goals for Progress presented in
testimony by Congressman Robert Condit before the Subcommittee on
Finance and Hazardous Materials on September 4, 1997.
``[B]usinesses paid a premium fee for a private company to manage
their waste. The management company violated the law, not the small
business owners. Yet the small businesses apparently are being
forced to pay for sins they did not commit. They made a good faith
contract and the Superfund law as applied violates it. Congress
must fix these glaring injustices.''
--Statement of Congress Tim Roemer before a hearing of the
Commerce, Transportation and Hazardous Materials Subcommittee,
October 18, 1995.
``I have already spent over $30,000 in my defense. I don't
understand, why I should be liable for activities that took place
before I bought the business? Why should the landlord be held
liable for what he had no control over? Why should businessmen like
myself who have revitalized shops in poor neighborhoods be
penalized for the good we are trying to do? . . . [T]he salinity of
the underground water in that area is so high that since the time
of Genesis we have already known that we cannot ever use it . . .
Ladies and gentleman, this old man is in jeopardy just because of
the Superfund. It has strict retroactive liability, it sets
unrealistic and unwarranted cleanup standards, and it allows for
costly private lawsuits against innocent, hard-working people like
myself. Please fix this broken law.''
--Statement of Martin Yee, White Spur Cleaners before the Commerce,
Transportation, and Hazardous Materials Subcommittee June 22, 1995.
``No bank will finance my growth because retroactive liability has
destroyed my property value, which small businesses use as a source
of growth capitol . . . There is little doubt left that retroactive
liability is unfair . . . Still, there are some left in government
who maintain that retroactive liability is needed . . . It is as
though any means are justified in pursuit of an end . . .''
--Statement of Richard Leavitt, President and Owner, Chelsea Clock
Company, before the Commerce, Transportation, and Hazardous
Materials Subcommittee, June 22, 1995.
``Arrowhead Refinery Superfund site is a classic example of the
best intentions becoming the worst nightmare . . . The company went
out of business some time in the late 1960's . . . From what I
understand there were not many records left over from Arrowhead so
the federal and state agencies looking into the site interviewed a
former driver, now up in years, as to where and when he went to
pick up waste oil . . . The federal agency in Chicago and Pollution
Control Agency in Minnesota were both involved . . . They both
asked for the same documentation. We weren't sure who was
controlling the process. Because I had been active in politics I
would get calls from various litigants complaining or, in some
cases, almost crying wondering what was going to happen . . . I
could go on and on about what transpired during the eight years of
litigation, hearings and depositions. The point is that there is no
reason for something like this to cause eight years of stress on
people that have been good citizens and good business people . . .
This Act reversed our whole tradition of innocent until proven
guilty to you're guilty prove otherwise''
--Statement of Kelvin Hersted, President/Treasurer, United Truck
Body, before the Commerce, Transportation, and Hazardous Materials
Subcommittee, March 16, 1995.
``I am a fourth party defendant in the Keystone Superfund lawsuit.
I have been sued by my friends and neighbors. Why did they do this?
Upon the advice of attorneys bringing others into the suit, this
was the only way they could lessen the amount of their settlements
. . . I am being sued for $76, 253.71. That is a lot of money to
me, more than I am eager to pay myself a year. That does not
include my ever increasing legal fees. This legal action has
angered, depressed and confused me. After paying thousands of
dollars in insurance premiums, my company will not defend me or
assist me without cost . . . I obeyed State, local, and Federal
regulations. Being forced to defend myself is a travesty of
justice. Being forced to pay this settlement would be devastating
to my business. Has anyone considered the effect on my employees
and their families. Has anyone considered the effect on our
community? . . . What is the Superfund law accomplishing? The
attorneys are making a fortune, small businesses are unfairly
burdened, and the contamination still isn't cleaned up.''
--Statement of Barbara Williams, Owner, Sunnyray Restaurant before
the Committee on Environment and Public Works, April 23, 1996.
``One component of CERCLA that exacerbates this problem of
inordinately high litigation transaction costs is the statute's
imposition of retroactive liability coupled with absolutely no time
limit on how far back in history a party's conduct will be subject
to scrutiny. As a result, it is common for potentially responsible
parties who may have had some relationship to the property at
issue, even those whose relationship to the property ended during
the last century . . . UGI and other companies mired in costly
claims over liability at ancient sites where their activities
ceased many years ago are expending a substantial amount of time,
dollars and resources litigating over documents from the 19th
Century gas light era. With the clean up costs as enormous as they
are, companies if permitted will go back as far in time as they are
allowed in order to drag in one more potentially responsible party
. . . Indeed, UGI has retained an entirely new kind of Superfund-
spawned specialist, known as ``insurance archaeologist'' who
attempts to identify and evaluate the import of ancient insurance
documents. Thus, one more company, this time an insurance company,
is drawn into the retroactive liability morass of the swamp and any
claim against the insurance company will likely involve additional
litigation.''
--Statement for the Hearing Record, Richard Bunn, UGI Utilities,
Subcommittee on Water Resources and Environment, June 15, 1995.
``Now, almost 15 years later, the matter is about to be fully and
finally settled. In the interim, EPA spent approximately $1,300,000
investigating the site. Additionally, our company spent almost
$500,000 in attorney's fees and consulting fees over the period.
And for what? The actual cleanup of the site, which EPA ordered and
oversaw, cost approximately $38,000 . . . It took over 15 years and
cost our company nearly $2 million in professional fees, lost
profits, and environmental studies, all for the sake of a $38,000,
2-day cleanup, which resulted in three truck-loads of nonhazardous
dirt being trucked to Oklahoma.''
--Statement of Michael Mallen, Southern Foundary Supply Company,
Subcommittee on Water Resources and Environment, June 15, 1995.
``Construction contractors are being held liable for cleanup costs
at landfills for construction debris disposed of there as long as
thirty years ago. The contractors did nothing illegal or
irresponsible in disposing the wastes and it is questionable if the
wastes could be found hazardous even by today's strict standards.''
--Statement for the Record of Stephen E. Sandherr, Associated
General Contractors, before the Subcommittee on Commerce, Trade and
Hazardous Materials, June 22, 1995.
``We were told that unless we had documentation from the 1960's to
prove that the drums were triple rinsed, the fact that they were
empty did not matter . . . We were told by Mr. Caplan that if we
were not part of the PRP group that settled with EPA, we were
subject to paying triple damages if the EPA or the official PRP
group came after us for reimbursement . . .
In talking to some of the many lawyers that were at the meeting, we
were told that we better join, as the EPA basically had unlimited
power to do whatever they wanted even if we were innocent of any
wrongdoing. At the time we were so intimidated that we paid the
$25,000 to stay in the paper loop so that we could keep abreast of
what was to transpire . . . It looks as though Stamas would end out
between $175,000 to $450,000 if we are coerced into going along
with what the EPA expects.
Gentlemen, in all fairness, how can a small company like Stamas be
held responsible for actions taken 30 years ago that were at the
time legal, particularly when this action is by another company . .
. The requirement to triple wash an empty drum and to be
responsible for the life of that drum was not required by any
regulation at the time . . . To pay out the kind of money the EPA
expects, we might as well close our doors and lay off the 75
employees that we currently employ.''
--Statement of J.L. ``Jim'' Williams, Controller, Stamas Yacht,
Inc., before the Subcommittee on Commerce, Trade and Hazardous
Materials, June 22, 1995.
``In 1979, Robert Cox, Sr. then president of the tiny Gilbert-
Spruance Company in Philadelphia, Pennsylvania, testified as
Congress considered passing the initial Superfund law. He told the
Senate Environment and Public Works Committee that he did not want
his legacy to be bankruptcy for his son, Bob Cox, Jr. due to the
open-ended nature of the Superfund liability system . . .
Bob Cox, Jr., was forced to declare bankruptcy a decade later due
to protracted Kafka-like liability litigation under Superfund and
similar state statutes. Many NPCA members have been caught up in
the web of Superfund litigation and have experienced great
frustration and expense in attempting to find workable and
equitable solutions to the cases in which they have become
involved.
In 1992, NPCA conducted a survey of its members and found that, of
the $600 million extended by the industry on Superfund-related
matters, only $200 million went to cleanups while $400 million was
consumed in transaction costs''
--Statement of Richard Bliss, on Behalf of National Paint and
Coatings Association, before the Subcommittee on Commerce, Trade
and Hazardous Materials, June 22, 1995.
`` . . . Similac, a substitute for breast milk, in fact, had copper
content that was required by FDA that far exceeded the copper
content that was the basis for the liability in our waste . . . we
got two major circuits in this country to admit that . . . in
Superfund, everything in the universe is a hazardous substance
including federally approved drinking water . . . [F]acts are
irrelevant, because if everything in the universe is a hazardous
substance, we don't have to concern ourselves with the facts as to
what it is . . . [C]ausation was not a part of the statute. That is
the present state of the law that everyone thinks is too expensive
and too slow, and yet is a plaintiff's lawyers dream; you have
nothing to prove.''
--Statement of Lawrence A. Salibra, Alcan Aluminum Co., before the
Subcommittee on Commerce, Trade and Hazardous Materials, June 22,
1995.
``Too many of us have had the unpleasant experience of dealing with
federal regulators who impose arbitrary and unreasonable
requirements upon property owners. Too many of us have had the
unpleasant experience of not being able to resolve these issues
after years of involvement. Too many of us have seen small business
owners be pushed out of business after having their life savings
depleted due to a system that produces little benefit for the
public.
In my district, for example, I have been working with several auto
dealers who have been sued by the U.S. Environmental Protection
Agency for having deposited oil at a Purity Oil Sales disposal site
in Fresno, California between 1930-1970's. Since the oil company's
records were burned in a fire sometime in the late 1960's, the only
evidence that the EPA has on these auto dealers is the vague
recollection of a Purity Oil Sales driver that ``thinks'' he picked
up oil from auto dealers. We are now six years into the process.
190 defendants have been sued and spent over $200,000 has been
spent for attorneys fees, yet not one ounce of contaminated soil
has been cleaned up.''
--Statement of Congressman Gary Condit before the Subcommittee on
National Economic Growth, Natural Resources and Regulatory Affairs,
May 8, 1996.
``We think that after spending $8 million our property is in far
worse environmental condition than it was before the remedy was
begun, and it's still going to take a lot of money to correct all
the mistakes that have been made.
These problems can be addressed by proper management, supervision,
and controls, utilizing competent contractors and requiring EPA to
be responsive to property owners and the local community.
An appropriate remedy could have been selected for our property and
could have been completed in a far more cost-effective manner . . .
Believe us when we say that after 13 years, 13 years of
aggravation, anger, tears, and frustration that no one else
deserves to suffer this fate.''
--Statement of Hans and Helena Tielman, Meyersville, New Jersey,
before the Subcommittee on National Economic Growth, Natural
Resources and Regulatory Affairs, May 8, 1996.
`` . . . We utilized other facilities to aid us in our recycling
efforts. Most of these locations have since been closed and are now
Superfund sites. Because of this Marisol is labeled a `polluter.'
To have helped pioneer the recycling industry and be labeled a
polluter is an insult . . .
I've personally watched the current Superfund system literally
waste millions, if not billions of dollars. The amount of money
spent for non-cleanup expenses is a national disgrace.
I believe Superfund is a major reason many businesses have left or
have not expanded in the United States, and especially in New
Jersey.
This has amounted to lost jobs, and you don't put a man or woman
out of work. You put his or her whole family out of work.
It has become difficult to plan and budget effectively.
Administrative and allocation costs related to Superfund are
extremely unpredictable. The unanticipated and untimely imposition
of these expenses defy and frustrate managerial control . . .
My small company has already paid over $310,000 in defense and
administrative costs . . . not toward cleanup . . .
Superfund liability provisions are woefully lacking in fairness,
logic, and reason . . .''
--Statement of James Nerger, Marisol, Inc, before the Subcommittee
on National Economic Growth, Natural Resources and Regulatory
Affairs, May 8, 1996.
``We believe EPA has let all the federal government agencies off
the hook . . . In other words, only the non-federal agencies were
ordered to spend millions of dollars on the cleanup, while federal
agencies did nothing.''
--Letter from the Colorado School of Mines to Congressman Dan
Schaeffer dated June 6, 1997.
``Because of Superfund, my small business has spent over $1 million
due to contamination caused by others. What makes it even worse is
the fact that the vast majority of the contamination was caused by
agencies of the Federal Government during World War II when they
owned and operated the property.
How would you describe a law that allows one branch of the Federal
Government, EPA, to pursue me to clean contamination caused by
another branch of the Federal Government, the Department of War . .
.
. . . EPA stated at a public meeting that site workers, children
playing at the park next door and neighbors living across the
street were not at risk from the soils or the air from the Liberty
site.
However, EPA went on to say that there was a risk to the
hypothetical trespasser. That trespasser was assumed to be a
teenage boy who would enter on the property twice a week, 2 hours
per visit, 52 weeks a year for 9 consecutive years, each time
coming in contact and ingesting certain soils.
Based on this scenario, the trespasser would have a hypothetical 3
in 10,000 increased risk of getting one type of cancer.
Ironically, these soils were behind locked, fenced areas that
covered less than half of 1 percent of the site with signs saying,
``High voltage. Keep out.''
Yet, when EPA made their determination about risk, they assumed
that the teenage trespasser would be in contact with the soils from
these isolated high spots containing the highest concentrations
every time they walked on the site . . .
Because of all the expenses I have been forced to incur, I have
been unable to maintain the mortgage payments . . . One million
dollars is a lot of money. However, it is not a true measure of
what owning the site and being caught in the web of Superfund
liability has cost me.
It is impossible to measure the toll that it has taken on me, my
family and my small business. It has sapped me and my small
business of capital, energy, and entrepreneurial spirit. It has
taken me from my family and children . . .''
--Jeffrey Rosmarin, RGE, Inc. before the Subcommittee on National
Economic Growth, Natural Resources and Regulatory Affairs, May 8,
1996.
``In April 1992, EPA sent us a letter stating that we were a
potentially responsible party, PRP and they wanted a lot of
information that would have taken a year to answer completely.
But they threatened a $25,000 a day fine if we didn't give it to
them . . . We asked them, in July 1992, what they had against us,
and the answer was that they had a couple of statements from former
garbage men that worked out at that dump who said that we had used
other contractors to bring trash out to that dump . . .
We did an extensive investigation of all of our employees who were
still around to ask, who happened to still be alive, including my
mother who has since deceased.
None of the people that we talked to that had any --or truck
drivers had any knowledge of that situation . . . I think they
spent about a half a million dollars with litigation before they
even started cleaning the thing up . . . [the primary PRPs] wanted
$26,000 from us as a downpayment to get the ball rolling . . .
That's what makes this Superfund law such a nightmare, and
``nightmare'' is a word that we've all used.
We are charged with something that our grandfather allegedly did
that was legal. It's even worse than being fined by a legitimate
act allegedly done by your grandfather or my great-grandfather, for
that matter . . .
[T]hanks to Congress, we face a tremendous legal cost and fines
based on allegations that we did something legal that is illegal.
This is unfair, un-American, and we request that you consider
rescinding this outrageous injustice.''
--Statement of Steve Dixon, Beckett Bronze Co., before the
Subcommittee on National Economic Growth, Natural Resources and
Regulatory Affairs, May 8, 1996.
``I can tell you as a town manager that the site-specific,
retroactive liability system has made it virtually impossible for
local governments to fulfill their four major responsibilities at
Superfund sites which are (1) eliminating the risk in a timely
manner; (2) protecting the local economy and tax base; (3)
returning polluted, non-productive land to productive, taxable
status when that is practical; and (4) controlling costs at those
sites. The current Superfund law, in particular its liability
system, significantly impedes rather than facilitates the
attainment of these goals.''
--John Weichsel, Town Manager, City of Southington Connecticut,
before the Subcommittee on Water Resources and Environment, October
30, 1997.
`` . . . I am mired in litigation at the Berks Superfund Site in
Douglassville, Pennsylvania . . . The Berks site operated as an oil
and solvent recycling facility from the 1930's until 1985. Delaware
Oldsmobile is just one of twenty dealerships that was identified as
a contributor by the testimony of a former truck driver for a
company that had transported used oil to the Berks site . . .
Significantly, the driver was employed for only two and a half
years, and there are no supporting receipts or other documentation
to substantiate his claims. Yet, with no other fact-finding on
EPA's part and no documentary records of evidence, EPA used the
driver's recollections to determine, through extrapolation, the
amount of oil that each dealership sent to the Berks recycling
facility for all years in question.
As a small businessman who complied with all federal, state and
local regulations regarding used oil, I am utterly amazed at the
legal entanglements I have endured, and I am even more frustrated
by the exorbitant liability that I am being forced to assume''.
--William Luke, Delaware Olds, Inc., Wilmington, Delaware before
the Subcommittee on Water Resources and Environment, October 29,
1997.
Mr. Shimkus. And these are quotes from everybody, talking
about--I think there's--you know, and you can look at that at
your leisure. But, it suggests another opinion; that although I
think we're accepting the fact that there are problems, I think
there's maybe a little bit more problems than--than a lot of
people are willing to admit.
I know I am beating a dead horse on the limited liability
provision for small business, but the reason why I'm doing that
is I saw it historically portrayed a couple of years ago on a
60 Minutes episode. People promised to have reform, from the--
from the administration on down the line. Three years later, no
reforms. That story is being replayed out in my district. And
if we don't have any reforms, that seems to always going to be
replayed out 3 years from now and we're going to be back at it.
And it's the small businesses and mom and pop operations that
have--there's no connection to the hazardous material that--by
this failed, unfair law, especially with provisions for small
business.
With that, my time has expired and I yield to the ranking
member, Mr. Towns, for 5 minutes.
Mr. Towns. Thank you, very much. If a State or Federal law
is both relevant and appropriate under the circumstances of a
lease, it would seem to be common sense to apply that
requirement, particularly if it would avoid disputes with the
States over whether such a State standard is per se legally
applicable. Mr. Johnson, what is the position of the States and
please give us a reason for your views?
Mr. Johnson. We are very concerned about the rejection of
relevant and appropriate standards by 1300 and 2580. Our
feeling is that it, in fact, is a common sense conclusion; that
if a standard is relevant and appropriate, it should be applied
at a site. Why should it matter whether the landfill, for
instance, stopped accepting waste in 1984 and 1988, when it--
when it comes to determining how that landfill should be fixed.
However, many standards will not be legally applicable, if the
landfill stopped accepting waste in, let's say, 1984 or whereas
they will be applicable after that date. But the standard,
nevertheless, is important for protecting the public. It is
relevant and appropriate under the circumstances and we think
it should be applied at the site.
Keeping relevant and appropriate standards in the statute
will avoid fights about whether regulations, in fact, are
applicable; avoid excessive rulemaking by States that would be
compelled to have to completely repromulgate all of its rules
to apply to Superfund cleanups, and that places an
extraordinary burden on all the States throughout the country.
Relevant and appropriate standards usually represent the best
engineering judgment about what should be utilized in the
remedy selection process. And because they are not mandatory
under the statute, the EPA and the States still have the
ability to choose among the various standards and pick that
which is best for the circumstance.
And it seems to us to be a very good way to proceed in
picking an appropriate remedy. It avoids excessive risk
assessments. It avoids having to demonstrate case after case
after case that somehow, and it's a best engineering judgment,
to put an impermeable cap on a landfill. Instead, the States
can rely on the relevant and appropriate standards to require
those types of protective remedies.
Mr. Towns. All right, thank you. Ms. Williams, from the
community standpoint, the same question.
Ms. Williams. Well, from a key community standpoint, RARs
are the first line of defense against the Federal agency that
may not understand local ordinances or State ordinances that
were enacted. Let me give you an example. We're recently
working at the Del Amo/Montrose site, where they picked up what
was essentially pure DDT and had to go into the neighborhood
and pick it up with bulldozers. And the local Air Board put a
standard for air emissions that they had to meet, and if they
didn't meet that, they had to shut the cleanup down and re-
water the site. Now, if that standard had not been adhered to
and applied by the local Air Board, the Federal agency--
actually, the contractor doing the work would have just been
able to pretty much, you know, have billowing DDT latent dust
all over the neighborhood. So, that just gives you one example.
Another example I can give you, in California, is with
drinking water standards. California has more stringent
drinking water standards. California has a Porter/Cologne Water
Quality Act, which was passed almost a century ago, to protect
ground water from contamination, and no other States have
programs like that, as well. And so the Water Board actually
has a special resolution that they passed 4 years ago, I think,
to force Superfund sites and Federal agencies, such as DOE and
DOH, comply with groundwater standards, which are very
important. Because, in many instances, at very complicated
cleanups, where we may not have technologies yet to actually
destroy the contaminants, you end up with a cap. And part of
the requirements that the Water Board imposes on those caps is
that they put in monitoring systems, to make sure that the
groundwater is not becoming contaminated with the cap.
So--I mean, I can go on at great length. But, these
relevant and appropriate regulations are very, very important
for the protection of public health, as well as the
environment.
Mr. Towns. Right. Thank you, very much. Let me have 1
minute additional here. I want to just sort of raise a question
with Mr. Jeffers. Why do you support and seek legislative
ratification on the numbers in EPA's municipal settlement
policy?
Mr. Jeffers. Well, I think we, as a muncipal government,
feel that they are fair, equitable, and conservatively
estimable and they're workable and we supported those ideals
for several years now. And we think we can live with them and
they work for us.
Mr. Towns. Okay, thank you. Let me thank all of you for
your testimony. Thank you. Yield back.
Mr. Shimkus. The gentleman yields back his time. Next, we
have the gentleman from Michigan, Mr. Stupak, you are
recognized for 5 minutes.
Mr. Stupak. Thanks, Mr. Chairman. Let me apologize, again,
for bouncing back and forth between O&I and here. I was just
once again looking at your testimony, Mr. Nobis, on Quincy,
Illinois, and hopefully we have some good news we can share
with you.
Every member on this side, at least on the Democratic side
here, has supported legislation to exempt from liability small
businesses and residential home owners, who only send municipal
solid waste or trash to a local landfill, much like you had in
your Quincy experience here. And we have supported exempting
you from liability for municipal solid waste over the past 5
years. In the earlier panel, we had H.R. 2485, my bill, which
would eliminate the liability; but, unfortunately, the
leadership of the House didn't take any action on it. And we're
going to bring it up again and hopefully, as this legislation
moves, we can do something with it to give you that exemption
you're looking for. And, quite frankly, you're being held
hostage to those have a much broader and more controversial
Superfund legislative agendas. And that's why we developed
2485, because the little individuals that we're trying to help
out were always getting caught in the larger issues on
Superfund.
So, would you and NFIB--I guess you're representing NFIB--
would you support moving a bill separately to relieve you and
your friends in Quincy, who are sent their trash to the normal
municipal solid waste? Would you guys be willing to, at NFIB,
support our legislation 2485?
Mr. Nobis. I think the thing for small business--and the
Superfund is a very complicated thing, and we found that out
and tried to deal with it in our community. For small business,
I think, small business will definitely be supportive of any
bill that would get small business out. To me, it makes a lot
of sense. We have been dealing with this problem for at least 6
years. There have been promises to get small business out. Yes,
we do feel hostage. We have needed to be out of this problem
for a long time.
Had--I think it was 5 years ago, we saw a 60 Minutes piece,
where the problem was dealt with in Gettysburg and that then,
they said, well, you know, they're working on the problem. And
had that been done, my problem in Quincy wouldn't have
happened. So, we are being held hostage. We think--we really
want to be out of this. We see the necessity for small business
to be out of it. We would be supportive of any bill that would
get small business out of this. It makes sense to us, though,
that there's a bill that can just deal with small business,
definitely, that would be the quickest way. It's been real
frustrating, where both sides--and we've heard it many times,
yes, the Democrats are for getting small business out, the
Republicans are for it; but, yet, we're still in.
Mr. Stupak. Right.
Mr. Nobis. To me, I'm very simple. I'm just a printer. I
get right to the point. If you all believe that we need to be
out, let's get a bill that just gets us out. You can leave us
alone. We'll leave you alone. As a matter of fact, I think we
even save you money. It will cost you less money to track after
us and then you can put that money back and clean up the
landfills.
Mr. Stupak. Use your organization, then, to encourage your
leadership to allow my bill to go. Because, 2485, you mention
Gettysburg. That's Representative Goodling. He was co-sponsor
with me and we had it to get you out. We just need a little
help from the leadership of the House of Representatives to
move the bill. So, thank you for your input on that.
Mr. Jeffers, H.R. 1300 provides in Section 305 a full
exemption for any generator or transporter of municipal solid
waste, including large commercial companies like Waste
Management or BFI, who sent municipal solid waste to a landfill
prior to enactment. But, you support a different resolution of
the municipal liability issue; is that correct?
Mr. Jeffers. That's correct.
Mr. Stupak. Could you just take a moment to explain that?
Mr. Jeffers. Well, again, my groups feel that the EPA
policy, which we were very supportive and commented on in
detail when it was being developed and, ultimately, developed
and processed, again, deals with a fair, equitable, and
workable manner, which keeps Superfund going. I think all of us
want to have the assurance that these environmental parcels
that need attention are equitably and quickly addressed from a
community standpoint. We need to make sure that there's a
chance for them to be redeveloped back into community use and
that, therefore, the EPA policy, as stated, we think, allows
that to happen and it treats us, as municipal governments and
local government, in a manner that we can live with and proceed
forward with.
Mr. Stupak. Thank you. My time has expired.
Mr. Shimkus. Gentleman yield back?
Mr. Stupak. Well, my time expired. I had one more question.
Mr. Shimkus. Go ahead.
Mr. Stupak. Okay, thank you. Mr. Johnson, if I could ask
you this, what affect will the current owner liability
provision in Section 302 have on current--let me try again--
what affect will the current owner liability provisions in
Section 302 have on the current owner category on current law?
Mr. Johnson. We are very concerned, because we think that
the revisions that are proposed in H.R. 1300 will make it very
difficult to hold current owners liable. It makes----
It makes a number of changes in the law that will make the
law very difficult to apply for many years. First of all, it
allows certain owners who purchase even with knowledge of
contamination even at a reduced price to avoid liability under
many circumstances. And in fact that is inconsistent with the
common-law duty to maintain property so that it isn't a
nuisance or a hazard to others. And we find it a bit odd that
that type of exemption would appear in Superfund at this point,
particularly given the consensus over a long period of time,
several hundred years, that property owners have an obligation
to protect the public from conditions that occur, that exist on
their properties.
Second, the statute changes the standard of care from due
care to appropriate care. This will invite a new round of
litigation on what is appropriate versus what is due. And we
feel that the current statutory language provides an
appropriate protection for truly innocent owners, and it does
not need to be changed at this point. This is a problem that we
don't think is serious. We don't think it is a problem in need
of a legislative fix. We think the current statute adequately
provides protection to truly innocent owners and doesn't need
to be changed.
Mr. Oxley. The gentleman's time has expired.
Mr. Stupak. Thank you, Mr. Chairman, for the courtesy.
Mr. Oxley. The gentleman from New York, Mr. Engel.
Mr. Engel. Thank you, Mr. Chairman.
First I would like to ask, Mr. Chairman, unanimous consent
to insert a statement I have into the record.
Mr. Oxley. Without objection.
Mr. Engel. Thank you, Mr. Chairman.
This legislation troubles me, for a number of reasons, and
let me give a little bit of an analogy. Years ago when I was on
the Education and Labor Committee, we held hearings on OSHA,
which is safety in the workplace. And the majority at that
time--the majority was trying to point out all the problems
with OSHA, and so their proposal was to simply eliminate OSHA.
Instead of fixing it, simply eliminate it. It was an excuse to
eliminate a program that I think has been very, very good. And
I called it throwing out the baby with the bath water.
And I'm afraid the same thing is happening here. Yes, there
are problems with Superfund. Yes, there are changes that need
to be made. Yes, we don't want small business to be hurt. It is
not in anyone's interest to hurt small business. And I think we
ought to take care of that. But what this legislation does in
my estimation is it overreaches, and it uses as an excuse to
roll back the clock in terms of many, many gains that we have
made.
I think we need a Brownfields-only bill. Mr. Towns has such
a bill in H.R. 1750, and I support that bill, and I am a
sponsor of that bill, I believe.
But what H.R. 1300 does in my estimation is it nullifies
the reforms already instituted, and cleaning up of contaminated
sites in my estimation if this were to pass would stall because
of the new liability defense defenses giving polluters
exemption.
Now we want to not hurt people who are not guilty, but on
the other hand we don't want to let off the hook the polluters
who are guilty. And that is why I believe that a number of
State officials, including the organization Mr. Johnson is
representing, the National Association of Attorneys General,
they have stated that the core liability provisions of
Superfund are an essential part of a successful cleanup
program. Let me just say what they say. According to the State
officials, the Superfund liability provides strong incentives
for early cleanup settlements, promotes improved management of
hazardous waste and pollution prevention, and promotes
voluntary cleanup.
So I would like to ask Mr. Johnson, since he is from New
York, and so am I, and he represents this Association of
Attorneys General, what effect will the mandatory allocation
scheme and all the significant liability exemptions contained
in H.R. 1300 have on the current Superfund program?
Mr. Johnson. We are particularly concerned about the
allocation scheme. As you have said, Congressman, the
Association's resolution has said that we would like to retain
the core liability provisions with some minor changes to take
care of some of the problems that have cropped up in the
statute. But it is important to keep the core elements of
liability in the statute.
The requirement that there be an allocation at every site,
every NPL site, we think is not a good idea at all. What the
result of this we think is is that the allocation process will
change the emphasis that currently exists in the law from
obtaining settlements, where the issues are decided and the
case is over and people's liability is determined, to a process
where an allocation is just the first step in that process of
resolving the case.
Mandatory allocation we think under this statute will
become a trial. It will not result necessarily in settlements.
When allocations are made mandatory, parties are more likely to
await its results rather than make an effort to truly settle
the case and end it. Why not wait and see what happens as a
result of the allocation before coming forward with a
settlement proposal?
Mandatory allocation we think will just inevitably lead to
trial-like allocations rather than a reduction in transaction
costs in settlements. And this is particularly pertinent here
because PRP's ordered to clean up a site will get reimbursed by
the fund, and thus removing any incentive that they currently
have to settle.
Under current law, EPA can provide mixed funding for PRP's
who agree to settle their liability. However, if they know that
they don't have to make a settlement in order to be reimbursed
for any excess costs, PRP's are not going to be settling. That
means that the fund is going to have to pay for cleanups. There
is going to be a lot more orders. Cleanups will be delayed. And
the whole process of resolving cases by settlement and getting
cleanups to move forward quickly will be delayed.
Mr. Oxley. The gentleman's time has expired.
Mr. Engel. May I ask just ask one more question, Mr.
Chairman?
Mr. Oxley. Without objection.
Mr. Engel. Thank you. I don't want to put words in your
mouth, Mr. Johnson, so correct me if I am wrong, you are saying
in essence that an allocation is in effect a trial, and you are
saying that H.R. 1300 on the Superfund program would trigger
another decade of litigation, escalate private transaction
costs, create delays in cleanup, and shift huge costs back to
the Federal Government and the States. Is that not a fact?
Mr. Johnson. I think----
Mr. Engel. That is what I believe. I want to know if you
believe that.
Mr. Johnson. I think you have taken the words from our
written testimony and summarized them succinctly. We think that
that is a problem.
Mr. Engel. Well----
Mr. Johnson. Sometimes allocation can work. But to make it
mandatory in every situation is a bad idea. We need flexibility
in order to decide what will work on a case-by-case basis.
Mr. Engel. You just mentioned your testimony, and on page
21 you said that the section 305(e) in particular--and again I
don't want to put words in your mouth; correct me if I am
wrong--would add an additional limitation on liability that
would directly affect every State by establishing a 10-percent
cap on recoverable oversight costs. Can you please just tell us
your concerns with this provision?
Mr. Johnson. Yes. States need to provide oversight to
cleanups. The public is always concerned about the quality of a
cleanup that goes on at a Superfund site, and if private
parties that are cleaning up a site do not have oversight, the
public is especially concerned, because they don't know if the
cleanup is being done properly.
Under H.R. 1300, section 305 puts a cap on the oversight
costs of a State 10 percent. Now sometimes that will be all
right, but in other circumstances it will not be, and this type
of cap will prevent States from providing the type of oversight
and ensuring the type of public confidence in cleanups that the
public demands, appropriately so.
In particular, we are concerned about putting a cap on
State oversights, oversight costs. We could end up with
fraudulent cleanups or shoddy cleanups, and that's not
appropriate. States do not gold-plate their oversight. We don't
have enough personnel to do that type of thing. We do what is
necessary and what it costs, it costs. But those are costs
necessary to protect the public. And artificially putting a 10-
percent cap on our costs we don't think is correct.
Mr. Oxley. The gentleman's time has expired.
Mr. Engel. Thank you, Mr. Chairman, for indulging me.
Mr. Oxley. Mr. Jackson, we have worked with the Governors,
the State cleanup agencies, the cleanup contractors, engineers,
the Commission on Risk Assessment and Risk Management. They
have all supported changes to ensure that remedy selection is
protective and modernized. I would like to outline the brief
but important remedy selection pieces of H.R. 2580 and ask how
these pieces will help cleanups.
First, H.R. 2580 modifies the provision requiring treatment
for treatment's sake to consider practicality, future land use,
and risks to the community and workers' health. Can you comment
with the field experience of the cleanup contractors on this
matter?
Mr. Jackson. Yes, I would tend to agree with that position.
I think it is important to look at not just doing treatment for
treatment's sake. I think it is important to look at the use of
the land, and I think it is very important to incorporate risk
assessment in identifying not only the cleanup goal but also
the method.
Mr. Oxley. Isn't it a fact that EPA in the past has
supported changes in future land use as espoused in this
legislation?
Mr. Jackson. I believe in some cases yes.
Mr. Oxley. Well, that was in testimony earlier today from
Mr. Fields that appeared to be the case.
Second, H.R. 2580 requires compliance with drinking water
standards at reasonable points of compliance and removes the
needless bureaucratic relevant and appropriate standards. Can
you comment on the need for these changes?
Mr. Jackson. The key word there is point of compliance.
Many times I have seen a drinking water standard used
inappropriately that is not relative to the point of
compliance, namely, when the water is being consumed by the
public. So I think the general intention of what you just said
is correct.
Mr. Oxley. Finally, H.R. 2580 requires use of sound and
objective risk assessment practices. Can you comment on that
based on your experience?
Mr. Jackson. I would agree with that wholeheartedly. It is
something that not only I have had experience with in the
United States, but have also been involved with on projects
overseas. It is a concept that is based on sound science.
Mr. Oxley. And finally, Mr. Jackson, can you tell me how
the RAC liability provisions would spur Brownfields
redevelopment? And how do you respond to the arguments of Mr.
Fields and Mr. Johnson?
Mr. Jackson. One example comes to mind that is very obvious
from my industry is that by modifying appropriately the RAC--
the response action contractors--liability--you will see a more
speedy process as far as proposing, adopting, and implementing
a remedial action on a given site. Many times those sites are
Brownfields sites. So I would see it as a positive thing.
Mr. Oxley. Mr. Johnson and Mr. Jeffers, I want to ask you
about the Allied Signal case and enforcement policy. Isn't it
true that an enforcement policy is an exercise of discretion,
and courts will always have the discretion to review whether a
settlement is equitable? In Allied Signal, on the facts before
the courts, they found the municipal settlement policy not fair
under the circumstances. How can codification of a settlement
policy remove this uncertainty, and how can Congress codify a
policy where the design of the court is to provide fairness on
specific facts?
Let me start with Mr. Johnson, and then go to Mr. Jeffers.
Mr. Johnson. I think we have to be careful before we draw
any general conclusions about that decision. I have read the
decision, although the State was not I don't believe a party in
that particular case. However, there were some unusual facts in
that case that are I think unlikely to be replicated at other
Superfund sites.
In particular there was evidence in the case that the town
had required that large amounts of hazardous waste actually be
deposited at that landfill. And so I don't think it is really
representative of the problems that are faced at municipal
sites, at least at the vast number of the municipal sites where
there hasn't been a resolution of liability.
Mr. Oxley. Mr. Jeffers.
Mr. Jeffers. Mr. Chair, again we rely on the EPA policy
numbers, and we think that those numbers are fair. In fact, we
had originally started off with a lower number, but agreed to
settle on a higher number when the policy was being circulated
for comment. In fact, in the Fultz Landfill case in Cambridge,
Ohio, the Federal court did affirm the EPA numbers as fair and
equitable, and again as a decision the benefited both
municipalities and industrial generators in that case.
Codification of the EPA policy numbers will use again a fair
and equitable number that will drastically reduce transaction
costs over the long run, and we think keep the program alive,
which again I think all parties want these sites quickly and
cleanly resolved.
Mr. Oxley. And would legislation like 1300 or similar deal
with the issue that you have raised and deal with the problem?
Mr. Jeffers. Whatever bill is the mechanism or vehicle to
get there, we think as long as it contains the EPA municipal
policy numbers, it is a vehicle that we can work with, and
again it is fair and equitable.
Mr. Oxley. Thank you. The Chair notes there is a series of
votes on the floor, and will take this opportunity to thank all
of you on the panel for an excellent presentation.
I ask unanimous consent to keep the hearing record open for
60 days for members to insert statements, questions, and
additional material for the record.
Without objection, it is so ordered, and this subcommittee
is adjourned.
[Whereupon, at 1:13 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
[GRAPHIC] [TIFF OMITTED] T8513.033
[GRAPHIC] [TIFF OMITTED] T8513.034
[GRAPHIC] [TIFF OMITTED] T8513.035
[GRAPHIC] [TIFF OMITTED] T8513.036
[GRAPHIC] [TIFF OMITTED] T8513.037
[GRAPHIC] [TIFF OMITTED] T8513.038
[GRAPHIC] [TIFF OMITTED] T8513.039
[GRAPHIC] [TIFF OMITTED] T8513.040
[GRAPHIC] [TIFF OMITTED] T8513.041
[GRAPHIC] [TIFF OMITTED] T8513.042
[GRAPHIC] [TIFF OMITTED] T8513.043
[GRAPHIC] [TIFF OMITTED] T8513.044
[GRAPHIC] [TIFF OMITTED] T8513.045
[GRAPHIC] [TIFF OMITTED] T8513.046
[GRAPHIC] [TIFF OMITTED] T8513.047
[GRAPHIC] [TIFF OMITTED] T8513.048
[GRAPHIC] [TIFF OMITTED] T8513.049
[GRAPHIC] [TIFF OMITTED] T8513.050
[GRAPHIC] [TIFF OMITTED] T8513.051
[GRAPHIC] [TIFF OMITTED] T8513.052
[GRAPHIC] [TIFF OMITTED] T8513.053
[GRAPHIC] [TIFF OMITTED] T8513.054
[GRAPHIC] [TIFF OMITTED] T8513.055
[GRAPHIC] [TIFF OMITTED] T8513.056
[GRAPHIC] [TIFF OMITTED] T8513.057
[GRAPHIC] [TIFF OMITTED] T8513.058
[GRAPHIC] [TIFF OMITTED] T8513.059
[GRAPHIC] [TIFF OMITTED] T8513.060
[GRAPHIC] [TIFF OMITTED] T8513.061
[GRAPHIC] [TIFF OMITTED] T8513.062
[GRAPHIC] [TIFF OMITTED] T8513.063
[GRAPHIC] [TIFF OMITTED] T8513.064
[GRAPHIC] [TIFF OMITTED] T8513.065
[GRAPHIC] [TIFF OMITTED] T8513.066
[GRAPHIC] [TIFF OMITTED] T8513.067
[GRAPHIC] [TIFF OMITTED] T8513.068
U.S. Department of Justice
Office of Legislative Affairs
October 4, 1999
The Honorable Michael G. Oxley, Chairman
Subcommittee on Finance and Hazardous Materials
Committee on Commerce
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman: We would like to supplement for the record the
testimony given by Assistant Attorney General Lois Schiffer at the
August 4, 1999 hearing before the Finance and Hazardous Materials
Subcommittee of the House Commerce Committee on the bills introduced on
brownfields issues by Congressmen Towns and Dingell (H.R. 1750),
Congressman Greenwood (H.R. 2580), and Congressman Boehlert (H.R.
1300). In particular, we would like to respond to certain concerns
raised by Congresswoman Wilson about the State's role and authority at
Superfund sites.
At the hearing, Congresswoman Wilson asked whether a State is
authorized to intervene and override EPA remedy decisions that the
State finds were inadequate. She stated that she understood our
testimony to be that EPA should be able to do so for State decisions,
and asked whether States should be given similar authority to override
Federal decisions that States believed failed to protect public health
and the environment.\1\
---------------------------------------------------------------------------
\1\ In her remarks, AAG Schiffer indicated her belief that any
amended Superfund law should retain EPA's authority to protect public
health and the environment from the threat of an imminent and
substantial endangerment, even at sites cleaned up under State
authorities. Of course, if a site is satisfactorily cleaned up under
State authorities, there should not be an imminent and substantial
endangerment.
---------------------------------------------------------------------------
In fact, under the present Superfund law, states do have
substantial authority to influence and shape EPA's remedy selections.
Section 121(f) specifically provides that ``The President shall
promulgate regulations providing for substantial and meaningful
involvement by each State in initiation, development, and selection of
remedial actions to be undertaken in that State.'' Such involvement
includes the following:
First, EPA must solicit State comments on its proposed plan for
remedial action and respond to a State's comments. CERCLA
Sec. 121(f)(1)(G). Second, EPA must provide a State with notice of its
negotiations with potentially responsible parties (PRPs); the
opportunity to participate in the negotiations; and the opportunity to
be a party to any settlement between EPA and the PRPs. CERCLA
Sec. 121(0(1)(F). Consequently, the State has the opportunity to be
actively involved in PRP negotiations and settlements.
Third, CERCLA Section 121(f) recognizes the importance of
substantial state involvement in remedy selection. Where EPA orders a
PRP to undertake a cleanup, if EPA proposes a remedy that does not meet
all legally applicable or relevant and appropriate State requirements,
it must provide the State with an opportunity to concur or not concur
in the remedy selection. If the State disagrees with the remedy chosen,
it has a right to intervene in the CERCLA Section 106 action. CERCLA
Sec. 121(f)(2)(B). If the State is able to persuade a court that its
judgment is correct, the remedy must be modified accordingly. Id. If a
court does not agree with the State, the State may still modify the
remedy if it pays, or assures the payment of, the cost difference to
attain the State's preferred remedy. Id.
In another example of the State's role in remedy decisions, if a
State believes there is a problem with a remedy at a site where EPA
must use Fund monies to do the cleanup, the State can choose not to
contribute the 10% of site costs (including all future maintenance) it
is obligated to pay under the statute. Such action would have the
effect of blocking EPA from undertaking a Fund-financed cleanup at the
site. CERCLA Sec. 104(c)(3).
States have used many of the authorities described above. Each time
EPA proposes a remedy, it solicits and considers State comments. Also,
we have handled countless settlements in which individual States and
EPA are co-plaintiffs supporting an agreed remedy.
We are also sending a copy of this reply directly to Congresswoman
Wilson to respond to her questions raised at the hearing.
Sincerely,
Jon P. Jennings, Acting Assistant Attorney General
cc: The Honorable Edolphus Towns, Ranking Minority Member
The Honorable Heather Wilson
<ALL>