American Geological Institute

Government Affairs Program


Superfund Update (11-11-98)

105th Congress Wrap-up:
This update is complete for the 105th Congress. For information on more recent events, visit the GAP websiteAlthough many bills were introduced to reform Superfund in the Senate and the House this session, none passed. A Congressional Research Service comparison of the major provisions in S. 8, H.R. 2727 and H.R. 3000 -- the three bills that had the greatest chance of passage -- is available from the National Library for the Environment website.

The Superfund hazardous waste cleanup program was created by the Comprehensive Environmental Response, Compensation and Liability Act of 1980. Major revisions were made by the Superfund Amendments and Reauthorization Act of 1986 (SARA). The program has been criticized for the slow progress made in cleaning up sites, as well as the high costs of near-constant litigation over liability issues. Previous recommendations for change include establishing national cleanup standards, considering future land use, and delegating authority to states.

Congressional Action Overview

In Fiscal Year 1998 (FY98), the House and Senate denied the Administration' s request for $650 million in extra Superfund money for EPA. Senate Appropriations Subcommittee Chairman Kit Bond (R-MO) explained the rationale thus: "Given that the Superfund program is sorely in need of reform and reauthorization, with the GAO designating it as a 'high risk' program subject to fraud, waste and abuse, coupled with budget constraints, a $700 million increase could not be justified." The bill, however, included language that would appropriate the money if legislation to reform Superfund passed. It did not, and a similar provision was included in the FY99 appropriations bill.

More than 10 bills reforming the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund) were introduced in the 105th Congress, indicating the importance placed on resolving this issue. Senate Environment and Public Works Committee Chairman John Chafee (R-RI) and Senate Subcommittee on Superfund, Waste Control, and Risk Assessment Chairman Bob Smith (R-NH) introduced S. 8, The Superfund Cleanup Acceleration Act of 1997, which they believe will streamline cleanups, delegate authority to states, and provide needed liability relief for certain parties. A GAO report prepared for these Senators on improving state control of Superfund is available through the AGI web site. S.8 is very similar to S. 1285, the Superfund bill introduced by Smith in the 104th Congress, but includes new provisions that reflect meetings with key Democrats, including President Clinton. Information on several additional, more specific bills -- H.R. 1157, H.R. 1158, H.R. 1195, and H.R. 873 -- can be found on Thomas, the Library of Congress web site.

Brownfields development fared better in the FY 98 appropriations process, with both the House and Senate providing additional funds. Senator Frank Lautenburg (D-NJ) introduced S. 18, the Brownfields and Environmental Cleanup Act of 1997, which is similar to bills he introduced in 1993 and 1996. S. 18 focuses on encouraging industrial development on sites with low level contaminants known as brownfields. The bill was not intended to be a substitute for Superfund reform legislation; it was designed to provide a temporary solution for brownfield development until a comprehensive bill can be enacted. Senator Lautenburg acknowledged that S. 18 shares "common ground" with title I of the broader S. 8. Two companion bills, S.235, introduced by Senator Carol Moseley-Braun (D-IL) and H.R. 505 by Representative Charles Rangel (D-NY), provide tax incentives for businesses that clean up or revitalize brownfields. H.R. 1120, the Community Revitalization and Brownfield Cleanup Act of 1997, introduced by Representative John Dingell (D-MI), deals with brownfield remediation and environmental cleanup, state voluntary response programs, and innocent landowners and prospective purchaser liability. It gained 68 co-sponsors but died in committee.

Senate
The Senate Environment and Public Works Committee finally marked up and passed S. 8, The Superfund Cleanup Acceleration Act of 1997 by an 11-7 vote on March 26, six months after the original markup had been scheduled. One of the most important amendments adopted during the 3-day markup affects natural resource damages (NRD). The amendment "gives express authority for trustees to take into consideration the unique and intrinsic value of a natural resource" and forces parties who injured or destroyed a natural resource to restore it and provide interim replacements while the restoration is being completed.

According to EESI, additional changes made to bill to gain bipartisan support include "elimination of a liability exemption for codisposal sites; a liability cap for municipal owners and operators of codisposal sites; and changes to the state role title narrowing the ways for a state to get authorization to run Superfund and eliminating a provision that would have allowed states to get automatic authority to run the Superfund program if EPA did not act on a state's application for authority within a deadline."

Although the markup bridged some of the gap between Democrats and Republicans, S. 8 is still not supported by most Democrats, the EPA, or the White House. The bill passed the committee primarily along party lines, as Sen. Bob Graham (Florida) was the only Democrat who voted in favor of the bill. Bill Sponsor Chafee acknowledged that "the majority leader is unlikely to take up this controversial measure" without further bipartisan support, but expressed his hope that negotiations could continue. Vice President Gore characterized the bill as "part of a disturbing anti-environmental trend emerging in this Congress" stated that the bill "would sacrifice our environment and public health to the interests of polluters." 

House
The Commerce Committee Hazardous Materials Subcommittee held a hearing on H.R. 3000, the Superfund Reform Act on March 26. Introduced by Subcommittee Chairman Michael Oxley (R-Ohio) on November 10, the bill has over 40 bipartisan cosponsors. H.R. 3000 would exempt generators and transporters who contributed only municipal solid waste or a de micromus amount of waste or did not "contribute significantly" to one of Superfund's National Priority List sites. It has been criticized by many for its broad liability exemptions and "inadequate protection of groundwater."

On March 11, the House Transportation & Infrastructure Subcommittee on Water Resources and Environment passed a Superfund reform bill, H.R. 2727, that was introduced by Subcommittee Chairman Sherwood Boehlert (R-NY). The committee had previously held a hearing on the bill on October 29. The vote came one day after Vice President Gore spoke out against the legislation. After unsuccessful negotiations between EPA Administrators and Congress, Gore stated "I regret that our efforts to develop common-sense reforms continue to be stymied by extreme proposals advanced by a small army of special-interest lobbyists. We must develop strong Superfund legislation that will protect the health of our people, speed the cleanup of toxic waste sites, and reduce excessive litigation. Unfortunately, the bill before the subcommittee would weaken vital protections of public health, the environment, and natural resources for the American people."

The bill was passed once an en bloc amendment containing six agreements reached by the committee and EPA was introduced by Chairman Boehlert and adopted by the committee. Several changes were made to incorporate current EPA practices into the bill, including replacing the term "hot spots," which signifies a highly contaminated area, with the EPA-used term "principle threats" and allowing EPA to continue its practice of spreading contaminated groundwater in order to facilitate a cleanup. Other changes in the amendment affect protection of uncontaminated groundwater. Boehlert explained that the new language would "make protection apply to the extent feasible instead of the extent practicable ." In addition, the amendment limits H.R. 2727's recycling exemption for used oil. Boehlert explained, "We modified the exemption to be sure that oil mixed with any hazardous substance is not subject to the exemption." The bill clarifies language concerning delegation or authorization of state programs. "We modified the bill to ensure an orderly transfer of authorities from EPA to states," Boehlert said. Finally, language was changed "to remove the incentive for potentially responsible parties" to try to identify municipal solid waste generators or others in a lawsuit, in an effort to protect orphan share money.

Although passage of the bill is a positive step forward for HR 2727, Transportation and Infrastructure Committee Chairman Bud Shuster (R-Pa.) made it clear to the panel that he would not take up the bill unless it had solid bipartisan support.

The House Commerce Committee's Finance and Hazardous Materials Subcommittee held an informational hearing on Superfund on September 4 in which close to 30 members of the House testified about the operation of Superfund in their districts. 

House National Security Committee chairman Floyd Spence (R-SC) introduced H.R. 1778, a bill to reform the Department of Defense (DOD), on June 4. The bill would revise the application of Superfund to DOD by considering future land use in choosing the cleanup method, abolishing citizen advisory committees, and relaxing cleanup standards. Chairman Spence intended to amend these provisions on to H.R. 1119, the FY '98 Department of Defense authorization bill. The committee marked up the bill on June 11 and, in an unusual procedure, held the first hearing the following week. Ranking Member Ronald Dellums (D-CA) echoed the concerns of the White House and Environmental Protection Agency when he criticized the bill for its lack of stakeholder input and short time period allowed for amendments.

House Commerce Committee chairman Thomas Bliley (R-Va.) and Transportation and Infrastructure Committee chairman Bud Shuster (R-Pa.), who share jurisdiction over the Superfund program and have been involved in discussions to develop a bipartisan reform package, wrote a letter to Rules Committee Chairman Gerald Solomon (R-N.Y.) asking that the cleanup reform language be blocked from the DOD bill. "Consideration of significant CERCLA amendments on the floor at this time would both undermine this effort and deprive the relevant committees of jurisdiction with the opportunity to act on proposed changes to CERCLA," the letter said. The Rules Committee granted their request and ruled that the amendments could not be offered to the defense authorization bill.

 Administration
On March 17, Vice President Al Gore announced the first 16 areas to be declared a Brownfields Showcase Community. As part of the Brownfields National Partnership, these communities will receive targeted assistance from 15 federal agencies for brownfields cleanup and revitalization. Since 1993, the Clinton Administration has taken a series of actions to clean up and redevelop Brownfields and return them to productive use, including creating a national model to determine the best way to revitalize communities; providing seed money to 121 communities f or revitalization; removing legal barriers to redevelopment; and providing a targeted tax incentive to businesses that purchase and clean up these sites.

Hearings:

House Transportation and Infrastructure Committee

The House Transportation and Infrastructure Committee's Water Resources and Environment Subcommittee has held three hearings on reauthorizing and reforming Superfund. At the first hearing on March 5, 1997, they heard from officials from ten states about their state cleanup programs.

At the second hearing on March 12, EPA Administrator Carol Browner testified before the Subcommittee about the current state of the Superfund program, including recent administrative changes, and the Administration's plans with respect to Superfund reform legislation.

During the third hearing on Superfund reauthorization, stakeholders commented on EPA's management of the Superfund program, and reacted to recent administrative changes and proposals for legislation. The committee may schedule a separate hearing on natural resource damages liability issues.

Testimony from these hearings and background information is available from the House Transportation Committee web site.

Senate Environment and Public Works Committee

A widely attended hearing by the Senate Environment and Public Works Committee that oscillated between partisan bickering and bipartisan cooperation was held on September 4, 1997. Chairman Chafee (R-RI) began the hearing by stating his belief that comprehensive Superfund legislation could be passed by the end of this calendar year. Eleven stakeholder meetings have been held since March, and many changes have been made to the bill in the draft chairman's mark. Sen. Lautenburg (D-NJ ) countered Chafee's optimism with his disappointment that the bipartisan manner in which the bill had been written was beginning to unravel and feared previous efforts would be wasted. In the interest of time, Chafee asked all Senators to limit their remarks. Many did, such as Sen. Thomas who spoke of his lack of time to make a meaningful statement in a short poem beginning "There once was a young man from the west..." The full opening statements of Sen. Thomas and the other Senators is available on the committee home page.

EPA Administrator Carol Browner was the first witness. She expressed her optimism that agreement on a bill could be reached this year and relayed the administration's goal of having 900 sites cleaned up by 2000. She praised the efforts of the committee to engage in discussions with her and her staff, and she encouraged future discussions to iron our additional problem areas. Browner then listed several provisions of the chairman's mark of the bill she would like to further discuss and change: the bill would relieve some polluters of highly contaminated waste of responsibility; states could take authority from EPA without public comment; and natural resources are not adequately valued.

In response to questions from Chafee and committee ranking member Sen. Max Baucus (D-MT), Browner testified that exempting all parties from liability at codisposal sites, as currently contained in the bill, could cost the taxpayers $200-$300 million per year, increase litigation, and increase a perception of unfair rules. Under the current provision, a company would escape liability by depositing their waste at a codisposal site (landfill) but would be liable for the same waste if were disposed at a company's private disposal site. She recommended creating a system to determine which parties can be held responsible a t these sites. Additional questions centered around brownfield development, allocation, and Love Canal. Sen. Smith and others recommended postponing the markup to allow for addition meetings between committee members and EPA and the committee agreed.

Benjamin Nelson, Governor of Nebraska, testified on behalf of the National Governors Association. He spoke of the importance of brownfield development, the need to allow applicable state standards to cleanup, and the protection of groundwater. Jim Perron , Mayor of Elkhart IN, testified for the US Conference of Mayors. He listed three positive effects of Superfund: "the dramatic reduction in use of hazardous materials by industry and commerce; the ability for our nation to respond to emergency spills and contamination that pose an immediate health and environmental threat; and creation of a much safer, national hazardous waste management and disposal system." On the other hand, he testified that Superfund has hindered brownfield development and cause excessive delays and costs in cleaning up National Priority List sites. Due to time constraints, not all witnesses were able to testify. Their written testimony was submitted, however, and is available with the full testimony of the other witnesses on the committee home page.

House Commerce Committee's Finance and Hazardous Materials Subcommittee

The House Subcommittee on Finance and Hazardous Materials held a hearing on September 4, 1997 to discuss the operation of the Superfund program. Close to thirty members of the House were scheduled to testify about the operation of Superfund in their districts. The hearing presented an opportunity for representatives to express their concerns about Superfund and discuss how their constituents are affected by what many called an inept and costly program that has become so entrenched in litigation that little is being accomplished. While all committee members present were critical of Superfund, the committee Democrats did interject statistics showing that Superfund was not a complete failure and that three times as many cleanups have been done over the last three years than have been done since the programs inception.

Representatives Present
Chairman Michael G. Oxley (R-OH)
Ranking Member Thomas J. Manton (D-NY)
Rep. Bart Stupak (D-MI)
Rep. Elizabeth Furse (D-OR)
Rep. Jim Greenwood (R-PA)
Rep. Scott Klug (R-WI)
Rep. Michael Crapo (R-ID)
Rep. Barbara Cubin (R-WY)
Rep. Paul E. Gillmor (R-OH)
Rep. Diana L. DeGette (D-CO)

Chairman Michael Oxley (R-OH) opened the hearing by stating that Superfund reform is a top priority of the subcommittee and that reform should focus on the liability program, state role in Superfund, remedy selection, brownfields, and natural resource damage. He went on to say that the pace of the reform process must increase and he hoped to see a bill on the President 's desk this year. Oxley addressed the costly and time consuming litigation that plagues Superfund, saying that it is "not a scholarship program for lawyers kids." He termed the upcoming months "Superfund season," and urged congressional members to join the team as "cheerleaders, not hecklers."

Rep. Bart Stupak (D-MI) agreed that reform of the Superfund program was a must but he criticized fellow committee members for their statements which accused the Administration of slowing down the reform process. Rep. Jim Greenwood (R-PA) voiced his support for inclusion of brownfields in Superfund reform, saying that the key to economic development is to return lands to production. He also urged committee members to support a bill he introduced, H.R. 873, and the inclusion of its provisions in a Superfund reform bill. Rep. Diana DeGette (D-CO) said that the future was not entirely bleak and that the Superfund program over the last few years has been running more efficiently. She stressed that regardless of what happens with Superfund reform, brownfield legislation should be passed. Rep. Paul Gillmor (R-OH) was not impressed by recent Superfund success saying that the EPA spends less than 50% of Superfund money on cleanup. He called current Superfund spending "anti-environment." Rep. Michael Crapo (R-ID) followed suit, calling Superfund the "most failed environmental program" enacted.

Panel I
The Honorable Michael Bilirakis (R-FL)
The Honorable Dan Schaefer (R-CO)

Rep. Michael Bilirakis (R-FL) discussed the Stauffer Chemical Co. Superfund site in his district and the recent problems that have arisen with the remedy selection chosen. He called it a lack of trust, saying that his constituents don't feel that the current Superfund program can protect them. Rep. Dan Schaefer (R-CO) had harsh words for the Departments of Defense and Energy saying they should be just as accountable for site contamination as the private sector has been. He called for the inclusion of H.R. 1195, a bill he introduced, in a reform bill. H.R. 1195 would amend the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to require federal agencies to comply with all Federal, State, interstate, and local requirements regarding hazardous substances response actions and management. According to Schaefer, DOD and DOE have been skirting the issue because they do not want to be held to the same standard as the private sector. Rep. Stupak attacked Bilirakis' claims that work on the Stauffer Chemical site was going too slow, saying that a Record of Decision was completed in a short three years. Bilirakis finally conceded that progress has been made but emphasized that he was trying to show that public trust of Superfund has been breached.

Panel II
The Honorable Gary A. Condit (D-CA)
The Honorable Chris John (D-LA)
The Honorable Tim Roemer (D-IN)
The Honorable Harold E. Ford Jr. (D-TN)

Panel II members gave individual testimony but were there as a group representing the Democratic caucus. Rep. Gary Condit (D-CA) said that the goal of Superfund is to protect human health but that this has been skewed by the negotiations and litigation that always follow the placement of a site on the National Priorities List. He went on to say that it is time to "put a shovel in the dirt" and get the cleanup started. Rep. Tim Roemer (D-I N) said that too much finger-pointing and blame placing has been going on while countless sites sit idle and he urged bipartisan support of Superfund reform. Rep. Harold Ford (D-TN) called the inability and lack of accomplishment in Superfund due to leadership problems saying that Superfund itself was "grounded in several important principals." He criticized EPA for not meeting cleanup standards and told committee members that more attention should be directed to the roles of local community, government and state representatives. Rep. Chris John (D-LA) stated that all the constituents he had spoken to were disappointed with Superfund, saying that the objective, site cleanup, had not been accomplished. He presented statistics showing that a total of $30 billion has been spent on Superfund with less than 50 percent of that amount going to cleanup costs.

Members asked the witnesses to comment on the specifics of the problems in their districts. Roemer stated that he had close to a dozen Superfund sites in his district, three of which should be on EPA's "most wanted list." According to Rep. John, Superfund funding in Louisiana is "somewhat OK" but that most of the money is not being used for cleanup. Condit indicated that there are several more potential Superfund sites in California and with the number already at 93, he stressed the importance of reform so that these sites get cleaned up. He also indicated that many small business in his district are going out of business because of the high litigation costs. The most important principle, according to the panel, was that "polluters must pay," as opposed to innocent parties that are dragged into litigation as a means of "spreading the pain" and cost of cleanup, a policy which members of the panel did not agree with saying that the smaller number of parties involved, the faster the cleanup.

Panel III
The Honorable William F. Goodling (R-PA)
The Honorable Joel Hefley (R-CO)
The Honorable Paul McHale (D-PA)

Rep. William Goodling (R-PA) began by saying that the public has been very patient but that their patience is "growing thin." He went on to say that many small businesses are being forced to pay for cleanup that hasn't taken place. Businesses are paying attorney fees for past actions and "not one spade has been turned." He urged Environmental Protection Agency Administrator Carol Browner to tell Congress what aspects of Superfund need to be changed. Rep. Joel Hefley said it was unfair to have communities "under the cloud" of Superfund with nothing being done. Rep. Paul McHale asked for support for H.R. 990, a bill he cosponsored that would amend CERCLA to provide for development of brownfields. He cited a General Accounting Office report that estimated the number of brownfields in the U.S. to be between 125,000 and 435,000. McHale went on to say that private investment must be encouraged with incentives that would make it a "viable business proposition" to privately clean up brownfields.

Chairman Michael Oxley (R-OH) criticized legislation that did not provide for comprehensive reform saying that much of the legislation brought up at the hearing only addressed one point at a time when much more was needed. Rep. Bart Stupak (D-MI) argued that that was the problem. Too many years have been spent pushing for comprehensive reform to no avail, when in the meantime some form of legislation should have been enacted.

Sources: Congressional Research Service, Environment and Energy Study Institute Weekly Bulletin


Please send any comments or requests for information to the AGI Government Affairs Program at govt@agiweb.org.

Contributed by Kasey Shewey White, AGI Government Affairs, and Catherine Runden and Shannon Clark, AGI Government Affairs Interns

Last updated November 11, 1998


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