The members' opening statements gave a feel for the varied attitudes in Congress on Superfund. Chairman Michael Oxley (R-OH) referred to himself as the "Cal Ripkin of Superfund," noting that he has attended more than 25 hearings over the past 6 years on this topic. He said that he believes that Superfund is "fundamentally flawed" and provides disincentives for voluntary cleanup. Continuing the baseball analogies, he said that he is ready to play ball if others are. Rep. James Greenwood (R-PA) agreed with the need for Superfund reform, calling the program "a disaster."
Ranking Member Edolphus Towns (D-NY) disagreed with the need for comprehensive reform, saying that it would slow cleanup progress. He voiced his support for a brownfields bill. Rep. Greg Ganske (R-IA) echoed his sentiments, "When you've got the votes, you can move comprehensive reform. When you don't, you look at fixing parts of it." He doesn't believe a consensus exists on Superfund and instead favors a brownfields bill. Frank Pallone said that "EPA is going a good job at overall cleanup" and we need to decide what is more important "the time to cleanup or making sure that sites are cleaned up to public health standards." Rep. Diana DeGette (D-CO) agreed, saying, "Superfund has become more efficient and effective." She continues by saying that now is not the time to alter Superfund and that we must ensure that the program remains strong and is based on a "polluter pays" concept.
EPA Acting Assistant Administrator for the Office of Solid Waste and Emergency Response Timothy Fields testified that comprehensive Superfund reform is not necessary and that it would halt or delay current cleanups. He spoke of the progress made in increasing the number and pace of cleanup. He also testified on EPA's efforts to promote fairness by entering into de minimis settlements with more than 18,000 small volume contributors to protect them from more costly lawsuits. Fields did say that EPA would support targeted liability relief for innocent landowners, small waste generators and interim owners. He suggested reinstating the Superfund tax that expired in 1995 to provide the program with the necessary funds.
The full testimony of Mr. Peter Guerrero, director of environmental protection issues for the General Accounting Office, and Ms. Claudia Kerbawy, chair of the Federal Superfund Focus Group, is available on the Commerce Committee website.
Senate Committee on Environment and Public Works
May 25, 1999
Hearing on S. 1090, Superfund Program Completion Act of 1999
Chairman John H. Chafee (R-RI)
Sen. Max Baucus (D-MT)
Sen. Frank R. Lautenberg (D-NJ)
Sen. Michael D. Crapo (R-ID)
Sen. Robert C. Smith (R-NH)
Sen. George V. Voinovich (R-OH)
The Superfund Program Completion Act of 1999, S. 1090 sponsored by Senators Chafee and Smith, begins down-sizing Superfund and shifts more power and responsibility for cleanup from the EPA to the states. This bill does not reauthorize the Superfund tax and instead funds the program out of general revenues or a trust fund. National Priority List (NPL) sites are limited to thirty new sites a year and requires a governor's request to be listed on the NPL. S1090 also gives the states power to declare a site cleaned up, giving finality to property owners; this removes the concern/threat of future federal reassessment of the site by the Environmental Protection Agency (EPA). Small businesses and other parties receive liability relief with regard to co-disposal sites. Lastly this bill provides $100 million for the investigation and remediation of brownfields, contaminated urban sites.
In their opening statements, Senators Chafee, Inhofe, Graham and Voinovich voiced strong support for the bill. Senators Baucus and Crapo 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 Baucus argued that by not reauthorizing the Superfund tax the committee was "reauthorizing the Superfund Program---but without the Superfund." 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. " He is against NPL caps, lowering funding, allowing states to determine when a site is cleaned up, and removing liability for some parties. He argues that this bill focuses on "closing down the program rather than a goal of cleaning up sites."
The Honorable Jim Marshall The Honorable Thomas Suozzi
Mayor of Macon, Georgia Mayor of Glen Cove, New York
On behalf of the U.S. Conference of Mayors On behalf of the American Communities
for Cleanup Equity
Testimony of Jim Marshall
Mr. Marshall's overriding interest is the clean up and redevelopment of brownfield sites in the urban centers. In a survey done by the U.S. Conference of Mayors, "180 cities reported collectively their more than 19,000 brownfield sites representing more than 178,000 acres." The survey's reported top three obstacles to redeveloping these brownfields are lack of funds, liability issues, and the need for environmental assessments. He argued that redevelopment of brownfields will not only contribute jobs and encourage economic development in a city, but is also "one of the most effective strategies we have in slowing the rate of consumption of open space and farmlands in proximity to urbanized areas." Currently, brownfield land values are being "held hostage" by the reluctance, fueled by fear of future liability," of both owners and local governments to list sites as brownfields.
The U.S. Conference of Mayors supports S1090 because it provides funds for brownfields redevelopment and encourages voluntary cleanup by reducing threat of future liability to owners. "Owners...need certainty about the rules that apply to them , certainty about the costs to remediate these sites and certainty that their actions terminate the risk of future liability." However, the conference does encourage Congress to expand their liability clauses to cover more circumstances and supports the reauthorization of the Superfund tax.
Testimony of Thomas Suozzi
Mr. Suozzi reiterated Mr. Marshall's' points about the need for brownfield reclamation and liability clarification, but focused his testimony on the issue of municipal liability for co-disposal landfills. He argued that municipalities are being forced to pay an unfair portion of clean up costs for co-disposal municipal landfills. This is unreasonable both because town sewage and waste has been shown to be less toxic than other types of waste and because the government should not be penalized for fulfilling its obligation of waste removal to its residents. He cited several specific needs regarding liability caps and fees, but states that the organizations he represents feel that S. 1090 will generally achieve their sought-after goals regarding co-disposal land fills.
Questioning of Panel 1
Senator Baucus wanted to know how to encourage clean up by reluctant cities that fear sites being listed as an EPA NPL site. Marshall stated he did not have all the answers, but giving instant purchaser relief and finality will help. However, systematic inspections, like those he conducts for housing, will force owners to deal with their cleanup issues. Once a citation is issued, the process has started and the owner can no longer avoid cleanup by pleading ignorance. While finality does have risks of removing recourse for sites with unforeseen future problems, Marshall argued that the risk is worth taking in order to clean up the 100,000 plus acres of brownfields.
Senator Lautenberg focused his questioning on whether the mayors supported the ramping down of funding for the program and whether brownfields legislation should be separate from Superfund. Mayor Marshall stressed that he does not want the law changed in any way that would create a lack of funds for brownfield cleanup. Mayor Suozzi was ambivalent about the form in which the legislation was passed, only that it happen this year.
Senator Smith probed the question of states being able to clean up their own sites and limiting federal EPA involvement. He explained that the only ways the EPA could take over a site, in accordance with S1090, was 1) in an emergency, 2) by request of the state, 3) if state remedy fails or is unable to fund complete cleanup, and 4) if contamination crosses state lines. Marshall, while admitting a lack of background on this issue, argued that states having more power and ability to give finality will encourage clean up of brownfields.
Mr. Tom Curtis Ms. Claudia Kerbawy
Director, Natural Resources Group Chief, Superfund Program
National Governors' Association Michigan Department of Environmental Quality
On behalf of ASTSWMO
Mr. Gordon Johnson
Ms. Wilma Subra
Deputy Bureau Chief, Environmental Division Subra Company
Office of the Attorney General New Iberia, Louisiana
State of New York
On behalf of the National Association
of Attorneys General
Testimony of Mr. Tom Curtis
Mr. Curtis was most interested in clarifying the interaction of the state and EPA roles, in the hopes of avoiding having "two masters" at a single site. He supports requiring the agreement of a governor before a site can be listed on the NPL. He feels this clause negates the need for caps on the NPL The cap is potentially detrimental in the face of a disaster causing more than 30 sites in one year. The National Governor's Association also agrees with allowing states to give finality to clean ups as brownfield redevelopment has been "hindered by the pervasive fear of federal liability under CERCLA of 1980."
Testimony of Ms. Kerbawy
Ms. Kerbawy brought attention to the large role states have in cleaning up the nation's contaminated sites and argued that they should be given the commensurate amount of control given their level of involvement. Ms. Kerbawy, representing the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), supported the provision to require governor concurrence to list a site on the NPL. The states should also be able to declare a site fully remediated if they were overseeing cleanup without EPA approval. As many of the brownfield sites will never be listed on the NPL and be entirely cleaned up by states they therefore, should not have to be "subject to CERCLA liability." "States should be able to release sites from both federal and state liability once a site has been cleaned up to State standards." ASTSWMO supports S.1090 and its "basic positions regarding governors' concurrence, brownfields liability release and State cost share."
Testimony of Mr. Johnson
Mr. Johnson stated that the goal of the National Association of Attorneys General is 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." The terms and provisions in CERCLA, after much controversy and litigation, have been established and accepted by the community; no changes must be made that will "reignite the courtroom battles" over what is meant by the new provisions. In that respect, the NAAG supports S.1090, as it is "selective" in its reforms and will not create more litigation. NAAG also supports the brownfields provisions, but feels the bill still lacks " clarification of the sovereign immunity waiver, modification of the IRS code....and revision of the natural resource damages statutes of limitation." Mr. Johnson also submitted concern about an unwisely large shift in costs from polluter to taxpayers as a result of many unclear provisions in S1090. The NAAG also does not agree with limiting NPL sites, nor with the "defunding" of the Superfund program. By not reauthorizing the Superfund tax, the NAAG fears that when the EPA inevitably runs out of money, the cost of federal cleanups will be shifted to the state, which is unacceptable.
Testimony of Ms. Subra
Ms. Subra argued that S.1090 "limits and weakens the Superfund program." By capping the number of NPL sites, not reinstating the Superfund tax, limiting public participation, and giving responsibility of sites to states that "lack the financial and technical resources as well as the political ability to carry out the programs," the bill will slow down cleanup and extend the public's exposure to risk. Specifically, confining the declaration of an NPL site to a governor's request removes the citizens' right to petition to have a site listed on the NPL. She called into question the likelihood of a governor requisitioning a site if "the potentially responsible parties at the site are his/her financial campaign contributors." She also argued for better legislation regarding state programs that require minimum standards and EPA evaluation/approval.
Question and Answer Session for Panel 2
Senator Chafee sought to address the issue of governors ignoring sites if allowed to control what sites are listed on the NPL. Mr. Curtis resoundingly disagreed and stated "there is no constituency for pollution" so why would a political figure, such as the governor, pursue such a course of action. Senator Baucus addressed the issue of caps on NPL listings, wondering if they reflect "good science." Mr. Johnson said that first if a site deserves to be on the list it should be listed. Secondly many polluters pursue voluntary cleanup because of the fear of being listed on the NPL, a cap would negate this fear to a certain extent and could affect voluntary cleanup. Senator Crapo asked the witnesses if they, or the groups they represent, would withdraw support if reauthorization of the Superfund tax was added to the bill. Mr. Johnson and Mr. Curtis agreed that they would not withdraw support if such a provision was added. Senator Smith inquired about why funding should not be decreased if less sites are left to be cleaned up. Ms. Subra argued that there are sites that have not even been listed yet. She also said that many of the sites will never be listed or cleaned up if the only way to get EPA involved is by a governors request. She supported a provision that allows citizens to petition the EPA to step in when they feel the governor is ignoring a site.
Mr. Bernie Reilly Ms. Karen Florini
Counsel, Du pont De Nemours E.I. & Co. Senior Attorney
On behalf of the Chemical Manufacturers Association Environmental Defense Fund
Mr. Mark Gregor
Mr. Mike Nobis
Manager, Environmental Quality JK Creative Printing
City of Rochester, New York On behalf of the National Federation of
On behalf of the National Association of Independent Businesses
Local Government Environmental Professionals
Mr. Red Cavaney Mr. Mike Ford
President Mike Ford Agency
American Petroleum Institute On behalf of the National Association
Ms. Vernice Miller-Travis*
Former Director, National Resources Defense
Council Environmental Justice Initiative
*Ms Miller-Travis was not present at the hearing,
but her written testimony was submitted for the record
Testimony of Mr. Reilly
Mr. Reilly supported the direction of S. 1090 to reduce funding for a waning Superfund. He also supports "finality for state cleanups, an integral Governor's role in the process of listing sites on the NPL, liability relief to ensure that brownfield sites are redeveloped, and a recognition of the states' primary role in cleanup." He raised concerns over exemptions and the allocation system in the bill that "industrial parties" will be forced to pay an even greater amount of the liability, beyond the "unfair share" they already contribute. He also argued for the introduction of "third party neutrals", not the EPA, to arbitrate the allocation system.
Testimony of Ms. Florini
Ms. Florini and the Environmental Defense fund oppose S. 1090. Ms. Florini argued that the pace of cleanups has been increasing and while there are potentially less sites being listed, many sites have moved into the costly "operation and maintenance phase." With this in mind, the implementation of additional costs while not reinstating the Superfund tax is unacceptable. Secondly the bill gives priority to liability relief costs over clean up costs for any residual funds in the Superfund. Some of the language in the bill could be interpreted as forcing the EPA to refund polluters for "work they have already agreed to." Ms. Florini also denounces the allocation system as creating more problems with its enactment than solving the problem of funding. She also strongly objects to allowing states to have finality and giving governors a "veto" power over the listing of sites on the NPL. The policies will leave many sites contaminated and potentially never officially recognized. She objects to a cap on NPL sites: "the number of sites that should be listed are the number of sites that need to be listed." Lastly, she states that the liability relief provision in essence provides a "windfall for sellers" that is unacceptable.
Testimony of Mr. Gregor
Mr. Gregor's testimony focused on the issue of brownfields. He stated that more funds were needed for states to start the investigation, identification, and initial clean process of many brownfields. Also necessary was a procedure to limit liability so as to encourage the redevelopment of these sites. Lastly, he argued for continuing efforts at creating partnerships among federal agencies and state governments to tackle the issue of brownfields redevelopment.
Testimony of Mr. Nobis
Mr. Nobis confined his testimony to the liability of small businesses under the Superfund legislation. He related his personal experience of being "billed" for hauling legal trash to a city landfill that had subsequently become a Superfund site. He accuses the EPA of going after small businesses to reclaim some of the costs in response to the threat of the six larger corporations involved suing. Mr. Nobis argues that the reasoning behind billing users of a landfill that did not dump toxic waste is unsound and in the end drains money from EPA cleanup funds for avoidable legal costs.
Testimony of Mr. Caveney
Mr. Caveney is in agreement with Senators Chafee and Smith that the Superfund program is "nearing completion" and consequently should have its funding decreased. He and the American Petroleum Institute (API) support funding the Superfund out of the general revenue as "every segment of society has been responsible for the problem of hazardous waste sites." He stated the oil and gas industry has paid more than 57% of Superfund taxes, yet the EPA has attributed only a 10% responsibility for contaminated sites to the industry. Even without the tax, "responsible parties have continued to pay their share of hazardous waste site cleanup costs." The API is in support of S. 1090, and hopes that the "lack of agreement" on some issues by Congress and the Administration will not prevent this bill from passing.
Testimony of Mr. Ford
Mr. Ford and the National Association of Realtors supports S. 1090 because it encourages redevelopment of brownfield properties now idle as a result of Superfund legislation. The most pressing need is for liability relief to encourage owners to sell and investors to buy property without being hindered by the possible threat of future clean up costs assessed by the EPA. Mr. Ford encourages reforms that support state clean ups of sites so they can contribute to the economic development of the area. Mr. Ford views S. 1090 as a "win-win opportunity."
Testimony of Ms. Miller-Travis
Ms. Miller-Travis's testimony focused on the Environmental Injustice experience by communities of color and how S. 1090 would exacerbate the situation. She cited studies that show communities of color wait longer for cleanup and are typically slated to receive containment solutions, not "permanent treatment remedies." She argued that allowing states to determine when a site is cleaned up and requiring governor requests to list NPL sites will give states the power to ignore sites they have traditionally ignored. She argues that several provisions in S. 1090 shift the payment burden to the tax payers and rewards "uncooperative litigants" instead of those who volunteer to clean up. She also disagrees with the reduction in funding and argues against many of the new funding obligations in S. 1090 because they are "not related to clean up." Ms Miller-Travis and the environmental justice community she represents strongly disagree with and withdraw support of S. 1090.
Question and Answer Session for Panels 3 and 4
Senator Chafee wanted to address how you redevelop brownfields without giving liability relief. Ms. Florini agreed with giving purchaser relief, but not relief for sellers. Senator Baucus asked questions about funding and wanted to establish how to get Superfund to completion. Ms.Florini argued that we do not get to completion by reducing resources that curtail the pace of progress. Senator Crapo again asked if any of the witnesses would withdraw support if the reauthorization tax was added to bill. Mr. Reilly and Mr. Nobis had no position, while Mr. Gregor, Mr. Ford and Ms.Florini would not withdraw support if such an amendment was added.
On June 10, 1999, the Subcommittee on Water Resources and Environment held a markup session on H.R. 1300, the Recycle America's Land Act of 1999, and the bill was voted out of subcommittee by a 22-9 vote. Bill sponsor and subcommittee chairman Sherwood Boehlert (R-NY) stated that many of the concerns of the adminatration had been dealt with in this new draft. H.R. 1300 is streamlined and does not include many of the contentious issues that have stalled Superfund legislation in the past. Many 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. Many ammendments were offered, most to resolve problems that U.S. Environmental Protection Agency Administrator Carol Browner had with the bill. Rep. 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 and 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. Mr. Menendez reluctantly withdrew his amendment with a promise from the chair that he will work personally with Mr. Menendez on this issue. Markup in the full committee has not been scheduled yet. A summary of the markup is available on this website.
The meeting opened with a statement from Subcommittee Chairman Sherwood Boehlert (R-NY) stressing the bipartisan nature of the legislation. He cited 39 Democrat and 39 Republican cosponsors and listed many groups and agencies that supported this legislation including the Conference of Mayors, independent businesses, realtors, etc. Boehlert stated that many of the concerns of the administration have been resolved and he urged the subcommittee not to get bogged down in politics over this bill.
Full committee chairman Bud Shuster (R-PA) stated that "Superfund is broken, and it has got to be fixed." Shuster used the example of the administration's blockage of the bipartisan Clean Water Act as a warning to this committee about letting the issue become politicized.
Ranking subcommittee Democrat Robert Borski (D-PA) stated that the goals of any Superfund legislation should be to reduce litigation and maintain or increase the pace of cleanups. Borski argued that extensive rewriting of the liability provision in H.R. 1300 could create litigation by upsetting legal precedents based on the previous Superfund language. He also took issue with the liability reforms in H.R. 1300 that give broad exemptions to responsible parties causing the taxpayer to pay for cleanup. This legislation will possibly slow down the pace of cleanups and jeopardize the level and quality of clean ups. He state there may still be room for negotiation.
After listening to Boehlert list the bills supporters, ranking full committee Democrat James Oberstar (D-MN)expressed concern that the committee was getting into "soundbite legislation." He argued that the Democrats know that "good policy will also be good politics" and urged the committee to focus on crafting good legislation. Oberstar stated that he supported H.R. 1750 (a bill dealing solely with brownfield reform), but is leery of H.R. 1300 because it diverts funds from cleanups, slowing down the current pace of remediation. He stated that H.R. 1300, in his opinion, still needed to revise its stance on liability, remediation selection, effects on health, and funding. He noted that the chairman has made progress with this bill and has the votes to push through H.R. 1300.
Rep. William Pascrell (D-NJ) argued against H.R. 1300 as it stood because of three major concerns-- it would slow down cleanups, placed undue emphasis on cost over health and the environment, and has weak right-to-know provisions. Pascrell expressed outrage at the current 12-year average for cleaning up a site declaring it "unacceptable."
Rep. Earl Blumenauer (D-OR) stated that he would "support anything that moves this on." He argued that not only is there an urgency to get Superfund and brownfield legislation passed, but that this bipartisan bill will "send signals to Congress about how we want people to behave."
Rep. James Barcia (D-MI) stated he does not think that a unanimous consensus will ever be reached, but that "another decade cannot go by" without legislation. He cited current health risks in his district that need to be dealt with. He argued that the committee should move this legislation to the floor and deal with residual controversial issues in separate legislation.
Rep. John Baldacci (D-ME) joined Shuster in stating that Superfund is broken and needs to be fixed. However, he expressed concern that there was too much of a push to get this legislation through without working out problems that could prevent obstacles later. He urged for a "more engaged" process now, rather than fixing problems later.
Both Rep. Wayne Gilchrest (R-MD) and Rep. Bob Clement (D-TN) urged their colleagues to vote for H.R. 1300. Rep. Brian Baird (D-WA) stated concern that H.R. 1300 would create "further problems rather than resolve" them.
Chairman Boehlert presented his "en-block" amendment that expands grants for state voluntary cleanup, streamlines risk assessment, and alters the allocation process and remedy title. The amendment was passed.
Rep. Ellen Tauscher (D-CA) presented an amendment to address concerns by EPA Administrator, Carol Browner, that the allocation process in H.R. 1300 would increase litigation. This amendment removes the requirement to file an allocation claim with district court and instead uses a third party neutral allocator. This amendment was also passed.
Rep. Mike Simpson (R-ID) presented two amendments and then withdrew them at Chairman Boehlert's request so as to sidestep controversial issues that may impede passage of H.R. 1300. The first amendment addressed the EPA policy on amounts of lead in the soil. The second amendment dealt with the controvertial topic of natural resource damage claims being abused.
Blumenauer presented an amendment to redefine "solid waste" in response to Browner's criticism of vagueness. Blumenauer presented a second amendment that operators of community sewers are not liable for cleaning up user's waste as long as the operation meets regulations. Both amendments passed.
Barcia proposed an amendment to encourage copper recycling. Rep. Steven Latourette (R-OH) proposed an amendment to allow liability exemptions for recycling of "whole tires." Rep. Steven Kuykendall (R-CA) proposed an amendment to mark 20% of local government grants for inspection and infrastructure. All three amendments passed.
Rep. Robert Menendez (D-NJ) presented a controversial amendment that would add contaminated sediments to the Natural Resource Damage section of the bill. He argued that the EPA had published a report on the severity of contaminated sediments and that this amendment would be including this existing knowledge into the language of the bill. Chairman Boehlert opposed the amendment citing concern it would create an avenue for new litigation and potentially create thousands of new Superfund sites. Borski supported the amendment, reiterating that contaminated sediments were a pervasive problem. Menendez defended his amendment by stating it would only "establish a level of damage, not who is responsible." Representatives Steve Horn (R-CA), Herbert Bateman (R-VA), Wayne Gilchrest (R-MD), and Blumenauer expressed confusion over the language of the amendment, who it affects, and its implications. Chairman Boehlert offered to work with Menendez between the subcommittee and full committee markup on this amendment. Menendez expressed doubts about the intention of the committee to work seriously on this amendment, but withdrew the amendment with the promise of cooperation by the chair. Menendez stated that he will be presenting "something of this nature before the full committee" regardless of what happens between now and full committee markup.
Oberstar made one last statement about his concerns with H.R. 1300 before
the subcommittee voted. The Chairman called for a recorded vote.
The final tally was 22-9 in favor of passing H.R. 1300 onto the full committee
and two votes of "present." H.R. 1300 now procedes to discussion and markup
in the full committee.
|Chairman Michael G. Oxley (R-OH)||Rep. Edolphous Towns (D-NY)|
|Rep. Jim Greenwood (R-PA)||Rep. Frank Pallone (D-NJ)|
|Rep. John M. Shimkus (R-IL)||Rep. Edward J. Markey (D-MA)|
|Rep. Heather A. Wilson (R-NM)||Rep. Diana L. Degette (D-CO)|
|Rep. Paul E. Gillmore (R-OH)||Rep. Thomas Barrett (D-WI)|
|Rep. Robert Erhlich (R-MD)||Rep. Bart Stupak (D-MI)|
The opening remarks made by the representatives present once again displayed the wide range of opinions about how, and to what extent, the Comprehensive Environmental Response, Compensation, and Liability Act, popularly known as the Superfund bill, should be reformed. Chairman Oxley (R-OH) expressed his opinion that the current Superfund program needs to be restructured to lessen the liability of innocent parties and small businesses, to improve the processes with which remediation techniques are selected, and to encourage the development of brownfield sites. He noted that both H.R. 1300 and H.R. 2580 address these issues through a series of liability exemption provisions, required allocation procedures, attempts to encourage brownfield development, and several other changes to the language of the current statute. Many representatives concurred, expressing their dissatisfaction with the current law, and their support of the above bills. Rep. Shimkus (R-IL) expressed his concern that small businesses that contributed nothing, or very little, to large pollution problems are being held responsible for unproportionally large amounts of liability due to CERCLA's "joint and several" liability scheme. Rep. Markey (D-MA) said that the retroactive liability policies in the current law holds businesses unfairly responsible for past actions that were legal.
Ranking Member Towns (D-NY) noted that while specific parts of CERCLA need to be changed -- mainly those governing incentives to redevelop brownfield sites and those that impose unfair liability on innocent parties -- it was his opinion that it would be unwise to initiate broad reforms of CERCLA. He noted that his bill, H.R. 1750, is an attempt to encourage brownfield development and deter the imposition of liability on non-negligent parties, without altering the parts of CERCLA that are working. He also noted that H.R. 1750 is the only Superfund legislation that the Clinton Administration has endorsed. Rep. Pallone (D-NJ) stressed the importance of thoroughly cleaning up Superfund sites, and said that H.R. 2580 would reduce the number of remediation options considered, and therefore the number of sites that are reclaimed. Rep. Markey expressed the opinion that H.R. 1300 reduces the incentive for polluters to settle by introducing new loopholes for exemption, and would prolong the cleanup initiation process and cause an increase in litigation fees. Rep. Markey also noted that the bill does not address the renewal of the Superfund tax, which is crucial to the funding of Superfund cleanups.
The first panel of witnesses consisted of administrators from the Environmental Protection Agency. Timothy Fields, the Assistant Administrator of the Office of Solid Waste and Emergency Response of the EPA, and Steven A. Herman, the Assistant Administrator for Enforcement and Compliance Assurance of the EPA, both said that administrative reforms made in the last three years have made Superfund a "fairer, more effective, and more efficient program," fundamentally altering the need for Superfund Legislation. During the question and answer section, the witnesses stated that the mandatory allocations section in H.R. 1300 would result in an increase in litigation time because it offers no incentive for businesses to settle and because it introduces many new terms that would need to be defined in a courtroom setting. The administrators said that H.R. 1300 makes overly broad liability exemptions for small businesses, contributors to municipal waste, and recyclers. Several representatives requested that the administration provide the committee with an acceptable definition of a "small business", including employee numbers as well as revenue minimums. Field and Herman voiced the administration's opinion that H.R. 1300 and H.R. 2580 unnecessarily lower groundwater restoration standards and do not prevent contaminated waters from infringing upon clean groundwater. They also said that certain reforms on brownfield initiatives and liability exemptions would be supported by the administration and that they strongly supported H.R. 1750.
The second panel was made up of representatives from the private, industrial, and environmental sectors of society. Written testimonies submitted by all of these witnesses, as well as those from the EPA, can be accessed via the House Commerce Committee Web Page.
The first witness was Christopher Jeffers, City Manager of Monterey Park, CA and Chairman of the American Communities for Cleanup Equity (ACCE). He spoke in favor of Superfund reform based on administrative changes that were made by the EPA in February of 1998. These reforms limit the liability of generators and transporters of municipal solid waste and municipal sewage sludge. Although ACCE supports the policies currently practiced by the EPA, it feels that legislative reforms will make the changes more definite and binding, and give localities the choice of affordable settlement.
Mike Nobis, the general manager of JK Creative Printers in Quincy, IL, appealed to the committee to pass legislation exempting small businesses like his own, which had been plagued by the current Superfund policies, from liability. He spoke in support of H.R. 2247, The Small Business Fairness Superfund Act, introduces by Rep. Shimkus, who represents Nobis's area.
Gordon Johnson, the Deputy Bureau Chief of the Environmental Protection Bureau in the office of the New York Attorney General Eliot Spitzer, spoke on behalf of the National Association of Attorneys General. He expressed the opinion that kinks in the initial Superfund bill have been worked out and that the current statute is getting the job done as intended. The main reasons for the increased efficiency of the law is that the cleanup liability provisions are now clearly understood by all parties (both responsible parties and government). He said that the proposed changes to CERCLA will reignite courtroom battles over the meaning, scope, and implications of the law. He then commented on language and consequences of several sections of H.R. 1300 and H.R. 2580 regarding brownfields, community participation and human health, liability reforms, remedy selection, and general provisions. These comments consisted of support of some sections and concern about the language of others.
The next witness, Jane Williams, Chair of the Sierra Club's Waste Committee, expressed opinions similar to those of the EPA. Williams mainly focused on the liability provisions of H.R. 1300, noting that the strict liability provisions that are currently the law undermine the "polluter pays" principle and that the cost of these additional exemptions will be passed on to innocent tax payers. Williams expressed disagreement with the plans to abolish the Relevant and Appropriate Provisions of CERCLA as well as to implement a mandatory allocations process.
Jeremiah D. Jackson, President Elect of the Environmental Business Action
Coalition, spoke in support of H.R. 2580, noting several parts of the current
Superfund law that he felt are ineffective and need to be reformed.
He stated that there have been significant advances in professional practices
of hazardous waste cleanup in the past several years that need to be reflected
in statutory changes to the law. He expressed the opinion that both
the manner in which cleanup remedies are selected and the procedures that
govern cleanup need to be changed. He also said that liability provisions
for those that do the cleanup work need to be revised so that they cannot
be held liable to the same degree as a polluter. Jackson felt that
changes to CERCLA would ensure efficient and cost-effective operation and
improve protection to human health and the environment.
Senate Environment and Public Works Committee
Subcommittee on Superfund, Waste Control, and Risk Assessment
June 29, 2000
Hearing on S. 2700, Brownfields Revitalization and Environmental Restoration Act of 2000
The Bottom Line
Since Congress has been unable to reach an agreement on a comprehensive Superfund reformation bill for the last several years, Sen. Lincoln Chafee (R-RI) has broken 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 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. The committee heard testimony from administration officials, several city government representatives, and non-governmental organizations. All were in favor of S. 2700, however, some witnesses had suggestions for the bill's improvement.
|Lincoln Chafee (R-RI), Chairman
Robert Smith (R-NH)
Charles Grassley (R-IA)
|Frank Lautenberg (D-NJ), Ranking Member
Max Baucus (D-MT)
Subcommittee Chair Chafee opened the hearing by announcing that S. 2700, the Brownfields Revitalization and Environmental Restoration Act of 2000, introduced by himself and Senators Smith (R-NH), Lautenberg (D-NJ) and Baucus (D-MT), had just won the bipartisan co-sponsorship of 40 senators. He stated clearly that S. 2700 is not meant to replace a comprehensive Superfund reform bill. He believes that brownfields do not belong under the jurisdiction of Superfund regulations, as they are not contaminated enough to make the National Priorities List (NPL). He stated that this bipartisan bill would provide the federal money to local government programs, and protection of innocents, to "spur the cleanup and redevelopment of the nearly 450,000 brownfield sites" across the country.
Sen. Robert Smith (R-NH) spoke of the danger to human health that the brownfield sites pose, and how their presence encourages urban sprawl, increased traffic, and discourages the economic growth of surrounding areas. The proposed S. 2700 bill addresses the serious issue of liability, which has been hindering private sector cleanups, by protecting prospective, contiguous and innocent landowners. It also restricts the EPA's jurisdiction over sites remediated under the State Voluntary Cleanup provision, thus making the states responsible for finality decisions. Smith said he would continue to fight for a comprehensive Superfund reform bill, but that the brownfields sections that are successful needed to be continued.
Sen. James Inhofe (R-OK) was the only congressman in attendance in opposition to the bill, stating that brownfields programs need to be addressed only through a comprehensive Superfund reform bill. Sen. Frank Lautenberg (D-NJ) responded that four Congresses have now failed to reform Superfund legislation. He cited the problems associated with brownfields sites, including the threat to human health, increased crime rates, urban sprawl and traffic, and he argued that S. 2700 gives the states more control over how they redevelop sites.
Sen. Max Baucus (D-MT) agreed that S. 2700 contains good provisions of federal funding for states' brownfield revitalization programs and addresses the question of liability that may be holding states back. He claimed the impossibility of linking all of Superfund under one bill, and said that Chafee's bill is "good, not perfect, but good here is a lot better than nothing."
Timothy Fields Jr., Assistant Administrator, Environmental Protection Agency
J. Christian Bollwage, Mayor of Elizabeth, New Jersey, representing the U.S. Conference of Mayors
Preston Daniels, Mayor of Des Moines, Iowa, representing the National Association of Local Government Environmental Professionals (NALGEP)
Jan Reitsma, Director, Rhode Island Department of Environmental Management
Fields, began his testimony by stating that the Administration does not support a comprehensive Superfund reformation, but does realize that several aspects of the legislation need to be readdressed. He cited EPA brownfields programs successes including increases in the speed at which it cleans up sites, while costs have decreased 20% per site. In regards to S. 2700, Fields testified that it lacked a minimum competency requirement for State programs, as well as a mechanism to assure that site remediation has met EPA standards.
Bollwage testified that he supports S. 2700 because it effectively addresses the three main issues of brownfields revitalization: financial resources, liability relief, and the clarification of state and federal roles. He emphasized the liability issues as having been a major block hindering private sector involvement. Bollwage also testified that brownfields are not an urban Northeastern issue, but that the bill is applicable to rural areas as well.
Daniels spoke in support of the brownfields bill, and offered some constructive suggestions for its improvement. He recommended that sites polluted by lead, asbestos, and petroleum, which are currently excluded from federal brownfields assistance, be eligible for brownfields funding and liability protection provisions. He pointed out that abandoned gas stations and buildings contaminated with lead paint or asbestos are abundant in every U.S.city.
Reitsma too, endorsed S. 2700's liability relief provisions that allow states to avoid double jeopardy if the site meets certain EPA standards. He also advocated the allotment of even more funding for state investments and cleanup of brownfields.
Vernice Miller-Travis, Executive Director, Partnership for Sustainable Brownfields Redevelopment
Alan Front, Senior Vice President, Trust for Public Land
William McElroy, Vice President, Zurich U.S. Specialties, representing American Insurance Association
Keven P. Fitzpatrick, AIG Global Real Estate Investment Corp.
For the first time, Miller-Travis spoke in support of S. 2700. She did, however, suggest a change in the language of the State Voluntary Cleanup provisions of the bill, saying that it currently assumes that every state has the resources and inclination to implement and enforce vigorous remediation standards in all communities, regardless of race, ethnicity or economic status. She voiced some concerns that the sustainable redevelopment of brownfield sites needs to be viewed as a strategy to revitalize the existing residents and businesses, not the gentrification of the site for entities outside the community.
McElroy also advocated S. 2700, especially the use of federal grants instead of loans to help local communities rebuild themselves. He testified that insurance is often overlooked as a risk management tool to prepare to pay for the costs of additional cleanups after the initial ones have been approved in case of new environmental statutes, as well other potential remediation problems.
Front asserted that his organization supported the brownfields bill with its attention towards improving economic growth. He added that more brownfields should be redeveloped into parkland where urban sprawl is less of an issue. Fitzpatrick agreed with Front, and said that Superfund legislation had the unintended effect of deterring private real estate developers from cleaning up sites at their own expense.
Please send any comments or requests for information to the AGI Government Affairs Program.
Contributed by AGI/AIPG Geoscience Policy Interns Sarah Robinson and Audrey Slesinger, and AGI/AAPG Geoscience Policy Interns Christi Snedegar and Alison Alcott.
Posted March 23, 1999; Last Updated July 5, 2000.
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