Most Recent Action   Current Congress   Background   Hearing Summaries 

Superfund Update (8-3-00)

The Comprehensive Environmental Response, Liability, and Compensation Act of 1980 (CERCLA) has not been reauthorized or updated since the Superfund Amendment and Reauthorization Act (SARA) of 1986.  The Superfund tax, which funded the program, expired 1995 and has not been renewed.  Critics argue that Superfund needs a complete overhaul and many bills have emerged to that effect.  Program supporters admit that specific sections need amendment, including the Superfund trust fund, brownfields sections, and issues of liability and clean-up standards.  Congressional dispute, mainly down party lines, has divided bills into those for a comprehensive Superfund reform, and those concerned with sections of the statute.  Congressional Research Service Reports provide in depth summary of the Superfund situation can also be found at the National Council for Science and the Environment website.

Most Recent Action
Because Congress has stalled on a comprehensive Superfund reformation bill for the last several years, Sen. Lincoln Chafee (R-RI) has lifted out the section on brownfields in order to expedite the process of funding state and federal cleanup and reuse of brownfield sites. The purpose of S. 2700, the Brownfields Revitalization and Environmental Restoration Act of 2000, is to promote the cleanup and reuse of brownfields, to provide financial assistance for brownfields revitalization, and to enhance state response programs.  It also continues the legacy of  Lincoln Chafee's late father Sen. John H. Chafee whose S. 1090 bill to reauthorize and amend CERCLA stagnated in Congress last year.  A hearing took place on June 29, 2000, revealing broad support for the bill from all sectors; however, its ultimate passage may be hindered by the opinion of some congressional members that brownfields legislation should remain part of a comprehensive Superfund reform bill.

One explanation for the continued freeze on Superfund reform legislation came out on July 1, 2000. According to the Washington Post, Senate Majority Leader Trent Lott (R-MS) signed a secret written agreement with Sen. Micheal D. Crapo (R-ID) that he would not allow any revisions to superfund statutes to make it to the floor - unless it was a complete reform of current superfund law - if Crapo agreed to pass Lott's bill exempting scrap metal from Superfund requirements.  Crapo originally feared that Lott's bill would hinder his attempts to rehaul the entire Superfund program, something Idaho's abundant mining companies support.  Lott succeeded in getting his legislation inserted into the fiscal year 2000 omnibus appropriations bill, passed in late November 1999.  The rider language, which was taken from Lott's bill,(S.1528) gives recyclers of several materials -- scrap paper, plastic, glass, textiles, rubber (except whole tires), metal, and various types of spent batteries -- a break from liability.  These materials include .  Some proponents of broad Superfund reform opposed this legislation because they believe that such riders will make passing a larger, more comprehensive bill less likely in the future.  Lott and several other legislators, however, have vowed that more reform will be addressed in the 106th Congress.


Current Congress: House Action
As last year's congressional session wound down, members of the House tried in vain to produce a Superfund bill that would receive support from both parties.  The bi-partisan support of  H.R.1300 strongly depended on whether House Ways and Means Committee Chairman Bill Archer reinstated the Superfund tax, which would fund several of the bill's main programs.  When the tax was not reinstated, both bills lost much of their Democratic support and negotiations came to a standstill.

Attempts to completely revise Superfund
The House Commerce Subcommittee on Finance and Hazardous Materials held a hearing on Superfund on March 23, 1999, to determine support for a comprehensive reform of the program.  Separately, House Subcommittee on Water Resources and Environment Chair Sherwood Boehlert (R-NY) introduced H.R. 1300, a bill to amend CERCLA, " to promote brownfields redevelopment, to reauthorize and reform the Superfund program, and for other purposes."  The bill, companion to S. 1090 (see below), would remove barriers for brownfields redevelopment and alleviate developers of liability concerns for these sites.  H.R. 1300 includes provisions to exempt small businesses, municipalities and recyclers from liability as well as reinstates the Superfund tax. The bill, which has more than 50 cosponsors -- evenly divided between Republicans and Democrats -- has been referred to the House Committees on Commerce, Transportation and Infrastructure, and Ways and Means.  During a heated House Water Resources and Environment Subcommittee hearing on May 12, 1999, Environmental Protection Agency (EPA) Administrator Carol Browner testified that H.R. 1300 represents "a good faith effort to address the issue, but ... fixes problems that no longer exist and may break things that are already working."  She listed several problems with the bill and suggested that they write a bill that addresses topics on which the Administration and Congress both agree, such as provisions that address innocent landowners, brownfields, intermediate landowners, and prospective purchasers. Browner stated that they could pass and sign into law that type of bill "in lightening speed" and avoid the consequences of a larger bill. Addition information on the hearing is available from the subcommittee website.

On June 10, 1999 the Subcommittee on Water Resources and Environment marked up H.R. 1300, the Recycle America's Land Act of 1999, and the bill was passed out of subcommittee by a 22-9 vote. Bill sponsor and subcommittee Chairman Sherwood Boehlert (R-NY) stated that many of the administration's concerns were addressed in this new draft.  Democrats argued that the bill would slow the pace of cleanups and give overly broad liability relief.  Most members stated that there is some urgency to pass legislation, but that there are still unresolved differences.  During the subcommittee mark up, several amendments were offered to resolve problems that EPA Administrator Carol Browner had with the bill.  Rep.Robert Menendez (D-NJ) offered an amendment to include contaminated sediments in the natural resource damage section of the bill.  Many representatives expressed concern that the amendment could have far-reaching consequences; therefore they were not willing to support it.  Chairman Boehlert stated reluctance about the amendment as it was a contentious issue that could derail H.R. 1300.  Menendez reluctantly withdrew his amendment with a promise from the chair that he will work personally with Menendez on this issue.  A summary of the markup is available on this website.  H.R. 1300 was approved by the full committee on August 5th.

H.R. 1750, the Community Revitalization and Brownfield Cleanup Act of 1999, was introduced on May 11, 1999, by Rep. Towns (D-NY), the Ranking Member of the House Commerce Subcommittee on Finance and Hazardous Wastes.  The main focus of this bill is "to assist local governments in assessing and remediating brownfield sites, to amend CERCLA, to encourage State voluntary response programs for remediating such sites, and for other purposes."  Titles included in this bill, other than those involving brownfield reform, are innocent landowner, prospective purchaser and contiguous property owner liability reforms, as well as seller liability relief and state voluntary response programs to help with cleanup.  This bill, referred to several House committees, was co-sponsored by every Democrat in the House and received strong support from the Clinton Administration.

H.R. 2580, the Land Recycling Act of 1999, was introduced by Rep. Jim Greenwood (R-PA) on July 21, 1999, as an alternative to H.R. 1300.  The focus of the two bills are similar:  "A bill to encourage the creation, development, and enhancement of State response programs for contaminated sites, removing existing Federal barriers to the cleanup of brownfield sites, and cleaning up and returning contaminated sites to economically productive or other beneficial uses."  The main difference between the bills, as introduced, is the lack of liability provisions made in H.R. 2580.  During a September 29, 1999 markup of H.R. 2580 by the House Subcommittee on Finance and Hazardous Waste, it was replaced with Chairman Michael Oxley's (R-OH) substitute bill.  Liability provisions taken from H.R.1300 were included so that the two bills were fundamentally similar.  This markup showed the partisan nature of Superfund reform in general; in contrast to the nearly unanimous passing of H.R.1300 in the full committee, the amended substituted bill narrowly passed the subcommittee by a 17-12 vote.  A hearing regarding several Superfund related bills was held by the House Commerce Subcommittee on Finance and Hazardous Waste on September 22, 1999.

Attempts to use tax measures
Both the House and Senate tried to use tax legislation to pass some form of Superfund reform during the 1999 summer months. Combining the Superfund trust fund with the Leaking Underground Storage Tank (LUST) trust fund, H.R. 2248, passed the House on July 22, 1999.  This bill skirts the controversial issue of reinstating the Superfund Tax by funding Superfund clean up costs from the $1.4 billion dollars currently in the LUST fund.  An omnibus bill was passed in conference on August 5, 1999, but the President vetoed it on September 23, 1999.  Tax credit for brownfield remediation expenses was extended through the end of 1999 as part of H.R. 1180, which passed Congress in late November 1999 and was signed by the President in mid-December.


Current Congress: Senate Action
Senate action on Superfund legislation has met with different but equally insurmountable obstacles as House efforts. Several bills championed by the late Sen. John Chafee (R-RI), and later by his son Lincoln Chafee (R-RI), have carefully tried to compromise on volatile issues such as remedy selection and liability.  In light of the great volume of tabled Superfund bills, and despite some senators' insistence that Superfund needs to be reauthorized as one package bill, it is likely that legislation introduced in the future will endeavor to target specific statute problems.

Attempts to partly revise Superfund
Superfund reform legislation was introduced in the Senate on May 20, 1999, by the chairmen of the Environment and Public Works Committee and that committee's Superfund, Waste Control, and Risk Assessment Subcommittee -- Senators John Chafee (R-RI) and Bob Smith (R-NH), respectively. S. 1090, the Senate companion bill to H.R. 1300 (see above), was notable for the absence of many provisions that proved highly contentious in previous comprehensive Superfund reform efforts. According to the Energy and Environment Weekly Bulletin, "the bill does not include a remedy selection or natural resource damages title. Also, the new Senate bill does not contain extremely contentious language from last year's bill that would have allowed records of decisions and consent decrees to be reopened.  Also, there are no groundwater provisions in the new bill."  The bill does provide $100 million in grants for brownfields redevelopment.  However, it does not reinstate the Superfund tax, which expired in 1995 and which the Administration considers a key to its support.

On May 25,1999, the Senate Committee on Environment and Public Works held a hearing on S. 1090, the Superfund Program Completion Act of 1999.  In their opening statements members were divided on support of the bill.  Senators John Chafee, the bill sponsor (R-RI), James Inhofe (R-OK), Bob Graham (D-FL) and George Voinovich (R-OH) voiced strong support for the bill.  Senators Max Baucus (D-MT) and Michael Crapo (R-ID) both stated that while there were good parts of the bill, it still needed work on unresolved issues such as liability, natural resource damage, states ability to give finality, and funding for the program. Senator Lautenberg was the most vocal about his dislike of the bill, arguing that it would set back the program after it has made "significant stride in clean ups and reducing senseless litigation.  The witnesses included state officials, who argued for more brownfield reclamation support, and state environmental officers, who supported giving more power over cleanup to the states.  One witness, owner of a small business, argued for liability reform at co-disposal landfills.  A representative of the realtor industry supported state's being allowed to give finality to sites, preventing any future claims for clean up. A representative from the environmental community argued against requiring a governor's request for a site to be listed on the National Priority List as it precluded citizens being able to petition for a site being listed.  S. 1090 was scheduled for a committee vote on July 28, 1999, but was cancelled after Democrats asked for more time to negotiate.

Attempts to use tax measures
 S. 1429, which passed the Senate on July 30, 1999, included expanded tax credits to encourage cleanup at any brownfield location -- previous credits applied only to "Empowerment Zones, Environmental Protection Agency pilot sites, and high-poverty areas."  Because more sites are eligible for the credit, the cost is estimated to increase to $782 million dollars over 10 years.  See House Action for information on the related bill H.R. 2248.

At the end of March 2000, Sen. Lincoln Chafee (R-RI)  introduced two new Superfund bills.  S. 2334 would extend expensing of environmental remediation costs for an additional 6 years and include sites in metropolitan statistical areas. S.2335, among other things, would authorize a program under the Secretary of the Army to provide assistance in the remediation and restoration of brownfields.  The introduction of these bills is an attempt at a fresh start regarding Superfund legislation, which came to a disappointing halt last session, much to the chagrin of Chafee's father, the late former Chairman of the Senate Environment and Public Works Committee, Sen. John Chafee (R-RI).  The bills are still awaiting Senate committee action.

Background
The Superfund hazardous waste cleanup program was created by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).  Major revisions were made by the Superfund Amendments and Reauthorization Act of 1986 (SARA). The Superfund  program provides a system requiring polluting parties to take responsibility for remediating seriously contaminated areas.  In the case of lands where the responsible parties cannot be determined, the area is placed on the Superfund National Priorities List (NPL) where EPA's Superfund trust clean up funds come from a tax levied on petroleum and chemicals supplies.  Over the last 19 years, nearly half of the approximately 1300 sites on NPL have been remediated.  Contention over Superfund statute details has prevented the tax from being reinstated since its expiration in 1995.  For example, critics dislike its retroactive nature which usurps previous (more lax) legal standards for hazardous waste disposal.  Each site costs on average $20 million to remediate and may have over 100 potentially responsible parties.  Thus, it is worth it to delay the cleanup and attempt to spread the costs through legal processes.  Opponets claim remediation standards are too stringent and environmental groups contend that sites should be restored to the cleanest possible level, not just to levels that limit human exposure based on future use.  States have been arguing for more control over NPL site selection and remedy techniques.  The popular brownfields section of Superfund faces debates over whether or not it should be part of and funded by CERCLA monies.  The brownfields program was designed to promote the clean up and economic redevelopment of low-level contamination sites not on NPL.  Recent legislation proposes to authorize brownfields as its own program that would provide  tax incentives to spur more cleanups.  The National Council for Science and the Environment has several in-depth papers from the Congressional Research Service explaining the statute.



Sources:  Washington Post, Greenwire, EEnews, hearing testimony, Congresssional Research Reports (waste-10 and waste-28)

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, AGI/AIPG Geoscience Policy Interns Sarah Robinson and Audrey Slesinger, and AGI/AAPG Intern Alison Alcott.

Posted March 18, 1998; Last updated August 3, 2000.


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