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                                                       Calendar No. 371
105th Congress                                                   Report
                               SENATE

 2d Session                                                     105-192
_______________________________________________________________________


 
              SUPERFUND CLEANUP ACCELERATION ACT OF 1998


                               ----------                              

                                 REPORT

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                             together with

              ADDITIONAL, SUPPLEMENTAL, AND MINORITY VIEWS

                              TO ACCOMPANY

                                  S. 8





                  May 19, 1998.--Ordered to be printed



               SUPERFUND CLEANUP ACCELERATION ACT OF 1998



                                                       Calendar No. 371
105th Congress                                                   Report
                               SENATE

 2d Session                                                     105-192
_______________________________________________________________________


              SUPERFUND CLEANUP ACCELERATION ACT OF 1998


                               __________

                                 REPORT

                                 OF THE

                              COMMITTEE ON

                      ENVIRONMENT AND PUBLIC WORKS

                          UNITED STATES SENATE

                             together with

              ADDITIONAL, SUPPLEMENTAL, AND MINORITY VIEWS

                              TO ACCOMPANY

                                  S. 8

                                     



                  May 19, 1998.--Ordered to be printed
                                     
                                     

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED FIFTH CONGRESS

                 JOHN H. CHAFEE, Rhode Island, Chairman

JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
DIRK KEMPTHORNE, Idaho               FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma            HARRY REID, Nevada
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri        JOSEPH I. LIEBERMAN, Connecticut
TIM HUTCHINSON, Arkansas             BARBARA BOXER, California
WAYNE ALLARD, Colorado               RON WYDEN, Oregon
JEFF SESSIONS, Alabama

                     Jimmie Powell, Staff Director

               J. Thomas Sliter, Minority Staff Director

                                     


                            C O N T E N T S

                               __________
                                                                   Page
General statement:
    Introduction.................................................     1
    Overview of current law......................................     4
    Problems and solutions:
        Liability................................................     5
        Remedy selection.........................................     6
        Brownfields..............................................     8
        State role...............................................     9
        Community participation..................................    10
        Natural resource damages.................................    11
        Federal facilities.......................................    12

Section-by-section summary:
    Section:
        Short title; table of contents...........................    13

                  TITLE I--BROWNFIELDS REVITALIZATION

    Section:
        Sec. 101.  Brownfields...................................    13
        Sec. 102.  Assistance for qualifying State voluntary 
          release programs.......................................    17
        Sec. 103.  Enforcement in cases of a release subject to a 
          State plan.............................................    17
        Sec. 104.  Contiguous properties.........................    20
        Sec. 105.  Prospective purchasers and windfall liens.....    21
        Sec. 106.  Safe harbor innocent landholders..............    23

                          TITLE II--STATE ROLE

    Section:
        Sec. 201.  Transfer to the States of responsibility at 
          non-Federal National Priorities List facilities........    24

                TITLE III--LOCAL COMMUNITY PARTICIPATION

    Section:
        Sec. 301.  Definitions...................................    30
        Sec. 302.  Public participation generally................    31
        Sec. 303.  Improvement of public participation in the 
          superfund decisionmaking process; local community 
          advisory groups; technical assistance grants...........    31
        Sec. 304.  Technical outreach services for communities...    34
        Sec. 305.  Agency for Toxic Substances and Disease 
          Registry...............................................    34
        Sec. 306.  Understandable presentation of materials......    36
        Sec. 307.  No impediment to response actions.............    36

                TITLE IV--SELECTION OF REMEDIAL ACTIONS

    Section:
        Sec. 401.  Definitions...................................    36
        Sec. 402.  Selection and implementation of remedial 
          actions................................................    37
        Sec. 403.  Remedy selection methodology..................    47
        Sec. 404.  Remedy selection procedures...................    49
        Sec. 405.  Completion of physical construction and 
          delisting..............................................    51
        Sec. 406.  Transition rules for facilities currently 
          involved in remedy selection...........................    52
        Sec. 407.  National Priorities List......................    53

                           TITLE V--LIABILITY

    Section:
        Sec. 501.  Liability exceptions and limitations..........    54
        Sec. 502.  Contribution from the fund....................    58
        Sec. 503.  Expedited settlement for certain parties......    59
        Sec. 504.  Allocation of liability for certain facilities    60
        Sec. 505.  Certain facilities owned by local governments.    65
        Sec. 506.  Liability of response action contractors......    66
        Sec. 507.  Release of evidence...........................    68
        Sec. 508.  Contribution protection.......................    69
        Sec. 509.  Treatment of religious, charitable, 
          scientific, and educational organizations as owners or 
          operators..............................................    69
        Sec. 510.  Common carriers...............................    70
        Sec. 511.  Limitation on liability of railroad owners....    70
        Sec. 512.  Liability of recyclers........................    71
        Sec. 513.  Requirement that cooperation, assistance, and 
          access be provided.....................................    74

                      TITLE VI--FEDERAL FACILITIES

    Section:
        Sec. 601.  Transfer of authorities.......................    74
        Sec. 602.  Innovative technologies for remedial action at 
          Federal facilities.....................................    75
        Sec. 603.  Full compliance by Federal entities and 
          facilities.............................................    77

                  TITLE VII--NATURAL RESOURCE DAMAGES

    Section:
        Sec. 701.  Restoration of natural resources..............    78
        Sec. 702.  Consistency between response actions and 
          resource restoration standards.........................    79
        Sec. 703.  Contribution..................................    79
        Sec. 704.  Mediation.....................................    80
        Sec. 705.  Coeur d'Alene basin...........................    80
        Sec. 706.  Effective date................................    80

                       TITLE VIII--MISCELLANEOUS

    Section:
        Sec. 801.  Result-oriented cleanups......................    84
        Sec. 802.  Obligations from the fund for response actions    85
        Sec. 803.  Recycled oil..................................    86
        Sec. 804.  Law enforcement agencies not included as owner 
          or operator............................................    87
        Sec. 805.  Lead in soil..................................    88
        Sec. 806.  Pesticides applied in compliance with law.....    90
        Sec. 807.  Technical corrections.........................    91

                           TITLE IX--FUNDING

    Section:
        Sec. 901.  Authorization of appropriations from the fund.    91
        Sec. 902.  Orphan share funding..........................    92
        Sec. 903.  Department of health and human services.......    92
        Sec. 904.  Limitations on research, development, and 
          demonstration programs.................................    92
        Sec. 905.  Authorization of appropriations from general 
          revenues...............................................    93
        Sec. 906.  Additional limitations........................    93
        Sec. 907.  Reimbursement of potentially responsible 
          parties................................................    93

Hearings.........................................................    93
Rollcall votes...................................................    97
Regulatory impact................................................    98
Mandates assessment..............................................   100
Comment from the General Accounting Office.......................   101
Cost of legislation..............................................   104
Additional views of:
    Senator Kempthorne...........................................   113
    Senator Bond.................................................   115
Supplemental views of Senators Allard and Wyden..................   117
Minority views of:
    Senators Baucus, Lautenberg, Moynihan, Lieberman, Boxer, and 
      Wyden......................................................   119
        Letters from:
            Vice President.......................................   121
            Administrator, Environmental Protection Agency.......   121
            Secretary of the Interior............................   122
            Secretary of Agriculture.............................   122
            Assistant Attorney General for Legislative Affairs, 
              Department of Justice..............................   123
            Chairman, Council on Environmental Quality...........   124
            Assistant Secretary of Commerce for Oceans and 
              Atmosphere.........................................   125
    Senators Baucus and Lautenberg...............................   126
Changes to existing law..........................................   198


                                                       Calendar No. 371
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-192
_______________________________________________________________________


               SUPERFUND CLEANUP ACCELERATION ACT OF 1998

                                _______
                                

                  May 19, 1998.--Ordered to be printed

_______________________________________________________________________


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

              ADDITIONAL, SUPPLEMENTAL, AND MINORITY VIEWS

                          [To accompany S. 8]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 8) to reauthorize and amend the 
Comprehensive Environmental Response, Liability, and 
Compensation Act of 1980, having considered the same, reports 
favorably thereon with amendments and recommends that the bill, 
as amended, do pass.

                           General Statement

Introduction
    The Comprehensive Environmental Response, Compensation and 
Liability Act (``CERCLA'' or ``Superfund'') was signed into law 
on December 11, 1980. The law was enacted in large part to 
address contamination at abandoned sites and other facilities 
that were not covered by the Resource Conservation and Recovery 
Act (RCRA), the only Federal law in effect at the time 
governing the management of hazardous waste at active 
facilities. Extensive amendments to the law were enacted in 
1986 in the Superfund Amendments and Reauthorization Act 
(SARA). In 1990, the Omnibus Budget Reconciliation Act extended 
the Superfund programs and taxes without modification. The 
program authorization was extended until September 30, 1994. 
The authorization for the collection of Superfund taxes expired 
on December 31, 1995. These taxes a corporate environmental 
income tax imposed on a broad range of businesses, a tax on 
chemical feedstocks, and a tax on crude oil generated 
approximately $1.5 billion per year.
    CERCLA, as amended, provides, among other things, a 
comprehensive legal framework for the Federal government to 
respond to uncontrolled releases of hazardous substances from a 
facility or vessel. It accomplishes this through a liability 
scheme imposed on a broad range of responsible parties that 
enables the Federal government to order responsible parties to 
order responsible parties to cleanup releases or threatened 
releases of hazardous substances. The law is backed up with 
Federal funding, giving the government flexibility to conduct 
cleanups itself and then seek reimbursement for cleanup costs 
from responsible parties.
    Since its enactment in 1980, CERCLA and the Environmental 
Protection Agency's (EPA's) implementation of the law has been 
the subject of substantial controversy. The Office of 
Technology Assessment (OTA), the Government Accounting Office 
(GAO), Congressional committees and environmental organizations 
and others have published numerous reports criticizing, among 
other things, EPA's program management, the slow pace of 
cleanups, the cost of cleanups, protracted litigation involving 
hundreds and sometimes thousands of potentially responsible 
parties (PRPs), \1\ including individuals and small businesses, 
lack of State and community involvement in cleanup decisions, 
and disincentives to cleanup industrial sites known as 
brownfields.
---------------------------------------------------------------------------
    \1\ Under CERCLA, the term ``potentially responsible party'' or 
``PRP'' has come to be understood to include both those parties that 
are actually determined to be liable for response costs under section 
107 (also known as ``responsible parties'') and those whose liability 
has not yet been resolved.
---------------------------------------------------------------------------
    The statistics associated with Superfund program certainly 
suggest that there are too many unresolved sites; the costs are 
too high; and too many parties are caught in the web of 
Superfund liability: When the law was first enacted, it was 
expected that only a few hundred sites would require Federal 
attention and that cleanups could be accomplished with 
relatively limited Federal funding. Almost 41,000 sites, 
however, have been included on EPA's national inventory of 
hazardous waste sites, the Comprehensive Environmental 
Response, Compensation and Liability Information System 
(CERCLIS). While EPA has determined that Federal action is not 
warranted at this time at 30,917 sites; it has placed 1,414 
sites on the National Priorities List (NPL) since 1980. 
Currently, there are 1,197 NPL sites, with Federal facilities 
accounting for 151 of the total. In addition, EPA has proposed 
to list an additional 54 sites and estimates that 150 to 250 
more sites may be added over the next 5 years. Only 162 sites 
have ever been deleted from the NPL.
    The costs of cleanup activities at sites also has exceeded 
original expectations. The Congressional Budget Office (CBO) 
estimates that cleanup costs now average approximately $22 
million per site. This average is likely to increase as more 
complex sites move into the cleanup phase. EPA estimates that 
private parties have committed more than $14 billion to cleanup 
sites under Superfund since the program began. According to a 
January 1994 Congressional Budget Office study, the total 
amount of public and private monies spent on Superfund from 
1980-1994 is approximately $30 billion, a significant portion 
of which has gone to litigation costs.
    And the number of cases in litigation continues to 
increase. In each year between 1992 and 1996, the Justice 
Department filed 100 to 150 new cases against PRPs. Parties 
named by EPA as PRPs, in turn, filed thousands of claims 
against third parties, many of who are individual homeowners 
who disposed of municipal solid waste, small businesses, 
charitable organizations and school districts.
    EPA has recognized some of the problems associated with the 
Superfund program. The current Administration has undertaken 
three rounds of administrative reforms. On October 2, 1995, 
Administrator Browner announced 20 administrative reforms that 
were intended to accomplish three main goals: (1) make smarter 
cleanup choices that protect public health and the environment; 
(2) reduce litigation by achieving common ground instead of 
conflict; and (3) ensure that States and communities are better 
informed about and more involved in the decision making process 
with respect to cleanup actions. The Administration's 
initiatives reflect an important first step in the effort to 
improve the implementation of the law. Congressional 
authorization, however, is needed to expand and improve the 
Administration's reforms. Additional refinements are also 
appropriate to enhance their effectiveness. By adding express 
authorization for recent Administration reforms, the bill 
provides clarity regarding appropriate criteria and procedures 
for their implementation.
    The Superfund Cleanup Acceleration Act of 1998 (S. 8) 
shares the fundamental goals of the Administrations reforms and 
builds upon those reforms. The bill makes significant 
improvements in each of the major provisions of the law. Among 
other things, the bill:
  Lestablishes a ``fair share allocation process'' 
    eliminating the unfairness of joint and several liability 
    and provides for orphan share funding for insolvent and 
    defunct parties;
  Lexempts from liability altogether many small 
    businesses, parties whose disposed of municipal solid 
    waste, and generators of truly minimal amounts of waste (de 
    micromis parties);
  Lsimplifies the remedy selection process, replacing 
    the rigid statutory presumption in favor of treatment and 
    the automatic adoption of all applicable or relevant and 
    appropriate environmental requirements (ARARs) with a new, 
    more flexible balancing test that considers: effectiveness 
    of the remedy; long-term reliability; short term risks to 
    the community; acceptability of the remedy to the 
    community; implementability of the remedy; and the 
    reasonableness of the cost;
  Lallows States to assume responsibility for response 
    actions at non-Federal NPL sites;
  Lprovides funding for grants to States, local 
    governments, and other qualified agencies to identify and 
    characterize or cleanup contaminated brownfield sites;
  Lclarifies the measure of damages for a natural 
    resource damages (NRD) claim to include the costs of actual 
    restoration of the resource, the costs of providing interim 
    replacements for lost uses associated with the resource; 
    and the reasonable costs of assessing the injury; and
  Lreauthorizes the Superfund program for a total of 
    $7.5 billion over 5 years, with orphan share to be funded 
    by additional mandatory spending of $1.45 billion over the 
    same period.
Overview of Current Law
    Superfund imposes liability for response costs, natural 
resource damages and the cost of any health assessment or 
health effects study on four categories of persons: present 
owners and operators of a Superfund facility; certain past 
owners and operators; waste generators; and transporters that 
arrange for the disposal of waste at a facility. Section 107(a) 
creates a cause of action for cost recovery by the United 
States, a State, or any other person who has incurred 
recoverable costs associated with the cleanup of a site. 
Section 113 also creates a cause of action by any person who 
has incurred recoverable costs for ``contribution'' from any 
other person who is liable or potentially liable for such costs 
under section 107(a).
    The law itself does not mandate strict, joint or several 
liability. However, the courts have unanimously held that 
Section 107 liability is strict in that it applies without 
regard to fault on the part of the responsible party. \2\ 
Similarly, the courts have developed a uniform rule applying 
joint and several liability to Section 107 in cases where the 
harm caused by the release of a hazardous substance is 
indivisible. Under this principle, a single party could 
theoretically be held liable for all the cleanup costs at a 
site. \3\
---------------------------------------------------------------------------
    \2\ See, e.g., United States v. Chem-Dyne Corp., 572 F. Supp. 802, 
808-809 (S.D. Ohio 1983).
    \3\ See United States v. DiBiase, 45 F.3d 541, 544 (1st Cir. 1995).
---------------------------------------------------------------------------
    Whenever there is a release of a hazardous substance, 
section 104 authorizes EPA to remove the substance and take 
appropriate remedial action to protect human health and the 
environment. EPA can carry out either a response action or a 
remedial action itself under section 104 and, in most cases, 
recover the costs from responsible parties. Alternatively, EPA 
can order responsible parties to undertake a response action 
under section 106. Responsible parties who refuse to comply 
with a section 106 order, and cannot demonstrate ``sufficient 
cause'' for noncompliance, are liable for treble damages and 
civil penalties of up to $25,000 per day of noncompliance. In 
practice, EPA's authority under section 106 serves an as 
effective incentive for many responsible parties to enter into 
administrative consent orders to conduct response actions and 
avoid the costs of litigation as well as penalties.
    CERCLA Section 121 governs the remedy selection process. 
For a site that is listed on the NPL, a Remedial Investigation/
Feasibility Study (RI/FS) is performed to characterize 
contamination at the site and identify alternative remedial 
approaches. EPA then develops a remedial action plan that sets 
forth the cleanup goals for the site and discusses a range of 
alternative remedial actions issues to cleanup the site. EPA 
must ultimately select a remedy ``that is protective of human 
health and the environment, that is cost-effective, and that 
utilizes permanent solutions and alternative treatment 
technologies or resource recovery technologies to the maximum 
extent practicable.''
    In addition to liability for response costs, responsible 
parties are also liable under section 107 for damages for 
``injury to, destruction of, or loss of natural resources 
resulting from such a release [of a hazardous substance].'' The 
term natural resources is broadly defined in section 101 to 
include ``land, fish, wildlife, biota, air, water, ground 
water, drinking water supplies, and other such resources 
belonging to, managed by, held in trust by, or otherwise 
controlled by the United States, any State or local government, 
foreign government, or Indian Tribe.''
    Unlike actions for response costs that are filed by EPA, 
natural resource damages claims are brought by Federal, State 
and Tribal trustees for the natural resources within their 
trusteeship. Trustees are responsible for assessing the injury 
to natural resources, recovering damages from PRPs to restore 
the resource, and implementing a plan to restore or acquire 
equivalent resources. Any monetary damages recovered under a 
natural resources claim may be used only to restore, replace or 
acquire the equivalent of the injured natural resource. The 
Superfund may not be used to pay for natural resource 
restoration activities.

                         Problems and Solutions

Liability
    The heart of the controversy surrounding the Superfund 
program lies in its judicially-imposed scheme of strict, joint 
and several liability. While this liability structure has made 
it relatively easy for the government to prosecute claims for 
response costs, it has also served to substantially increase 
litigation, bring thousands of parties into the Superfund 
process who were never intended to be included, and delay the 
cleanup of countless sites.
    Imposing joint and several liability has effectively 
created an incentive for third party litigation. Under CERCLA's 
liability scheme, EPA need only identify one or a few 
responsible parties at a site, but it can still seek to recover 
all of the response costs associated with the clean up of a 
site, regardless of the actual contribution of those parties to 
the site. Those responsible parties, in turn, have every 
incentive to try to involve as many other PRPs as possible in 
order to share the costs and minimize their own exposure. Thus, 
at some sites, responsible parties have filed third party 
actions against thousands of PRPs, often including individuals 
and small businesses. In many cases, those additional parties 
contributed only non-hazardous, household waste, or truly 
minimal amounts of hazardous waste (de micromis contributors) 
to a site. Even if those parties are ultimately able to settle 
the claims, they incur significant and unnecessary litigation 
expenses.
    There is broad agreement that the statute must specifically 
exempt certain categories of PRPs who are now caught in the 
Superfund liability web.
    For small businesses and other PRPs who contribute only a 
small amount of waste to a site so-called de minimis 
contributors improvements must be made to the settlement 
process. Current law authorizes EPA to enter into expedited 
settlements with de 
minimis parties. These settlement agreements then provide 
protection to the settling parties from any third party 
litigation, as well as from any further cost recovery action by 
EPA. Until recently, however, EPA has been slow to take 
advantage of this tool. To date, EPA has negotiated de minimis 
settlements at only 171 sites covering approximately 15,000 
parties.
    A significant number of Superfund sites are the result of 
disposal activities at former municipal landfills. Although the 
vast majority of the materials in these facilities is ordinary 
household trash and non-hazardous industrial waste, small 
amounts of hazardous materials are also found (e.g., mercury in 
batteries or chemicals and solvents in household cleaners). 
Because municipalities and local governments operated many of 
these landfills, they are subject to Superfund liability. 
Similarly, the individuals and businesses that sent their trash 
to these facilities may also be held liable. This 
interpretation of the liability provisions has been condemned 
as unfair and, to a large extent, unintended. The bill 
addresses the issue of liability for activities relating to the 
disposal of municipal solid waste by capping the liability of 
owners and operators of disposal facilities and exempting 
parties that disposed of municipal solid waste.
    Significant concerns have also been raised about the 
transaction costs that responsible parties incur as a result of 
CERCLA litigation. Transaction costs include legal expenses and 
any other costs not directly associated with cleanup 
activities. According to a 1994 study by the RAND Corporation, 
transaction costs constitute between 30-36 percent of the total 
Superfund spending by private parties. The percentage of 
transaction costs is even higher in the context of total 
amounts spent by insurance companies for Superfund-related 
claims. Much of the litigation under Superfund relates directly 
to the issue of whether Superfund response costs are covered by 
the insurance policies that were typically issued until before 
CERCLA was enacted. Because of that litigation, the 1994 RAND 
study found that 88 percent of the Superfund-related expenses 
of insurers went to transaction costs, and only 12 percent to 
actual cleanup.
    The bill will reduce transaction costs by reducing 
litigation. The bill's fair share allocation system is expected 
to facilitate the orderly resolution of many claims against 
PRPs without the delay or added costs of judicial proceedings. 
Eliminating the liability of thousands of small PRPs and 
capping the liability of others at codisposal sites should 
further reduce transaction costs and avoid much of the third 
party litigation that occurs today.
Remedy Selection
    The primary criticism of CERCLA's remedy selection process 
is that it results in remedies that cost too much and that take 
too long to complete. The subsidiary effect of this is that 
responsible parties are more likely to try to challenge agency 
decisions or to delay the final selection and implementation of 
a remedy. Also, the more costly the remedy, the more likely it 
is that responsible parties will seek to include other 
potentially PRPs to share the costs.
    In large part, the focus of the criticism has rested on the 
statute's preference for treatment. In 1986, Superfund was a 
relatively new program. Expectations were high that cost-
effective treatment technologies would be developed. In 
practice, however, in a number of cases, effective treatment 
technologies have not been readily available or they have been 
inordinately costly. Moreover, in some cases, the preference 
may not be appropriate. For example, both the National Academy 
of Sciences and EPA have recognized that stabilizing and 
capping some waste sites may provide a more cost-effective and 
realistic way to protect public health than treatment. EPA has 
developed guidance documents in an effort to provide better 
criteria for the application of the preference for treatment. 
The fundamental problem, however, is that the preference for 
treatment is still the law. Until the statute is revised, EPA's 
authority to use its discretion in applying the preference is 
limited.
    The bill addresses this problem by replacing the statutory 
preference for treatment with an emphasis on the long-term 
reliability of a remedy. This new approach would provide EPA 
with considerably more discretion to select among remedies that 
include the use of containment options and institutional and 
engineering controls. In many cases, applying these management 
options may substantially reduce the costs of a remedial 
action, without jeopardizing human health or the environment.
    The costs of remedial actions have also been driven up by 
CERCLA's requirement that cleanup standards incorporate ARARs. 
There is little dispute that a remedial action should comply 
with any Federal or State requirements regarding the safe 
cleanup level for a particular contaminant. It is less evident, 
however, that cleanup decisions should always satisfy other 
``relevant or appropriate requirements'' for a contaminant. In 
some cases, it is difficult even to identify the ``relevant and 
appropriate requirements.'' This can result in cleanup goals 
and remedies that differ from one site to another. Even within 
a single State, Superfund remedial program managers may differ 
on the issue of whether a particular State requirement is 
``relevant'' to a Superfund cleanup. This inconsistency 
contributes to uncertainty, protracted site evaluation, 
extensive debate over cleanup goals, higher cleanup costs, and 
an overall delay in completing cleanups.
    The bill would delete the law's ``relevant and 
appropriate'' language, requiring instead that remedies comply 
with legally applicable standards and attain specified human 
health and environmental protection levels.
    There is continuing uncertainty regarding the extent to 
which the cost of a remedy is to be considered in the remedy 
selection process. Current law requires both that the Agency 
consider cost in assessing remedial alternatives, and that 
response actions be cost-effective. EPA guidance further 
clarifies how cost-effectiveness is determined and how cost is 
factored into remedial action alternative balancing. The PRP 
community, however, claims that cost considerations are often 
ignored or minimized in EPA's remedy selection decision 
process. The bill reaffirms the significance of cost 
considerations in the remedy selection process, adding a new 
cost factor for consideration. Under the bill, EPA must 
consider, among other things, the reasonableness of the cost of 
a remedy.
    To further minimize unnecessary costs associated with some 
cleanups, the bill expressly authorizes EPA to take into 
consideration the reasonably anticipated future land use of a 
site. Applying appropriate future use standards and 
restrictions allows responsible parties to tailor their cleanup 
actions and resources to address the real risks that may be 
posed by the site. If a site is to be redeveloped for 
industrial purposes, for example, there is little dispute that 
responsible parties should not have to clean up the site to the 
level that would be required if it were to be developed for 
residential purposes. This is consistent with recent EPA policy 
that states that EPA will no longer assume that a site will be 
used for residential purposes, unless a determination is made 
to that effect. Institutional controls may be used in 
conjunction with land use assumptions to ensure that adequate 
protection is provided when contamination remains after cleanup 
is completed.
Brownfields
    Fear of potential or actual Superfund liability has proven 
to be a substantial obstacle to the redevelopment of 
contaminated industrial property. In a 1996 Report to Congress, 
GAO concluded that ``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.'' (Superfund: Barriers to Brownfield 
Redevelopment at 2, GAO RCED-96-125, June 1996). As a result, a 
number of contaminated, and in some cases uncontaminated, 
existing industrial sites remain vacant and unused while 
companies develop new facilities in suburban and rural 
``greenfields'' to avoid the specter of potential environmental 
liability.
    The redevelopment of brownfields is largely an urban 
concern, although one that affects communities of all sizes. 
GAO has estimated that there are approximately 150,000 
brownfield acres in major U.S. cities. The U.S. Conference of 
Mayors conducted a survey in 1996 that identified more than 
20,000 brownfields sites in just 39 cities alone. In that 
survey, 33 cities estimated that they lose as much as $386 
million in tax revenues each year because of lost development 
opportunities. There is broad consensus among State and local 
governments that reforms to promote brownfield redevelopment 
must be a priority of any Superfund reauthorization.
    One of the fundamental obstacles identified by State and 
local government officials to the redevelopment of brownfields 
is the lack of funds for site identification and cleanup. In 
some cases, a relatively inexpensive site assessment will 
reveal that a site for potential redevelopment is, in fact, 
uncontaminated or requires only minimal cleanup. Yet, unless 
the site assessment is conducted, that site will generally 
remain unused because of the fear of liability. A site 
assessment can remove that fear. The bill, therefore, provides 
$75 million in annual funding for EPA to establish a revolving 
loan and grant program for brownfield characterizations and 
assessments. The funds can also be used to cleanup sites, again 
helping eliminate disincentives to redevelopment. This 
relatively modest investment to capitalize revolving loan funds 
can be leveraged against other sources of funding.
    The bill builds upon the State voluntary cleanup programs 
and also provides incentives to encourage voluntary cleanups of 
sites. First, it authorizes $25 million per year to provide 
technical and financial assistance to States to establish and 
administer voluntary cleanup programs. Many States have 
established voluntary cleanup programs to encourage landowners 
to address less contaminated sites and promote commercial 
development. The underlying principle is that sites that have 
only low levels of contamination are less likely to be cleaned 
up if the burdens associated with cleanup are too high. Given 
the fact that EPA has determined that Federal action is not 
warranted at over 30,000 sites, it is clear that if these sites 
are to be addressed at all, it will probably be through State 
programs. By streamlining the cleanup process, State voluntary 
programs can effectively increase the number of sites that are 
actually cleaned up.
    Second, it provides finality for cleanups conducted under a 
State program. The incentive for landowners for agreeing to 
conduct cleanups is the assurance that they receive that the 
property has been cleaned up to the State's satisfaction and 
they will not be subject to further enforcement for that site.
State Role
    States have gained substantial experience since the 
enactment of the 1986 amendments to Superfund in managing 
cleanups at contaminated sites. Most States have enacted their 
own ``mini-Superfund'' laws, many with far-reaching cleanup and 
liability provisions. The Environmental Law Institute surveyed 
programs across the country and found that only Nebraska and 
the District of Columbia do not have some type of cleanup fund 
available to help pay for site cleanups. (See, An Analysis of 
State Superfund Programs: 50-State Study. The record also 
reflects that States are actively implementing the laws on 
their books. The Association of State and Territorial Solid 
Waste Management Officials (ASTSWMO) reports that, as of March 
1996, 31 States were conducting emergency removals; 32 were 
conducting other removal actions; 34 were conducting remedial 
actions; and 34 were engaged in operation and maintenance at 
non-NPL sites. In light of the States' increased involvement in 
site cleanups under State programs, as well the simple fact 
that EPA lacks the resources to address the universe of 
contaminated sites, States argue that they should be authorized 
to play a larger role in implementing Superfund.
    Under current law, the State's role in Superfund process is 
fairly limited. Most significantly, EPA is ultimately 
responsible for the selection of a remedy at an NPL site. 
Before undertaking any remedial action, EPA must consult with 
the affected State, but the State's concurrence is not a 
prerequisite to proceeding. Similarly, section 121 requires EPA 
to consider ARARs, including State environmental standards, but 
EPA may waive ARARs under certain limited conditions. (States 
can challenge a waiver.) As a final recourse, a dissatisfied 
State can hold up a Fund-financed cleanup by refusing to pay 
its 10-percent cost share, which is a prerequisite to 
proceeding with a remedial action.
     Although the law does not authorize delegation of the 
Superfund program, the 1986 amendments expanded the authority 
of EPA to enter into a cooperative agreement with a State 
allowing the State 
to act as the lead agency at NPL sites. Under a cooperative 
agreement, a State effectively assumes responsibility for 
implementing response actions in consultation with EPA. A State 
may recommend a proposed remedy, but EPA approval is still 
required. The decision of whether to enter into a cooperative 
agreement, moreover, rests with EPA.
    Having ``dual masters'' Federal and State regulators 
involved at a sites has led to confusion and uncertainty in 
some cases. Disagreements between the regulators regarding the 
application of ARARs or the ultimate selection of the remedy, 
for example, can significantly delay a cleanup and increase the 
costs. Similarly, a decision by EPA to waive a State cleanup 
standard can leave open the possibility that the State will 
seek to impose additional cleanup requirements under its State 
law.
    The bill recognizes that many States now have both the 
resources and the technical expertise necessary to conduct and 
oversee remedial actions at NPL and NPL-caliber sites. It 
provides that EPA may either delegate responsibility for the 
Superfund program to a requesting State or, alternatively, 
authorize the State program to operate in lieu of the Federal 
Superfund program. Whether the State operates under a delegated 
or an authorized program, it must still ensure that human 
health and the environment are protected. Under this new 
authority, States will have the ability to make their own 
decisions regarding the selection of remedial actions. They 
will have access to the Federal Fund to carry out the program. 
Significantly, States will assume sole responsibility for 
enforcement of the remedy at a site (except under exceptional 
circumstances). This should eliminate one of the principle 
concerns that responsible parties have raised about State-led 
cleanups.
Community Participation
    While much of the criticism of the Superfund program has 
come from responsible parties, the communities that are 
affected by the listing of sites and delays in cleanup 
decisions have also raised concerns about the implementation of 
the program. There is general agreement that early involvement 
of affected communities and stakeholders in the Superfund 
decision making process may reduce conflicts and delays. 
However, community advocates have testified that citizen 
involvement is not yet a meaningful part of the process. In 
order to accomplish that, changes must be made to the law to 
enhance citizen participation in the decision making process.
    Current law generally provides that remedial action plans 
are to be made available for review and comment by the public. 
More significant is the authorization for technical assistance 
grants (TAGs) of up to $50,000 to be made available to citizens 
potentially affected by Superfund remedial actions. TAGs are 
designed to provide local communities with funding to evaluate 
potential risks to human health and the environment posed by 
contamination at a Superfund site, as well as by any 
alternative remedies proposed. They are intended to enable 
citizens to participate more meaningfully in the remedy 
selection process. Concerns have been raised, however, that the 
process for obtaining TAGs is too cumbersome and therefore 
limits their effectiveness.
    The bill makes several important improvements to the 
community participation provisions of Superfund to address 
these concerns. First, it establishes Community Advisory Groups 
(CAGs) consisting of local citizens. These CAGs are intended to 
serve as a conduit of information for local communities, 
enabling them to play a more active role during the remedial 
action planning and implementation process. The bill also 
streamlines the process for obtaining TAGs and eliminates the 
20-percent match requirement of current law.
Natural Resource Damages
    Although the focus of attention and controversy over the 
past few years has been on issues relating to cleanup 
liability, the filing of an increasing number of NRD claims has 
raised concerns about the scope and implementation of the NRD 
program. One witness during Committee hearings characterized 
the NRD program as ``an awakening sleeping giant of 
environmental liability.''
    The fundamental problem is that the statute does not 
currently provide a clear statement as to what costs a 
responsible party will be held liable for under the NRD 
program. Regulations and case law, in contrast, provide for 
recovery of damages for: (1) restoration costs (i.e., the sums 
necessary to restore the resource to the condition it would 
have been in prior to the release of a hazardous substance or 
the costs of acquiring equivalent resources); damages 
associated with lost use of the resource (e.g., the costs of 
providing alternative fishing opportunities in a case where a 
fishing stream is contaminated); and (3) damages associated 
with nonuse (or passive use) values. This last category of 
damages, which are based on the premise that the public can 
associate a specific value even to resources that it does not 
use, is the most controversial. Without further statutory 
guidance, responsible parties fear that trustees may use the 
NRD program, and the recovery of nonuse damages in particular, 
to seek substantial and potentially arbitrary monetary damages.
    At this time, there is limited information regarding actual 
NRD claims or substantial documentation of problems. The lack 
of information is due, in part, to the relative infancy of the 
program. To date, relatively few NRD claims have ever been 
resolved and most of those could be characterized as minor. GAO 
has found that most NRD settlements have been less than 
$500,000, however, GAO has identified up to 20 sites where the 
Federal NRD claims at could be exceed $50 million. In some 
cases, however, damages may be in the range of hundreds of 
millions and even billions of dollars. GAO, for example, has 
estimated that DOE's potential liability for natural resource 
damages, not including the most contaminated sites, could be as 
high as $13 to $20.5 billion. At non-Federal sites, one of the 
larger NRD claims involves the Coeur d'Alene Basin. The Tribal 
trustee there has filed a claim seeking $1 billion in damages, 
and the Justice Department has filed a separate claim seeking 
$600 million on behalf of the Federal trustees for alleged 
injuries to resources stemming from mining activities.
    Critics of the NRD program raise a number of legitimate 
concerns. First, as noted above, concerns have been raised that 
the statute does not provide a clear statement of the measure 
of damages. As a result, responsible parties believe that 
trustee may seek damages for injuries that were never intended 
to be covered. They argue, for example, that the authors of the 
original law never intended to provide for the recovery of non-
use values. Similarly, they argue that the NRD program was 
never intended to require the removal of every molecule of a 
hazardous substance or the restoration of a resource to 
pristine conditions.
    This legislation attempts to address these concerns by 
providing an affirmative statement of the scope of liability. 
The intent is to clarify that the purpose of the NRD program is 
to restore natural resources, but not to serve as a second 
cleanup program or as the mechanism to assess and collect 
arbitrary sums of damages. Restoration measures are intended to 
restore a resource to the condition that would have existed but 
for the release of a hazardous substance (not necessarily 
pristine conditions). Consistent with this objective, the bill 
also clarifies the prohibition against double recovery.
    Critics also argue that the procedures used to assess 
injury to natural resources and select restoration measures are 
flawed. The selection of restoration measures, they suggest, 
often fail to take into consideration cost and may even 
disregard the results or expected results of any remedial 
action. Furthermore, they suggest that trustees frequently rely 
on inaccurate information and general assumptions without 
sufficient consideration of site-specific information.
    The bill addresses these concerns, establishing a new 
process for trustees to consider alternative restoration 
measures and select among those that achieve an appropriate 
balance among the following factors: cost-effectiveness; 
technical feasibility; and the time period in which restoration 
is likely to be achieved. The unique intrinsic values of a 
resource may also be considered in the selection of a 
restoration alternative. New regulations would be issued to 
implement this new process, as well as to clarify that injury 
assessments should be based on scientifically valid protocols 
and use site-specific information whenever it is readily 
available.
Federal Facilities
    The role of States in cleanups at Federal facilities has 
been the subject of ongoing controversy since the 1986 
amendments.
    States argue that these facilities should be required to 
achieve the same level of cleanup as non-Federal facilities. 
Accordingly, the bill makes a significant change to strengthen 
the State role at Federal facilities. The bill allows States to 
seek delegation authority to implement the Superfund program at 
Federal facilities. This new authority addresses the State 
concern that they be given the same decision-making authority 
with respect to Federal facilities as they are given under this 
bill at non-Federal facilities. In order to preserve the 
legitimate Federal interest in some level of national 
consistency, however, the bill does not allow State programs to 
be run in lieu of the Federal program at Federal facilities.
    Currently, of the 1197 sites on the Superfund list, 151 are 
Federal facilities. Federal facilities include Federally-owned 
weapon research, development, test and evaluation laboratories; 
military training and maintenance facilities; nuclear 
production reactor sites, and other facilities including those 
being surplused through the Base Realignment and Closure (BRAC) 
process. Federal facilities, particularly those controlled by 
the Department of Defense (DOD) and the Department of Energy 
(DOE), have significant potential liability under CERCLA.
    While Federal agencies are generally required to comply 
with CERCLA to the same extent as private parties, EPA's system 
for identifying high-priority sites (the Hazard Ranking System) 
has resulted in a large number of DOE and DOD facilities being 
assigned a high-priority status. The costs associated with 
cleaning up these facilities is likely to be substantial. In 
some cases, moreover, the nature of the wastes at a facility 
may make cost-effective cleanup difficult or impossible.

                       SECTION-BY-SECTION SUMMARY

Section 1. Short Title; Table of Contents
    Section 1 includes the citation of the short title of the 
bill as the ``Superfund Cleanup Acceleration Act of 1998'', and 
provides a table of contents for the bill.

                  TITLE I--BROWNFIELDS REVITALIZATION

                         Sec. 101. Brownfields

Summary
    New Section 127 of CERCLA provides funding to identify and 
clean up properties that are abandoned or underutilized because 
of unresolved environmental concerns. A ``brownfield facility'' 
is defined as ``real property, the expansion or redevelopment 
of which is complicated by the presence of a hazardous 
substance.'' Any portion of a property that is listed or 
proposed for listing on Superfund's NPL is excluded from the 
assistance provided under this section if there is an ongoing 
cleanup under Federal law.
    This section provides $75 million annually for EPA to 
establish a grant program for brownfield characterizations, 
assessments and response actions. Entities that are eligible to 
receive the grants are State and local governments, quasi-
governmental land clearance authorities, regional councils, 
State-chartered redevelopment agencies and Indian Tribes. A 
mechanism to permit States to capitalize and administer 
revolving loan funds for brownfields is provided. The maximum 
grant amount for any individual facility may not exceed 
$350,000.
Discussion
    This title is structured to direct more public and private 
resources toward restoring contaminated properties that are not 
listed on the NPL. In the 17 years since its inception, some 
1,414 sites have been listed on the NPL. That is less than 4 
percent of the more than 41,000 contaminated sites known to the 
Federal government. Many States have identified contaminated 
sites numbering up to ten times the number of NPL sites in 
their States. Communities and States want to redevelop these 
sites, revitalize urban economies and protect open spaces.
    Uncertainties about Federal liability under CERCLA can 
raise the cost of financing redevelopment projects or stifle 
redevelopment entirely. Developers often choose to avoid sites 
with potential for future Federal liability because the 
completion of a cleanup under a State law does not protect them 
from the potential for additional Federal liability. Delays and 
uncertainties are caused by the dual State and Federal 
oversight process as well. Taken together, dual oversight and 
potential Federal liability often undermine efforts to restore 
and redevelop contaminated properties.
    EPA administratively created the existing Superfund 
brownfield program. No provision in the current statute 
specifically authorizes the type of activities that have come 
to be known as brownfield cleanup and redevelopment. The only 
enacted brownfield provisions are found in the Taxpayer Relief 
Act of 1997 (Public Law 105-34). That law makes brownfield 
cleanup costs tax deductible. This tax break is estimated by 
the Joint Committee on Taxation to cost the Treasury $100 
million annually. It expires on December 31, 2000.
    Current EPA practice provides a limited number of grants of 
up to $100,000 annually ($200,000 total) to help communities 
address brownfields. The grants are for site assessment and 
related activities not cleanups. Recently, EPA has initiated a 
second phase of its brownfield program that will fund remedial 
activities at brownfield sites.
    New section 127 codifies and builds on EPA's brownfield 
program. The definition of the term ``brownfield facility'' in 
S. 8 is intended to foster reuse of abandoned or idled sites. 
The primary feature of section 127 is the assistance provided 
to eligible entities for the characterization, assessment and 
cleanup of brownfield facilities. The term ``eligible 
entities'' means local governments, quasi-governmental land 
clearance authorities, regional councils, State-chartered 
redevelopment agencies and Indian Tribes. Any entity not in 
compliance with an administrative or judicial order issued 
under CERCLA, the Resource Conservation and Recovery Act 
(RCRA), the Clean Water Act (CWA), the Toxic Substances Control 
Act (TSCA) or the Safe Drinking Water Act (SDWA) is excluded.
    Section 127(b) directs the Administrator to create a grant 
program for site characterization, assessment and performance 
of response actions at brownfield facilities. Eligible entities 
can use grants for site characterization, assessment or 
response actions or to capitalize a revolving loan fund for 
those purposes. Site characterizations can include a process to 
identify and inventory potential brownfield facilities. This 
provision recognizes that some investigation may be needed to 
determine if a parcel qualifies as a brownfield facility. No 
individual facility may receive in excess of $350,000 under 
this section. The Administrator may waive the limit based on 
site-specific factors, such as the level of contamination, the 
size of the facility, or the status of ownership of the 
facility. In order to assure that program benefits are shared 
fairly, the Administrator should only invoke the waiver in 
exceptional circumstances. Grant funds may not be used to pay 
fines, penalties or administrative costs.
    Federal brownfield expenditures are appropriately limited 
to sites where, due to the threat of real or perceived 
contamination, no reuse is likely and no Federally-directed or 
funded cleanup is underway or imminent. The language ensures 
that the limited resources available under this section are not 
expended on sites that will be cleaned up under other 
provisions of Federal law. Thus, the term ``brownfield 
facility'' excludes any property: (1) where there is an ongoing 
Superfund removal action; (2) that has been listed, or proposed 
for listing on the NPL; (3) where there is ongoing cleanup work 
prescribed by an administrative or judicial order under CERCLA, 
RCRA, CWA, TSCA or SDWA; (4) that is a hazardous waste disposal 
unit for which a closure notification has been submitted, and 
that has closure requirements specified in a closure plan or 
permit; (5) that is Federally-owned or operated; or, (6) that 
has received assistance from the Leaking Underground Storage 
Tank (LUST) Trust Fund. The bill recognizes, however, that 
excluded sites may nonetheless have significant redevelopment 
potential. Accordingly, a savings clause in section 
127(a)(1)(C) provides that exclusion of a site from the 
definition of ``brownfield facility'' under section 127 shall 
have no effect on eligibility for assistance under any other 
provision of Federal law. Therefore, if an agency (e.g. the 
Department of Housing and Urban Development) were to establish 
a brownfield assistance program, exclusion from funding under 
section 127 would not preclude that agency from providing 
assistance to a facility otherwise excluded under this section.
    In addition to direct grants, EPA can distribute brownfield 
funds to certain eligible entities to capitalize a revolving 
loan fund. Repayment of brownfield loans from successful 
redevelopment projects will extend the life and expand the 
utility of Federal expenditures under this program. Section 
127(c) allows EPA to enter into agreements with States to make 
revolving loan fund capitalization grants. Such agreements may 
specify grant use requirements, including letters of credit. If 
a State elects not to establish a revolving loan fund, EPA may 
enter into a capitalization grant agreement with a city, county 
or a regional association of governments provided that the area 
covered by the agreement has a population greater than 1 
million people. Eligible entities in an area covered by an 
agreement would receive assistance from the loan fund instead 
of assistance from EPA under the grant program in section 
127(b).
    A State, city, county or regional association must 
establish a brownfield revolving loan fund (referred to as a 
``State loan fund'') to receive a capitalization grant. The 
grant to a State loan fund is available for obligation for 2 
fiscal years. EPA must conduct a regulatory negotiation to 
develop an allotment formula for State loan funds that reflects 
the number of potential brownfield facilities in the areas 
covered by agreements and the level of effort made by each 
State, city, county or regional association. Sufficient funds 
must be reserved to issue direct grants under section 127 (b) 
in areas not covered by the revolving loan fund. EPA must 
update the formula at least biennially. Any funds not obligated 
within 2 years shall be reallotted.
    Money in a revolving loan fund can be used only for 
providing loans, as loan guarantees, or as a source of reserve 
and security for leveraged loans. Funds from capitalization 
grants may not be used for acquiring real property.
    Each entity that has entered into a capitalization 
agreement is required to prepare, after providing for public 
review and comment, an annual plan that identifies the intended 
uses of the money available in the State loan fund. This 
intended-use plan must include a description of the projects to 
be assisted, the expected terms of financial assistance, the 
criteria and methods for the distribution of funds, a 
description of the financial status of the State loan fund, and 
short-term and long-term goals. Each State loan fund must be 
established, maintained, and credited with repayments and 
interest, and the fund corpus shall be available in perpetuity. 
Monies in the fund not required for current obligation or 
expenditure shall be invested in interest bearing obligations.
    A State loan fund may provide additional subsidization, 
including forgiveness of principal, to an eligible entity. The 
total amount of subsidies made from the corpus or 
capitalization grant may not exceed 30 percent of the 
capitalization grant received by the State loan fund for that 
year. The State, city, county or regional association of 
governments must provide at least a 20 percent match before 
they can receive Federal grant payments under this section.
    The cost of administering the State loan fund shall be 
borne by the State, city, county or regional association. This 
is in addition to the match referred to above. Except as 
additionally limited by State law, the State loan fund use is 
limited to making loans under certain conditions. The interest 
rate for the loan must be less than or equal to the market 
interest rate. Interest-free loans are permissible. The 
principal and interest payments must commence not later than 1 
year after the project is completed. The loan must be fully 
amortized not later than 10 years after project completion. The 
State loan fund must be credited with all payments of principal 
and interest on each loan. In addition, loan funds may be used 
to guaranty or purchase insurance in order to improve credit 
market access or reduce the interest rate. Lastly, loan funds 
may be used to provide a source of revenue or security for the 
payment of principal and interest on revenue or general 
obligation bonds issued by the State, city, county or regional 
association of governments if the proceeds of the sale of the 
bonds will be deposited in the State loan fund.
    EPA must issue guidance and regulations on efficient 
operation of the fund. Each State, city, county or regional 
association must submit a report to EPA every 2 years on its 
activities, and include in that report the findings of the most 
recent audit of the fund. EPA shall periodically audit all 
State loan funds established under this section in accordance 
with procedures established by the Comptroller General.
    Section 127(d) includes requirements for applications by 
eligible entities for assistance under section 127(b). 
Applications are made to EPA regional offices. The 
Administrator can prescribe the form and contents of the 
application. A single application can include grant requests 
for one or more brownfield facilities. The Administrator is 
directed to coordinate with other Federal agencies when 
developing application requirements under this section so that 
applicants are made aware of assistance available from other 
Federal agencies for related purposes.
    The Administrator is directed to evaluate applications 
using ranking criteria in section 127(d)(3), and award grants 
to eligible entities submitting the highest ranking 
applications. The ranking criteria must emphasize the 
beneficial reuse of the blighted property. The ranking criteria 
also give preferential recognition to applications for projects 
that leverage other sources of funding as part of a project, 
stimulate economic development in the project area, create 
additional park, greenway or recreational acreage, or are 
located in areas with small populations or in low-income 
communities that cannot draw on other sources of project 
funding.
    The total funding level for the grant program in section 
127(b) and the loan program under section 127(c) is $75 million 
per year.

 Sec. 102. Assistance for Qualifying State Voluntary Response Programs

Summary
    Section 102 of the Superfund Cleanup Acceleration Act 
creates a new section 128 that authorizes $25 million per year 
for 5 years to provide technical and financial assistance to 
States to maintain, establish and administer voluntary response 
programs. Qualifying States would receive a minimum allocation 
of at least $250,000 per year.
Discussion
    This section is intended only to authorize funding for 
technical and financial assistance. It does not create a 
process for EPA's approval of State voluntary response 
programs. Status as a qualifying State under this section has 
no effect on any other provision in Superfund, including 
Federal enforcement in the case of a release subject to a State 
plan in new section 129.
     The vast majority of the hazardous sites on CERCLIS will 
not be cleaned up by the Superfund program. Instead, most sites 
will be cleaned up under State authority. For example, of 
California's more than 700 contaminated sites, only 94 are 
currently listed on the NPL. The remaining sites will likely be 
addressed under California's program. In recognition of this 
fact, and the need to create and improve State cleanup 
capacity, new section 128 provides technical and financial 
assistance to States to establish and expand voluntary response 
programs. In order for a State to qualify to receive a grant 
under this section for an existing program, it must demonstrate 
that the program includes the elements listed in section 
128(b). A State that requests a grant to establish a new 
voluntary response program will be eligible if it notifies the 
Administrator of its intent to establish a qualifying program. 
The Administrator may develop procedures for allotting funds to 
qualifying States.

  Sec. 103. Enforcement in Cases of a Release Subject to a State Plan

Summary
    New section 129 places limitations on the circumstances 
under which Federal enforcement authority may be used when a 
release of a hazardous substance occurs at a facility subject 
to a State plan. Enforcement action under Superfund is 
prohibited at a facility subject to a State remedial action 
plan unless the State requests assistance or the Administrator 
of EPA finds that other exceptional circumstances exist. At a 
facility not subject to a State remedial action plan, the 
President shall provide notice to the State within 48 hours 
after issuing a section 106(a) administrative order.
Discussion
    One of the most often cited concerns regarding brownfield 
redevelopment is the fear of ongoing Federal liability after a 
State cleanup is completed. Overlapping State and Federal 
responsibilities have consistently undermined cleanup and 
economic development goals. Several attempts to resolve this 
issue administratively, including a 1995 draft directive on the 
Federal-State relationship at sites undergoing cleanup in State 
programs, have failed. Subsequent to the failure of that 
effort, EPA began entering into memoranda of agreement (MOAs) 
on a State-by-State basis. MOAs were used to define the scope 
of the States' authority and the conditions under which the 
Federal government might use its Superfund enforcement 
authority at sites at which response actions were conducted 
under State cleanup laws. The precise statement of conditions 
under which Federal enforcement would be permitted varied in 
several of the early MOAs. In 1995, EPA issued interim guidance 
to standardize MOAs. On August 1, 1997, EPA issued its Final 
Draft Guidance for Developing Superfund Memoranda of Agreement 
(MOA) Language Concerning State Voluntary Cleanup Programs. 
This guidance was later withdrawn by EPA in December 1997, 
because of strong State criticism over provisions requiring EPA 
approval of State programs. States oppose Federal approval of 
State cleanup programs that address sites the Federal 
government is not likely to address.
    The bill establishes limits on the ability of the Federal 
government to intervene at facilities where States are 
proceeding with cleanup activities under their own programs. 
Federal cleanup resources are limited and most States operate 
successful cleanup programs. States now conduct the 
overwhelming majority of response actions. The Federal 
government should, therefore, defer to a State at sites not on 
the NPL unless a State's inability or unwillingness to take 
appropriate action results in a public health or environmental 
emergency. In such cases, Federal action is appropriate to 
supplement, or take the place of, State action. However, there 
is little evidence that suggests that States are likely to 
assert exclusive jurisdiction over facilities at which they are 
unwilling or unable to effect appropriate cleanups.
    Section 129 bars Federal action (subject to limited 
exceptions discussed below) at a facility where a response 
action ``is being conducted or has been completed under State 
law.'' The definition of ``facility subject to a State 
cleanup'' from section 127(a)(3) is applied here. A facility 
subject to a State cleanup is one that is not listed or 
proposed for listing on the NPL and meets one of the following 
criteria: a State cleanup has proceeded without any Federal 
involvement; EPA archived the site from its CERCLIS database; 
the site was included on CERCLIS prior to enactment of the 
Superfund Cleanup Acceleration Act of 1998 and it is not listed 
or proposed for NPL listing within 2 years; or the site is 
added to CERCLIS after the date of enactment and 2 years have 
elapsed since the earlier of the CERCLIS listing or the 
issuance of an order under section 106(a) of CERCLA. Thus, 
sites at which Federal response actions have been considered 
but not taken, and sites where the Federal government has not 
been involved at all, are covered by this section.
    To be entitled to the bar on Federal enforcement, a 
facility must also be subject to an ongoing or completed State 
response action. The bar in new section 129(a)(1) provides 
that, in the case of a release of a hazardous substance at a 
facility subject to a State cleanup, no person (including the 
President) may use any authority in CERCLA to take an 
enforcement action against any person regarding any matter that 
is within the scope of a response action that is being 
conducted or has been completed under State law. A savings 
clause permits parties to continue to bring CERCLA cost 
recovery actions for pre-enactment response costs that 
otherwise would be barred.
    The bar on Federal enforcement is subject to limited 
exceptions set forth in section 129(a)(2). First, a State can 
request that a Federal response action be taken. Second, the 
Administrator can initiate an action if a release or threat of 
release constitutes a public health or environmental emergency 
under CERCLA section 104(a)(4), provided that the State is 
unwilling or unable to take appropriate action. In that case, 
the Administrator must first give the Governor notice and an 
opportunity to take action. Third, the Administrator can 
determine that contamination from a facility has migrated 
across a State line, necessitating further response action to 
protect human health and the environment. The fourth exemption 
applies to a facility at which all State response actions have 
been completed. If such a facility presents a substantial risk 
that requires further remediation to protect human health or 
the environment (as evidenced by newly discovered information 
about the contamination, the discovery of fraud, or a failure 
of the remedy or change in land use that gives rise to a clear 
threat of exposure) the Administrator can lift the bar upon 
determining that the State is unwilling or unable to take 
appropriate action.
    New section 129(b) establishes a new notification 
requirement whenever EPA takes an administrative or enforcement 
action at any facility. This permits the Federal and State 
governments to identify and resolve issues relating to the 
applicability of the enforcement bar in section 129(a)(1). The 
section requires EPA to notify a State of its intent to 
undertake an administrative or enforcement action at a facility 
where there is a release or threatened release of a hazardous 
substance prior to taking such action. The State has 48 hours 
to respond to the notice and inform EPA if the site is 
currently, or has been, subject to a State remedial action. The 
enforcement bar applies if the site is being addressed under a 
State program. At a facility not subject to a State remedial 
action, the President shall provide notice to the State within 
48 hours of issuing a section 106(a) administrative order. This 
is simply a notice requirement and has no effect on the 
Federal-State relationship at the facility. In the situation 
where a release or threatened release constitutes a public 
health or environmental emergency under section 104(a)(4), the 
Administrator can take any appropriate action immediately. The 
Administrator must still give notice to the State, but there is 
no requirement to await State acknowledgment.
    The purpose of applying the heightened standard from 
section 104(a)(4) is to provide a clear distinction between 
State and Federal responsibilities at sites not included on the 
NPL and that ordinarily will be addressed by the States. In 
general, remedial actions, whether under the direction of the 
State or Federal government, are intended to address situations 
where there is an imminent and substantial endangerment. 
Allowing EPA to second guess cleanup decisions at sites being 
addressed by the States simply because there is an imminent and 
substantial endangerment would undermine the primary goal of 
the first two titles of this bill to clarify limits of State 
and Federal responsibility. However, EPA should be able to 
reassert its authority over a site where State action is 
substantially failing to achieve the appropriate level of 
protection. The heightened test for Federal intervention 
achieves an appropriate balance. It enables a State to take 
full responsibility for remedial action decisions at sites 
being cleaned up under State law, as well as for actions 
covered by delegated or authorized authorities transferred to 
the State. At the same time, it enables EPA to act if the 
State's actions are deficient to the point that an emergency 
develops. This is only one of several methods permitted in the 
bill for EPA to reassert its authority over a site.
    Section 129(d) provides a transition rule for existing MOAs 
between EPA and the States, preserving their validity until 
they expire under their own terms. This is important because 
some of these MOAs address sites outside the scope of section 
129, such as proposed and listed NPL facilities. This section 
also preserves the Administrator's authority to enter into new 
agreements regarding Federal-State relations at those sites 
that are not covered by section 129(a)(3). This would allow new 
MOAs to address facilities listed or proposed for listing on 
the NPL.

                    Sec. 104. Contiguous Properties

Summary
    Section 104 provides liability protection for landholders 
whose property may be contaminated by a contiguous NPL site if 
they did not contribute to the contamination. These landholders 
must cooperate with the enforcement authority (EPA or the 
State) and provide facility access for site cleanup activities.
Discussion
    New section 107(o) is added to Superfund's liability 
section to clarify that a person who owns or operates real 
property that is contaminated by a hazardous substance that has 
migrated from another person's land will not be considered to 
be a potentially liable owner or operator under section 107, so 
long as they meet certain conditions. The provision is similar 
to EPA guidance on the topic entitled Final Policy Toward 
Owners of Property Containing Contaminated Aquifers (OSWER 
Memorandum dated May 24, 1995), which clarifies that EPA will 
not bring enforcement actions against owners and tenants of 
property that has been impacted by contaminated groundwater 
migrating from a neighboring facility.
    Sections 107(o)(1)(A) and (B) establish the conditions that 
must be met for the liability protection to apply. First, the 
person can not have caused, contributed or consented to the 
release or threat of release. Second, the person must not be 
affiliated through familial or corporate relationship with 
another party that is or was a PRP at the facility. Third, the 
person must have exercised appropriate care with respect to 
each hazardous substance found at a facility by taking 
reasonable steps to stop any continuing release, prevent any 
threatened future release and prevent or limit human or natural 
resource exposure to any previously released hazardous 
substance.
    The ``appropriate care'' standard applied to owners and 
operators under this section is a different standard of care 
than the ``due care'' standard required for the third party 
defense found in existing CERCLA section 107(b)(3). Section 
107(o) protects parties that are essentially victims of 
pollution incidents caused by their neighbor's actions. It is 
not intended to require parties raising section 107(o) as an 
affirmative defense to alleged liability to undertake full 
scale response actions with respect to migrating contaminated 
plumes passing through their property. To meet their 
``appropriate care'' burden, persons invoking section 107(o) as 
a defense must take reasonable steps to address the conditions 
on their property. Such reasonable steps typically will consist 
of actions such as notifying appropriate Federal, State and 
local officials regarding the situation; erecting and 
maintaining signs or fences to prevent public exposure; or 
maintaining any existing barrier or other elements of a 
response action on their property that address the contaminated 
plume. These persons are not expected to intercept, pump and 
treat contaminated groundwater, build slurry walls, or 
undertake other response actions that would more properly be 
paid for by the responsible parties who caused the 
contamination.
    Section 107(o)(2) allows the Administrator to issue 
assurances, known as ``comfort letters,'' that no enforcement 
action will be initiated against a person meeting the 
requirements of this section. EPA may also enter into 
settlements that would insulate a person meeting the 
requirements of the section from a cost recovery or 
contribution action under CERCLA. However, EPA may decline to 
settle with a party invoking this affirmative defense if that 
party fails to comply substantially with its obligation under 
new section 107(y) to provide full cooperation, assistance and 
site access in the corse of any necessary response action, or 
if the party impedes the effectiveness or integrity of any 
institutional control employed at the facility (such as 
damaging a cap, removing signs or fences, etc.). In addition, 
the person must comply with any request for information or 
administrative subpoena issued by the President.

          Sec. 105. Prospective Purchasers and Windfall Liens

Summary
    Section 105 of the Superfund Cleanup Acceleration Act 
provides liability relief for purchasers of contaminated 
property if they did not contribute to the contamination and if 
they conducted appropriate inquiries prior to the purchase.
Discussion
     Two provisions are added to CERCLA to provide protection 
to persons who wish to purchase contaminated property without 
incurring Superfund liability. Fear of liability is frequently 
cited as a barrier to redevelopment of contaminated sites. This 
has resulted in many previously productive facilities remaining 
idle, while pristine property is developed instead. EPA has 
attempted to address this problem on a case-by-case basis with 
so-called prospective purchase agreements. The process of 
negotiating these agreements, however, is cumbersome and 
resource-intensive.
    The new provisions add a definition of ``bona fide 
prospective purchaser'' to CERCLA's definitions. Section 107 
has been amended to exclude persons who qualify as bona fide 
prospective purchasers from liability under CERCLA.
    A bona fide prospective purchaser is a person, or his 
tenant, who acquires property after the date of enactment of 
the Superfund Cleanup Acceleration Act of 1998 and can 
establish each of the following conditions by a preponderance 
of the evidence. First, all deposition of hazardous materials 
must have occurred at the facility before the person acquired 
the property. Burying an intact drum containing hazardous 
substances is an act of deposition, leaks from the drum after 
it corrodes are not. Second, the person must have made all 
appropriate inquiry into the previous ownership and uses of the 
facility and the real property in accordance with generally 
accepted commercial and customary standards and practices. 
These standards and practices are either defined by the 
American Society for Testing and Materials (ASTM) Standard 
E1527-94, entitled Standard Practice for Environmental Site 
Assessments: Phase I Environmental Site Assessment Process, or 
an alternative standard to be established by a regulation 
issued by the Administrator. The section recognizes that due 
diligence for residential property is different than due 
diligence for commercial property. If the purchaser is not a 
governmental or commercial entity, a facility inspection and 
title search that reveals no basis for further investigation 
will generally satisfy the due diligence requirement. The 
person must also provide any required notices if there is a 
discovery or release of any hazardous substance.
    In the case of a property at which a remedy is already in 
place, a bona fide prospective purchaser has the same duty of 
appropriate care as a contiguous landowner under section 
107(o). Any bona fide prospective purchaser that undertakes any 
other response actions at the site must exercise appropriate 
care in the conduct of the response action.
    Like the contiguous landowner, a bona fide prospective 
purchaser must substantially comply with its obligation under 
new section 107(y) to provide full cooperation, assistance and 
site access in the course of any necessary response action. In 
addition the prospective purchaser must not impede the 
effectiveness or integrity of any institutional control 
employed at the facility (such as damaging a cap, removing 
signs or fences, etc.). Finally, a bona fide prospective 
purchaser must not be affiliated through familial or corporate 
relationship with another party that is or was a PRP at the 
facility.
    The liability limitation for a bona fide prospective 
purchaser is created in new section 107(p). A bona fide 
prospective purchaser shall not be liable under CERCLA if that 
liability is based solely on the party's status as an owner or 
operator of a facility by reason of the purchase, provided that 
the purchaser does not impede the performance of a response 
action or natural resource restoration.
    While bona fide prospective purchasers are protected from 
liability, new section 107(p)(2) prevents these parties from 
reaping a windfall due to the increase in a property's value as 
a result of the Federal government's cleanup efforts. If the 
Federal government incurs response costs at a facility, it may 
not sue a bona fide prospective purchaser for those response 
costs, but it may, however, place a windfall lien on the 
property. The amount of the lien would be equal to the lower of 
the Federal government's unrecovered response costs or the 
increase in the fair market value of the property due to the 
government's cleanup efforts. This recognizes that the cost of 
cleanup will often greatly exceed the fair market value of the 
property (which often is valueless unless it is cleaned up). 
The windfall lien would be satisfied from the proceeds when the 
bona fide prospective purchaser resells or otherwise disposes 
of the property.

               Sec. 106. Safe Harbor Innocent Landholders

Summary
    Section 106 of the Superfund Clean Up Acceleration Act 
provides liability relief for innocent landholders of 
contaminated property if they did not contribute to the 
contamination and conducted appropriate inquiries prior to the 
purchase of the property.
Discussion
    CERCLA provides an affirmative defense for innocent 
purchasers of real property who had no reason to know of any 
release or threatened release of a hazardous substance that was 
disposed of on, in, or at the facility prior to the date of 
purchase. This section amends CERCLA section 101(35) to clarify 
the obligations of parties that seek to use this defense.
    First, a party using this defense must provide full access, 
assistance and cooperation in the conduct of any response 
actions at the facility. In addition, the landholder must not 
impede the effectiveness or integrity of any institutional 
controls at the facility. A landholder seeking to use the 
defense must also demonstrate that he or she had no reason to 
know of the contamination. This is intended to mean that at, or 
prior to, the date the property was acquired, the landholder 
undertook all appropriate inquiry into the previous ownership 
and uses of the facility and the associated real property in 
accordance with generally accepted commercial and customary 
standards and practices. These standards and practices are 
defined as the ASTM Standard E1527-94, entitled Standard 
Practice for Environmental Site Assessments: Phase I 
Environmental Site Assessment Process, or an alternative 
standard in a regulation to be issued by the Administrator. 
This section recognizes that due diligence for residential 
property is different than due diligence for commercial 
property. If the purchaser is not a governmental or commercial 
entity, a facility inspection and title search that reveals no 
basis for further investigation satisfies the due diligence 
requirement.
    A landholder must also demonstrate the exercise of 
appropriate care. This is the same standard that applies to 
owners or operators who qualify for the bona fide prospective 
purchaser exemption under section 107(q).

                          TITLE II--STATE ROLE

   Sec. 201. Transfer to the States of responsibility at non-Federal 
                  National Priorities List Facilities

                              definitions

Summary
    This Title establishes two mechanisms for States to assume 
responsibility for cleanup actions at NPL facilities. Under the 
authorization approach, a State may conduct cleanups at NPL 
facilities according to a cleanup program established under 
State law. Under the delegation approach, a State may conduct 
cleanups at NPL facilities under the Federal Superfund program. 
Definitions in Title II distinguish between an ``Authorized 
State'' and a ``Delegated State'' based on whether State or 
Federal Law will be used to enforce cleanup activities at the 
site. These terms do not connote any distinction in the extent 
of a State's ability to make and enforce cleanup decisions.
    The definition of ``delegable authority'' establishes 
categories of authorities. The categories of authority are: 
site investigations, evaluations and risk analysis; development 
of alternative remedies and remedy selection; remedial design 
and remedial action; operation and maintenance; and information 
collection and allocation of liability. The responsibility for 
the performance of any category may be transferred to the State 
when EPA determines that a State applying for such a transfer 
is capable of adequately performing all of the tasks associated 
with that category. Allowing EPA to recognize discrete 
``delegable authorities'' provides sufficient flexibility for 
EPA to transfer authority to the States in stages. Deficiencies 
in one aspect of an overall robust State cleanup program will 
not, therefore, place EPA in the position of having to withhold 
delegation entirely until every aspect of the State program is 
satisfactory. Categories of authorities are grouped in a way to 
allow associated activities to be transferred as a group.
    States may also receive authority to manage response 
actions at Federal facilities. However, the term ``non-Federal 
listed facility'' is defined to clarify that, while States can 
apply for and receive a transfer of authority to conduct 
cleanups at NPL facilities at which the Federal government is 
an owner or operator, the approval of such a transfer must take 
place in accordance with the provisions of Title VI of this 
bill.
Discussion
    The bill reflects the recommendations of the National 
Governors' Association that EPA be able to authorize or 
delegate full or partial management of the remedial action and 
emergency removal programs to all capable States that seek to 
administer cleanup activities at NPL sites in their 
jurisdiction. States have a strong track record in managing 
non-NPL cleanups. States that have significant experience 
managing comprehensive programs should be ready to receive 
authorization or delegation.
    In establishing a new mechanism for transferring authority 
to States, it was necessary to define several terms for use in 
this title. The key terms are ``authorized State'' and 
``delegated State.'' The new terms clarify the respective 
limits of authority of EPA and States for NPL cleanup 
activities.

                             Authorization

Summary
    Section 201 of the bill creates a new section 131 of 
CERCLA, which gives qualified States the option of applying for 
authorization or delegation of Federal cleanup authorities. 
Under authorization, a qualified State would operate its own 
comprehensive hazardous waste cleanup program in lieu of the 
Federal program. Under delegation, States would conduct 
cleanups according to CERCLA.
    Section 130(c) allows the Administrator to grant a State 
the right to apply any or all of its cleanup program 
requirements, in lieu of CERCLA, to specified facilities listed 
on the NPL. In order to receive this authority, a State must 
submit an application that identifies the facilities for which 
authorization is requested. Additionally, the State must submit 
documentation that demonstrates that its response program:

      (1) Lhas adequate legal authority, financial and 
personnel resources and expertise to administer and enforce a 
hazardous substance response program;
      (2) Lwill be implemented in a manner that is protective 
of human health and the environment;
      (3) Lhas procedures to ensure public notice and, as 
appropriate, opportunity for comment on remedial action plans, 
consistent with section 117 of CERCLA; and
      (4) Lwill include the exercise of State enforcement 
authority to require persons potentially liable under section 
107(a), to the extent practicable, to perform or pay for 
response actions.

    EPA is directed to establish a simplified application 
process for States. It cannot impose any additional terms or 
conditions beyond those outlined above on the approval of a 
State's application. The Administrator has 180 days to approve 
or disapprove the application. If the application is 
disapproved, the Administrator must explain the basis for that 
determination.
    Should the Administrator fail to approve or disapprove an 
application, the applicant State, or any person, may bring an 
action without regard to the notice requirements of section 
310(d)(1) to compel the Administrator to act on the 
application. This allows the affected State or any interested 
party to take EPA to court under the ``citizen suit'' provision 
of CERCLA without waiting 60 days after filing of a notice of 
intent to sue, as current law requires. In that case, the court 
will determine if there is a reasonable cause for the delay in 
the Administrator's decision on the application, and then 
establish a deadline for final EPA decision. The court shall 
order the Administrator to approve or disapprove the 
application within 30 days after the date of the order, or if 
additional information regarding the application must be 
considered, remand it back to the Administrator for not more 
than 90 days. A State may resubmit an application at any time 
after receiving a notice of disapproval.
    Section 130(c)(3) establishes a pilot program to provide 
expedited authorization to not more than six States. The 
Administrator must promptly develop an expedited review process 
for applications. Those States applying for expedited 
authorization under this provision must submit an application 
along with any required documentation. The application shall be 
deemed approved on the last day of the 180-day period beginning 
on the date on which the application is submitted unless the 
Administrator publishes in the Federal Register (prior to the 
expiration of the 180-day period) an explanation as to why the 
State does not meet the criteria for expedited authorization.
    EPA is directed to issue regulations within 3 years to 
provide criteria for expedited authorization for all qualified 
States. This permanent expedited authorization process shall be 
developed on the basis of experience gained under the six-State 
expedited authorization pilot program.

                               Delegation

Summary
    The delegation provision in section 130(d) allows the 
Administrator to transfer to a qualified State the authority to 
perform one or more delegable authorities. These authorities 
are to be identified in a rule that must be finalized not later 
than 1 year after enactment of section 130. In order to receive 
delegation of any authorities under section 130, a State must 
be able to demonstrate that its enforcement authorities are 
substantially equivalent to the Federal authorities under 
CERCLA.
    In applying for delegation, a State must identify the 
categories of authority it seeks and the NPL facilities at 
which it intends to enforce those authorities. Any application 
for a transfer of authority must provide sufficient information 
so that the Administrator can determine whether, and to what 
extent, the State:

      (1) Lhas adequate abilities and resources to enforce a 
hazardous waste response program;
      (2) Lwill implement the delegated authorities in a manner 
that is protective of human health and the environment; and
      (3) Lagrees to exercise its delegated authorities to 
require that those liable for cleanup costs under Federal law 
will pay for the response actions.

    Within 120 days of receipt of an application, the 
Administrator must approve the application or issue a notice of 
disapproval, including an explanation of the basis for the 
determination. If the Administrator fails to act on the 
application within the allowed time, the applicant State, or 
any person, may bring an action without regard to the notice 
requirements of section 310(d)(1) to compel the Administrator 
to make a determination. In such an action, the court shall 
order the Administrator to approve or disapprove the 
application within 30 days after the date of the order. If 
additional information regarding the application must be 
considered, the court must remand the application to the 
Administrator for not more than 90 days. The Administrator is 
required to provide opportunity for public comment on 
applications under this section. A State may resubmit an 
application at any time after receiving a notice of 
disapproval.
Discussion
    This section strikes a balance between the States' strong 
interest in assuming responsibility for Superfund cleanups and 
the Federal government's interest in assuring that those 
cleanups will be conducted in a manner that is protective of 
human health and the environment.
    The current Federal Superfund program does not utilize the 
resources of the Federal or State governments in the most 
efficient manner possible. At those NPL facilities where the 
States have been designated the lead agencies responsible for 
cleanups, EPA still reserves the right to select and enforce 
its own remedies whenever it disagrees with State-selected 
remedies. The result is an overly bureaucratic process of 
consultation that delays decision-making. Both EPA and the 
State agency end up overseeing and enforcing the cleanup. This, 
in turn, leads to lengthy disputes about how to conduct the 
cleanup. At sites where both EPA and the State are involved, 
responsible parties remain wary of proceeding with cleanup 
activities directed by the State without some assurance that 
EPA agrees with the State's cleanup decisions.
    CERCLA and its ``two-masters'' system undercuts the ability 
of a State to achieve cooperation and compliance from 
responsible parties. Instead of enlisting the resources of 
willing and able States to speed up and expand cleanup 
activities, the current system reduces the enforcement 
credibility of the States, slows actual cleanup and inevitably 
increases costs. As a result, public dollars (both State and 
Federal) are not being spent in the most efficient manner and 
the maximum number of contaminated sites is not being 
addressed.
    Under State-EPA cooperative agreements, EPA may allow a 
State to perform some cleanup activities. However, these 
agreements do not always afford States the flexibility they are 
seeking in managing site cleanups. Furthermore, EPA always 
reserves the right to select and enforce its own remedy should 
it disagree with a State-selected remedy. Currently, EPA does 
not have a mechanism either for determining that a State is 
capable of making independent decisions, and enforcing those 
decisions, or for transferring those responsibilities to a 
State. This title would establish the means for EPA to make 
such determinations and transfers.

               performance of transferred responsibility

Summary
    Once a State has received delegated authority or is 
authorized to conduct response activities in lieu of the 
Federal government, that State shall have sole authority to 
perform the transferred responsibilities. Delegated States must 
perform its delegated authorities in the same manner as would 
the Administrator.
Background
    The fundamental goal of this title is to eliminate the 
``dual master'' problem that results when the State, as lead 
agency, is not able to make and implement final cleanup 
decisions without second guessing by EPA. By creating a process 
for delegation or authorization that confers full decision-
making responsibilities upon the recipient State, the lines of 
responsibility for future response actions should be clear. 
This language also makes clear that, in accepting delegated 
responsibilities, a State also accepts the burden of 
implementing CERCLA in a manner that is fully consistent with 
all applicable Federal rules and guidance.
    Section 130(e) amends CERCLA by providing for the 
performance of transferred responsibilities to the States for 
non-Federal NPL facilities. In general, States are provided 
sole authority for the transferred responsibilities, except as 
provided in Section 130(f). The States shall implement each 
applicable provision of this Act including any regulations and 
guidance issued by the Administrator of EPA. States are to 
carry out these responsibilities ``in the same manner as would 
the Administrator.'' This provision is not meant to allow the 
Administrator to second guess each State decision. The 
Administrator should allow each State sufficient latitude in 
interpreting the regulations and guidance to address its 
individual needs, while still ensuring that the State's actions 
are consistent with the goals of the Federal program. The 
process for allowing the Administrator to regain Federal 
control is provided in Section 130(f).

                      retained federal authorities

Summary
    EPA may withdraw the transferred responsibility from a 
State if it finds, at any time, that the State no longer meets 
the requirements of this Title. In a delegated or authorized 
State, EPA may take any removal action permitted by CERCLA, 
after giving the State an opportunity to conduct the removal, 
if: (1) the State requests assistance; or (2) EPA makes a 
determination that the release constitutes a public health or 
environmental emergency, and obtains a declaratory judgment in 
U.S. District Court that the State has failed to make 
reasonable progress. In the case of a public health or 
environmental emergency, EPA need not provide the State with an 
opportunity to act first.
    If a State conducts cost recovery actions, it may retain 25 
percent of any monies it collects. This will serve as a strong 
incentive for States to seek cost recovery from responsible 
parties. EPA may conduct cost recovery actions if the State 
does not intend to, or if the State fails to do so in a timely 
fashion. To prevent double recovery, only one agency be will 
allowed to bring a cost recovery action against a responsible 
party.
    A State may request the removal of all or part of a 
transferred facility from the NPL. EPA must comply with the 
request if the delisting is not inconsistent with a requirement 
of CERCLA.
    The agency is directed to report annually to Congress 
describing actions taken under subsection 130(f).
Discussion
    The bill provides a Federal ``safety net'' when CERCLA 
authorities are transferred to States. Should an authorized or 
delegated State fail to implement its responsibilities under 
section 130, EPA retains the authority to take any necessary 
action to ensure the protection of human health and the 
environment. In some cases, an individual facility may present 
technical or resource challenges that were unknown at the time 
an application for authorization or delegation was approved, 
and that are beyond the capabilities of the State. In such 
cases, the State may request assistance from EPA in performing 
a response action. Such cooperative interaction to address 
previously unknown circumstances is expressly permitted by this 
bill. There is little reason to believe that EPA will need to 
rely on the safety net mechanism often because States must 
first be approved by EPA to operate delegated or authorized 
programs.
    If a State fails to meet its responsibilities under section 
130, any transferred authorities may be withdrawn under 
paragraph 130(f)(1). Also, EPA may use paragraphs (3) or (4) of 
subsection 130(f) to perform any emergency action permitted 
under CERCLA to address human health and the environmental 
emergencies. EPA's removal authority is subject to the 
conditions stated in existing law in section 104(a)(4), and not 
the more lenient standard found in sections 104(a)(1) and 106 
that authorize EPA to respond to any imminent and substantial 
endangerment. The reason for applying this more stringent 
standard for EPA action is that, in delegated or authorized 
States, it is assumed that the State is responding to a 
situation that already poses an imminent and substantial 
endangerment. In exercising its authority under paragraph 
104(a)(4), the Administrator may intervene only if there is an 
immediate risk of actual exposure that would directly cause a 
public health or environmental emergency.
    This balanced approach ensures that State programs will be 
allowed to operate with the greatest degree of flexibility and 
without fear that EPA might exercise removal or enforcement 
authority at a site for reasons other than emergency 
situations. At the same time, it ensures that if a State fails 
to adequately protect human health or the environment, EPA will 
be able to reassume full responsibility at a site.

                                funding

Summary
    EPA must provide funding to States to which responsibility 
has been transferred. Every 3 years, EPA and a State with 
transferred responsibilities must jointly determine the amount 
of Federal funding required for administrative costs and 
preconstruction costs. Every year, they must determine the 
amount of funding required for remedy construction costs.
    In prioritizing the allocation of funds, EPA must not favor 
facilities for which EPA is responsible over those for which a 
State is responsible. Grant money may not be used to pay the 
State share of response costs. The Governor shall annually 
certify to EPA that the State has used the funds in accordance 
with CERCLA. EPA may bring a civil action against a State to 
recover any funds that were not used properly.
    The 50 percent State cost-share requirement is repealed at 
State-operated facilities. Indian Tribes are not subject to 
cost-sharing.
Discussion
    In transferring responsibility for Superfund cleanups to 
States, it is appropriate that EPA also transfer the funds it 
would expend on the sites for which it is no longer 
responsible. This process should result in an overall cost 
savings for the Federal government. Elimination of the 
uncertainties and delays caused by the ``dual master'' problem 
should decrease the overall time needed to complete a response 
action. Significant savings are expected to be realized at 
sites that are cleaned up more quickly.
    EPA currently operates a funding prioritization process to 
ensure that cleanup funds are spent in the most efficient 
manner possible, based on the demand for funds and the relative 
urgency of the response action at a particular NPL facility. 
EPA will include in this prioritization process any facilities 
for which responsibility has been transferred to States. EPA 
will use the same criteria to evaluate all facilities, 
regardless of whether the State or EPA is responsible for 
action at the facility.
    The bill includes a mechanism for EPA to recover any funds 
misspent by the State. Also, EPA and the State shall establish 
and implement a 3-year plan for all non-construction funding. 
This will enable long-term planning for administration and pre-
construction activities.

                   TITLE III--COMMUNITY PARTICIPATION

    The purpose of Title III is to ensure that citizens living 
near potential or actual Superfund facilities have 
opportunities for meaningful participation throughout the site 
assessment and remediation process. Currently, CERCLA requires 
only that there be a public notice and comment period before 
the adoption of certain emergency removal actions and all 
remedial actions.

                         Sec. 301. Definitions

Summary
    This section adds definitions for the terms ``Agency for 
Toxic Substances and Disease Registry,'' ``affected 
community,'' and ``covered facility.'' Section 301 also makes 
several technical and conforming changes to existing section 
117.
Discussion
    Current law does not identify a role for public involvement 
in decision-making for affected communities until after a 
facility is placed on the NPL and a remedial action plan is 
developed. There may be little opportunity for citizens to 
learn about the site or cleanup options or to influence 
decisions about the future of their communities before 
construction begins. Yet, these cleanup decisions may 
significantly affect their lives. This bill provides for early 
and continuing public involvement in decisions about NPL sites. 
It does so by defining an ``affected community'' as any group 
of two or more individuals who may be affected by a release or 
threatened release of a hazardous substance, pollutant, or 
contaminant from a ``covered facility,'' and then defining a 
``covered facility.'' It also defines any facility listed or 
proposed to be listed on the NPL, as well as any facility at 
which there is a removal action anticipated to take longer than 
a year or to cost more than $4 million.

                Sec. 302. Public Participation Generally

Summary
    Section 302 amends CERCLA Section 117 to ensure that EPA 
provides the affected community adequate notice before adoption 
of any remedial action plan. EPA is required to publish 
required notices, analyses, final plans, and explanations in 
local newspapers of general circulation. Section 302 ensures 
that all records in the possession of the United States 
relating to the release or threatened release of a hazardous 
substance are readily available to the affected community for 
inspection and copying. This requirement does not apply to 
records that relate to liability or that are exchanged between 
parties to settle a dispute under CERCLA, or to information 
protected from disclosure by privilege or as confidential 
business information.
Discussion
    These relatively minor changes to the existing law remove 
obstacles to meaningful public involvement that have been 
identified by affected communities. Meaningful participation is 
active rather than passive and therefore expands opportunities 
for citizens to provide as well as to receive information. The 
amendments allow citizens adequate time and access to documents 
to become informed and better prepared to make relevant 
comments. Local community advisory groups and recipients of 
technical assistance grants also are ensured access to relevant 
documents.

    Sec. 303. Improvement of Public Participation in the Superfund 
  Decisionmaking Process; Local Community Advisory Groups; Technical 
                           Assistance Grants

Summary
    Currently, CERCLA requires only that there be a public 
notice and comment period before certain removal actions and 
all remedial actions. Section 303 creates new opportunities for 
citizens to participate in the remedial action planning and 
implementation process. First, the section provides that 
citizens should be consulted about their views, notified about 
opportunities to gather and convey information, and have access 
to information about the release or threatened release of a 
hazardous substance, and the plans and progress of response 
actions. Second, the section establishes Citizen Advisory 
Groups (CAGs) to represent the diverse interests of community 
members. Early and continuing influence of CAGs in the 
development and implementation of remedial activities is 
required. Finally, the bill makes a series of changes to the 
technical assistance grants (TAG) program to improve the 
administration of the program.
Discussion
    The current public participation program under CERCLA has 
not resulted in a decision-making process at Superfund 
facilities that is responsive to the concerns of affected 
communities. Critics of the current program include members of 
the Board of Directors of Clean Sites, Inc., a non-profit 
public interest organization dedicated to accelerating the 
cleanup of hazardous waste sites in the United States. In 
testimony before the Senate Committee on Environment and Public 
Works, Subcommittee on Superfund, Recycling, and Solid Waste 
Management in July 1993, Clean Sites President Edwin Clark 
identified three key problems related to the CERCLA public 
involvement program:

    (1) LIt focuses more on community relations than on public 
participation. That is, the community is asked to react, not to 
contribute.
    (2) LCitizens are not brought into the process early or 
often enough, impeding citizen understanding and support of 
remedial activities.
    (3) LCitizens do not have easy access to information and 
may not have the technical resources needed to understand the 
information they do receive.

    Mr. Clark argued that improving the public participation 
program under CERCLA would lead to more effective and more 
efficient cleanups, especially as future land uses are 
considered in setting remediation goals. A 1994 report by the 
U.S. General Accounting Office supports this conclusion. It 
recommends that EPA include communities in decisions beginning 
at the time of the Agency's earliest active involvement in a 
Superfund project through completion of the cleanup.
    The bill addresses all of these concerns. First, it amends 
CERCLA section 117 by adding a new subsection (g) that requires 
EPA, to the extent practicable, to disseminate information to, 
and solicit information from, the local community, consider its 
views, and include those views and EPA's response to them in 
the administrative record. Section 117(g) authorizes EPA to 
conduct, as appropriate, face-to-face community surveys to 
obtain information about the location of private drinking water 
wells, historical, current, and possible future uses of water, 
and other environmental resources in the local community. 
Public meetings and other appropriate activities also are 
authorized.
    Section 117(g) also mandates consultation with a local 
community advisory group, if there is one, and members of the 
affected community about which community participation 
activities should be conducted. It requires EPA to notify the 
community and local government about the schedule and location 
of plans for construction at the facility, the results of any 
5-year review under section 121(c), and any use of 
institutional controls at the facility. This section directs 
EPA to inform local government officials, community advisory 
groups, Indian Tribes on a regular basis, and, to the extent 
practicable, other interested members of the affected community 
about technical meetings held between the lead agency and PRPs.
    Second, new section 117(h) requires EPA to assist in 
establishing CAGs when requested by 20 or more residents or at 
least 10 percent of the population in the area where the 
facility is located. If there is no such request, EPA is 
directed to establish a CAG at the request of a local 
government. EPA also has the discretion to establish a CAG if 
it would further the purposes of CERCLA.
    Each CAG is required to solicit and represent community 
views regarding response action concerns. It must keep the 
community informed about the progress of the response action at 
a facility and opportunities to participate in meetings and CAG 
activities. EPA must consult with the CAG about key issues in 
developing and implementing the response action, inform the CAG 
of response action progress, and consider the comments and 
recommendations provided by the CAG. The CAG should try to 
achieve consensus before providing its comments and 
recommendations to EPA. However, the CAG must allow the 
presentation of divergent views.
    The voting membership of a CAG is limited to 20 non-
compensated members. A CAG's voting membership must include, to 
the extent practicable, at least one person from each of the 
following groups: nearby residents or property owners, other 
affected citizens, local public health practitioners, 
representatives of any local Indian communities, 
representatives of citizen, civic, environmental, or public 
interest groups, local business persons, and employees of the 
facility. Non-voting members of the CAG may include 
representatives of EPA, ATSDR, other Federal agencies, States, 
affected Indian Tribes, affected local governments and 
governmental units that regulate land use, facility owners, and 
PRPs. A CAG may receive a TAG. EPA must also provide 
administrative and support services to the CAG.
    In order to avoid duplication of existing Federal community 
participation programs, section 117(h) provides that the 
President may determine that other advisory groups such as 
those established by the Departments of Defense or Energy, or 
by ATSDR may serve in lieu of a CAG.
    The third major provision related to public participation 
is the new section 117(i), which establishes revised 
requirements for TAGs. It broadens TAG eligibility by 
authorizing EPA to make grants available to members of an 
affected community and by eliminating the current matching 
requirements for TAG recipients. It increases the flexibility 
of the grant monies for TAG recipients by allowing early 
disbursement of a portion of the grant (up to $5,000 or 10 
percent of the grant). It also allows EPA to expand both the 
duration, as well as size of the grant, to accommodate unique 
site-specific circumstances, such as the complexity and 
duration of a response action. TAGs may be used to hire experts 
to interpret information and present views of recipients, to 
disseminate information to the community, or to fund training 
to facilitate effective participation in the selection and 
implementation of a response action.

         Sec. 304. Technical Outreach Services for Communities

Summary
    Section 304 expands existing CERCLA section 311(d)(2) to 
allow University Hazardous Substance Research Centers 
established under that section to provide educational and 
technical assistance to communities regarding the potential 
effects of contamination on human health and the environment.
Discussion
    The University Hazardous Substance Research Centers 
established under section 311 conduct short- and long-term 
research on all relevant scientific and technological subjects 
related to hazardous substances, including the manufacture, 
disposal, clean up, and management of hazardous substances; 
disseminate the results of their research and findings; and 
provide training, technology transfer, and technical outreach 
and support to organizations, communities, and individuals 
involved with hazardous substances. The Centers do not conduct 
human health effects research. Each regional research center 
serves two adjoining Federal EPA regions. The centers, each of 
which is affiliated with several universities, collaborate on a 
national program, but also conduct independent research in 
specialized areas.
    Section 304 of the bill, directs the centers to provide 
educational and technical assistance to affected communities 
about the effects of contamination on human health and the 
environment, is intended to allow these centers to become more 
actively involved in providing useful and relevant information 
to the communities adversely affected by actual or potential 
exposure to hazardous substances.

   Sec. 305. Agency for Toxic Substances and Disease Registry (ATSDR)

Summary
    Section 305 establishes a new section 104(b)(3) that 
directs the President to notify State, local, and Tribal public 
health authorities about any investigation of a possible 
release or threatened release of a hazardous substance. The 
section also requires ATSDR to perform a health assessment at 
each covered facility, unless the ATSDR publishes a finding 
that the facility presents no significant health risk. For each 
facility placed on the NPL after the date of enactment of this 
Act, a health assessment is to be completed prior to the 
completion of the RI/FS. The study shall not delay the progress 
of remedial action.
    ATSDR may conduct health education activities, as 
appropriate, to make the community aware of steps it can take 
to mitigate or prevent exposure to hazardous substances. When a 
facility receives its 5-year review, public health 
recommendations must also be reviewed. ATSDR, in consultation 
with EPA, is required to conduct a study regarding the 
identification, management of, and response to multiple sources 
of community exposure.
Discussion
    Section 305(b) of the bill makes a number of changes to the 
authority of ATSDR set forth in CERCLA section 104(i). These 
provisions are meant to ensure that ATSDR provides the same 
services to Indian Tribes as it does to States. It is directed 
to utilize the expertise of the Indian Health Service in the 
same manner as the Public Health Service. It also removes an 
existing provision authorizing ATSDR to refer individuals to 
hospitals and other facilities and services offered by the 
Public Health Service. Instead, ATSDR may now refer affected 
individuals to licensed or accredited health care providers. 
The existing requirement for ATSDR to update toxicological 
profiles no less often than every 3 years is changed to require 
updates ``if the Administrator of ATSDR determines that there 
is significant new information.''
    Under CERCLA Section 104(i)(6), ATSDR is required to 
conduct a health assessment for each facility on the NPL. The 
bill expands this requirement to include all ``covered 
facilities'' as that term is defined in amended subsection 
117(a), unless the ATSDR publishes a finding that the facility 
presents no significant health risk. Current law also requires 
ATSDR to complete assessments ``to the maximum extent 
practicable, before the completion of the remedial 
investigation and feasibility study.'' However, ATSDR health 
assessments often have been conducted too late to be useful for 
EPA remedy selection activities. For facilities placed on the 
NPL in the future, health assessments must be completed prior 
to the completion of the RI/FS. However, a failure to complete 
the health assessment cannot be used to delay the progress of 
remedial action.
    Section 305 of the bill authorizes ATSDR to conduct health 
assessments of community exposure to hazardous substances 
released, or threatened to be released, at a facility. It 
directs ATSDR to give special consideration to any practices of 
the affected community that may result in greater exposure. In 
addition, section 305 requires ATSDR to prepare and distribute 
educational materials and information on human health effects 
of hazardous substances to the community. ATSDR should use any 
available information networks, including any CAG to accomplish 
this.
    The bill authorizes ATSDR to conduct health education 
activities to make a community near a covered facility aware of 
steps it may take to mitigate or prevent exposure to hazardous 
substances and their related health effects. If it chooses to 
conduct such activities, the bill directs ATSDR to use 
community health centers, area health education centers, or 
other community information networks, including a CAG or a TAG 
recipient.
    People in affected communities may be exposed to hazardous 
substances from sources other than covered facilities in 
addition to releases from covered facilities. The bill directs 
ATSDR, in consultation with EPA, to conduct a study on multiple 
sources of exposure affecting or potentially affecting a 
community. ATSDR is authorized to examine various approaches to 
protect communities and to include recommendations for the 
President to consider in developing an implementation plan to 
address the effects or potential effects of exposure at covered 
facilities.

           Sec. 306. Understandable Presentation of Materials

Summary
    The bill provides that information distributed to the 
community must be presented in a manner that may be easily 
understood, considering any unique cultural needs of the 
community.
Discussion
    A 1994 GAO report recommends that EPA should information 
repositories more useful and accessible to the public; redesign 
its public notices and print them in local newspapers to make 
them more visible to a broader segment of the public; and 
assess the benefits of routinely evaluating the reading level 
of fact sheets and other documents intended for the general 
public to make them less technical and more accessible. The 
bill requires that information distributed to the community as 
part of the public participation program of CERCLA Section 117 
must be presented in a manner that may be easily understood by 
the community. EPA is directed to consider any unique cultural 
characteristics of a community, as well as any educational or 
language barriers, in carrying out this requirement.

              Sec. 307. No Impediment to Response Actions

Summary
    The bill provides that nothing in the public participation 
section of the law should impede or delay the ability of EPA to 
conduct a response action necessary to protect human health and 
the environment.
Discussion
    The bill adds a number of requirements for public 
participation in affected communities at covered facilities. 
However, it is not intended that these requirements should 
impede response actions that are needed to protect human health 
or the environment.

                TITLE IV--SELECTION OF REMEDIAL ACTIONS

                         Sec. 401. Definitions

Summary
    This section adds definitions to section 101 of CERCLA for 
the terms ``Technically Impracticable'' and ``Beneficial Use.'' 
Both terms are used elsewhere in the title.
Discussion
    The definition of the term ``technically impracticable'' 
states the conditions that must exist for a standard or 
requirement in the cleanup provisions in section 121 to be 
waived. The definition is based upon EPA guidance for the 
remediation of contaminated groundwater. OSWER Directive 
9234.2-25, Interim Final Guidance for Evaluating the Technical 
Impracticability of Ground-Water Restoration (September, 1993), 
states that a technical impracticability determination should 
be based on `` . . . engineering feasibility and reliability, 
with cost generally not a major factor unless compliance would 
be inordinately costly.'' (OSWER Directive 9234.2-25 at 10, 
citing 55 Fed. Reg. 8748, March 8, 1990). The definition in S. 
8 is consistent with EPA guidance and the National Contingency 
Plan.
    The definition of the term ``Beneficial Use'' states the 
goal for future utility of land after a Superfund cleanup is 
completed. The definition is used in section 121(b), which 
details the process to develop assumptions regarding the future 
use of contaminated land. The potential for beneficial use of 
land in a manner that confers economic, social, environmental, 
conservation, or aesthetic benefit is a factor that the 
Administrator must consider in developing assumptions regarding 
the future use of the land, which will have an impact upon the 
remedial action alternatives that the Administrator will 
consider.

       Sec. 402. Selection and Implementation of Remedial Actions

Summary
    The bill provides a new section 121 that replaces existing 
section 121 of CERCLA. The fundamental remedy selection rule in 
the new section states that the Administrator must select a 
cost-effective remedy that protects human health and the 
environment. Further, applicable Federal and State law cleanup 
requirements must be met at NPL sites. A risk-based standard is 
used if there is no applicable Federal or State law 
requirement. The bill modifies the existing statutory 
preferences for permanence and treatment with a more flexible 
six-factor balancing test.
    The bill requires consideration of the reasonably 
anticipated future use of land and water resources in 
determining the degree of cleanup. Uncontaminated groundwater 
which is suitable for use as drinking water is protected if it 
is technically practicable to do so. Contaminated groundwater 
that is a foreseeable source of drinking water must be restored 
if it is technically practicable to do so. The bill also 
contains a new preference for treatment that is limited to 
those materials that cannot be reliably contained and pose a 
substantial risk to human health and the environment because of 
the material's high toxicity, high mobility, and a reasonable 
probability of actual exposure to the hazardous substance. New 
provisions on institutional controls are included to ensure 
long-term protection when a selected remedy leaves 
contamination in place. A new provision also is included to 
describe the process for obtaining a waiver due to technical 
impracticability, and the obligations for any alternative 
remedial action to protect human health notwithstanding a 
waiver.
Discussion
    General Cleanup Rule. S. 8 provides a complete replacement 
for existing section 121 of CERCLA and states the new remedy 
selection process for Superfund cleanups. Section 121(a)(1)(A) 
states the general cleanup mandate: the President must select a 
cost-effective remedial action that protects human health and 
the environment, and attains or complies with applicable 
Federal and State laws.
    Protection of Human Health and the Environment. New section 
121(a)(1)(B)(I) contains an absolute mandate that remedial 
actions protect human health, and states the conditions that 
must be met for a remedial action to protect human health. The 
term ``human health'' specifically includes the health of 
children and other highly exposed or highly susceptible 
subpopulations. This is not a new requirement, as EPA has 
applied the current law's mandate to protect human health, 
which does not include any language identifying specific 
populations at greater risk, to include protection of these 
groups.
    Remedial actions must achieve a residual risk from exposure 
to threshold carcinogenic hazardous substances such that the 
cumulative lifetime additional cancer risk is in the range of 
10-4 to 10-6 (1 in 10,000 to 1 in 
1,000,000) for the affected population. In the case of 
nonthreshold carcinogenic and noncarcinogenic hazardous 
substances, cleanups must assure that the exposed population 
will not experience adverse health effects. Finally, cleanups 
must prevent or eliminate any human ingestion of drinking water 
containing hazardous substances in excess of Safe Drinking 
Water Act maximum contaminant levels (MCLs), or if MCLs have 
not been established for the substance, levels that meet the 
goals for protecting human health. This risk management goal 
gives the decision maker the flexibility to make appropriate 
risk management decisions in light of the nature and magnitude 
of the uncertainties which may be present in any given risk 
assessment at a particular facility. These uncertainties 
include strength of evidence regarding a substance's human 
carcinogenity, and the degree of knowledge about potential 
exposure pathways, and the characteristics of the exposed 
population.
    EPA has established a risk management goal of 
10-4 to 10-6, with a point of departure 
at 10-6, in Superfund's National Contingency Plan. 
The point of departure is used for determining remediation 
goals or alternatives when ARARs are not available or are not 
sufficiently protective because of the presence of multiple 
contaminants at a site or multiple pathways of exposure.
    S. 8 does not adopt a point of departure at either the more 
protective or less protective end of the risk range. Use of 
single point risk targets or points of departure could 
artificially limit the decision maker's ability to select a 
protective, cost-effective remedial alternative. Use of the 
range recognizes that at certain sites, where there is thorough 
site characterization and data regarding the health effects of 
the contaminants, setting goals near 10-4 may be 
protective. EPA generally uses 10-4 as the lower end 
of the protectiveness range in making risk management 
decisions, however EPA may consider a specific risk estimate 
around 10-4 acceptable if justified based upon site-
specific conditions. (See, e.g., OSWER Directive 9355.0-69, 
Rules of Thumb for Superfund Remedy Selection, August 1997, at 
9). Conversely, at sites with less extensive data, setting 
goals at the high end of the range to account for uncertainty 
may be required for a protective remedy. Further, the final 
numeric risk goal selected is influenced by application of the 
remedy balancing test. The first prong of the balancing test 
for remedial alternatives in section 121(a)(3) is the 
effectiveness of the remedy in ensuring protection of human 
health. This is a direct reference to the protectiveness 
requirements in section 121(a)(1)(B)(I), so the relative degree 
of protection within the range is balanced with the other five 
factors.
    For hazardous substances other than nonthreshold 
carcinogens, remedies should reduce contaminant concentrations 
so that exposed populations will not experience adverse health 
effects during all or part of a lifetime, incorporating an 
adequate margin of safety (i.e. a hazard index at or below 
one). Finally, S. 8 prohibits actual human ingestion of 
drinking water that exceeds maximum contaminant levels 
established under the Safe Drinking Water Act (42 U.S.C. 300(f) 
et seq.), or at a risk-based protective level if no maximum 
contaminant level is established. Prevention of actual human 
ingestion of contaminated groundwater may require action under 
this section prior to the time that any actual ingestion occurs 
so long as such ingestion is reasonably foreseeable.
    A remedy protects the environment if it protects plants and 
animals from significant impacts resulting from releases of 
hazardous substances at the facility. This is a site-specific 
inquiry that shall not be based upon an impact to an individual 
plant or animal that does not also have an impact at the 
population, community, or ecosystem level. Impacts to 
individual plants or animals are considered if the plant or 
animal is listed as a threatened or endangered species under 
the Endangered Species Act (16 U.S.C. 1531 et seq.).
    Compliance with Applicable State and Federal Laws. Current 
law requires remedial actions to attain the relevant and 
appropriate requirements of State law (so called ``RARs''). 
Critics contend that this requirement often leads to remedies 
that are not cost-effective. S. 8 retains the requirement in 
current law that Superfund cleanups must attain or comply with 
applicable Federal or State laws, however, S. 8 modifies the 
existing requirement to attain or comply with RARs. New section 
121(a)(1)(C) requires a remedy to comply with the substantive 
requirements of Federal and State environmental and facility-
siting laws applicable to the conduct of the remedial action or 
to the determination of the cleanup level. More stringent State 
requirements may be applied if the State demonstrates that they 
are generally applicable and consistently applied to remedial 
actions, and the State identifies the requirements to the 
President.
    New section 121(a)(1)(C)(iii) authorizes waivers from the 
substantive requirements of applicable Federal and State laws 
for specified reasons. These waivers are essentially the same 
as the waivers found in existing law. New section 
121(a)(1)(C)(iii)(ff), the so-called ``fund balancing'' waiver, 
does change current law to recognize the changes made to the 
Superfund liability scheme in Title V. Existing law limits the 
waiver to remedial actions funded ``solely'' by the Superfund 
Trust Fund. Limiting the use of the waiver to remedial actions 
funded solely with Federal resources made sense in the era when 
the Superfund management philosophy was to use the Federal 
Trust Fund first, then later seek cost recovery. Such a 
limitation makes far less sense for a reformed Superfund 
program. In recognition of the fact that the Trust Fund will 
assume a greater share of the cleanup costs due to the 
liability limitations and exemptions created in Title V, as 
well as the availability of orphan share funding in the 
allocation system, the standard in S. 8 for invocation of the 
fund balancing waiver is for remedial actions that are funded 
``predominately'' from the Trust Fund.
    New section 121(a)(1)(D) states that if no applicable 
Federal or State standard exists for a contaminant a remedy 
must meet a standard that EPA determines to be protective. The 
Administrator's action will be guided by the requirements in 
section 121(a)(1)(B) and the risk evaluation principles in 
section 131(b) and (c) in establishing such a protective 
standard.
    New section 121(a)(1)(C)(ii) restates the exception in 
existing law that Federal, State and local procedural 
requirements, including permitting requirements, would not 
apply to response actions conducted onsite. For example, this 
would exempt a Superfund remedy from procedural, but not 
substantive, requirements of RCRA such as obtaining a subtitle 
C permit for the storage of hazardous wastes.
    New section 121(a)(1)(C)(I)(II) provides an exemption from 
certain substantive RCRA requirements for hazardous waste 
management. Specifically, the standards applicable to owners 
and operators of hazardous waste treatment, storage and 
disposal facilities will not apply to the return, replacement 
or disposal of contaminated media (such as soil) into the same 
media in or very close to then-existing areas of contamination 
at the facility. This would allow soil excavated at a site 
during the construction of the remedy to be retained and 
managed onsite with other material that was not excavated. This 
fact pattern often arises when contaminated soil at a landfill, 
where the selected remedial action is a protective cap, is 
moved and consolidated under the protective cap. Section 3004 
of RCRA could, in such a situation, require additional 
treatment that would not result in added protection of human 
health and the environment.
    Remedy Selection Process Explained. New section 121(a)(2) 
provides a roadmap for the remedy selection process. It states 
that the President shall select a remedy from a range of 
alternatives that satisfy the requirements described above, by 
balancing six criteria in 121(a)(3). Alternatives that are to 
be evaluated under the balancing test must meet any additional 
remedy selection rules in section 121(b) that apply at that 
site, as well as the general requirements in section 121(a)(1) 
regarding protectiveness, cost-effectiveness and compliance 
with applicable State and Federal law.
    New section 121(a)(3) contains the new remedy selection 
balancing test. This six-factor test is similar to proposals in 
previous bills reported by the Committee, including S. 1834 in 
1994. The six-remedy selection balancing criteria are: 
effectiveness in protecting human health and the environment; 
long term reliability; short-term risk posed by the remedy; 
community acceptance: implementability, and reasonableness of 
the cost. In applying the balancing test the decision maker is 
directed that no single factor shall predominate over the 
others, and S. 8 does not provide any weighting to a specific 
factor.
    The first factor is ``the effectiveness of the remedy in 
protecting human health (including the health of children and 
other highly exposed or highly susceptible subpopulations) and 
the environment.'' This factor directly invokes the standards 
for protection of human health and the environment in section 
121(a)(1)(B). The second factor, ``reliability of the remedial 
action in achieving the protectiveness standards over the long 
term'' contains an implicit preference for permanent remedies 
that use treatment. Remedial actions that remove and neutralize 
hazardous substances are inherently more reliable than those 
that contain hazardous substances onsite. The third factor is 
``[a]ny short-term risk to the affected community, those 
engaged in the remedial action effort, and the environment 
posed by the implementation of the remedial action.'' This 
factor directs the decision maker to consider whether the 
proposed remedial alternative presents risks that could 
outweigh the marginal risk reduction that the alternative would 
attain. For example, there may be significant risks to human 
health and the environment due to suspension of hazardous 
substances in the air or water column during remedy 
construction, or risks to residents or operators due to the 
excavation and removal of contaminated material from a site. 
These risks must be quantified and balanced against the other 
remedy factors.
    The fourth factor is ``acceptability of the remedial action 
to the affected community.'' Title III of S. 8 contains 
significant improvements to Superfund's existing community 
participation requirements and enhances the role of the 
community in the remedial action selection process.
    The fifth factor is ``implementability of the remedial 
action.'' This means that remedial alternatives must be 
technically feasible from an engineering perspective. 
Maximizing this balancing factor favors remedies that are 
relatively easier to implement over those that are relatively 
more difficult, while eliminating those that are technically 
infeasible from further consideration.
    The final balancing factor is ``reasonableness of the 
cost.'' The balancing test demands a relative weighing of all 
six factors in order to maximize the benefits of a remedial 
action within the overall mandate that selected remedial 
actions be cost-effective. In order to balance cost as a 
factor, a relative measure of the particular quality of the 
cost element must be expressed. EPA has recognized that 
reasonableness is an appropriate quality of the cost criterion 
to measure in some of its Superfund guidance. For example, in 
an September 26, 1996 memo from the Director of the Office of 
Emergency and Remedial Response regarding the National Remedy 
Review Board, EPA states that one of the appropriate review 
criteria the Board should consider when it evaluates a remedy 
decision is ``[a]re the cost estimates reasonable?'' 
(Attachment to OERR memo at 2). The cost factor in the 
balancing test in S. 1834, the Administration-supported 
``Superfund Reform Act of 1994,'' was ``the reasonableness of 
the cost of the remedy.''
    Current EPA policy specifies three roles for cost in 
Superfund remedy selection. EPA recently issued guidance to 
clarify and interpret both the Superfund statute and the 
National Contingency Plan in OSWER Publication 9200.3-23FS, The 
Role Of Cost in the Superfund Remedy Selection Process 
(September, 1996). This fact sheet summarizes the cost 
consideration as follows:

        Cost considerations are therefore factored into the 
        balancing of alternatives in two ways. Cost is factored 
        into the determination of cost-effectiveness, as 
        described above. And, cost is evaluated along with the 
        other balancing criteria in determining which option 
        represents the practicable extent to which permanent 
        solutions and treatment or resource recovery 
        technologies can be used at the site. (Id. At 5.).

    The OSWER fact sheet goes on to recognize the role of cost 
in technical impracticability as follows:

        Cost is relevant to the technical impracticability 
        waiver, because engineering feasibility is ultimately 
        limited by cost. EPA has stated that cost can be 
        considered in evaluating technical impracticability, 
        although it should generally play a subordinate role' 
        and should not be a major factor unless compliance 
        would be inordinately costly.' (Id. At 6, citing the 
        preamble to the National Contingency Plan, 55 Fed. Reg. 
        at 8748, March 8, 1990).

    Similar to current EPA policy, S. 8 uses cost in remedial 
decision making in three ways. First, there is a mandate, 
identical to current law, that selected remedial actions be 
cost-effective. Second, the reasonableness of the cost is a 
balancing factor for the evaluation of remedial alternatives, 
but does not predominate over other factors such as long-term 
reliability (which contains an implicit preference for 
permanent remedies that use treatment). Finally, inordinate 
cost is the cost criterion that can be used to invoke a 
technical impracticability waiver.
    Additional Remedy Selection Rules. Section 121(b) consists 
of five paragraphs that define additional rules that must be 
taken into account when selecting a Superfund remedy.
    Reasonably Anticipated Future Use of Land and Water 
Resources. A frequent criticism of Superfund is that the 
selected levels of cleanup are not tied closely enough to the 
reasonably anticipated future uses of a facility. This can 
result in applying more-protective and costly residential 
cleanup standards where no residential use is contemplated or 
foreseeable. EPA provided the Committee with information during 
the 1997 stakeholder process that residential land use was 
assumed in 75-80 percent of all remedy decisions made since 
program inception. In 26 percent of these cases, residential 
use was the current use of the site, and in the remaining 74 
percent residential use existed adjacent to the site, or was 
expected immediately off-site. This information was based on 
pre-1994 data. EPA reported that data for fiscal year 1995 
indicated that 38 percent of the sites used only residential 
land use as the future land use assumption, while some 
industrial or commercial use was assumed at 60 percent of the 
sites. Many sites used multiple assumptions due to the large 
size of the site.
    While EPA issued land use guidance on the topic in 1995. 
(See OSWER Directive 9355.7-04, Land Use in the CERCLA Remedy 
Selection Process, May 25, 1995), current law is silent on land 
use assumptions. New section 121(b)(1)(A) requires that, in 
selecting a remedy for a facility, EPA take into account the 
reasonably anticipated future use of land and water potentially 
affected by the release. When developing assumptions regarding 
the future use of land, new section 121(b)(1)(B)(I) requires 
EPA to consider the views of local officials and community 
members, and consider specified factors in developing 
assumptions regarding reasonably anticipated future land uses. 
The process and factors listed are similar to the process and 
factors in OSWER Directive 9355.7-04.
    It is important to note that the land use assumptions 
developed during the remedy selection process do not create 
``Federal zoning'' for Superfund sites. This section does not 
provide EPA with the authority to enforce or compel the 
enforcement of local or State laws in the future. This section 
merely requires EPA to ensure that at the time any land use 
assumption that relies on an institutional control is made, 
that the relevant local or State governments have the necessary 
legal mechanisms to implement, monitor and enforce the 
institutional controls. Local governments retain the full scope 
of police powers over land use decisions delegated to them by 
the respective States. The goal of this provision is too 
prevent unwarranted expenditures where there is reliable 
information regarding the reasonably anticipated future use of 
a Superfund site.
    Section 121(b)(1)(C) contains rules for development of 
assumptions regarding the reasonably anticipated future use of 
ground water and surface water. EPA must give substantial 
deference to the classifications in an approved State 
comprehensive ground water protection program (so-called 
``CSGWPPs''). This policy accords with EPA guidance on the 
subject, which states that EPA will ``[d]efer to State 
determinations of current and future ground-water uses, when 
based on an EPA-endorsed CSGWPP that has provision for site-
specific decisions.'' (See OSWER Directive 9283.1-09, The Role 
of CSGWPPs in EPA Remediation Programs, April 4, 1997, at 1). 
If the plan is not EPA-approved, then EPA must still consider 
it along with other designations or plans adopted by the 
governmental unit that regulates water use planning in the 
vicinity.
    Protection and Cleanup of Groundwater. New section 
121(b)(2) includes additional provisions applicable to 
protection of uncontaminated ground water and the cleanup of 
contaminated ground water. Section 121(b)(2)(B) requires that a 
remedy seek to protect uncontaminated groundwater that is 
suitable for use as drinking water, if it is technically 
practicable to do so. Suitability for use as drinking water is 
a site-specific decision, and not dependent upon any 
designation or reasonably foreseeable use under section 
121(b)(1)(C). Suitability would be limited by the conditions 
stated in section 121(b)(2)(F), which describe ground water not 
suitable for beneficial use as drinking water. Section 
121(b)(2)(C) requires that contaminated ground water that is a 
current or reasonably foreseeable source of drinking water 
should be restored to a condition suitable for such beneficial 
use if it is technically practicable.
    New section 121(b)(2)(A) states that a remedy for 
contaminated ground water shall proceed in phases in order to 
allow the collection of sufficient data to evaluate the effect 
of any other remedial action taken at the site and to determine 
the appropriate scope of any needed future remedial action. 
This approach is consistent with current EPA guidance on 
groundwater remedies. (See OSWER Directive 9283.1-12, 
Presumptive Response Strategy and Ex-Situ Treatment 
Technologies for Contaminated Groundwater at CERCLA Sites, 
October 1996, at 5, 6 (hereinafter ``1996 Groundwater 
Guidance'')). Remedial decisions for contaminated ground water 
must also consider the current or reasonably anticipated future 
uses of the groundwater under section 121(b)(2)(C); any natural 
attenuation or biodegradation that would occur without remedial 
action, and the effect of any other completed or planned 
response action. Again, this is consistent with current EPA 
policy. (See the 1996 Groundwater Guidance at 17 through 19).
    The cleanup process for contaminated groundwater is 
described in section 121(b)(2)(C). The mandate in this section 
is that as much of any contaminated ground water that is a 
current or reasonably foreseeable source of drinking water 
shall be restored unless it is technically impracticable to do 
so. This section allows division of groundwater into two or 
more zones to tailor cleanup to differing conditions throughout 
the contaminated plume. This approach allows EPA to 
differentiate between areas in the contaminated plume where 
restoration is technically practicable from those areas where 
it is not; restoration is not an ``all or nothing'' decision.
    Section 121(b)(3)(C)(iv) requires that a remedial action 
for contaminated groundwater attain the more stringent of 
Federal drinking water standards or State water quality 
standards. If no standard exists, then the remedy must be 
protective of human health and the environment based on a risk 
assessment. Restoration to a level that is more stringent than 
the naturally occurring background levels in the surrounding 
area is not required. This section does not require restoration 
of contaminated groundwater beneath a containment area, such as 
under a landfill which is covered and capped. The boundary of 
the containment area defines the lateral extent of the area 
where restoration is not required.
    Contaminated ground water or surface water that is not 
suitable for beneficial use as drinking water because it meets 
the conditions stated in section 121(b)(3)(F) nonetheless must 
be remediated unless it is technically impracticable to do so. 
Such contaminated water must attain a standard that is 
protective for the current or reasonable anticipated (non-
drinking water) future uses of that water and any surface water 
to which the contaminated water discharges.
    Even if the restoration of some or all of the contaminated 
groundwater is technically impracticable, section 
121(b)(2)(C)(vii) imposes conditions that a remedial action 
must meet. Consistent with the mandate in section 
121(a)(1)(B)(iii), no human ingestion or exposure is allowed, 
and the remedy must incorporate provision of alternate water 
supplies, point-of-use treatment or other measures to ensure 
there is no ingestion or exposure. Impairment of designated 
surface water uses under section 303 of the Federal Water 
Pollution Control Act or comparable State law caused by a 
hazardous substance, pollutant or contaminant in any surface 
water into which contaminated groundwater is known or expected 
to enter, is prohibited unless it is technically impracticable 
to prevent such impairment. Long-term monitoring of the 
contaminated ground water is required, and groundwater 
monitoring requirements shall be reviewed during the periodic 
review of the remedial action to determine when the monitoring 
requirements may be modified or eliminated. The responsibility 
for any point-of-use treatment or alternate water supplies 
remains the obligation of the responsible parties.
    New section 121(b)(3)(D) allows the use of monitored 
natural attenuation as an element of a remedy. Monitored 
natural attenuation is not a ``no action'' alternative, and 
does not relieve a party's obligation to attain a cleanup level 
or standard required by this act. The use of monitored natural 
attenuation is consistent with long-standing EPA practice, the 
1996 Groundwater Guidance (See pages 18-19), and the more 
recent draft OSWER Directive Use of Natural Attenuation at 
Superfund, RCRA Corrective Action, and Underground Storage Tank 
Sites (draft dated June 7, 1997).
    Section 121(b)(3)(E) restates existing law for so-called 
alternate concentration levels (ACLs) where a contaminated 
groundwater plume intercepts surface water. There is one 
significant change from current law. Current law contained a 
proviso that limited the application of ACLs unless it could be 
demonstrated, inter alia, that ``on the basis of measurements 
or projections, there is or will be no statistically 
significant increase of such constituents from such groundwater 
in such surface water . . .'' (CERCLA section 
121(d)(B)(ii)(II)). As practical matter, it is not possible to 
demonstrate satisfaction of the requirement. In order to remove 
the practical barrier to utilization of ACLs, S. 8 changes the 
provision to read ``on the basis of measurements or 
projections, there is or will be no impairment of the 
designated use established under section 303 of the Federal 
Water Pollution Control Act (42 United States Code 1313) from 
ground water in such surface water . . .''
    New section 121(b)(3)(F) defines groundwater that is not 
suitable for use as drinking water due to naturally-occurring 
conditions, broad-scale human activity unrelated to a specific 
facility or release that makes restoration of drinking water 
quality technically impracticable (such as an aquifer with 
multiple sources of contamination) and or low yield aquifers 
that are not currently used as drinking water sources and are 
physically incapable of yielding 150 gallons per day.
    Preference for Permanence and Treatment. New section 
121(b)(3) replaces current law's preference for permanence and 
mandate for treatment. This section serves as a supplement to 
the preference implied in the long-term reliability prong of 
the remedy balancing test in section 121(a)(3). The bill 
provides that for discrete areas containing highly toxic 
contaminants that cannot be reliably contained, and present a 
substantial risk to human health and the environment because of 
high toxicity, high mobility, and a reasonable probability of 
actual exposure, the remedy selection process must include a 
preference for a remedy that includes treatment.
    New section 121(b)(3)(B) states exceptions to the 
preference so that EPA may select a containment remedy for 
landfill or mining sites. Landfills will often have discrete 
areas of hazardous waste that are relatively small in volume 
compared to the overall amount of waste or contamination at the 
site which is not readily identifiable or accessible. A 
containment remedy may nonetheless be selected if such a remedy 
is the appropriate remedy for the larger body of waste in which 
the discrete area is located. A final containment remedy may be 
selected at sites where the volume and size of the discrete 
area is extraordinary compared to other sites on the National 
Priorities List (typically mining sites), if it is highly 
unlikely that any treatment technology will be developed that 
could be implemented at a reasonable cost because of the 
volume, size and toxicity of the discrete area.
    Institutional Controls. An institutional control is a 
restriction on the permissible use of land, ground water or 
surface water included in any enforceable decision document for 
an NPL facility to comply with the requirements to protect 
human health and the environment. Institutional controls are 
currently a part of most Superfund remedial actions. Data 
furnished to the Committee by EPA during the 1997 stakeholder 
process reported that 55 percent of all fiscal year 1994 
records of decision (RODs) included institutional controls as 
part of the remedy. Data for fiscal year 1996 saw the 
percentage of RODs with institutional controls rise to 66 
percent. Through fiscal year 1994, deed restrictions were the 
most frequently used institutional control, followed by ground 
water restrictions, and land use restrictions.
    Current law is silent on the topic of institutional 
controls. New section 121(b)(4) establishes rules for the use 
of institutional controls that recognizes that they are already 
a part of most Superfund remedies, and attempts to balance the 
Federal interest that Superfund remedies are protective and 
reliable over the long term with the State and local interest 
in regulating property law.
    Section 121(b)(4) permits EPA to select a remedy that 
allows a contaminant to remain onsite at a concentration above 
a protective level if institutional and engineering controls 
would be used to ensure protection of human health and the 
environment. The section includes a definition of institutional 
controls with a non-exclusive listing of institutional control 
mechanisms.
    Section 121(b)(4)(B) requires that the Administrator use 
protective institutional controls if contaminants remain in 
place that would not permit unrestricted facility use after 
cleanup. Section 121(b)(4)(C) requires that institutional 
controls are adequate to protect human health and the 
environment, reliable over the long term, and are properly 
implemented, monitored, and enforced. Section 121(b)(4)(D) 
requires that the institutional controls are clearly identified 
in the record of decision. Section 121(b)(4)(E) requires the 
Administrator to maintain a national registry of institutional 
controls, including any engineering measures employed to 
achieve the level of protection required by section 
121(a)(1)(B).
    Technical Impracticability. Current law allows EPA to waive 
attainment of an applicable, relevant and appropriate 
requirement of Federal or State law that is incorporated into a 
Superfund remedy if it is technically impracticable to attain 
the standard. Current law is silent, however, on the process 
for raising and resolving the issue of technical 
impracticability, and on the procedure to follow in the case of 
a cleanup standard that is risk-based and not based upon an 
applicable Federal or State law. New section 121(b)(5) makes 
the waiver process for technical impracticability more 
predictable and transparent to the affected community and 
potentially responsible parties. This section provides that, 
even if EPA finds that attaining a standard is technically 
impracticable, EPA still must comply with the mandate to 
protect human health and select a technically practicable 
remedy that is protective as defined in section 121(a)(1)(B)(I) 
and most closely approaches the cleanup goals through cost-
effective means. Section 121(b)(5) allows technical 
impracticability waivers to be based on projections, models or 
other analysis; and requires the determination be made as soon 
as sufficient information is available. This answers a frequent 
criticism of the current technical impracticability waiver 
process that a remedy must be constructed and operated prior to 
the time a waiver becomes ripe for review.
    The section establishes a process for technical 
impracticability reviews, and allows a party other than EPA 
that is performing the cleanup (such as a party cleaning up 
under a consent decree) to request a review. Notice and an 
explanation is required when technical impracticability is 
invoked.

                 Sec. 403. Remedy Selection Methodology

Summary
    S. 8 requires EPA to perform facility-specific risk 
evaluations as part of the remedial action. The bill states 
that the goal of an evaluation is to provide informative 
estimates that neither minimize nor exaggerate the current or 
potential risk posed by a facility. A facility-specific risk 
evaluation must use chemical- and facility-specific data in 
preference to default assumptions whenever practicable. S. 8 
also adds risk communication principles to the Act and requires 
EPA to ensure that the presentation of health effects 
information is comprehensive, informative and understandable. 
Among other things, a document reporting the results of a risk 
evaluation must present the central estimate of risk for 
specific populations, as well as the upper- and lower-bound 
risk estimates, and identify significant uncertainties in the 
assessment process.
Discussion
    Risk Assessment. New section 131 regulates risk assessment 
activity in Superfund. Section 131(a) states that the goal of a 
facility-specific risk evaluation is to provide informative and 
understandable estimates that neither minimize nor exaggerate 
the current or potential risk posed by a facility.
    Section 131(b)(1) lists requirements that a facility-
specific risk evaluation must meet. This section recognizes 
that risk evaluations are ultimately based on a combination of 
measured data from the facility, non-facility-specific data and 
assumptions where there are gaps in the data or knowledge of 
conditions at a site. This section states a preference to use 
chemical and facility-specific data in preference to default 
assumptions whenever practicable. This does not require the 
development of new toxicology data for every chemical at each 
facility, but merely expresses a preference for chemical 
specific data when it is practicable to obtain it. Consistent 
with the preference for facility-specific data, the section 
also requires: (1) evaluation of the exposed population and 
current and potential pathways and patterns of exposure; (2) 
consideration of the current or reasonably anticipated futures 
use of land and water resources in estimating exposure (a 
reference to the planning assumptions conducted under section 
121(b)(1)); and (3) consideration of any institutional controls 
that comply with the requirements stated in section 121(b)(4). 
Institutional controls are typically used to interrupt exposure 
pathways that otherwise would be completed. The President will 
consider only those institutional controls that are in place at 
the time that the risk assessment is conducted, and may inquire 
into the effectiveness of the institutional controls in 
assuring long-term protection of human health and the 
environment.
    Section 131(c) directs the Administrator to use facility-
specific risk evaluations for six different purposes. The 
listed uses are designed to ensure that selected remedies are 
protective while avoiding the phenomenon of compound 
conservatism that leads to unnecessary remedial expenditures. 
The listed uses of a facility-specific risk evaluation are: to 
determine the need for remedial action; to evaluate the current 
and potential exposures and risks at the facility; to rule out 
the need for further study of specific contaminants, areas or 
exposure pathways; to evaluate the protectiveness of 
alternative proposed remedies; to demonstrate that the selected 
remedial action can achieve the goals of protecting health and 
the environment and land and water resource uses; and to 
establish protective concentration levels if no applicable 
requirement exists or an existing requirement is not 
sufficiently protective.
    Section 131(d) adds risk communication principles to the 
Act and requires EPA to ensure that the presentation of health 
effects information is informative, comprehensive and 
understandable. The provision is virtually identical to the 
risk communication provision in the Safe Drinking Water Act 
Amendments of 1996. This provision directs EPA to improve its 
performance in explaining scientific information and 
uncertainties that are included in facility-specific risk 
evaluation, and how the agency reconciles any inconsistencies 
that exist in the scientific data generated in the facility's 
evaluation.
    Any chemical-specific, facility-specific or default 
assumptions used in a facility-specific risk assessment must 
meet the requirements in section 131(e). The requirements, 
virtually identical to provisions adopted in the Safe Drinking 
Water Act Amendments of 1996, require the President to use the 
best peer-reviewed science and supporting studies conducted in 
accordance with sound and objective scientific practices. This 
places an affirmative duty upon the Administrator to rely upon 
the best available science and information to support decisions 
made under this section. This section also requires the 
Administrator to collect data using accepted methods. If 
accepted methods are not available, then the Administrator must 
use the best available methods if the reliability of the method 
and the nature of the decision to be made justifies the use of 
data instead of a default assumption. Any decision to obtain 
data is also informed by the requirement in section 
131(b)(1)(A)(I) to use actual data in preference to default 
assumptions whenever it is practicable to obtain such data.
    EPA has 18 months to issue final regulations implementing 
section 131.
    Presumptive Remedies. New section 132 addresses so-called 
``presumptive remedial actions'' to streamline the remedy 
selection process. Section 132(a) directs EPA to establish 
presumptive remedial actions that identify preferred 
technologies and approaches for common categories of 
facilities, and identify site characterization methodologies 
for those categories of facilities.
    Section 132(b) states that remedies may include 
institutional and engineering controls, and must be 
practicable, cost-effective and protective of health and the 
environment. Sections 132(c) and (d) contain limits on the use 
of presumptive remedies, and procedures for the promulgation of 
a list of presumptive remedies and updates to that list.

                 Sec. 404. Remedy Selection Procedures

Summary
    EPA is required to streamline and accelerate the cleanup 
process by use of early response actions and combining the 
multiple studies now performed at a site into an integrated 
approach to site assessment. Removal program limits are 
increased. The duration of emergency response actions is raised 
from 12 to 36 months, and the authorized spending cap is raised 
from $2 million to $5 million per site. Qualified PRPs are 
allowed to conduct the bulk of the cleanup process under EPA 
supervision.
    A Remedy Review Board is established with two missions. It 
will examine approximately 1/3 of all new remedy decisions to 
ensure national consistency in remedy selection. It may re-
examine old remedy decisions and recommend a new remedy if the 
new rules in this bill save significant amounts over the 
current remedy while still reaching equivalent protection 
standards. Governors can veto the reopening of old remedy 
decisions.
Discussion
    National Contingency Plan Revisions. New section 133 
requires EPA to revise the National Contingency Plan, EPA's 
rule implementing Superfund's cleanup provisions, within 180 
days of enactment.
    Acceleration of Cleanups. New section 134 contains several 
improvements to the conduct and administration of Superfund 
cleanups. Sections 134(a) and (b) codify several improvements 
to Superfund that EPA promulgated in the Superfund Accelerated 
Cleanup Model in 1992 (SACM). (See OSWER Directive 9203.1-03, 
Guidance on Implementation of the Superfund Accelerated Cleanup 
Model (SACM) Under CERCLA and the NCP, July 7, 1992). SACM 
emphasizes the use of early response actions to prevent 
exposure and further migration of contaminants, the 
consolidation of multiple site studies in a phased manner that 
uses the results of earlier investigations and response actions 
to better define subsequent data needs and response actions.
    Section 134(a) would require EPA to implement measures to 
accelerate and improve the remedy selection and implementation 
processes, tailor the level of oversight of response actions, 
and streamline the process for submitting, reviewing and 
approving plans and other documents. New section 134(b) 
requires EPA to attempt to expedite completion of response 
actions through appropriate phasing of investigative and 
response activities.
    New section 134(c) would authorize EPA to allow one or more 
PRPs to perform a response action where EPA determines that the 
party or parties would do so properly and promptly and the 
parties agree to reimburse the Fund for oversight costs. The 
section also allows EPA to tailor the level of Federal 
oversight of PRPs that are conducting response actions based 
upon the PRPs capability and prior performance. The specific 
oversight factors are listed in section 134(c)(5). This 
approach is consistent with EPA policy to reduce Federal 
oversight at Superfund sites where reliable parties are 
conducting the cleanup (See OSWER Directive 9200.4-16, Reducing 
Federal Oversight at Superfund Sites with Cooperative and 
Capable Parties, July 31, 1996).
    The response action activities the President may authorize 
a potentially responsible party to perform are enumerated in 
section 134(c)(4). Included on this list is ``preparation of 
draft proposed remedial action plans.'' This is a new document 
that is not covered in law or EPA regulations and guidance, and 
is essentially a recommendation by the party performing the 
response action to the Administrator concerning the contents of 
the proposed remedial action plan. The proposed remedial action 
plan is issued by the Administrator and, after public notice 
and comment, forms the basis for the record of decision at a 
Superfund site. New section 134(d) directs the Administrator to 
issue guidelines to identify the contents of a draft proposed 
remedial action plan. New section 133(f) states that the 
President may approve a PRP-prepared draft proposed remedial 
action plan and treat it as the President's proposed plan.
    Remedy Review Boards. New section 134(e) directs the 
Administrator to create one or more ``remedy review boards'' in 
order to assure cost-effective remedy selection decisions, as 
well as national consistency among EPA's regions. The boards' 
function is to review new remedy decisions that meet certain 
criteria, as well as provide discretionary review of certain 
old remedy decisions. EPA has administratively created a remedy 
review board, and the provisions in S. 8 are modeled on EPA 
remedy review board (See generally, Office of Emergency and 
Remedial Response Memorandum National Remedy Review Board, 
September 26, 1996, which establishes operating procedures for 
the board). Unlike EPA boards, which merely require 
consultation with affected States (See September 26, 1996 memo 
at 3), section 134(c)(1)(B) requires that technical and policy 
experts from State agencies constitute 1/3 of the board 
membership if the draft proposed remedial action plan was 
prepared by a State to which EPA transferred responsibility for 
the facility under Title II of S. 8.
    Reviewing New Remedy Decisions. 134(e)(2) requires EPA to 
issue a rule establishing operating procedures for the board, 
including cost-based or other criteria for determining which 
draft proposed remedial action plans would be eligible for 
review. Board review is discretionary, and section 134(e)(3)(B) 
allows the Administrator to deny a review to an otherwise 
qualifying draft proposed remedial action plan if the 
Administrator determines that review would result in an 
unacceptable delay in taking measures to achieve protection of 
human health and the environment. This section requires that 
the criteria cause an annual average of one-third of the draft 
proposed remedial action plans to be eligible for board review. 
EPA states that the goal of the thresholds in their current 
guidance is to review 10 percent of the proposed remedial 
action plans in each year. New section 134(e)(3) establishes 
the timing of review at a point prior to the release of the 
draft proposed remedial action plan for public comment, 
consistent with both the November 28, 1995, OSWER memorandum 
establishing the remedy review board and the September 26, 
1996, OERR memo on board operating procedures. As in current 
EPA practice, PRPs participating in the performance of the 
remedial investigation and feasibility study are provided an 
opportunity to meet with the board and provide written 
comments. Unlike the five-page limit on written comments 
imposed by EPA in its September 26, 1996 memo, the section 
requires that any limit established by the Administrator be 
rationally related to the level of detail contained in the 
draft proposed remedial action plan.
    New section 134(e)(5) directs the board to provide 
recommendations to the Administrator, and in section 
134(e)(5)(B) enumerates a non-exclusive list of factors for the 
board to consider. The factors were modeled on factors 
contained in various EPA guidance documents concerning the 
National Remedy Review Board, including the September 26, 1996 
memo and its attachment. The Administrator is allowed to add 
other relevant factors to this list that the Administrator 
considers appropriate.
    Section 134(e)(5)(C) requires the Administrator to give 
substantial weight to the board's recommendations in 
determining whether to modify a remedial action plan; however 
the section explicitly states the Administrator's rejection of 
the board's recommendation shall not, by itself, render a 
remedy selection decision ``arbitrary and capricious.'' Nothing 
in the section modifies existing law with respect to the bar on 
pre-enforcement review under section 113.

      Sec. 405. Completion of Physical Construction and Delisting

Summary
    New section 135 establishes procedures and time frames for 
completion of a remedial action and delisting of a facility 
from the NPL. Delisting would not affect liability allocations, 
cost-recovery provisions, or operation and maintenance 
obligations. Section 135(c) states that the need for continued 
operation and maintenance at a facility is not a sufficient 
reason to delay delisting of the facility, as long as the O&M; 
is legally enforceable.
Discussion
    A frequent complaint of communities near Superfund sites is 
that the mere listing of a site on the National Priorities List 
can have a chilling effect on investment and development 
throughout a community. This section requires that, when 
capital construction of a remedy is completed and all that 
remains is the so-called ``operation and maintenance'' phase of 
the remedial action, EPA shall have 180 days to propose that 
the site be removed from the NPL. Since NPL listing and 
delisting decisions are informal rulemakings, EPA must provide 
for and consider public comment before publishing its decision 
to delist the facility. The President must publish a decision 
not later than 60 days after the commencement of the comment 
period. Section 135 limits the President's discretion by only 
allowing approval or withdrawal of the proposed delisting 
petition (effectively a decision to retain the site on the NPL 
beyond the point in time when physical construction is 
complete) until implementation of the proposed remedial action 
is complete. The need for continued operation and maintenance 
that is subject to a legally enforceable agreement, order or 
decree shall not be the sole basis for the President to 
withdraw a proposed delisting. A delisting under this section 
has no effect on liability, cost recovery, allocation, 
enforcement or any other obligations arising under this Act.

Sec. 406. Transition Rules for Facilities Currently Involved in Remedy 
                               Selection

Summary
    New section 136 establishes transition rules for selection 
of remedial actions at facilities currently involved in a 
cleanup. The remedy review board established under section 
134(e) would evaluate petitions for remedy updates. While 
review of a petition requesting that an update for pre-
enactment remedy that meets stated criteria is mandatory, the 
decision to actually update an old remedy is discretionary.
Discussion
    Updating Old Remedy Decisions. It is EPA policy to 
periodically examine some old decisions about Superfund 
remedies. On September 27, 1996, EPA issued a memorandum from 
the Office of Emergency and Remedial Response entitled 
Superfund Reforms: Updating Remedy Decisions. The guidance 
states that the ``updates are intended to bring past decisions 
into line with the current state of knowledge with respect to 
remediation science and technology while ensuring reliable 
short and long term protection of human health and the 
environment.'' (Id. at 1). New section 136 incorporates a 
formal process to reexamine old remedy decisions into the 
Superfund statute, and uses the remedy review board established 
under section 134(e) to perform the reviews.
    Section 136(b) details the process for implementors of 
records of decisions--such as responsible parties or PRPs that 
are preforming the remedial action--to seek review of a pre-
enactment record of decision (ROD). In the case of facility for 
which a ROD was signed before the date of enactment, the 
implementor of the ROD would have 1 year to petition the remedy 
review board to update the ROD to incorporate alternative 
technologies, methodologies or approaches into the remedy.
    The remedy review board criteria are listed in section 
136(b)(3). These criteria are premised on the view that older 
remedies involving ground water are the most likely to produce 
significant cost savings upon review based upon more recent 
experience in attempting to restore contaminated ground water. 
The specific board acceptance criteria are: the proposed new 
alternative complies with section 121; the Governor of the 
State where the facility is located does not object; the ROD 
under review was issued before 9/21/96 the (date EPA issued its 
guidance on updating old remedies); or the ROD under review 
involved groundwater treatment and was issued before 10/1/93 
(the date EPA issued groundwater cleanup technical 
impracticability guidance, OSWER Directive 9234.2-25, Guidance 
for Evaluating the Technical Impracticability of Ground-Water 
Restoration). Further, one of the following cost criteria must 
be satisfied: the old ROD is estimated to cost more than 
$30,000,000, or the old ROD costs between $5,000,000 and 
$30,000,000 and the new remedy saves at least 50 percent of the 
cost. The cost criteria are identical to the criteria used by 
EPA's remedy review board for evaluation of new proposed 
remedial action plans, and represents a dollar threshold where 
the Federal interest in preventing incurrence of unnecessary 
response cost may warrant reexamining the prior remedy 
decision. (See November 28, 1995, OSWER Memorandum Formation of 
National Superfund Remedy Review Board).
    EPA's September 27, 1996, memorandum on the subject, 
Superfund Reforms: Updating Remedy Decisions, does not contain 
any lower dollar limit on remedies which may be updated. So as 
not to arbitrarily limit the Administrator's discretion, 
section 136(b)(3)(B) grants the Administrator the flexibility 
to waive cost thresholds at her discretion. Section 136(b)(4) 
directs the board to prioritize petitions based on criteria in 
section 136(b)(3) and estimated gross and proportional cost 
savings of the proposed remedy update. This is consistent with 
EPA's memorandum Superfund Reforms: Updating Remedy Decisions 
at page 6.
    New section 136(c) lists the factors the Remedy Review 
Board must consider in evaluating petitions. The factors are 
closely modeled on factors promulgated by EPA in its guidance 
for the National Remedy Review Board (See OERR Memorandum, 
National Remedy Review Board, September 26, 1996, at page 5, 
and attachment at page 2).
    New section 136(d) requires the Board to make a 
recommendation to the Administrator regarding remedy update. 
Section 136(e) requires the Administrator to give substantial 
weight to the board's recommendations, but does not mandate 
acceptance of the recommendation. Discretion to accept or 
reject a recommendation remain with the Administrator.
    136(f) requires EPA to report to Congress annually on the 
Board's activities. Section 136(g) provides guidance to the 
Administrator in prioritizing her review of the recommendations 
provided by Board.

                   Sec. 407. National Priorities List

Summary
    This section instructs EPA to not include as part of a 
National Priority List facility any parcel of real property at 
which no release has occurred, but to which a contaminant that 
was released from another parcel has migrated in ground water.
Discussion
    When facilities are added to the National Priorities List, 
there are often adverse economic consequences for any property 
that is within the facility boundary. Section 407 amends CERCLA 
so that, to the extent practicable, a parcel of real property 
at which no release occurred is not included in the listed 
facility if it merely overlies the contaminated plume that was 
caused by a hazardous substance release occurring elsewhere. 
There is an exception to this listing policy for ground water 
that is (or was) in use as a public drinking water supply, if 
the owner or operator of parcel that would not be included as 
part of the facility is in privity with any other person who is 
liable for response costs at the facility. The Administrator's 
ability to take response actions at parcels excluded from the 
NPL facility boundaries is preserved.

                           TITLE V--LIABILITY

             Sec. 501. Liability Exceptions and Limitations

Summary
    The bill would modify existing section 107 to create 
liability exemptions and limitations for some of the parties 
that have been adversely impacted by strict, joint, several and 
retroactive liability imposed under current law.
    Small generators of only municipal solid waste, de micromis 
contributors of hazardous waste, and small businesses with 
fewer than 75 employees or $3 million in gross annual revenue 
would be excluded from the liability system. These classes of 
responsible parties also receive protection from any other 
Federal or State law for any cleanup costs that are expended at 
NPL facilities after the date of enactment of the Superfund 
Cleanup Acceleration Act.
    Larger generators of only municipal solid waste would have 
their liability limited to 10 percent of the total cleanup 
costs incurred after the date of enactment of the bill. 
Municipal owners and operators of co-disposal landfills 
(landfills where both solid waste and hazardous substances were 
disposed) listed on the NPL prior to January 1, 1997, could 
take advantage of a liability cap based on the size of their 
community. Communities with fewer than 100,000 residents would 
be subject to a cap of 10 percent, and communities with greater 
than 100,000 residents would be subject to a 20 percent cap.
    Each of the liability caps for municipal owners and 
operators could be adjusted upwards or downwards by the 
President or the allocator at the site, depending on whether 
the municipality undertook activities that exacerbated or 
mitigated the potential for environmental contamination at the 
site.
Discussion
    Section 107 of CERCLA provides that persons can be held 
liable for the costs of cleaning up Superfund sites (``response 
costs'') in the following situations: (i) they currently own or 
operate facilities from which there is a release or a threat of 
release of hazardous substances; (ii) they owned or operated 
such a facility in the past at a time when hazardous substances 
were disposed at that facility; (iii) they generated hazardous 
substances that are now found at such a facility and/or 
arranged for the transport of those substances to that 
facility; or (iv) they accepted hazardous substances for 
transport to disposal or treatment facilities from which there 
is a release or a threat of release of hazardous substances.
    The courts have interpreted the liability provisions 
broadly, imposing liability on owners and operators, generators 
and transporters, subject to very limited exceptions. They have 
imposed liability without regard to whether the events leading 
to the release of hazardous substances occurred prior to the 
original date of enactment of CERCLA in 1980, and without 
regard to whether the activity contributing to the release was 
in compliance with applicable laws.
    Specifically, the Federal courts have made it clear that 
liability under the Superfund statute is not only retroactive 
(covered persons are liable for actions that took place prior 
to the enactment of CERCLA in 1980), but also that it is: (i) 
strict (covered persons are liable without regard to whether 
their actions were negligent or in full compliance with 
applicable law); (ii) joint (covered persons are all equally 
liable for the costs of cleanup so long as the harm is deemed 
indivisible); and (iii) several (each covered person can be 
held separately liable for costs attributable to that 
person)(See, e.g., United States v. Olin Corp., 107 F.3d 1506 
(11th Cir. 1997) (retroactive liability); United States v. R.W. 
Myer, Inc., 889 F.2d 1497 (6th Cir. 1989) (strict liability); 
New York v. Shore Realty, 759 F.2d 1032 (2d Cir. 1985) (strict 
liability); United States v. Chem-Dyne Corp., 572 F.Supp. 802 
(S.D. Ohio 1983) (joint and several liability)).
    While S. 8 does not make any change to CERCLA's underlying 
liability system, S. 8 does ameliorate much of the unfairness 
of CERCLA liability through a system of liability limitations, 
exemptions, and proportional allocation. Considerable concern 
has been raised about the number of parties that are brought 
into the Superfund liability scheme as a result of third party 
contribution suits and actions by EPA. At some NPL sites, large 
PRPs who have been sued by the Justice Department have 
subsequently sought third party contribution from hundreds, and 
in some cases, thousands of homeowners, small businesses, 
churches and schools. The cost of seeking contribution from 
these small parties contributes significantly to the overall 
cost of the Superfund liability system. Although no specific 
figures are available because they involve private liability 
actions, a 1992 study on Superfund transaction costs conducted 
by the Rand Institute for Civil Justice (Superfund and 
Transaction Costs--The Experiences of Insurers and Very Large 
Industrial Firms) indicated that the transactional costs 
associated with these lawsuits was approximately 34 percent of 
the total private outlays at these sites.
    Section 501(b) of the bill would create a new section 
107(q) to exclude from liability home owners and renters, as 
well as businesses and non-profit organizations employing fewer 
than 100 people, who generated or transported municipal solid 
waste (MSW) and sewage sludge (SS) at an NPL facility. This 
liability exclusion would apply only to response costs at NPL 
facilities that were incurred after the date of enactment of 
the bill. At sites that are subject to a mandatory allocation 
under section 137, the share of liability associated with 
section 107(q) parties would be included within the orphan 
share and not assumed by other potentially responsible parties 
at the site. In order to obtain liability relief under section 
107(q), parties must provide full cooperation, assistance and 
access for EPA cleanup efforts as required by that section.
    Section 501(b) would also create a new section 107(r) to 
exclude from liability persons who generated or transported de 
micromis levels (not more than 200 pounds or 110 gallons) of 
hazardous substances to facilities on the NPL. Unlike section 
107(q), the share of liability costs associated with de 
micromis parties would not be borne by the orphan share, but 
instead, would be spread proportionally among the remaining 
parties at the site, as well as the orphan. An EPA estimate of 
the aggregate annual liability of all parties exempted by this 
provision is $100,000. Since the program-wide costs associated 
with determining the appropriate orphan share for each de 
micromis party at each site would easily exceed this figure, it 
is more cost-effective to spread these costs among the other 
parties at the site.
    Section 107(s) creates a new exclusion for small businesses 
that employ fewer than 75 employees or that have less than $3 
million in gross annual revenue, providing post enactment 
liability relief, under both Federal and State law, for tens of 
thousands of small businesses at NPL sites nationwide. During 
hearings on S. 1285 in the 104th Congress, as well as on S. 8 
in the 105th, the Committee heard testimony from a number of 
small businesses that had been needlessly dragged into the 
Superfund liability net. One particularly stark example was 
that of Ms. Barbara Williams, the owner of Sunny Ray Restaurant 
in Gettysburg, Pennsylvania, who testified that her disposal of 
a ball-point pen in the Keystone Landfill resulted in third-
party lawsuit seeking over $76,000. Under new section 137(i), 
costs incurred after date of enactment by individuals meeting 
the requirements of new section 107(s) will be borne by the 
orphan share and not by other potentially responsible parties.
    The small business exemption, however, does not apply where 
the small business contributed material containing a hazardous 
substance that ``contributed significantly or could contribute 
significantly'' to the cost of the response action at the site 
(section 137(s)(2)(A). The ``significant contributor'' 
provision is to be narrowly construed so as not to subsume the 
general rule of section 137(s)(1) that exempts ``small 
businesses.'' A small business party eligible for this 
exemption is not a significant contributor unless the share of 
response costs incurred at a facility that are attributable to 
the exempt party's waste contribution result in a substantial 
and disproportionate difference in the cost of the response.
    Section 137(s)(1)(C) provides that persons who qualify for 
the small business exemption cannot be affiliated ``through any 
familial or corporate relationship with any person that is or 
was a party responsible for response costs at the facility.'' 
The term ``affiliated'' is intended to refer to individuals or 
firms that have identical or substantially identical business 
or economic interests, such as family members or persons with 
common investments. Generally, firms are affiliates of each 
other when one party controls or has the power to control the 
other, or a third party controls, or has the power to control, 
both. Factors to be considered when determining affiliation 
would include, ownership, management, previous relationships, 
or ties to another firm. The term ``affiliated'' appears in 
other sections of S. 8 and is intended to be interpreted in the 
same manner as described in this paragraph.
    In order to discourage needless litigation, other 
potentially responsible parties who commence an action to 
recover post-enactment response costs or contribution against 
small municipal waste generators, de micromis parties or small 
businesses who are relieved of liability under sections 
107(q),(r) or (s), will be responsible for the litigation costs 
of the excluded party, including reasonable attorney fees and 
expert witness fees. In exchange for this relief, parties 
relieved of liability under sections 107(q),(r) or (s), will 
have to comply with the provisions of new section 107(y). 
Section 107(y) requires parties to provide full cooperation, 
assistance and access for EPA cleanup efforts.
    Since the 103d Congress, there has been general agreement 
that the presence of large amounts of MSW or SS can complicate 
the process of determining the appropriate shares of liability 
at Superfund sites. This issue is exceedingly troublesome at 
co-disposal landfills, which are defined in the bill as 
facilities listed on the NPL as of January 1, 1997, that 
received both MSW or SS and may also have received hazardous 
substances. At a typical co-disposal landfill, the vast 
majority of the material at the site is comprised of non-
hazardous MSW or SS, and it is the volume of this material that 
drives the cost of the cleanup due to the need for large caps. 
Yet, because EPA estimates that there are only two or three NPL 
sites (out of approximately 250+ co-disposal sites on the NPL) 
that contain only MSW or SS, the hazardous substances are 
typically the cause for the site being listed on the NPL.
    Individuals and communities that disposed of only MSW or SS 
complain that they contributed only a small percentage of the 
total toxicity at the site, and thus, should be liable only for 
a very small percentage of the cleanup costs. Similarly, PRPs 
that disposed hazardous substances claim that they contributed 
only a small percentage of the total volume at the site, and 
thus, they should receive a very small share. EPA has tried a 
number of times since 1989 to issue guidance documents to sort 
out the liability between the various parties that disposed of 
hazardous and non hazardous materials at co-disposal sites. 
Most recently, on February 5, 1998, EPA issued guidance 
documents outlining how it would seek to settle this liability 
(Policy for Municipality and Municipal Solid Waste CERCLA 
Settlements at NPL Co-Disposal Sites). Most notably, this 
policy would allow generators and transporters of only MSW to 
settle with EPA for an amount equal to $5.30 per ton of 
material they sent to the site. While this policy was received 
favorably by municipal governments, it was roundly criticized 
by both the manufacturing and the waste disposal industries 
because of the wide range of settlements that would result from 
this arbitrary per ton rate. Critics claimed that in some 
cases, the settlement policy would result in generators and 
transporters of MSW assuming over 90 percent of the actual 
cleanup costs at the site, and in others, less than 5 percent.
    Although EPA's per-ton approach was considered, the bill 
instead adopts a 10 percent cap for all generators and 
transporters of MSW or SS who do meet the criteria of new 
section 107(q). This approach is expected to more closely track 
actual cleanup costs at the individual sites. New section 
101(45), defines MSW to include commercial, institutional or 
industrial waste that is substantially similar to waste 
normally generated by households, without regard to differences 
in volume. In combination with new section 107(q), this 
provision is intended to allow the manufacturers of high 
volume, low toxicity materials, such as food products, to 
qualify for the 10 percent cap.
    For co-disposal landfills owned or operated by 
municipalities with a population of 100,000 or more, new 
section 107(t)(2) would limit municipalities' liability to no 
more than 20 percent of the post-enactment costs. EPA or the 
allocator may increase this amount to no more than 35 percent, 
or decrease it to no less than 10 percent, for any municipality 
that took specific acts that exacerbated or mitigated the 
environmental contamination. Similarly, for municipalities with 
a population of less than 100,000, the aggregate liability 
shall be no greater than 10 percent of the post-enactment 
costs, with the discretion for EPA or the allocator to increase 
it to 20 percent, or decrease it to 5 percent, if the 
municipality exacerbated or mitigated the contamination.
    The liability limitations for co-disposal sites do not 
apply to municipalities that acted in violation of RCRA 
subtitle C or D if the violation pertains to a hazardous 
substance that caused the incurrence of response costs at the 
facility. The intent of this provision was to clarify that 
individuals who acted in violation of applicable RCRA 
requirements would not benefit from subsequent liability 
relief.
    The transition rule in new section 107(t)(3) addresses the 
applicability of the exemptions and limitations of section 501 
to pending cases. Specifically, the transition rule states that 
section 501 is applicable to any action under sections 106 
(unilateral orders), 107 (cost recovery), or 113 (contribution 
claims) that become final on or after the date of enactment. 
The transition rule also states that section 501 does not apply 
to any claim for pre-enactment costs. For example, where a 
CERCLA cost recovery claim is pending in a Federal district 
court, any identified party would be exempted from liability 
for post-enactment costs. This exemption would also apply where 
a judgment has been entered for response costs, but either an 
appeal has been filed, or the time for filing the appeal has 
not yet expired.

                  Sec. 502. Contribution from the Fund

Summary
    Section 502 amends existing section 112 to provide that a 
small generator or transporter of SS or MSW (107(q)), a de 
micromis party (107(r)), or a small business (107(s)) that is 
undertaking a response action pursuant to a section 106 order 
or a settlement decree is required to fulfill its obligations 
to conduct the cleanup activities, even if the party is no 
longer liable by reason of an exemption or limitation contained 
in S. 8. Instead, the exempted party shall be reimbursed 
expeditiously for 100 percent of its post-enactment cleanup 
costs.
Discussion
    During the debate regarding the transition rule for sites 
at which a PRP is currently undertaking a response action, 
there was some concern that the party should continue to 
conduct the cleanup rather than have EPA take over this role. 
The fact that private parties can conduct cleanups between 10-
15 percent less expensively than EPA justifies the decision 
that these private parties should complete the cleanups. 
Balanced against this was the concern about how to deal with 
those sites where a party had previously agreed to undertake 
the cleanup, yet subsequently is relieved of liability as a 
result of the enactment of this legislation. This language 
makes clear that in such an instance, while the party is 
required to continue to conduct the cleanup, the party shall be 
reimbursed from the orphan fund for all costs that it incurs 
after the date of enactment.

           Sec. 503. Expedited Settlement for Certain Parties

Summary
    The bill would modify existing section 122(g) to replace 
CERCLA's existing de minimis settlement provisions, 
establishing new expedited settlement procedures for parties 
that contributed less than 1 percent of the volume of hazardous 
substance at an NPL facility. Section 503 also provides for a 
reduction in the settlement amount for a party that has a 
limited ability to pay when the party is a natural person, a 
small business that does not qualify for the exemption under 
107(s), or a municipality.
Discussion
    During the 103d, 104th and 105th Congresses, there has been 
a continuing debate about the most appropriate way to treat 
parties that contributed de minimis levels of hazardous 
substances at Superfund sites. Under S. 8, de minimis is 
defined as an amount equaling 1 percent or less of the total 
amount of hazardous substances at the facility, unless the 
Administrator identifies a larger percentage based on site-
specific factors. Some legislative proposals considered by the 
Committee over the last few years proposed to exclude de 
minimis parties from liability altogether; others, including 
this legislation, would provide these parties with an expedited 
settlement process.
    Over the last few years, there has also been some concern 
about EPA's limited authority to tailor settlement amounts for 
parties based on their ability to pay. New section 122(g)(1)(D) 
would expressly authorize EPA to enter into limited ability to 
pay settlements with natural persons, small businesses with 
under 50 employees or less than $3 million in gross annual 
revenues, municipalities, or any other party. EPA is given the 
flexibility to conduct an analysis to determine whether a small 
business has the ability to maintain its basic operations in 
light of the potential response costs that it will have to 
assume.
    In considering the ability to pay of a municipality, EPA 
can consider a variety of mitigating factors such as bond 
ratings, operating revenues, debt services, per capita income, 
as well as unemployment and population information.
    In order to remove these parties from the litigation 
process as soon as possible, section 503 requires that EPA 
expeditiously identify and notify each party that may qualify 
for a de minimis settlement and offer to reach a final 
administrative or judicial settlement with the qualifying 
party. Persons eligible for an expedited settlement are 
protected from being named as defendants under CERCLA or any 
other Federal or State law for 1 year after they have been 
notified that they qualify for an expedited settlement, or 
within 90 days of being provided with a written settlement 
offer.

        Sec. 504. Allocation of Liability for Certain Facilities

Summary
    Section 504 of the Superfund Cleanup Acceleration Act 
requires EPA to conduct mandatory, non-binding allocations at 
NPL facilities involving 2 or more potentially responsible 
parties where cleanup costs incurred after the date of 
enactment exceed $1 million. NPL sites that are already subject 
to a consent decree or unilateral administrative order as of 
February 1, 1998, would qualify for a limited allocation 
process solely to determine the extent of orphan share funding 
only as long as the total of the orphan shares (including, but 
not limited, to defunct and insolvent shares of liability) for 
post-enactment cleanup costs at the site exceed $500,000.
    The Administrator is required to conduct a comprehensive 
search for all potentially responsible parties at mandatory 
allocation facilities. Subsequently, EPA shall appoint an 
alternative dispute resolution (ADR) neutral to conduct a 90-
day settlement negotiation. If the parties fail to settle, EPA, 
at the request of a PRP, shall select a neutral third-party 
allocator who shall seek information from the PRPs, and prepare 
a non-binding allocation report that specifies the percentage 
liability share of each party and of any orphan share based on 
defined allocation factors.
     The final allocation report that is submitted to the 
Administrator, the Attorney General, and each allocation party, 
shall specify the estimated percentage share of each party and 
any orphan shares. Unless an allocation report is jointly 
rejected by EPA and DOJ, parties subject to the allocation 
shall be entitled to resolve their liability to the United 
States based on the shares determined by the allocator, subject 
to specified terms and conditions.
Discussion
    While there has been extensive concern expressed in the PRP 
community regarding the imposition of Superfund retroactive 
liability for activities that legally took place prior to 1980, 
even greater concern has been raised about the issue of joint 
and several liability. During the hearings and staff 
investigations over the last few years, there have been 
repeated examples where PRPs have declined to settle with the 
Justice Department and EPA because they refuse to assume the 
liability of defunct and insolvent parties.
    Beginning with the introduction of S. 1834 in the 103d 
Congress, there has been increasing support for the idea that 
Congress should create an allocation process to sort out the 
liability shares of the various parties at these sites. In 
addition, there is nearly universal support for the creation of 
an orphan fund, which would include the shares of defunct and 
insolvent parties, as well as a proportional share of 
unattributable shares at the site. This allocation process is 
principally intended to relieve the harshness of the joint and 
several liability system and provide greater incentives for 
parties to settle rather than litigate. By creating an orphan 
share to assume certain liability costs, parties would only be 
required to pay for what they contributed to the site--so-
called ``fair shares.''
     Determining which sites would be subject to the mandatory 
allocation system in new section 137 involved the consideration 
of important tradeoffs between fairness and efficiency. On one 
hand, there was a desire to have the allocation system apply to 
as many sites as feasible. On the other hand, there was a 
concern about the cost of reimbursing parties for costs that 
they had incurred prior to the date of enactment of this 
legislation.
    In order to strike a balance, the legislation provides that 
any federally owned, or non-federally owned site shall 
participate in a mandatory allocation process, subject to 
specified threshold criteria, to determine the post-enactment 
shares of liability. First, the new allocation process does not 
apply to any NPL site that, on the date of enactment, has a 
settlement decree or order determining the liability of all 
viable (i.e., non-defunct or insolvent) PRPs at the site. 
Second, the PRPs must demonstrate that there are post-date of 
enactment response costs that will be incurred at the NPL 
facility (i.e., this does not have to be limited to one 
operating unit) that will exceed $1 million. Third, if the 
facility has a existing consent decree (CD) or unilateral 
administrative order under section 106 (UAO) that was issued, 
signed, lodged, or entered on or before February 1, 1998, there 
must be a third party determination that the amount of the 
orphan share for the response costs remaining to be incurred 
after the date of enactment can be expected to amount to 
$500,000 or more.
    The $1 million and $500,000 cost thresholds are intended to 
exclude sites from this process that do not have significant 
litigation issues remaining for post-enactment costs. 
Nonetheless, there are several reasons why a significant number 
of sites with existing CDs and UAOs were intended to qualify 
for post-enactment orphan determinations. First, while one 
party may have settled with the Justice Department at the site, 
there could be dozens or potentially hundreds of other parties 
who may not have settled. Since a primary goal of this 
provision was to eliminate the need for litigation among PRPs, 
an orphan share determination would prove beneficial to these 
sites as well. Second, the legislation is intended to provide 
some liability relief for individuals who had settled prior to 
the enactment of this bill, even though the scope of the orphan 
would be limited to amounts incurred after the date of 
enactment.
    Section 137(a)(5) is intended to apply equally to both 
privately owned facilities (at which there are at least 2 PRPs) 
and federally owned facilities (at which there is at least 1 
private PRP). The use of a neutral allocator at a qualifying 
Federal facility is appropriate given the fact that private 
PRPs at these facilities typically have some type of 
contractual nexus with the Federal government. Federal courts 
have appropriately held the government liable where it 
exercises significant control over the operations or disposal 
activities at a facility. In conducting an allocation at a 
qualifying federally owned facility, the allocator should 
consider the control exercised by the Federal agency, any 
relevant contractual provisions, including provisions regarding 
indemnification, and the specific facts concerning the disposal 
activity at the facility.
    At those facilities that do not meet the criteria to become 
mandatory allocation facilities, the Administrator has the 
discretion to conduct an allocation process at the request of a 
party that has incurred response costs or that has resolved its 
liability to the United States, but still has outstanding 
litigation with other PRPs. Given the fact that a primary goal 
of this legislation is to minimize private litigation between 
parties, the Administrator is expected to accommodate petitions 
for requested allocations to the maximum extent possible.
    Section 137(b)(6), requires a demonstration that the orphan 
share of post-date of enactment costs is equal to or exceeds 
$500,000 at a facility with an existing CD or UAO. To initiate 
this process, two or more parties who are subject to the CD or 
UAO must nominate a neutral third party, subject to approval by 
the Administrator, who shall within a short period of time make 
a determination whether the site meets the $500,000 threshold. 
If it meets this threshold, then a limited allocation can take 
place for the sole purpose of determining orphan funding. The 
parties who seek the review by the neutral are responsible for 
paying the cost of the review process and, if a subsequent 
allocation determines that there is not at least $500,000 in 
post-date of enactment orphan shares, the parties will receive 
no orphan shares. This criteria is intended to prevent PRPs 
from misusing this process, and should have the effect of 
discouraging frivolous petitions for mandatory allocations.
    In addition to allocating the post-enactment response 
costs, section 137(b)(7)(A)(ii) also requires an allocation of 
the unrecovered response costs incurred by the United States 
prior to the date of enactment. Orphan funding would also apply 
to these unrecovered costs. Finally, section 137(b)(8) also 
provides that with the agreement of the allocation parties and 
the United States, an allocator could also provide an 
allocation of the pre-enactment response costs at the facility. 
However, reimbursement for orphan shares would not apply to 
such an allocation. In order to eliminate as much private 
litigation as possible, the Administrator should allow pre-
enactment costs to be included within the allocation to the 
maximum extent feasible.
    Section 137(c) creates a moratorium on litigation and 
enforcement. If a site is undergoing settlement negotiations 
under section 137(e) or a mandatory allocation under section 
137(f), the portion of the claim related to post-enactment 
response costs must be stayed until 120 days after the issuance 
of a report by an allocator under section 137(h), or a second 
report under section 137(m). This language also provides for 
tolling of applicable statutes of limitation during the 
pendency of the settlement negotiations or mandatory 
allocation. This language does allow PRPs and EPA to continue 
with claims for response costs that were expended prior to the 
date of enactment.
    A significant key to the success of the allocation process 
is the need to accurately identify all PRPs at the site. EPA 
has come under justifiable criticism for its efforts in the 
past that have resulted in the identification of only the 
largest PRPs at a site. Section 137(d) explicitly requires that 
EPA shall perform, as soon as reasonably practicable, a 
comprehensive search for all PRPs at a mandatory allocation 
facility. EPA is also required to allow the PRPs to nominate 
additional PRPs who shall be included on the list of parties 
unless EPA determines that there is no basis to believe they 
are liable. An accurate, fair and comprehensive search for all 
PRPs will give the ADR neutral or the allocator the most 
appropriate information to determine the fair share of the 
liable parties at the site, and should give the PRPs confidence 
that the allocation resulted in an accurate division of 
liability.
    EPA has expressed the view that its allocation pilot 
projects demonstrate that a formal allocation process is not 
necessary at every site. Indeed, EPA stated that when orphan 
funding was made available, the use of a less formal procedure 
was sufficient to settle the liability at the site without 
having to rely on a full-blown allocation. Balanced against 
this belief was the impression of a number of PRPs that 
mandatory allocations would be necessary at a majority of NPL 
facilities because of the complex liability issues involved at 
these facilities. In order to bridge these differences, S. 8 
includes an up-front settlement process utilizing an ADR 
neutral, followed by a mandatory allocation if this settlement 
process proves to be unsuccessful.
    Under section 137(e), an ADR neutral shall be appointed and 
given 90 days to reach a settlement. After 90 days, if the ADR 
neutral is successful in reaching a settlement that allocates 
at least 90 percent of the recoverable costs, the Administrator 
shall be required to adopt that settlement and provide 100 
percent of the orphan shares. If a settlement has not been 
reached, the Administrator and a majority of the parties can 
agree to extend the negotiation, or alternatively, the parties 
can proceed to a mandatory allocation under new section 137(f).
    The allocation process under 137(f) shall be performed by a 
neutral third-party allocator selected by EPA and the 
allocation parties. In order to provide a fair, efficient and 
impartial allocation, the allocator should make every effort to 
streamline the process and minimize costs. Similarly, EPA shall 
not establish any regulations or procedures that restrict the 
discretion of the allocator in assigning estimated contribution 
shares and the orphan shares provided in section 136. The 
intention of these restrictions is to make clear that these 
allocations are intended to be performed in the most 
streamlined and efficient manner practicable without 
unnecessary meddling by EPA and the Justice Department. 
Although the PRPs can comment on the draft allocation report, 
allocator's report can only be overturned by the courts if the 
objecting party demonstrates that the allocator's determination 
was arbitrary and capricious or otherwise not in accordance 
with law.
    After obtaining information from the PRPs regarding their 
activities at the facility, the allocator shall prepare a non-
binding allocation report that specifies the percentage share 
of each party, and any orphan share. The factors for allocation 
outlined in section 137(g) are:

  Lthe amount, toxicity, and mobility of hazardous 
    substances of each party;
  Lthe degree of involvement of each party;
  Lthe degree of care exercised with respect to 
    hazardous substances;
  Lthe cooperation of each party in contributing to any 
    response action, and in providing complete and timely 
    information; and
  Lsuch other equitable factors as the allocator 
    recommends, with the agreement of the allocation parties 
    and the United States.

    The most important key to the success of the allocation 
process is making an accurate estimate of what comprises the 
orphan shares at a site. Section 137(i) provides that the 
orphan shall include any shares attributable to insolvent and 
defunct parties, a proportional share of the unattributable 
shares at the site, and the difference between the share the 
allocator determines is attributable to an allocation party and 
the actual share paid by that party if the party is eligible 
for an expedited settlement, or the liability of the party is 
eliminated, limited or reduced by one of the other provisions 
of this bill.
    If, for example, a small business is relieved of liability 
as a result of new section 107(s), the allocator may still need 
to seek information from that party regarding its past disposal 
practices so the allocator can correctly judge the appropriate 
share that should be assigned to the orphan on behalf of that 
party. Similarly, although parties may be subject to the 10 
percent generator and transporter cap under 107(t)(1), an 
allocator could determine that the actual share of their 
liability is 5 percent. Conversely, if the allocator determines 
that the actual share of the parties under 107(t)(1) is 15 
percent, the difference between that share and the 10 percent 
cap would also be assigned to the orphan.
    Another important key to the allocation process is assuring 
that accurate information is made available to the allocator. 
Both the allocator and the ADR neutral have information-
gathering authorities, including the authority to issue 
subpoenas. Information that is submitted to the allocator and 
the ADR neutral by the PRPs is required to be kept confidential 
by all persons involved in the allocation and is not 
discoverable (if not independently discoverable or admissible) 
in judicial or administrative proceedings. The submission of 
information to the allocator or the ADR neutral does not 
constitute a waiver of any privilege under any Federal or State 
law.
    The determination of the allocator is subject to joint 
review and approval by the Administrator of EPA and the 
Attorney General. Under new section 137(l), EPA and DOJ will 
have 180 days after receipt of the report to determine if the 
allocation was fair, reasonable, and consistent with the 
objectives of this Act, or that the allocation process was 
directly and substantially affected by bias, procedural error, 
fraud, or unlawful conduct. The primary objective of this 
section is to promote prompt and non-litigious resolution of 
liability disputes at Superfund sites. Mere disagreement with 
the allocated shares (including the orphan share) assigned by 
the allocator is not sufficient to reject the allocator's 
report.
    Unless an allocation report is jointly rejected by EPA and 
DOJ, parties subject to the allocation shall be entitled to 
resolve their liability to the United States based on the 
shares determined by the allocator, and in addition, shall 
receive complete protection from all claims for contribution 
for response costs incurred after the date of enactment. 
Section 137(n) requires that the United States shall provide 90 
percent of the estimated contribution shares assigned to the 
orphan share and, if applicable, the estimated contribution 
shares of non-settling parties, subject to specified terms and 
conditions. These terms include:

  La waiver of claims against the Fund for 
    reimbursement;
  La waiver of contribution rights against all 
    potentially responsible parties;
  La covenant not to sue, and assurances of performance 
    of the response action; and
  La waiver of any challenge to any settlement that EPA 
    or the Attorney General enters into with any other party at 
    the facility.

    The bill provides that an allocation party that incurs 
response costs after the date of enactment that exceeds its 
allocated share shall be entitled to prompt payment of the 
excess amount from the Fund, subject to the 90 percent orphan 
share limitation in section 137(n)(2)(A)(ii)(I). If the amount 
of claims against the Fund by eligible allocation parties 
exceed the monies available in the Fund in a given year, the 
Administrator may delay payment until monies are available. The 
priority for payment shall be based on the length of time that 
has passed since settlement. Any delayed payment shall include 
interest on the unpaid balance.
    In order to provide the maximum incentive for the parties 
to settle their liability, the bill includes a vigorous 
enforcement hammer in section 137(q). If a party refuses to pay 
its allocation share, EPA may commence an action against that 
party to recover response costs including those not recovered 
through settlements with other parties, the cost of the orphan 
share, and the costs of the allocation process. Parties that do 
not pay their allocation share are subject to joint, several, 
strict, and retroactive liability.
    In those instances where a party is found guilty of illegal 
activities related to the disposal of hazardous substances, the 
liability relief provisions of the bill shall not apply. In 
particular, section 137(s) excludes from liability relief the 
response costs of a party who has been found to be in violation 
of an applicable State or Federal environmental statute by a 
court or body of competent jurisdiction, if the violation 
pertains to the hazardous substances which caused the 
incurrence of response costs.

        Sec. 505. Certain Facilities Owned by Local Governments

Summary
    Section 505 of the Superfund Cleanup Acceleration Act would 
amend section 107 of CERCLA to provide that a local government 
that, as a result of tax forfeiture, abandonment, bankruptcy, 
or foreclosure, has acquired a facility at which there has been 
a release and that is contaminated by the release, shall not be 
considered an owner or operator of the property for purposes of 
CERCLA liability.
Discussion
    Currently, EPA has guidance (See, Fact Sheet: The Effect of 
Superfund on Involuntary Acquisitions of Contaminated Property 
by Government Entities, 12/95) that exempts government agencies 
from liability if they involuntarily become owners or operators 
of contaminated property. However, this is only guidance and 
has not been codified. Without codifying this language, local 
governments still run the risk of being entangled in the 
liability web of Superfund.
    Without giving some assurance to local governments that 
they will not be held liable when they become owners of these 
properties, CERCLA ties the hands of local officials who want 
to redevelop these properties and put them back into productive 
use. Local governments should not be punished with the fear of 
being held liable for simply carrying out their inherent 
governmental duties. Indeed, without this type of protection, 
there will be little incentive for local governments to take 
advantage of the brownfield reforms contained in Title I of 
this bill.
    Effective brownfield redevelopment efforts must provide 
adequate protection to local governments. For example, Cook 
County, which is the taxing authority for Chicago, Illinois, 
acquires property that has been involuntarily relinquished by 
non-governmental parties. Section 505 would allow the City of 
Chicago to acquire the property from the County for brownfield 
development purposes because the property was originally 
acquired by the County through tax foreclosure. Under this 
example, the City of Chicago would not be held liable as an 
owner or operator of the property if it is subsequently found 
to be contaminated.

           Sec. 506. Liability of Response Action Contractors

Summary
    Section 506 of the Superfund Cleanup Acceleration Action 
would modify section 119 of CERCLA to provide that response 
action contractors (RACs) would receive additional liability 
protection by being excluded from the definition of owners and 
operators. Section 506(b) amends section 119(a) by extending 
the current Federal negligence standard for RACs to State law 
claims unless the State has adopted its own law regarding RAC 
liability.
    The indemnification provisions of existing section 119 
would be extended to provide EPA the discretionary authority to 
enter into indemnification agreements with RACs if site-
specific analysis demonstrates that the cleanup and liability 
risks outweigh the availability of insurance. Section 506(g) 
would extend the provisions of existing section 119 to 
subcontractors.
    The bill would establish a national uniform statute of 
repose under a new section 119(h). It would limit a RAC's legal 
exposure under CERCLA to 7 years after the date of completion 
of work at any facility, unless the actions constitute gross 
negligence or intentional misconduct.
Discussion
    This section is intended to clarify the liability of RACs 
under CERCLA to facilitate the cleanup of NPL sites in an 
expeditious and cost-effective manner, using innovative 
technologies and methodologies. These changes are needed to 
overcome technical barriers to cleanup, and resolve any 
ambiguity regarding the interpretations of CERCLA's liability 
scheme. Courts have allowed parties with direct CERCLA 
liability to bring suit under CERCLA against RACs, drawing 
cleanup firms into the liability net without regard to fault or 
negligence in cleanup activities. (See, e.g., Ganton 
Technologies, Inc. v. Quadion Corporation, 834 F.Supp. 1018 
(N.D. Ill. 1993) (holding in a motion for dismissal that 
response action contractors could be held liable as operators 
under CERCLA)).
    Excluding RACs from the CERCLA definition of ``owner or 
operator'' is needed to ensure that the original intentions of 
CERCLA section 119 are left intact. Exempting RACs from the 
liability standard under section 107 will encourage contractors 
to participate in the CERCLA program, provide for innovative 
and cost-effective solutions to hazardous waste problems, and 
expedite the pace of cleanups. The trend in lawsuits to 
classify RACs, who have performed cleanup activities at sites, 
as site ``operators,'' ``transporters,'' ``generators,'' and 
``arrangers'' under CERCLA, triggering strict liability even in 
the absence of fault, is a misinterpretation of the law and 
requires legislative clarification. This provision means that 
RACs will be judged in accordance with section 119,--as was 
originally intended by Congress--rather than being judged under 
the standards of sections 106 and 107 which are applicable to 
PRPs.
    Section 506(b), which amends section 119(a) by extending 
the current Federal negligence standard for RACs to State law 
claims, is intended to supplement and not preempt State RAC 
laws. It specifies that State laws governing RAC liability take 
precedence over this provision. This provision is needed to 
further address the significant rise in lawsuits against RACs 
brought merely to have the RACs share in site cleanup costs. In 
addition, this provision will protect against the rise in 
lawsuits claiming recovery under State and common law, as well 
as the rise in toxic tort lawsuits.
    Sections 506(c), (d), and (e) enhance EPA's discretionary 
authority to provide indemnification for claims brought against 
RACs under both State and Federal law based on a site-specific 
analysis demonstrating that cleanup and liability risks 
outweigh the availability of insurance. These provisions have a 
safeguard that requires RACs to undertake diligent efforts to 
obtain insurance before EPA will make an indemnification 
determination. They also require RACs to continue to look for 
adequate insurance coverage each year thereafter. EPA would 
have the authority to limit the indemnification provided to 
RACs by specifying conditions and deductibles. Finally, these 
provisions provide consistency between the provisions of 
section 119 and the general provisions of CERCLA so that new 
section 119 and the rest of CERCLA will apply to ``threatened'' 
as well as ``actual'' releases. Under current law, CERCLA 
section 119 only applies to actual releases.
    Sections 506(f) modifies the definition of response action 
contract to specify that section 119 applies to the full range 
of cleanup activities conducted under the authority of CERCLA. 
Section 506(g) modifies the definition of RAC to expressly 
include subcontractors, whose authority to assert the 
provisions of section 119 has been in question. Subcontractors 
are often small, specialty subcontractors or high-technology 
``niche'' firms that are needed to ensure the applicability of 
the full range of technical expertise in cleanup activities. 
These subcontractors deserve the protections of section 119.
    Section 506(h) addresses the applicability of section 119 
to the surety firms that bond cleanup activities. Bonding firms 
have expressed concern that the provisions of section 119 may 
not apply to them if they should be required, under the terms 
of bonds issued for cleanup activities, to complete jobs for 
defaulting contractors (in the unlikely event that this 
occurs). This section removes the sunset provisions on the 
applicability of section 119 to bonding firms, reinstating the 
applicability of section 119's provisions to these firms.
    Section 506(i) establishes a uniform statute of repose 
under a new section 119(h) of CERCLA. According to the American 
Bar Association (ABA), statutes of repose ``serve to strike a 
balance between the interests of the plaintiff in needing a 
reasonable amount of time to seek redress for an injury 
sustained as a result of the actions or inactions of the 
defendant, and the interests of the defendant, who, after 
passage of a reasonable amount of time, should be free from the 
threat of litigation.'' The ABA also states that ``the 
rationale behind such statutes is that, after passage of a 
reasonable period of time, injuries or damages are probably a 
result of improper maintenance by the owner or occupier, 
misuse, or normal deterioration, rather than because of 
negligent design or construction.'' This section specifies that 
any hazardous waste engineering or cleanup firm's legal 
exposure for CERCLA liability would only be for a specific 
period of time 7 years after the date of completion of work at 
any facility. After that time period has expired, these firms, 
as is customary in the engineering and construction field, 
would no longer be responsible for damages under CERCLA at the 
site unless their actions constitute gross negligence or 
intentional misconduct.

                     Sec. 507. Release of Evidence

Summary
    Section 507 would amend CERCLA to require that the public 
shall be provided with access to information furnished pursuant 
to existing section 104(e) within 14 days of this information 
being provided to EPA. In addition, orders issued pursuant to 
CERCLA sections 106 and 107, and settlements entered into 
pursuant to section 122, shall include the evidence of each 
element of liability asserted against the PRP.
Discussion
    As revised, section 104(e)(7)(A) of CERCLA requires EPA to 
make available to the public within 14 days of receipt, the 
documents and information obtained under authority of section 
104(e). This provision is intended to confirm and expedite the 
availability of this information to all interested parties, 
including PRPs, and provide a streamlining of the Superfund 
process. It is also intended to obviate the need for filing 
Freedom of Information Act requests to obtain this information. 
This amendment does not affect the protections otherwise 
extended to confidential business information.
    The revisions to sections 106(a) and 122(e) of CERCLA 
require EPA to include certain information relative to 
liability in all administrative orders and special notice 
letters. The intention of this provision is that each PRP 
receiving an order or letter should immediately be able to tell 
what evidence EPA believes makes that party liable under 
section 107. Sharing this information should help EPA and the 
PRPs to correct any misunderstandings at the earliest possible 
time, thereby facilitating the settlement process.

                   Sec. 508. Contribution Protection

Summary
    Section 508 amends existing section 113(f)(2) to assure 
that contribution protection provided by EPA applies to both 
contribution actions under section 113 and cost recovery claims 
under section 107.
Discussion
    Over the last several years, there has been considerable 
litigation as to whether a private part can pursue a cost 
recovery claim under section 107. Parties incurring response 
costs can use a section 107 cost recovery action in an attempt 
to reach settling bars despite the bar on contribution actions 
against settling parties. The courts which have addressed this 
issue are not in agreement. This amendment provides assurances 
to a settling party that regardless of the judicial resolution 
of this dispute, the contribution protection provided by EPA 
will be applicable.

     Sec. 509. Treatment of Religious, Charitable, Scientific, and 
            Educational Organizations as Owners or Operators

Summary
    Section 509 of the bill would amend CERCLA sections 101(20) 
and 107 to provide that ``501(c)(3) organizations'' (religious, 
charitable, scientific and educational organizations) that 
receive a facility as a gift would have their liability as 
owners or operators limited to the fair market value of the 
facility.
Discussion
    Many charitable and educational nonprofit organizations 
currently face the prospect of receiving a gift of real 
property that is contaminated. To prevent Superfund liability 
from chilling the ability to accept such gifts, and to 
discourage PRPs from seeking to spread the costs of liability 
to charitable and educational organizations by making the gifts 
of contaminated property, this section limits the liability of 
such organizations, provided certain conditions are met.
    Section 509(a) amends CERCLA section 101(20) to include in 
the term ``owner or operator'' organizations that meet the 
qualifications of section 501(c)(3) of the Internal Revenue 
Code that are organized and operated exclusively for religious, 
charitable, scientific, or educational purposes, and that hold 
title to a vessel or facility.
    Section 509(b) provides that an organization meeting the 
terms of section 509(a) that holds title to a facility or 
vessel as a result of a charitable gift, will have its 
liability as an owner or operator limited to the fair market 
value of the vessel or facility or the actual proceeds of the 
sale of the vessel or facility. Section 509(b) makes the 
limitation on liability conditional on various requirements to 
ensure full cooperation with and access by the United States, 
assistance in identifying and locating PRPs who recently 
controlled the facility, a demonstration that all active 
disposal occurred before the organization acquired the 
facility, and proof that the organization did not cause or 
contribute to a release or threat of release at the facility.

                       Sec. 510. Common Carriers

Summary
    Section 510 makes technical corrections to section 107 
regarding the liability of rail operators pursuant to 
contractual arrangements.
Discussion
    Section 510 exempts railroads from liability for the 
transportation of hazardous substances under the terms of a 
contract with a shipper who later mishandles the commodity. 
Subsection 107(b)(3) of CERCLA enables an otherwise liable 
party to defend claims on the basis that any release or threat 
of release was due solely to the acts of a third party. This 
third party defense is not available where a person has a 
contractual relationship with that third party. However, the 
contractual relationship limitation does not apply under 
current law to rail carriers whose sole contractual 
relationship is a transportation tariff.
    Section 510 is a technical amendment that provides that the 
rail exception encompasses railroad transportation contracts--
not just tariffs. This amendment is necessary to reflect 
current practice in the industry. CERCLA was adopted in 1980, 
the same year the Staggers Rail Act was enacted. Prior to 
Staggers, railroads transported virtually all of their traffic 
pursuant to tariffs. Staggers dramatically changed the railroad 
transportation system by enabling railroads to use contracts 
individually negotiated with shippers that are tailored to the 
shippers' needs. Today, most rail shipments move under 
individual contracts that are filed with the Surface 
Transportation Board.
    There is no rational basis for distinguishing between 
transportation by tariff and transportation under contract. The 
reason for the rail exemption is simple. Railroads are 
obligated to transport hazardous substances, but they simply 
should not be liable under CERCLA for acts of others that cause 
contamination by virtue of such transportation.

          Sec. 511. Limitation on Liability of Railroad Owners

Summary
    Section 511 modifies section 107 of CERCLA to provide an 
exemption for railroads from liability for contamination 
located on or around spur tracks that run to, and often 
through, facilities of shippers. Under current law, railroads 
can be held liable as landowners for such contamination, even 
when the contamination is caused by a shipper. Some have 
attempted to impose liability on railroads as spur track 
operators, again when the contamination is caused by a shipper.
Discussion
    Specifically, section 511 provides an exemption from 
liability under CERCLA to the extent that liability is based 
solely on a person's status as an owner or operator of a 
railroad spur track, as long as: (1) the spur tract provides 
access to a main line or branch line track owned or operated by 
the railroad; (2) the spur track is 10 miles long or less; and 
(3) the railroad does not cause or contribute to a release or 
threatened release at the spur track.
    Railroads should not be liable under CERCLA when they are 
merely carrying out their common carrier responsibilities to 
serve shippers. Section 511 is intended to address situations 
where a railroad has no ability to control its customers' 
handling of hazardous substances, and it is the customers' 
actions that result in releases of hazardous substances, 
creating CERCLA liability. This spur track exemption apples 
only where the railroad does not cause or contribute to the 
release. If a railroad is in a position to prevent a hazardous 
substance release, but fails to exercise due care and thereby 
contributes to such a release, the railroad would continue to 
be liable under CERCLA.

                    Sec. 512. Liability of Recyclers

Summary
    Section 512 of the bill amends sections 101 and 107 of 
CERCLA to provide an exemption from liability for response 
costs for those who arrange to recycle seven specified 
``recyclable materials'' at ``consuming facilities,'' and who 
meet certain threshold demonstrations. Section 512 defines 
consuming facilities as those facilities at which ``recyclable 
material is handled, processed, reclaimed or otherwise 
managed.'' The seven recyclable materials are paper, plastic, 
glass, textiles, rubber (other than whole tires), metal, and 
batteries.
    Section 512 provides that the United States shall pay the 
costs of all contribution shares attributable to persons 
relieved of liability under this section at mandatory 
allocation facilities (pursuant to new section 137) listed on 
the NPL prior to the date of enactment of this section. With 
respect to all other facilities, this section provides that the 
liability of any party covered by this exemption shall be borne 
by those parties who remain liable for section 107 response 
costs at those facilities.
    In order to qualify for the exemption, persons who arrange 
for the recycling of recyclable material must demonstrate by a 
preponderance of the evidence that: (1) the recyclable material 
met a commercial specification grade; (2) a market existed for 
the recyclable material; (3) a substantial portion of the 
material is made available as feedstock for the manufacture of 
a new saleable product; and either (a) the recyclable material 
is a replacement or substitute for virgin raw material, or (b) 
the product to be made from the recyclable material is a 
replacement or substitute for a product made from a virgin raw 
material.
     Persons who would be liable under section 107 for response 
costs in the absence of this exemption remain liable for such 
costs if: (a) the person had an objectively reasonable basis to 
believe at the time of the recycling transaction that: (i) the 
recyclable material would not be recycled; (ii) the recyclable 
material would be burned as fuel for energy recovery or 
incineration; (iii) the consuming facility was not in 
compliance with environmental law; or (iv) that a hazardous 
substance had been added to the recyclable material for 
purposes other than processing for recycling; (b) the person 
fails to exercise reasonable care with respect to management or 
handling of the material; (c) the recyclable material contains 
more than 50 parts per million PCBs; or, (d) in the case of a 
transaction involving paper, the material contains any 
concentration of a hazardous substance that EPA determines to 
present a significant risk to human health or the environment 
as a result of its inclusion in the paper recycling process.
Discussion
    The provisions in section 512 of the bill are intended to 
promote greater opportunities for recycling by accomplishing 
the following goals: (1) protecting persons engaged in the 
collection of ``recyclable material'' for recycling from 
liability under section 107(a)(1)(C) and section 107(a)(1)(D); 
(2) maintaining and increasing current rates of recycling of 
``recyclable material;'' and (3) ensuring that existing persons 
engaged in legitimate recycling activities who are liable for 
response costs at NPL facilities affected by this amendment are 
not required to bear any increased liability by virtue of the 
amendment.
    Given the fact that Federal case law has imposed joint, 
strict, several and retroactive liability, the recycling 
community has become concerned that section 107 liability is 
hampering, rather than encouraging, the recycling of 
``recyclable material.'' The ``recyclable materials'' covered 
by this section currently are recycled in significant 
quantities. For example, from 1990 through 1995, approximately 
95 percent of the lead available from lead-acid batteries was 
recycled in this country. This high level of recycling promotes 
environmental protection by ensuring that lead-bearing 
materials are not discarded in a fashion that could create 
adverse effects. However, many persons engaged in the recycling 
effort associated with these materials are faced with potential 
liability under CERCLA section 107.
    The limited recycling exemption provided in section 512 
will encourage continued, legitimate recycling. Thus, persons 
who collect ``recyclable material'' under the conditions 
described in this section will be relieved of CERCLA liability 
under sections 107(a)(1)(C) and 107(a)(1)(D) for those 
legitimate activities.
    At the same time, those persons involved in legitimate 
recycling activities who are not covered by this exemption will 
not be unfairly penalized by being forced to assume any 
additional liability at NPL sites. Instead, the United States 
will fund the share of response costs that would have been 
attributed to the newly-exempted recyclers. The intention of 
this change is to encourage continued legitimate recycling 
efforts.
    Furthermore, in order to ensure this result, the language 
provides that at NPL sites where some parties become exempt by 
operation of this section, the exempt shares must be allocated 
to the Fund. The basis for this allocation is described in 
Section 504.
    ''Consuming facilities'' are to include only those 
operations that are actively engaged in recycling activities 
(as opposed to mere collection and sorting). Thus, this term 
includes secondary lead smelters, but it does not include 
facilities known as ``battery breakers.'' Battery breakers do 
not qualify for the exemption set out in this section.
    Under the term ``recyclable material,'' there is a specific 
exclusion for ``shipping containers.'' The shipping container 
exclusion encompasses the range of containers currently 
processed for reuse in the United States. The size breakpoints 
correspond to provisions in U.S. Department of Transportation 
and United Nations regulations.
    This provision avoids providing a liability exclusion for 
environmental contamination that could result from scrapping 
shipping containers that had been used to transport CERCLA 
hazardous substances without first removing those hazardous 
substances from the containers. The hazardous substances of 
concern do not include small pieces of metal that may remain in 
a container, or that may be an alloy or other material in the 
container itself, such as chrome or nickel that are 
metallurgically or chemically bonded in the container. In 
addition, such containers are excluded from the definition of 
``recyclable material'' as this would create an unintended 
incentive for parties to scrap containers prematurely, rather 
than having them processed for reuse. Current industry practice 
is to remove hazardous substances from shipping containers in 
these sizes before the containers are scrapped or processed for 
reuse. This provision is intended to recognize and to encourage 
the continuation of this practice.
    The language defining ``scrap metal'' is intended to 
embrace certain ``metal byproducts'' from copper and copper-
based alloys, and provides an exemption for only a very narrow 
category of materials produced under certain conditions. Only 
metal products produced from copper and copper-based alloys, 
produced solely as the result of a secondary production and 
recycling process (i.e., not from a primary smelting 
operation), that are stored in an environmentally safe manner, 
not speculatively accumulated, and meet all the other 
requirements in this section for a legitimate recycling 
transaction, are covered by this definition. This definition 
does not include metal byproducts from other source materials 
or from primary smelting operations.
    This section allows any person that incurred response costs 
for a response action taken prior to the date of enactment of 
this section to bring a civil action for contribution against: 
(1) any person that is liable as an owner or operator of the 
affected facility; and (2) any person that, before this section 
is enacted, received and failed to comply with an 
administrative order issued under CERCLA section 104 or 106, or 
received and did not accept a written offer from the United 
States to enter into a consent decree or administrative order.
    The exemption provided in this section shall not affect 
either a judicial or administrative action that has become 
final before the date the section is enacted, or a judicial 
action commenced by the United States before the date of 
enactment of this section.

   Sec. 513. Requirement that Cooperation, Assistance and Access be 
                                Provided

Summary
    Section 513 of the bill would create a new section 107(y) 
that makes qualification for the liability exemptions and 
limitations under sections 107(o),(p),(r),(s),(t),(u),(v),(w) 
or (x) or section 112(g) dependent on meeting certain criteria 
for cooperation and access.
Discussion
    The liability exemptions and limitations outlined in the 
summary above, are dependent on: (1) full cooperation, 
assistance, and access to the facility for the installation, 
integrity, operation, and maintenance of the response action; 
(2) not impeding the effectiveness or integrity of any 
institutional control employed; and (3) complying with any 
information request or administrative subpoena issued by the 
President. This provision recognizes that while these parties 
should receive liability relief, they should not be taking 
actions that would impede the ability of EPA to ensure that 
these sites are cleaned up in an expedited fashion.

                      TITLE VI--FEDERAL FACILITIES

                   Sec. 601. Transfer of Authorities

Summary
    Section 601 authorizes a State to apply to EPA for transfer 
of authorities at NPL-listed Federal facilities in a manner 
similar to that in Title II for State delegation. It also 
provides a dispute resolution process where one does not 
already exist. The conditions for a transfer of authority are 
generally the same as for those that apply at a non-Federal 
facility. At sites where there is an existing interagency 
agreement between EPA and a Federal agency regarding facility 
cleanup, the section requires that there be no changes to the 
terms of the interagency agreement. The section also specifies 
that a remedial action selected by a State will be the only 
remedial action conducted at the facility and the State is 
precluded from enforcing other remedial action requirements 
except those under a RCRA corrective action that was initiated 
prior to enactment of this law.
Discussion
    Section 601 authorizes a State to apply to EPA for transfer 
of authorities at federally owned NPL facilities. EPA shall 
enter into a transfer agreement under the same conditions 
provided in section 201 of S. 8 for State delegation at a non-
Federal, NPL-listed facility. If a Federal facility does not 
have an interagency agreement that specifies a dispute 
resolution process between EPA and the Federal agency, the 
transfer agreement shall require that the State agree with the 
head of the Federal agency on a process for resolution of any 
disputes regarding the selection of a remedial action for the 
facility.
    Under this section, the conditions for the State to 
exercise authorities at a Federal facility are intended to be 
the same as those that apply to a non-Federal facility (except 
for the provisions regarding cost recovery). Specifically, a 
State has sole authority to exercise the responsibilities it is 
delegated under a transfer agreement. A State must carry out 
that authority in the same manner as EPA. In addition, EPA can 
withdraw a transfer of authority for failure to meet the Act's 
requirements. Nonetheless, EPA shall retain authority to 
recover response costs from responsible parties at a Federal 
site for which cleanup authority has been transferred to a 
State.
    This section preserves existing interagency agreements 
between EPA and the Federal agency that owns the site, unless 
the terms are agreed to in writing by the Governor and the head 
of the agency.
    The remedial action selected for a facility by a transferee 
State shall constitute the only remedial action required to be 
conducted at the facility. The transferee State is also 
precluded from enforcing any other remedial action requirement 
except for any corrective action under RCRA that was initiated 
prior to enactment of this law.
    Section 601 also provides a dispute resolution process. If 
the State does not concur in the remedial action proposed by 
the Federal agency, the State shall engage in the dispute 
resolution process provided for in the interagency agreement or 
in paragraph (3)(B), except that the final level of resolution 
shall be the head of the Federal agency and the Governor. If no 
agreement is reached, the Governor shall make the final 
determination regarding remedy selection. To compel 
implementation of the State's selected remedy, the State must 
bring a civil action in U.S. District Court.
    This section recognizes that the States have an increased 
technical ability to oversee cleanups at Federal facilities, 
and if they so choose, should be able to take over this role 
from EPA. Nonetheless, because this section requires the use of 
Federal remedy selection requirements, it recognizes the unique 
status of these facilities and the need to have a greater 
degree of uniformity in the cleanup of the facilities. By 
addressing both of these issues, this section attempts to 
strike the appropriate balance between increased State control 
and Federal facility consistency.

   Sec. 602. Innovative Technologies for Remedial Action at Federal 
                               Facilities

Summary
    Section 602 allows the President to designate Federal 
facilities on the NPL as a test bed for demonstration, testing 
and evaluation of innovative technologies by Federal and State 
agencies, and public and private entities. Specific 
technologies selected at the chosen innovative technology sites 
are subject to approval by EPA. In its annual report to 
Congress on research, development, and demonstration, EPA shall 
include information on the use of Federal facilities for 
innovative technologies.
Discussion
    The Committee recognizes the need for better mechanisms to 
test, demonstrate, evaluate and apply innovative technologies 
on Federal facilities, particularly for unique types of 
contamination or special circumstances not typically 
encountered at non-Federal facilities. There are thousands of 
facilities owned or operated by the Department of Defense 
(DOD), the Department of Energy (DOE) and other Federal 
agencies that will require cleanup and there is a potential for 
additional sites to be discovered. Depending upon the 
contaminants, the media involved, and the applicable 
requirements, estimates for the complete cleanup at Federal 
facilities vary from hundreds of billions to over a trillion 
dollars. Cleanup at some of these facilities has been limited 
because it has been difficult to get regulatory concurrence for 
testing new technologies that may require additional 
development. The testing of innovative technologies is needed 
at these facilities to develop cleanup solutions and reduce the 
time and cost to complete site remediation.
    Section 602 is intended to encourage the use of innovative 
technologies at contaminated Federal facility sites to further 
develop state-of-the-art technologies to provide cleanups that 
are not only protective, but also faster and cheaper. It allows 
the President to designate an NPL-listed Federal facility to be 
a test bed for those technologies. In considering whether to 
allow the application of a particular technology, the 
Administrator may amend any agreements or orders regarding the 
use of these technologies. Also, the Administrator is 
authorized to approve or deny the use of a particular 
innovative technology. Finally, Section 602 requires that EPA's 
annual report to Congress on research, development, and 
demonstration, shall include information on the use of Federal 
facilities for innovative technologies.
    Section 602 is not intended to duplicate any current 
efforts such as the Strategic Environmental Research and 
Development Program (SERDP) that was established by Congress in 
1980 (Public Law 101-510). SERDP is a tri-agency cooperative 
program that supports basic and applied research and 
development of innovative technologies to help meet the 
environmental obligations of DOD, DOE and EPA. Some of the 
technical challenges facing DOD and DOE sites are similar, and 
Congress continues to encourage Federal agencies to work 
together cooperatively in developing new solutions to shared 
problems. However, SERDP is DOD-focused and deals exclusively 
with hazardous waste cleanup at four congressionally mandated 
DOD sites. Consequently, SERDP does not fully address cleanup 
issues at other Federal agencies, such as radiological 
contamination at DOE facilities and acid mine drainage at 
Department of Interior facilities.
    This section is intended to provide an opportunity for one 
or more Federal facilities to develop and test new and 
innovative ways to address cleanup challenges, such as 
radiological contamination, by providing real world sites to 
test and further develop innovative technologies. The test beds 
shall be used to collect appropriate data (e.g. cost and 
performance) to improve the technologies efficiency and cost-
effectiveness in an effort to develop better solutions at 
Federal facilities. These efforts shall ensure appropriate use 
of funds and resources, and promote the maximum exchange of 
information and transfer of technology not only between various 
Federal agencies and departments, but also the private sector. 
Section 602 will allow the Secretary of Energy, and other 
Federal agencies without SERDP sites to better address their 
unique problems. By providing this opportunity for a Federal 
innovative technology test bed, it should also provide useful 
and cost-effective cleanup solutions for both Federal and non-
Federal facilities.

      Sec. 603. Full Compliance by Federal Entities and Facilities

Summary
    Section 603 waives sovereign immunity at Federal 
facilities, thereby allowing States that have enforcement and 
liability authority similar to CERCLA sections 106 and 107 to 
sue Federal agencies and to impose penalties. Expanding the 
language of CERCLA's current waiver of immunity in paragraph 
(1) of section 120(a), the bill's section 603(1) states that 
Federal agencies are subject to all other Federal, State, 
interstate, and local laws and requirements, both substantive 
and procedural, relating to a response action, a restoration 
action, or the management of a hazardous waste, pollutant, or 
contaminant. Under this provision, Federal agencies must comply 
with these laws and regulations in the same manner and to the 
same extent as any nongovernmental entity.
Discussion
    This section explicitly reaffirms and expands the waiver of 
sovereign immunity in section 120 that was added to CERCLA by 
the 1986 Superfund amendments. Section 603 is modeled after 
language used in the Federal Facilities Compliance Act of 1992 
and also employed in the Safe Drinking Water Amendments Act of 
1995. The waiver subjects the Federal government to the full 
range of available enforcement tools, making it liable for 
penalties whether the violation of Federal, State, interstate, 
or local law is a single or repeated occurrence, and regardless 
of whether the penalty is punitive or coercive in nature. 
Nevertheless, the State must be evenhanded in its actions. The 
requirements of a State law may not be applied more stringently 
to the Federal government than to other persons. The reference 
to a ``restoration action or the management of a hazardous 
waste'' in paragraph (1)(B)(I) of new section 120(a) is 
intended to show that the waiver of immunity extends to the 
restoration of injured natural resources, and includes 
corrective actions under the hazardous waste management 
provisions of RCRA.
    The section further provides that agents, employees, and 
officers of the United States shall not be personally subject 
to civil penalties for any acts or omissions within the scope 
of their duties. They are not immune from enforcement of 
injunctive relief or criminal sanctions.
    The section also authorizes the Administrator to issue 
section 106 administrative orders to any Federal agency in the 
same manner and under the same circumstances as it would 
initiate such action against other parties. In the past, the 
Department of Justice has declined to bring actions against 
Federal agencies under the theory of the unitary executive. 
This provision allows the Administrator to enforce compliance. 
The other Federal agency is given an opportunity to be heard, 
and an administrative order would not become final until the 
agency has an opportunity to confer with the Administrator.
    Any fines and penalties collected by a State from the 
Federal government are required to be used only for projects to 
improve or protect the environment or, more broadly, to defray 
the costs of environmental protection or enforcement unless the 
State's constitution or a State law in effect at the time of 
the bill's enactment requires a different use of the funds.
    The existence of an interagency agreement between EPA and a 
Federal agency shall not impair or diminish the enforceability 
of a Federal or State law unless the requirements of the law 
were specifically addressed in the interagency agreement or 
were specifically waived.
    DOD ``strongly opposed'' section 603 of the bill on several 
grounds. The DOD argued that the existing waiver of sovereign 
immunity was already total, and that all provisions of CERCLA 
already apply to Federal agencies. DOD maintains that any 
friction with the States occurs when the States insist on 
following their own cleanup process rather than CERCLA's. DOD 
already complies with substantive State standards through the 
use of ARARs under section 122(d). DOD maintains that requiring 
it to comply with a patchwork of State processes would slow its 
cleanups. DOD is especially concerned about the disruption that 
could result when a State's demands for response activities 
necessitates a reordering of DOD's risk-based priorities, and 
causes financial impacts exceeding DOD's appropriation, 
possibly affecting its other missions. During markup, these 
issues were discussed, as was the importance of protecting 
public health and the environment. It was ultimately determined 
that the President's authority under CERCLA section 120(j) to 
issue orders regarding response actions at a specified site or 
DOE or DOD facility was sufficient to protect the national 
security interests of the United States.

                  TITLE VII--NATURAL RESOURCE DAMAGES

               Sec. 701. Restoration of Natural Resources

Summary
    Section 107(f) of CERCLA provides that natural resource 
trustees (the Federal government, Indian Tribes, and States) 
may recover damages for the costs of restoring, replacing or 
acquiring the equivalent of natural resources injured, 
destroyed or lost by the release of a hazardous substance. 
Title VII of the bill makes a series of structural and 
substantive changes to section 107(f) to clarify the scope of 
liability under the NRD program.
    Section 701(a) of the bill sets forth the measure of 
damages for a NRD. Under that section, a person may be held 
liable for the costs of restoring or replacing resources that 
have been injured, providing temporary replacements until the 
resource is restored, and the reasonable costs of assessing the 
extent of injury. In a series of limitations on liability, the 
bill provides that there shall be no liability for: the loss or 
destruction of natural resources identified in an environmental 
impact statement or comparable environmental analysis; 
restoration or replacement costs if the injury occurred wholly 
before 1980; lost use damages for uses that might have occurred 
before 1980; or the costs of any study relying on contingent 
valuation methodologies (CVM). The bill also revises the 
prohibition against double recovery to clarify that a person 
cannot be held liable for natural resource damages under 
Superfund if damages have been recovered by another trustee 
under Superfund or any other Federal or State law for the same 
injury to the same resource.
    The bill specifically authorizes trustees to extend the 
payment period for natural resource damages, depending on the 
extent of the damages, the ability of the person to pay, and 
the period of time over which the restoration activities are 
expected to occur.
    Section 701(b) of the bill establishes procedures for 
trustees to assess the injury to a natural resource and to 
select the measures to restore the resource. Trustees are 
directed to consider alternative measures to achieve the 
restoration of the resource, including at least one alternative 
that relies on natural recovery. The final selection of 
restoration measures must achieve an appropriate balance among 
the following factors: technical feasibility; cost-
effectiveness; and the time period in which restoration is 
likely to be achieved. In selecting restoration measures, the 
bill authorizes trustees to take into consideration the unique 
intrinsic values of a resource to provide for accelerated or 
enhanced restoration to replace the intrinsic values lost. 
However, if an accelerated or enhanced restoration alternative 
is selected, the incremental costs associated with that 
alternative must be reasonable.
    Section 701(c) requires the Secretary of Interior to issue 
amended regulations governing the assessment of natural 
resource damages within 2 years after enactment. Among other 
things, the amended regulations must identify protocols based 
on scientifically valid principles for conducting natural 
resource damage assessments; require trustees to take into 
consideration the ability of a resource to recover naturally 
when selecting restoration alternatives; provide for 
designation of a lead administration trustee at sites where 
multiple trustees are involved; and require that injury 
assessments and restoration planning be based on site-specific 
information. The issuance of these amended regulations cannot 
be used to revive claims that under the existing law have 
expired because they were not filed within 3 years of the date 
of issuance of the current regulations.

Sec. 702. Consistency Between Response Actions and Resource Restoration 
                               Standards

    Section 702 addresses the need to ensure consistency 
between response actions and resource restoration measures. It 
directs trustees to take into account the results or expected 
results of any removal or remedial action in selecting a 
restoration alternative. Conversely, remedial actions must take 
into account the potential for injury to natural resources.

                         Sec. 703. Contribution

    Section 703 authorizes a person to seek contribution from 
other responsible persons for natural resource damages.

                          Sec. 704. Mediation

    Section 704 requires trustees seeking natural resource 
damages to initiate mediation of their claims within 120 days 
after commencing an action for damages.

                     Sec. 705. Coeur d'Alene Basin

    Section 705 establishes a new pilot program for the 
restoration of the Coeur d'Alene Basin. The provision 
authorizes an advisory group, consisting of Federal, State, 
Tribal and local representatives, industry representatives and 
citizens, to jointly develop a restoration plan for the Coeur 
d'Alene Basin. Funding is also authorized to assist in the 
development and implementation of the restoration plan.

                        Sec. 706. Effective Date

    Section 706 provides that these amendments shall not apply 
to cases that were in trial before July 1, 1997, or for which 
there was a final judgment before that date.

                               Discussion

    Measure of Damages. The amendments to Section 107(f) 
reflect the need to clarify that the objective of the natural 
resource damages program is to provide for the full restoration 
of natural resources that have been injured, destroyed or lost 
as a result of a release of hazardous substances. The NRD 
program is not intended to duplicate the remedial action 
program under CERCLA or to encourage additional litigation by 
promoting the assessment of potentially arbitrary monetary 
damages. The need for this clarification has become more urgent 
as the number of potential and actual NRD claims has increased 
dramatically in recent years, as has the number of claims 
seeking significant damages.
    Therefore, the amendments provide for the first time a 
clear statement of what a person may be held liable for in a 
situation where a natural resource has been injured. Under new 
section 107(f)(1)(C), a person is responsible for the costs 
associated with restoring the resource to the baseline 
condition that it would have been in but for the release of the 
hazardous substance. The fundamental principle is that 
responsible persons should be responsible for redressing the 
impacts of their activities on the resource, but not those 
resulting from the activities of others or from other natural 
causes. As under existing law, a person may, in the 
alternative, be required to provide for replacement resources 
or acquire equivalent resources.
    There has been considerable controversy over the issue of 
what restoration of a resource means. In general, the decision 
of what constitutes full restoration will be fact-specific and 
will have to be determined by the trustees on a case-by-case 
basis, subject to appropriate judicial review. Restoration will 
typically involve a variety of on-site and off-site measures, 
including revegetation efforts, habitat enhancements for fish 
and wildlife, wetlands restoration, and natural restoration. In 
some situations, where additional post-remedy contamination 
levels continue to impair the sustainability or ecologically 
significant functions of a resource, restoration measures may 
also include additional removal of sources of contamination. 
However, this language is not intended to require responsible 
parties to remove every particle of a contaminant or to 
replicate the precise pre-injury biological, chemical and 
physical condition of an injured resource. Temporary effects on 
individual organisms and insignificant changes in resources 
will not necessarily give rise to a natural resource damages 
claim. Instead, restoration measures in most cases should focus 
on reestablishing the ecologically significant functions of a 
resource. \4\
---------------------------------------------------------------------------
    \4\ EPA has recognized these ecological principles in its 
development of ecological risk assessment guidelines, emphasizing the 
importance of determining the ``ecological significance'' of risks 
before making regulatory decisions. EPA's 1992 Framework for Ecological 
Risk Assessment states that an ecological risk assessment, first, 
should focus on evaluating only ecologically relevant effects, and 
second, should characterize the overall ecological risk based on the 
its importance to an ecosystem's structure or function (its 
``ecological significance''). Framework for Ecological Risk Assessment 
at 12-13, 33-34 (Feb. 1992). EPA has reinforced these concepts in its 
proposed Draft Guidelines for Ecological Risk Assessment in which EPA 
elaborates on how to determine the ``ecological significance'' of a 
risk, thus confirming the importance of taking into account natural 
biological response mechanisms, including recovery potential and 
natural variability.
---------------------------------------------------------------------------
    The completion of restoration in any given case may take a 
substantial period of time during which the public may be 
deprived of significant services that would otherwise have been 
provided by the resource, such as recreational fishing or 
wildlife viewing opportunities. Thus, the amendments expressly 
provide that a person may be responsible for the costs of 
providing interim replacements for injured resources while the 
restoration is ongoing. For example, if restoration of a world 
class trout stream will take 10 years, the responsible party 
may be required to provide alternative fishing opportunities 
for the public until the trout stream is fully restored.
    Finally, the responsible person will also be liable for the 
reasonable costs of assessing the injury to the natural 
resource. The amendments provide, however, that trustees may 
not recover for the costs of conducting studies that rely on 
CVM methodologies. CVM studies are traditionally used to try to 
determine the ``non-use'' or ``passive use'' values associated 
with a resource and are used by the National Oceanic and 
Atmospheric Administration (NOAA) to assess non-use values for 
oil spills under the Oil Pollution Act. The use and reliability 
of CVM studies, however, have been the subject of considerable 
controversy. On the one hand, critics argue that CVM studies 
significantly overstate the value of resources. On the other 
hand, a panel of economists convened by NOAA in 1993, concluded 
that, if conducted in accordance with strict guidelines, CVM 
studies could produce meaningful results. The amendments do not 
attempt to resolve this conflict. Under these amendments, there 
is no separate recovery of monetary damages for losses 
associated with non-use or passive values. Intrinsic values are 
taken into consideration as a scaling factor in the selection 
of restoration measures. Therefore, there is no longer any 
incentive for trustees to conduct CVM studies.
    Selection of Restoration Alternatives. Section 701(b) 
amends CERCLA section 107(f) to establish statutory guidelines 
for the selection of restoration measures. The amendments 
provide that trustees are to consider a range of alternatives 
to achieve the objective of restoring an injured resource, 
including at least one alternative that relies on natural 
restoration. When making the final selection of the restoration 
measures that will be implemented, trustees are directed to 
select those measures that are technically feasible, cost-
effective, and achieve restoration in a timely fashion.
    The amendments do not assume a preference either for 
restoration measures that will achieve the restoration in the 
shortest time period possible (which are in many cases also 
likely to be the most costly restoration alternatives), or for 
those restoration measures that are the least costly. Any 
decision regarding the selection of restoration measures is 
necessarily driven by the specific facts of the situation--the 
nature of the resource injured, the availability of alternative 
or replacement resources, the public uses of the resource, any 
intrinsic values associated with the resource, the availability 
of technically feasible measures, and the costs associated with 
those measures. In some cases, for example, the restoration 
alternative that depends on natural restoration may be most 
appropriate because restoration will be achieved in a 
relatively short period of time or other alternatives are 
either too costly (i.e., not cost-effective) or technically 
infeasible. Conversely, in some cases, trustees may select 
measures that achieve restoration as quickly as possible 
because those measures are the most cost-effective. In most 
cases, the restoration alternative selected will likely fall 
somewhere in between these two extremes. The amendments provide 
trustees the flexibility to select the restoration measures 
that achieve the appropriate balance among technical 
feasibility, cost, and timeliness.
    Intrinsic Values. New section 107(f)(3)(B) expressly 
authorizes trustees to take into consideration any unique 
intrinsic values associated with a resource when selecting a 
restoration alternative. This provision is not intended to 
create a cause of action for monetary damages for injury to or 
loss of those intrinsic values or, more broadly, for the loss 
of so-called non-use values associated with a resource. 
Instead, it is intended to recognize that certain resources, 
such as wilderness areas, national monuments like the Grand 
Canyon, and endangered and threatened species, have unique 
characteristics that are lost when the resource is injured and 
that cannot be replaced until the resource is fully restored. 
In recognition of these special characteristics, the amendments 
allow trustees to justify the selection of an accelerated or 
enhanced restoration alternative that will replace the lost 
intrinsic values. Thus, for example, if a hazardous substance 
were released in Yosemite, the trustees might select 
restoration measures to restore the resource in a shorter 
period of time than they otherwise would have, even if the 
measures might not be the most cost-effective, in order to 
restore the intrinsic value of Yosemite. Similarly, if the 
release of a hazardous substance caused the extirpation of a 
population of endangered birds in an area, the trustees might 
require enhanced restoration to include introduction of a 
related species and habitat improvement measures to ensure the 
viability of the introduced population. In either case, the 
consideration of intrinsic values is intended to provide 
trustees some additional flexibility in limited situations to 
tailor the selection of restoration alternatives to the nature 
of the injury to the resource.
    Site-Specific Basis of Assessment. New section 107(f)(4)(A) 
contemplates that the assessment of injury to a natural 
resource and the selection of restoration alternatives will be 
based on site-specific information, to the extent that this 
information is readily available. Because, as is noted above, 
many of the decisions relating to the selection of appropriate 
restoration measures are driven largely by site-specific 
factual considerations, this provision is intended to encourage 
trustees to obtain fact-specific information and data whenever 
it is practicable. The importance of fact-specific information 
is particularly important in situations where the nature of the 
resource injured is unique or where the extent of the injury, 
and therefore the potential restoration obligations, is 
significant.
    This provision is not intended to eliminate the use of 
models, literature, previously obtained data, or other 
simplified assessment tools in appropriate circumstances. Even 
when models and other simplified assessment tools are used, 
however, fact-specific information and data should be used to 
the extent that it is available. All assessment methodologies 
must be based on generally accepted scientific principles, 
ensuring the validity and reliability of assessment results, 
and should be supported by appropriate, site-specific data to 
the extent practicable. However, to the extent practicable, 
fact-specific information and data should also be incorporated 
into the assumptions for any models or simplified assessment 
tools.
    Prohibition Against Double Recovery. New section 
107(f)(1)(D)(ii) clarifies language in the original statute's 
prohibition against double recovery. When natural resources 
have been injured, destroyed or lost as a result of releases of 
hazardous substances, responsible parties should bear the cost 
of restoring, replacing, or acquiring the equivalent of the 
resources, within the limits imposed by section 107. The 
responsible parties, however, should not have to pay that cost 
more than once. Therefore, new section 107(f)(1)(D)(ii) 
prohibits one or more trustees from obtaining duplicative 
recoveries under one or more statutes (including CERCLA and 
other Federal, State and local statutes) or common law, for the 
same resource injury. If a State trustee has recovered for 
injuries to a resource under its State law, for example, it may 
not also recover damages for the same injury to the same 
resource under CERCLA; it may, however, recover for different 
injuries to the same resource. Similarly, the fact that a State 
trustee has recovered for injuries to a resource subject to its 
trusteeship will not necessarily preclude a Federal or Tribal 
trustee from recovering for different injuries to the resource. 
The pivotal question will be whether the damages claimed are 
for the same injury to the same resource or, instead, for 
either different injuries or injuries to different resources.
    Prohibition Against Retroactive Liability. New section 
107(f)(1)(D) essentially retains the original CERCLA 
prohibition against retroactive NRD liability for injury that 
occurred wholly before the enactment of CERCLA in 1980, with a 
clarifying change substituting the word ``injury'' for the word 
``damages.'' The term damages in this context was intended to 
mean injury to a resource, not ``damages'' in the legal sense. 
This change makes clear that even though a responsible party is 
not liable for injury to natural resources that occurred prior 
to the passage of CERCLA, the party would remain potentially 
liable for new or further injury that occurred after December 
11, 1980. The amendments further provide that trustees cannot 
recover damages for the lost use of resources prior to December 
11, 1980. This prohibition on the recovery of past lost use 
damages is consistent with current Administration practice.
    Right To De Novo Trial. S. 8 does not change existing law 
regarding the standard of judicial review of NRD claims. Recent 
judicial decisions have held that NRD claims should be tried de 
novo, based on the presentation of all pertinent evidence to 
the trier of fact in accordance with the normal rules of 
evidence. State of Montana v. Atlantic Richfield Company, No. 
CV-83-317-HLN-PGH, (USDC D. MT March 3, 1997). United States of 
America v. ASARCO Incorporated, et al., No. CV 96-0122-N-EJL, 
(USDC D. Idaho March 31, 1998).
    Statute of Limitations. Section 113(g) of CERCLA 
establishes a two-pronged statute of limitations for the filing 
of NRD claims at non-NPL sites. Under this provision, claims 
must be filed within 3 years of the later of (1) the date of 
discovery of the resource injury and its relationship to the 
release of the hazardous substance, or (2) the date that NRD 
assessment regulations are promulgated. In order to address 
potential concerns that the provisions in section 701(c) that 
require the issuance of amended assessment regulations may be 
interpreted to reopen the statute of limitations for claims 
that have expired, the amendments expressly state that the 
issuance of these amended regulations shall not extend the 
period in which an action must have been filed.
    Effective Date. The amendments do not apply to cases in 
which trial was begun before July 1, 1997, or in which final 
judgments were entered before that date. This provision is 
intended to promote judicial efficiency by allowing cases that 
have been closed to remain closed and, in one situation where a 
case is currently in trial, to allow that proceeding to 
continue under the law as it existed at the time the trial 
commenced. These amendments and their legislative history are 
not intended, however, to be considered or relied upon or used 
to create any negative inferences in those cases with respect 
to the state of the law.
    Causation. The amendments do not change the existing 
statutory scheme requiring that trustees prove that a 
defendant's release caused the natural resource injury.

                       TITLE VIII--MISCELLANEOUS

              Sec. 801. Results-Oriented Cleanup Approach

Summary
    Section 801 amends CERCLA section 105(a) to require the use 
of a results-oriented cleanup approach. EPA would modify the 
NCP to minimize the time required to conduct response measures 
and to reduce the potential for exposure to hazardous 
substances, pollutants, and contaminants in an efficient, 
timely, and cost-effective manner. The new procedures apply to 
the entire response action and require expedited facility 
evaluations, timely negotiation of response action goals, a 
single engineering study, streamlined oversight of response 
actions, and consultation with interested parties throughout 
the response action. The new procedures are subject to the 
requirements of CERCLA section 117 (public participation), 
section 120 (Federal facilities), section 121 (cleanup 
standards), and new section 133 (amendments to the NCP).
Discussion
    The NCP is EPA's regulation for Federal response actions 
under CERCLA. It sets out the organizational structure and 
procedures for preparing for and responding to releases of 
hazardous substances, pollutants, and contaminants. (It also 
serves the same purpose for responses to discharges of oil 
under the Clean Water Act, as amended by the Oil Pollution Act 
of 1990.) CERCLA section 105(a) lays out in detail the contents 
of the NCP, and section 801 of the bill adds to the plan a 
requirement for a results-oriented approach to response actions 
in new paragraph (11).
    Results-oriented cleanup language has been in Superfund 
reauthorization bills in both Houses of Congress since 1994, 
when the American Institute of Chemical Engineers presented to 
Congress its position paper, An Engineering Approach to 
Superfund Cleanups. It is an engineering-based procedure that 
permits compression of the multiple Superfund study processes 
into a single engineering study. It identifies the substances 
of concern at a site early in the process uses a site-specific 
risk assessment based on realistic assumptions, and then 
identifies and implements a remedy in a timely manner. The 
results-oriented approach focuses on the results rather than 
the process, establishing clear cleanup goals that reduce the 
risks at the site in a timely fashion.

        Sec. 802. Obligations from the Fund for Response Actions

Summary
    Superfund removal actions are short-term interventions, 
including responses to emergencies, that can be undertaken at 
both NPL and non-NPL sites. The section raises the statutory 
limits on removal actions from $2 million to $5 million, and 
from 12 months to 3 years, reflecting the actual cost and time 
experienced in recent years.
Discussion
    Despite the many criticisms of the Superfund remedial 
action program, the removal program has generally been 
commended. Through fiscal year 1997, EPA has conducted 
approximately 5,000 removal actions, of which more than 1,400 
were at NPL facilities. In the last fiscal year alone, there 
were in excess of 250 removal actions, 35 of them at NPL 
facilities. The Superfund removal program is available to 
address them as long as CERCLA and NCP response criteria are 
met. The potential and actual releases of hazardous substances 
are extremely variable in size, threat, and location, requiring 
a flexible approach. Some of the response activities that are 
common to many removal actions include:
  Lsampling drums, storage tanks, lagoons, surface 
    water, groundwater, and the surrounding soil and air;
  Linstalling security fences and providing other 
    security measures;
  Lexcavating and disposing of contaminated soil, 
    containers and debris;
  Lpumping out contaminated liquids from overflowing 
    lagoons;
  Lcollecting contaminants through drainage systems or 
    skimming devices; and
  Lproviding alternate water supplies, evacuating 
    threatened individuals, and providing temporary shelter.

    Occasionally, unforeseen events such as severe weather, 
vandalism, fire, or explosions require a return to the site and 
initiation of additional response activities.
    In addition to expanding the scope and time of the response 
actions, section 802 broadens the range of activities that can 
be performed, and takes into account the dynamic situation that 
can exist at removal sites by replacing the requirement that 
the removal action be ``consistent with the remedial action 
taken,'' with a requirement that the action be ``not 
inconsistent with any remedial action that has been selected or 
is anticipated....'' EPA and State personnel have suggested 
that with additional time, flexibility and financial authority, 
emergency responders could address the entirety of the cleanup 
issues associated with a given site. The changes in section 802 
are intended to provide that authority. Providing additional 
flexibility to project managers who are overseeing these 
emergency removal activities is intended to encourage 
additional use of these authorities and avoid the need for 
subsequent remedial actions.

                         Sec. 803. Recycled Oil

Summary
    This section gives automobile dealers the same protection 
against liability under CERCLA sections 107(a)(3)-(4) as 
service station dealers enjoy. The provision adds automobile 
dealers to the definition of ``service station dealer'' under 
CERCLA section 101(37), and includes automobile dealers in the 
exemption from liability for releases occurring after the 
dealer has relinquished control of recycled oil under CERCLA 
section 114(c).
Discussion
    The recycling of used oil in the United States depends in 
large measure on the cooperative actions of citizens, including 
small businesses such as service station dealers who perform a 
community service by accepting used oil from do-it-yourself oil 
changers and passing it on to recyclers. This activity, and the 
management of used oil in general, is regulated under RCRA and 
its regulations (40 CFR Part 279). To encourage the continuing 
participation of this important link in the system that returns 
old oil for reuse, CERCLA currently provides a liability 
exemption for service station dealers who are willing to accept 
used oil, a substance that could be categorized a hazardous 
waste if not properly handled.
    While current law includes a ``similar retail establishment 
engaged in the business of selling . . . motor vehicles'' 
within the definition of ``service station dealer,'' the 
amendments made by section 803 explicitly extend the protection 
from CERCLA liability to automobile dealers and dealerships. To 
qualify for the exemption, the service station, automobile 
dealer or similar retail establishment must derive a 
significant percentage of its gross income from the fueling, 
repairing, servicing, or selling of motor vehicles, and must 
accept used oil for collection, accumulation, and delivery to 
an oil recycling facility.

Sec. 804. Law Enforcement Agencies Not Included as an Owner or Operator

Summary
    This section amends the definition of ``owner or operator'' 
(CERCLA section 101(20)) to exclude a law enforcement agency 
that acquires ownership or control of a facility where there is 
a release or threatened release of a hazardous substance 
``through seizure or otherwise in connection with law 
enforcement activity.''
Discussion
    Increasingly, sites involving criminal activity also 
involve environmental contamination. One growing problem for 
law enforcement agencies concerns the seizure of clandestine 
drug laboratories, which typically are contaminated with 
hazardous chemicals and wastes. The number of these labs has 
increased rapidly in recent years. The U.S. Drug Enforcement 
Agency (DEA) cleaned up 325 seized drug labs in fiscal year 
1995, 738 labs in fiscal year 1996, and 1,383 labs in fiscal 
year 1997. State and local authorities have also seized many 
illicit labs.
    At issue is whether law enforcement agencies, upon seizing 
drug labs or other contaminated properties, become ``owners or 
operators'' of these sites under CERCLA and thus subject to 
Superfund liability. These illicit laboratories contain 
hazardous chemicals and wastes and may contaminate water 
sources and soil. The DEA reports that contamination may spread 
through various means: lab operators may dump or spill 
chemicals, or pour wastes down the sink or toilet into water 
supplies, or onto the surrounding ground. Beyond the immediate 
health hazards facing the law enforcement officers is this 
question of liability for cleaning up these labs as Superfund 
sites. This concern over potential exposure to Superfund 
liability has caused problems for officers attempting to carry 
out their duties. In some cases, law enforcement agencies have 
not seized homes known to contain these labs because of this 
liability issue, and, consequently, the potential for assuming 
Superfund liability has sometimes had the effect of deterring 
law enforcement.
    Congress never intended for liability to extend to these 
circumstances. State and local law enforcement agencies 
currently are excluded from the definition of ``owner or 
operator'' under section 101(20)(D). This amendment is intended 
to clarify that State and local law enforcement agencies do not 
become owners or operators for purposes of CERCLA by acquiring 
ownership or control of a facility through seizure or other law 
enforcement activity.

                         Sec. 805. Lead in Soil

Summary
    The bill adds a new section at the end of CERCLA Title I 
requiring EPA to contract with the Health Effects Institute to 
establish and administer an independent scientific panel to 
review the existing science on the relationship between lead in 
residential soil and blood lead levels and to report to 
Congress and EPA. EPA is directed to use the study results to 
promulgate a rule establishing procedures for risk assessment 
and remedy selection for facilities with high lead levels in 
soil.
Discussion
    CERCLA requires ATSDR and EPA jointly to rank, in order of 
priority, hazardous substances found at sites on the NPL. The 
three criteria for ranking are frequency of occurrence at NPL 
sites, toxicity, and potential for human exposure. Based on 
these criteria, lead is the hazardous substance of highest 
priority. Infants and young children who ingest small amounts 
of lead may suffer irreversible damage to their developing 
nervous systems, including reduced IQ, reading disabilities, 
and other learning and behavioral problems. Only slightly 
higher lead levels may threaten the health of exposed adults. 
Approximately 400 NPL facilities have lead levels in soil that 
are elevated above natural background. Some of these facilities 
require emergency action to restrict exposure to highly 
contaminated areas. Others require extensive, long-term 
responses to remove or cover soil. Still others may require no 
remedial action at all. The appropriate response depends on 
site-specific factors, including the chemical and physical form 
of lead that is present, its geographical distribution, the 
land use and potential for exposure, and whether or not there 
are other sources of lead exposure that may elevate the health 
risk.
    Residents near NPL facilities that are contaminated with 
lead due to mining activity have complained that EPA has 
planned remedial action without regard to whether measured 
blood lead levels in children indicate that they have been 
exposed to lead in the environment. Similar complaints have 
been raised in response to NPL listing and remedial 
investigations in other communities whose exposure to lead has 
been in a form which they thought to be relatively benign, such 
as spent ammunition (as compared to the lead from lead-based 
paint or gasoline, for example). EPA and ATSDR argue, however, 
that the risk to children in such communities is real and often 
cannot be assessed accurately through community blood surveys. 
They further argue that any further exposure risks should be 
prevented. They maintain remediation should not be delayed 
until individual children show clear evidence of elevated lead 
exposure. On the other hand, EPA has acknowledged that risk 
assessments before about 1994 may have relied too heavily on 
assumptions and default values due to an inadequate scientific 
understanding of the factors affecting lead intake and uptake.
    Recent research has improved the scientific basis for 
predicting blood lead levels based on lead levels in soil. For 
example, the Urban Soil Lead Abatement Demonstration Project, a 
three-city pilot project mandated by CERCLA section 111(a)(6), 
examined the impact of residential soil lead abatement projects 
on blood lead levels in children living in Baltimore, Boston, 
and Cincinnati. The integrated EPA report on the studies 
concluded that soil lead abatement results in reduced exposure 
only under certain conditions when soil is a significant source 
of lead in the child's environment. The report identified five 
factors that are likely to be important: the child's past 
history of exposure to lead; the initial soil lead 
concentration and magnitude of the reduction in soil lead due 
to abatement; the initial interior house dust lead loading and 
magnitude of reduction due to abatement; the relative magnitude 
of other sources of lead exposure; and the relative strength of 
the soil exposure pathway. Correlations between lead-
contaminated soil and blood lead levels have been influenced in 
other specific studies by a child's access to soil, behavior 
patterns, presence of ground cover, seasonal variation of 
exposure conditions, particle size and composition of the lead 
compounds found at various sites, and exposure pathways. 
Differences in other factors (such as a child's nutritional 
status) may also be important.
    EPA introduced a new Integrated Exposure and Uptake 
Biokinetic (IEUBK) model and guidance (approved by EPA's 
independent Scientific Advisory Board) in 1994, which has 
improved the sensitivity of risk assessments to site-specific 
factors. For the past 3 years, EPA has worked to validate its 
model through extensive field testing and consultation with 
experts, including stakeholders. Nevertheless, there are 
scientists who criticize the current EPA model. An objective 
review of the science in general, and of EPA model in 
particular, might help resolve the controversy.
    The bill amends CERCLA by adding a new section 138. The new 
section directs EPA to enter into a contract with the Health 
Effects Institute, within 30 days of bill enactment, to 
administer a scientific review of the science on the 
relationship between lead in residential soil and blood lead 
levels. The Health Effects Institute is an independent, 
nonprofit corporation chartered in 1980 to provide high-
quality, impartial, and relevant science on the health effects 
of pollutants in the environment. It is supported jointly by 
EPA and industry.
    The review panel will consist of university-based 
scientists and statisticians and the principal investigators of 
the three urban soil lead abatement studies conducted under 
CERCLA section 111(a)(6). The review is required to consider 
whether, and to what extent, blood lead levels are affected by 
removal of lead-containing soil; whether the type of lead, soil 
type, and other factors affect blood lead levels; and 
alternative methodologies for modeling the impact of soil lead 
levels on blood lead levels. This review may be facilitated by 
ongoing EPA workshops and pending reports on the validity of 
the IEUBK and other lead exposure models. The bill requires the 
review panel to complete its task within 180 days, and to 
provide an opportunity for peer review of and public comment on 
their work. The final report should be delivered to Congress 
and EPA within 30 days of completing the review.
    The bill directs EPA to propose a regulation based on and 
consistent with the results of the review within 180 days of 
reporting to Congress. The regulation is to govern the conduct 
of risk assessments and remedy selection at facilities where 
lead in soil is a contaminant of concern. The regulation may 
incorporate the current EPA guidance for use of the IEUBK model 
to the extent that it is consistent with the results of the 
scientific review. Within 180 days of proposing a regulation, 
after receiving public comments, EPA is required to promulgate 
the final regulation. The regulation will address the role of 
biomonitoring data (e.g., blood testing) and the use of 
facility-specific data in risk assessments, as well as a 
process for reconciling the results of risk estimates or 
predictions with any available empirical data on lead levels in 
blood. Reconciliation requires a technical comparison of 
predicted values with available data, a written explanation of 
any difference between them, and selection of the risk value, 
whether predicted or measured, that is supported by the weight 
of the scientific evidence.

          Sec. 806. Pesticides Applied in Compliance with Law

Summary
    This section clarifies that a release of a hazardous 
substance into the environment resulting from the required 
application of a pesticide to treat livestock will not trigger 
CERCLA liability under section 107. The release of the 
hazardous substance (i.e., the pesticide, insecticide, or 
similar product) must have occurred prior to enactment of the 
bill, and must have been in compliance with the Federal or 
State law requiring the treatment of livestock.
Discussion
    CERCLA liability under section 107 does not attach to the 
``application of a pesticide product that is registered under 
the Federal Insecticide, Fungicide, and Rodenticide Act.'' That 
exemption in subsection 107(i) is qualified in the following 
sentence, which says that it does not ``affect or modify . . . 
the obligations or liability . . . under any other provision of 
State or Federal law . . . for damages, injury, or loss 
resulting from a release of any hazardous substance or for 
removal or remedial action . . . .''
    The amendment made by section 802 would relieve a person 
from liability for such a release if it occurred prior to 
enactment of the bill, and if it resulted from the application 
of a pesticide in compliance with a Federal or State law or 
regulation that required the treatment of livestock. The 
Department of Agriculture's Animal and Plant Health Inspection 
Service and its State counterparts have the authority to order 
treatment of livestock to prevent the spread of disease. The 
amendment clarifies that if a hazardous substance (the 
pesticide) was released into the environment in conjunction 
with this obligatory treatment, a person is not liable under 
CERCLA section 107.
    The purpose of the section is to alleviate the concerns of 
landowners and real estate financing institutions about the 
potential liability relating to old pesticide/insecticide 
application sites. For example, as a result of a Federal 
quarantine imposed by the U.S. Department of Agriculture in 
1906, dipping vats were used in Florida and 14 other States to 
eradicate ticks from cattle in order to prevent the spread of 
disease. Participation in this eradication program by livestock 
producers was mandatory. Dipping vats were located throughout 
the State of Florida on private lands. Dipping vats have not 
been used since 1961. Nonetheless, the specific sites on which 
these vats are located are still a cause of concern for lenders 
and landowners in the context of land sales, due to the 
uncertainty regarding environmental liability for these vat 
sites.
    None of these sites are currently on the NPL; nor is the 
Committee aware of any human health problems relating to these 
sites. Nonetheless, uncertainty regarding potential liability 
stemming from these vat sites is unnecessarily causing land 
transaction problems in Florida and other States, including 
some degree of land devaluation. Thus, the owners of these 
lands where dipping vats were located are, in effect, now being 
penalized for their prior cooperation with the Federal and 
State governments in helping to eradicate disease. This 
provision is intended to eliminate the unfairness and 
uncertainty associated with these legally required activities.

                    Sec. 807. Technical Corrections

Summary
    This section makes technical corrections to CERCLA section 
107(a) to make it consistent with common practice, and more 
accessible to the reader by inserting headings, and 
redesignating paragraph numbers and subparagraph letters. It 
also makes conforming amendments in sections 107(d)(3) and 
107(f)(1) where there are references to section 107(a).
Discussion
    CERCLA contains numerous drafting errors and frequently 
fails to follow the standard legislative drafting format. 
Section 807 is a series of technical corrections intended to 
make the statute conform with the standard legislative style.

                           TITLE IX--FUNDING

        Sec. 901. Authorization of Appropriations from the Fund

Summary
    This section authorizes a total of $7.5 billion for the 5-
year period from fiscal year 1999 through fiscal year 2003 for 
the purposes specified in section 111.
Discussion
    The funds authorized by Section 111, are to be appropriated 
from the Hazardous Substance Superfund established under 
subchapter A of chapter 98 of the Internal Revenue Code of 
1986.

                     Sec. 902. Orphan Share Funding

Summary
    The section authorizes appropriations for the payment of 
orphan shares under new section 136, which shall be mandatory 
direct spending. For fiscal year 1999, $200 million is 
authorized; for fiscal year 2000, $350 million is authorized; 
for fiscal year 2001, $300 million is authorized; for fiscal 
year 2002, $300 million is authorized; for fiscal year 2003, 
$300 million is authorized; and for fiscal year 2004, and each 
fiscal year thereafter, $250 million is authorized.
Discussion
    The section adds orphan share funding to the list of 
purposes in CERCLA section 111(a) for which the Hazardous 
Substance Superfund may be used.

           Sec. 903. Department of Health and Human Services

Summary
    The section authorizes $50 million annually for each of 
fiscal years 1999 through 2003 for the activities of the ATSDR. 
Any funds not obligated by the end of each fiscal year are to 
be returned to the Hazardous Substance Superfund.
Discussion
    The activities of the ATSDR for which funds are authorized 
are described in section 104(i).

   Sec. 904. Limitations on Research, Development and Demonstration 
                                Programs

    The section authorizes $30 million from the Hazardous 
Substance Superfund in each of fiscal years 1999 through 2003 
for carrying out the applied research, development, and 
demonstration program for alternative or innovative 
technologies, and the training program, under CERCLA section 
311(b) other than basic research. The funds are to be available 
until expended.
    The section also authorizes funds from the Hazardous 
Substance Superfund for research, demonstration, and training 
under CERCLA section 311(a). For fiscal year 1999, $37 million 
is authorized; for fiscal year 2000, $39 million is authorized; 
for fiscal year 2001, $41 million is authorized; and for each 
of fiscal years 2002 and 2003, $43 million is authorized. No 
more than 15 percent of these amounts may be used for training 
under section 311(a) in any fiscal year.
    In addition, the section authorizes from the Hazardous 
Substance Superfund $5 million per year for each of fiscal 
years 1999 through 2003 for the University Hazardous Substance 
Research Centers described in CERCLA section 311(d).

     Sec. 905. Authorization of Appropriations from General Revenue

Summary
    The section authorizes $250 million per year to be 
appropriated from the Treasury to the Hazardous Substance 
Superfund for each of fiscal years 1999 through 2003. It also 
authorizes to be appropriated for each fiscal year an amount 
equal to the environmental taxes received in the Treasury.
Discussion
    There are four environmental taxes designated for the 
Hazardous Substance Superfund: the corporate environmental 
income tax (Internal Revenue Code (IRC) section 59A), and 
excise taxes on petroleum (IRC section 4611), 42 listed 
feedstock chemicals (IRC section 4661), and imported chemical 
derivatives (IRC section 4671). Reauthorization of these taxes 
is not under the jurisdiction of the Environment and Public 
Works Committee, but instead, is under the jurisdiction of the 
Finance Committee. The ultimate decision over which, if any, of 
these taxes will be reauthorized is left to the determination 
of the Finance Committee.

                    Sec. 906. Additional Limitations

    This section adds two limitations to the uses of the 
Hazardous Substance Superfund. First, it limits the total 
amount that can be granted to the Community Action Groups 
established under Title II of the bill to $15 million for the 
period from January 1, 1997, to September 30, 2003. Second, it 
provides that beginning on January 1, 1997, response costs that 
are recovered by the United States are to be credited as 
offsetting collections to the Superfund appropriations account.

       Sec. 907. Reimbursement of Potentially Responsible Parties

Summary
    The section authorizes the Administrator of EPA to 
reimburse a party who has paid EPA for response costs that are 
later disallowed or adjusted.
Discussion
    This provision is intended to protect a party who has 
settled with EPA and paid more than his fair share of cleanup 
costs. If a Federal audit of response costs finds that the 
costs are not allowable due to contractor fraud, are not 
allowable under the Federal Acquisition Regulation, or should 
be adjusted due to routine contract and EPA response cost audit 
procedures, then the party may be reimbursed.

                                Hearings

    In the 104th Congress, the Subcommittee on Superfund, Waste 
Control, and Risk Assessment held seven hearings. On March 10, 
1995, the subject was general oversight and EPA's 
administration of Superfund. Testimony was given by the 
following witnesses: The Honorable Carol Browner, 
Administrator, U.S. Environmental Protection Agency; Edwin H. 
Clark II, president, Clean Sites; Don R. Clay, president, Don 
Clay Associates, Inc.; Lloyd Dixon, RAND Corporation; J. 
Winston Porter, president, Waste Policy Center; Katherine 
Probst, senior fellow, Resources for the Future; John Shanahan, 
policy analyst, Environmental Affairs and Energy Studies, The 
Heritage Foundation; and Michael Steinberg, Esq., Morgan, 
Lewis, and Bockius, on behalf of the Hazardous Waste Cleanup 
Project.
    On March 29, 1995, the subject was remedy selection and 
cleanup standards. Testimony was given by the following 
witnesses: Rose Augustine, Tucson, AZ; Richard Bunn, president 
and chief executive officer, UGI Corporation, Reading, PA; 
Ronald Cattany, Deputy Director, State of Colorado, Department 
of Natural Resources; Timothy C. Duffy, executive director, 
Rhode Island Association of School Committees; James A. 
Goodrich, executive director, San Gabriel Basin Water Quality 
Authority; Barry, Johnson, Assistant Administrator, Agency for 
Toxic Substances and Disease Registry; Patrick Murphy, 
community liaison, Concerned Citizens of Triumph, Sun Valley, 
ID; John F. Spisak, president and chief executive officer, 
Industrial Compliance, Inc.; and Martin Yee, White Spur Dry 
Cleaners, El Paso, TX.
    On April 5, 1995, the subject of the hearing was risk 
assessment. Testimony was given by the following witnesses: 
Richard Brown, vice president for remediation technology, 
Groundwater Technology, Inc.; Robert W. Frantz, manager, 
Environmental Remediation Program, General Electric Company; 
Linda Greer, senior scientist, Public Health Program 
Coordinator, Natural Resources Defense Council; The Honorable 
Elliott Laws, Assistant Administrator, Office of Solid Waste 
and Emergency Response, U.S. Environmental Protection Agency; 
Steven J. Milloy, president, Regulatory Impact Analysis 
Project; Paul Miskimin, senior vice president for Federal 
programs, Jacobs Engineering Group, Inc.; Philip J. O'Brian, 
Director, Division of Waste Management, State of New Hampshire, 
Department of Environmental Services; Michael Parr, remediation 
program manager, DuPont Company; Milton Russell, director, 
Joint Institute for Energy and Environment, and professor of 
economics, University of Tennessee; Curtis C. Travis, M.D., 
director, Health Sciences Research Division, Oak Ridge National 
Laboratory; and Marcia Williams, president, Williams and 
Vanino.
    On April 27, 1995, the subject of the hearing was superfund 
liability issues. Testimony was given by the following 
witnesses: Jan Paul Acton, assistant director, Congressional 
Business Office; Robert Burt, chairman and chief executive 
officer, FMC Corporation, on behalf of the Business Roundtable; 
Boyd Condie, Council member, City of Alhambra, CA, on behalf of 
American Communities for Cleanup Equity; Kelvin Herstad, 
president, United Truck Body, Inc., on behalf of the National 
Federation of Independent Businesses; Anne Pendergrass Hill, 
senior counsel, First Interstate Bank of Portland, Oregon, 
Legal Services Group, on behalf of the American Bankers' 
Association; Richard F. Leavitt, president, Chelsea Clock, 
Inc.; R. Brian McLaughlin, Deputy Attorney General, State of 
New Jersey, on behalf of the National Association of Attorneys 
General; Mary P. Morningstar, assistant general counsel for 
environmental affairs, Lockheed Martin Corporation, on behalf 
of the Electronics Industry Association; Joe J. Palacioz, City 
Manager, Hutchinson, KS; Peter B. Prestley, attorney, Simpson, 
Thatcher and Bartlett, on behalf of the American Bar 
Association; Barbara Price, vice president for health, 
environment and safety, Phillips Petroleum, on behalf of the 
American Petroleum Institute; The Honorable Lois Schiffer, 
Assistant Attorney General, Environment and Natural Resources 
Division, U.S. Department of Justice; and Richard D. Smith, 
president, Chubb Corporation.
    On May 4, 1995, the subject was the role of State and local 
governments. Testimony was given by the following witnesses: 
James C, Colman, Assistant Commissioner, Massachusetts Bureau 
of Waste Site Cleanup, on behalf of the Association of State 
and Territorial Solid Waste Management Officials; Velma Dunn, 
Phoenix, AZ; Karen Florini, senior attorney, Environmental 
Defense Fund; Russell Harding, Deputy Director for 
Environmental Protection, Michigan Department of Natural 
Resources; Jonathan B. Howes, Secretary, North Carolina 
Department of Environment, Health, and Natural Resources; Kent 
Jeffreys, senior fellow, National Center for Policy Analysis; 
David R. Tripp, special legal counsel, City of Witchita, KS; 
and Robert W. Varney, Commissioner, New Hampshire Department of 
Environmental Services.
    On May 9, 1995, the subject was Federal and State roles in 
Superfund cleanup. Testimony was given by the following 
witnesses: The Honorable Sherri W. Goodman, Deputy Under 
Secretary of Defense for Environmental Security, U.S. 
Department of Defense; The Honorable Thomas Grumbly, Assistant 
Secretary for Environmental Management, U.S. Department of 
Energy; Christopher Jones, Chief, Environmental Enforcement 
Section, Office of the Attorney General, State of Ohio; Mary P. 
Morningstar, corporate counsel, Lockheed Martin Corporation; 
Frank Parker, distinguished professor of environmental 
engineering, Vanderbilt University; Andrew Paterson, managing 
director, RIMTech; Lenny Siegel, director, Pacific Studies 
Center; and Barry Steinberg, attorney, National Association of 
Installation Developers.
    On May 11, 1995, the subject was natural resource damages. 
Testimony was given by the following witnesses: Charles de 
Saillan, Assistant Attorney General for Natural Resources, 
State of New Mexico, on behalf of the National Association of 
Attorneys General; Keith O. Fultz, Assistant Comptroller 
General, U.S. General Accounting Office; The Honorable Douglas 
Hall, Assistant Secretary, National Oceanic and Atmospheric 
Administration, U.S. Department of Commerce; Jerry Hausman, 
McDonald Professor of Economics, Massachusetts Institute of 
Technology; Kenneth D. Jenkins, director, Molecular Ecology 
Institute, California University at Long Beach; Kevin L. 
McKnight, manager, Environmental Remediation Projects, Aluminum 
Company of America; Keith Meiser, senior counsel, CSX 
Transportation, Inc.; and Chris Tweeten, Chief Deputy Attorney 
General, State of Montana.
    Also in the 104th Congress, the Committee on Environment 
and Public Works held 2 days of hearings related to the 
modification of S. 1285 by Senate Amendment No. 3563. On April 
23, 1996, testimony was given by the following witnesses: The 
Honorable Carol M. Browner, Administrator, U.S. Environmental 
Protection Agency; Karen Florini, senior attorney, 
Environmental Defense Fund; The Honorable Sherri W. Goodman, 
Deputy Under Secretary of Defense for Environmental Security, 
U.S. Department of Defense; The Honorable Thomas P. Grumbly, 
Assistant Secretary for Environmental Management, U.S. 
Department of Energy; The Honorable Douglas K. Hall, Assistant 
Secretary for Oceans and Atmosphere, U.S. Department of 
Commerce; Barbara Price, vice president for health safety, and 
the environment, American Petroleum Institute; The Honorable 
Lois J. Schiffer, Assistant Attorney General, Environment and 
Natural Resources Division, U.S. Department of Justice; John F. 
Spisak, president and chief executive officer, Terranext, Inc.; 
and J. Lawrence Wilson, chairman and chief executive officer, 
Rohm and Haas Company, on behalf of the Chemical Manufacturers 
Association.
    On April 24, 1996, testimony was given by the following 
witnesses: Andrew H. Card, president and chief executive 
officer, American Automobile Manufacturers Association; Sarah 
Chasis, senior attorney, Natural Resources Defense Council, 
Inc., New York, NY; James D. Coleman, Assistant Commissioner 
for Waste Site Cleanup, Massachusetts Department of 
Environmental Protection, on behalf of the Association of State 
and Territorial Solid Waste Management Officials; Michael 
Farrow, director, Department of Natural Resources, Confederated 
Tribes of the Umatilla Indian Reservation; Christine O. 
Gregoire, Attorney General, State of Washington, on behalf of 
the National Association of Attorneys General; The Honorable 
Rick Santorum, Senator from the Commonwealth of Pennsylvania; 
Velma Smith, executive director, Friends of the Earth; Richard 
B. Stewart, professor, New York University Law School, on 
behalf of the Natural Resource Damages Coalition; Robert 
Stickles, Administrator, Sussex County, Delaware, on behalf of 
the National Association of Counties, National League of 
Cities, American Communities for Cleanup Equity, National 
Association of Towns and Townships, International City/County 
Management Association, National School Boards Association, and 
the United States Conference of Mayors; Marion Trieste, 
president, Saratoga Springs Hazardous Waste Coalition; Michael 
Szomjassy, senior vice president, OHM Remediation Services 
Corporation; Robert E. Vagley, American Insurance Association; 
Robert Varney, Commissioner, New Hampshire Department of 
Environmental Services, on behalf of the National Governors' 
Association; and Barbara Williams, owner, Sunnyray Restaurant, 
Gettysburg, PA, on behalf of the National Federation of 
Independent Business.
    At the beginning of the 105th Congress, during March 1997, 
the Subcommittee on Superfund, Waste Control, and Risk 
Assessment held two Superfund-related hearings. On March 4, 
1997, the Subcommittee heard testimony on brownfields from the 
following witnesses: Christian J. Bollwage, Mayor, Elizabeth 
NJ, on behalf of the United States Conference of Mayors; 
Timothy Fields, Acting Assistant Administrator, Office of Solid 
Waste and Emergency Response, U.S. Environmental Protection 
Agency; Peter F. Guerrero, Director for Environmental 
Protection Issues, Resources, Community and Economic 
Development Division, U.S. General Accounting Office; Lorrie 
Louder, director of industrial development, St. Paul Port 
Authority, on behalf of the National Association of Local 
Government Environmental Professionals; William J. Riley, 
general manager for environmental affairs, Bethlehem Steel 
Corporation, on behalf of the American Iron and Steel 
Institute; Peter J. Scherer, senior vice president and counsel, 
Taubman Company, on behalf of the National Realty Committee; 
James M. Seif, Secretary of Environmental Protection, 
Pennsylvania Department of Environmental Protection; and 
William K. Wray, senior vice president, Citizens Bank, 
Providence, RI.
    On March 5, 1997, the Subcommittee on Superfund, Waste 
Control, and Risk Assessment received testimony from the 
following witnesses: Linda Biagioni, vice president of 
environmental affairs, Black and Decker Corporation, on behalf 
of the Superfund Action Alliance; The Honorable Carol M. 
Browner, Administrator, U.S. Environmental Protection Agency; 
Charles de Saillan, Assistant Attorney General, Natural 
Resources, Environmental Enforcement Division, State of New 
Mexico; Karen Florini, senior attorney, Environmental Defense 
Fund; Terry Garcia, Acting Assistant Secretary, National 
Oceanic and Atmospheric Administration, U.S. Department of 
Commerce; Richard Gimello, Assistant Commissioner for Site 
Remediation, New Jersey Department of Environmental Protection, 
on behalf of the National Governors' Association; Rich A. Heig, 
senior vice president, Engineering and Environment, Kennecott 
Energy Company; Larry L. Lockner, manager for regulatory 
issues, Shell Oil Company, on behalf of the American Petroleum 
Institute; Karen O'Regan, Environmental Programs Manager, City 
of Phoenix, on behalf of American Communities for Cleanup 
Equity, International City County Management Association, 
National League of Cities, National Association of Counties, 
U.S. Conference of Mayors, and National School Board 
Association; Robert Spiegel, director, Edison Wetlands 
Association, and Barbara Williams, owner, Sunnyray Restaurant, 
Gettysburg, PA, on behalf of the National Federation of 
Independent Business.
    On September 4, 1997, the Committee held a hearing on a 
revised draft of S. 8. Testimony was given by the following 
witnesses: The Honorable Carol M. Browner, Administrator, U.S. 
Environmental Protection Agency; Robert N. Burt, chairman and 
chief executive officer, FMC Corporation on behalf of the 
Business Roundtable; Susan Eckerly, director for Federal 
Government relations, National Federation of Independent 
Business; Karen Florini, Senior Attorney, Environmental Defense 
Fund; Gordon J. Johnson, Deputy Bureau Chief, Environmental 
Protection Bureau, New York State Attorney General's Office, on 
behalf of the National Association of Attorneys General; George 
Mannina, executive director, Coalition for NRD Reform; E. 
Benjamin Nelson, Governor, State of Nebraska, on behalf of the 
National Governors' Association; James P. Perron, Mayor, 
Elkhart, IN, on behalf of the U.S. Conference of Mayors; and 
Wilma Subra, president, Subra Company, New Iberia, LA.

                             Rollcall Votes

    Section 7(b) of rule XXVI of the Standing Rules of the 
Senate and the rules of the Committee on Environment and Public 
Works require that any rollcall votes taken during the 
Committee's consideration of a bill be noted in the report.
    The Committee met to consider S. 8 on March 24, 25, and 26, 
1998, and held the following rollcall votes:
    On March 25, 1998, an amendment by Senator Lautenberg 
(which had been offered in the markup session of March 24), to 
delete the provision establishing the voluntary cleanup 
program, was defeated by 7 yeas and 11 nays. Voting in favor 
were Senators Baucus, Boxer, Lautenberg, Lieberman, Moynihan, 
Reid, and Wyden; and voting against were Senators Allard, Bond, 
Chafee, Graham, Hutchinson, Inhofe, Kempthorne, Sessions, Smith 
of New Hampshire, Thomas, and Warner.
    On March 25, 1998, an amendment offered by Senator Baucus, 
to ensure that Federal authorities are not limited if a State 
voluntary response program fails to contain basic elements, was 
defeated by 7 yeas and 11 nays. Voting in favor were Senators 
Baucus, Boxer, Lautenberg, Lieberman, Moynihan, Reid, and 
Wyden; and voting against were Senators Allard, Bond, Chafee, 
Graham, Hutchinson, Inhofe, Kempthorne, Sessions, Smith of New 
Hampshire, Thomas, and Warner.
    On March 25, 1998, an amendment offered by Senator 
Kempthorne on Natural Resource Damages was approved by 11 yeas, 
4 nays, and 3 not voting. Voting in favor were Senators Allard, 
Bond, Chafee, Graham, Hutchinson, Inhofe, Kempthorne, Sessions, 
Smith of New Hampshire, Thomas, and Warner; voting against were 
Senators Baucus, Boxer, Lautenberg, and Moynihan; not voting 
were Senators Lieberman, Reid, and Wyden.
    On March 26, 1998, an amendment offered by Senator Chafee, 
in the form of a manager's amendment, was approved by 11 yeas, 
6 nays, and 1 not voting. Voting in favor were Senators Allard, 
Bond, Chafee, Graham, Hutchinson, Inhofe, Kempthorne, Sessions, 
Smith of New Hampshire, Thomas, and Warner; voting against were 
Senators Baucus, Boxer, Lautenberg, Moynihan, Reid, and Wyden; 
and not voting was Senator Lieberman.
    On March 26, 1998, an amendment offered by Senator Boxer on 
uncontaminated ground water was defeated by 7 yeas and 11 nays. 
Voting in favor were Senators Baucus, Boxer, Lautenberg, 
Lieberman, Moynihan, Reid, and Wyden; and voting against were 
Senators Allard, Bond, Chafee, Graham, Hutchinson, Inhofe, 
Kempthorne, Sessions, Smith of New Hampshire, Thomas, and 
Warner.
    On March 26, 1998, an amendment offered by Senator 
Lautenberg on the community role in decisionmaking was defeated 
by 8 yeas and 10 nays. Voting in favor were Senators Baucus, 
Boxer, Graham, Lautenberg, Lieberman, Moynihan, Reid, and 
Wyden; and voting against were Senators Allard, Bond, Chafee, 
Hutchinson, Inhofe, Kempthorne, Sessions, Smith of New 
Hampshire, Thomas, and Warner.
    On March 26, 1998, an amendment offered by Senator Baucus 
on preference for treatment was defeated by 7 yeas and 11 nays. 
Voting in favor were Senators Baucus, Boxer, Lautenberg, 
Lieberman, Moynihan, Reid, and Wyden; and voting against were 
Senators Allard, Bond, Chafee, Graham, Hutchinson, Inhofe, 
Kempthorne, Sessions, Smith of New Hampshire, Thomas, and 
Warner.
    On March 26, 1998, the S. 8 was ordered reported, as 
amended by the Committee, by 11 yeas and 7 nays. Voting in 
favor were Senators Allard, Bond, Chafee, Graham, Hutchinson, 
Inhofe, Kempthorne, Sessions, Smith of New Hampshire, Thomas, 
and Warner; and voting against were Senators Baucus, Boxer, 
Lautenberg, Lieberman, Moynihan, Reid, and Wyden.

                           Regulatory Impact

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact of the bill. In general, 
the bill is expected to reduce the regulatory burdens and costs 
of potentially responsible parties at facilities listed on the 
NPL. The bill will also reduce regulatory burdens and costs at 
the numerous sites with potential or real hazardous substance 
contamination that are not listed on the NPL, but are cleaned 
up under other Federal or State authority. EPA has identified 
over 41,000 such sites since Superfund's inception, and 
estimates of the total number of such sites nationwide are as 
high as 400,000. The bill will not affect the personal privacy 
of individuals.
    Superfund is not a traditional regulatory program such as 
the Clean Air Act or the Federal Water Pollution Control Act. 
Those statutes establish national regulatory regimes that 
govern all entities engaged in specified activities. Superfund 
is essentially an enforcement program; its requirements apply 
at sites that are of interest to the Federal Government. 
Superfund cleanup regulations only apply to those sites that 
are nominated and added to the NPL after a public notice and 
comment period, or at sites that are the subject of some other 
Federal enforcement action, response action, or natural 
resource damage restoration. A Federal cause of action under 
Superfund exists at any facility where a party incurs response 
costs. However the liability allocation system, exemptions, and 
limitations in the bill only apply at NPL facilities.
    The potential universe of sites affected by the bill's 
regulatory changes is therefore largely a function of the 
Federal Government's enforcement discretion. The current 
universe of NPL facilities is 1,197, with 54 listings proposed 
but not final. EPA has used Superfund authority to conduct an 
additional 5,000 removal action. Some of the removal actions 
have occurred at facilities subsequently listed on the NPL, and 
some facilities have been the subject of multiple removal 
actions.
    The bill requires the President to make significant 
revisions to the existing Superfund program. This will include 
revisions to the National Contingency Plan and regulations 
regarding the assessment of damages to natural resources. New 
regulations will be required to implement the brownfield and 
State voluntary cleanup assistance programs in Title I, 
delegation and authorization of State programs in Titles II and 
VI, expansion of community participation in Title III, 
allocation system in Title V.
    The regulatory changes required by the bill are expected to 
speed up the process of cleaning up Superfund sites and reduce 
some of the burdens associated with the conduct of a cleanup 
and the resolution of liability for cleanup. The changes in the 
National Contingency Plan will result in less costly cleanups 
due to the elimination of burdensome requirements in existing 
law, coupled with additional flexibility for the remedial 
decisionmaker to select cost-effective remedies that protect 
human health and the environment.
    Liability system changes include an allocation system that 
will provide orphan share funding paid from a segregated direct 
spending account, plus other policy-based exemptions or 
limitations from liability. No individual party's liability 
burden will increase under the bill, though the liability of 
many parties will be reduced or eliminated. The bill 
establishes several temporary moratoria on litigation to 
recover response costs during the settlement or allocation 
process. It is expected that the costs to the private sector 
due to the litigation moratoria will be negligible, and that 
the benefits of the exemptions, limitations and orphan share 
funding will far outweigh any short-term costs incurred.
    The bill will not result in any increased paperwork burden 
for individuals. The current liability system requires 
individuals to produce evidence to establish defenses to 
liability, demonstrate eligibility for participation in de 
minimis settlements, or provide information needed by the 
Federal Government or a Court to develop or evaluate 
settlements. The bill does not affect these requirements.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4), the Committee makes the following evaluation 
of the Federal mandates contained in the bill. Title V of the 
bill limits or eliminates liability for certain parties under 
Federal and State laws for future cleanup costs at Superfund 
sites. Currently, States can sue PRPs at a Superfund site under 
their own hazardous waste cleanup laws, and PRPs can pursue 
other PRPs under State cost recovery laws. The bill preempts 
the application of State law to future cleanup costs subject to 
an allocation. However, the costs of meeting this requirement 
are not significant.
    The purpose for preempting State law for costs subject to a 
liability allocation is to provide certainty to the parties who 
participated in the allocation. These allocations will be more 
successful if PRPs can be assured that the liability share they 
received will not be disturbed by a party seeking a different 
outcome under State law. Since States and PRPs rarely undertake 
actions against PRPs at Superfund sites under State laws, the 
impacts of this provision are not significant. Similarly, those 
States whose cleanup laws establish joint and several liability 
could in many cases recover their costs from other PRPs at the 
site. Therefore, the costs of meeting this requirement are not 
significant.
    Section 506 of the bill contains a national uniform 
negligence standard for the activities of a response action 
contractor. This provision would constitute an 
intergovernmental mandate under UMRA. Nonetheless, this 
provision contains language that prevents the application of 
the national uniform negligence standard in those cases where a 
State has adopted, by statute, a law determining the liability 
of a response action contractor (RAC). The practical effect of 
this language is to clarify that State law would not be 
preempted where a State has an existing or future statute 
regarding RAC liability, but would result only in the 
preemption of common law RAC negligence standards. Because a 
State would be free to apply its own statues, the cost of 
meeting this requirement is not significant.
    While the bill does contain the aforementioned preemptive 
elements, they are not significant, and do not exceed the 
threshold established in UMRA ($50 million in 1996, indexed 
annually for inflation). Finally, the bill does not have any 
discernible effect on the competitive balance between the 
public and private sectors.

               Comment from the General Accounting Office

    The Committee sought comment from the U.S. General 
Accounting Office on the status of the Superfund Trust Fund. 
The response follows:

                                               B-279673    
                            U.S. General Accounting Office,
                                    Washington, DC, April 16, 1998.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate.

Hon. Robert C. Smith, Chairman,
Subcommittee on Superfund, Waste Control, and Risk Assessment,
Committee on Environment and Public Works,
United States Senate.

         Subject: Superfund: Status of the Superfund Trust Fund

    In 1980, the Congress passed the Comprehensive 
Environmental Response, Compensation, and Liability Act 
(CERCLA), which created the Superfund program to clean up 
hazardous waste sites. Under the act, the Environmental 
Protection Agency (EPA) has the authority to compel the parties 
responsible for the contamination to perform the cleanup. EPA 
may also pay for the cleanup and attempt to recover the cleanup 
costs from responsible parties. CERCLA also established the 
Hazardous Substance Superfund (commonly referred to as the 
Superfund Trust Fund) to provide EPA the resources needed to 
clean up hazardous waste sites. The Trust Fund has been 
financed primarily by a tax on crude oil and certain chemicals 
and by an environmental tax on corporations. However, these 
taxes expired in December 1995. Other sources of revenue for 
the Trust Fund include amounts recovered from the private 
parties responsible for the hazardous waste sites, interest 
earned on the unexpended balance in the fund, fines and 
penalties and appropriations made available from general 
revenues (i.e., from Treasury's General Fund).
    Given the expiration of the crude oil, chemical, and 
environmental taxes in December 1995, you asked us to report on 
the status of the Trust Fund. Specifically, you asked us to 
report on (l) the amount of Trust Fund resources available for 
appropriation in future years if the taxes that expired in 1995 
are not reinstated and (2) the existence of any impediments to 
funding the Superfund program from general revenues.
    In summary, we found the following:
      LLAs of September 30, 1997, the unappropriated 
balance in the Trust Fund was about $2.63 billion. For fiscal 
year 1998, the Congress made $1.5 billion available for the 
Superfund program--$1.25 billion from the unappropriated Trust 
Fund balance and $250 million from general revenues--leaving a 
balance of about $1.38 billion potentially available for future 
appropriations. In addition, the Trust Fund is projected to 
receive income (primarily from interest and recoveries) during 
fiscal year 1998 of about $396 million. With this projection, 
about $1.78 billion may be available in the Trust Fund for 
future appropriations by the end of fiscal year 1998. The 
availability of Trust Fund resources for appropriation beyond 
fiscal year 1999 is less certain and depends on variables such 
as the amount actually made available to EPA for fiscal year 
1999, and the actual amount of interest and recoveries realized 
in fiscal years 1998 and 1999.
      LLOur discussions with executive and legislative 
branch officials and our own research did not identify any 
provision in law or the congressional budget agreement that 
would preclude funding the Superfund program entirely from 
general revenues.

                  BALANCES IN THE SUPERFUND TRUST FUND

    EPA's audited financial statements for fiscal year 1997 
show that, as of September 30, 1997, the Trust Fund had an 
unappropriated balance of $2.63 billion. For fiscal year 1998, 
the Congress made $1.5 billion available to the Superfund 
program ($1.25 billion from the Trust Fund plus $250 million 
from general revenues), leaving $1.38 billion potentially 
available for future appropriations. Although the taxes that 
were the major source of income for the Trust Fund expired in 
December 1995, the fund continues to receive income, primarily 
from interest on the unexpended balance and recoveries from 
private parties who are responsible to reimburse EPA for 
cleanup costs at hazardous waste sites. The amount potentially 
available for appropriation from the Trust Fund for fiscal year 
1999 includes the $1.38 billion mentioned above plus income 
realized during fiscal year 1998.
    The President's fiscal year 1999 budget estimates that the 
Superfund Trust Fund will earn about $396 million during fiscal 
year 1998--$217 million in interest and $175 in recoveries, 
plus $4 million in fines and penalties. We obtained actual 
income information from the Department of the Treasury, which 
maintains the Trust Fund accounts and processes all of EPA's 
receipts and disbursements. The income statement for the Trust 
Fund shows that in the first 5 months of fiscal year 1998 
(October 1997 through February 1998), the Trust Fund earned 
about $226 million in interest, recoveries, and fines and 
penalties (or 57 percent of the amount estimated for the entire 
year). While there is uncertainty about the amount of income 
that the Trust Fund will earn for the remainder of fiscal year 
1998, particularly from recoveries, which flow into the fund on 
an uneven basis, it appears that the total income may be 
somewhat higher for fiscal year 1998 than projected in the 
budget estimate.
    In addition to the amount potentially available for 
appropriations from the Trust Fund ($1.38 billion) and the 
income being earned in fiscal year 1998, the President's budget 
for fiscal year 1999 estimates additional support of $250 
million from general revenues. Taken together, these revenue 
sources total over $2 billion that may be available to fund the 
Superfund program for fiscal year 1999. The President's fiscal 
year 1999 budget anticipates that $2.093 billion will be 
available for the program for fiscal year 1999.
    The amount of the unappropriated balance in the Trust Fund 
to fund the program beyond fiscal year 1999 is uncertain. The 
balance depends on whether the additional $650 million provided 
for in the fiscal year 1998 appropriations act is made 
available to EPA in 1999, the actual level of appropriations 
for fiscal year 1999, and the actual amount of income 
(primarily, interest and recoveries) that will be realized in 
fiscal years 1998 and 1999.

          FUNDING THE SUPERFUND PROGRAM FROM GENERAL REVENUES

    Our discussions with officials from the Congressional 
Budget Office, EPA, and the Office of Management and Budget did 
not identify any provisions of law or the congressional budget 
resolution that would preclude funding the Superfund program 
entirely from general revenues. Similarly, in July 1996, the 
Congressional Budget Office reported to the Congress that if 
the Trust Fund runs short of cash, the Congress could choose to 
fund the program from the General Fund indefinitely. 
Additionally, our review of pertinent legislation and the 
concurrent resolution on the budget for fiscal year 1998 (which 
established budget levels for fiscal years 1998 through 2002) 
confirmed these views.

                            AGENCY COMMENTS

    We provided EPA with a draft of this report for its review 
and comment. We met with EPA officials, including the Branch 
Chief of the Trust Funds and Administration Analysis Branch in 
EPA's Office of the Comptroller, to obtain their comments. 
These officials said that overall the report provides a fair 
treatment of the facts. EPA also provided a few technical 
clarifications, which have been incorporated in this report, as 
appropriate.

                         SCOPE AND METHODOLOGY

    To prepare this report, we held discussions with, and 
obtained and analyzed information provided by, officials from 
EPA, the Department of the Treasury, the Office of Management 
and Budget, and the Congressional Budget Office.
    To identify the amount of Superfund Trust Fund resources 
available for future appropriations, we reviewed the audited 
financial statements prepared by EPA's Office of Inspector 
General for the end of fiscal year 1997. To update these 
figures, we obtained the most current income statement for the 
Trust Fund from the Department of the Treasury. To identify 
projected recoveries, we spoke to EPA's Office of Enforcement 
and Compliance Assurance. We also discussed other line items in 
the Superfund Trust Fund budget with an official at the Office 
of Management and Budget. We discussed our methodology with the 
Congressional Budget Office's Division of Natural Resource and 
Commerce, Division of Budget Analysis, and Division of Tax 
Analysis.
    To address the issue of funding the program entirely out of 
general revenues, we spoke to the same officials at the 
Congressional Budget Office, the Office of Management and 
Budget, and EPA. We also reviewed pertinent Superfund 
legislation and congressional budget resolutions. We conducted 
our review in March and April 1998 in accordance with generally 
accepted government auditing standards.
    Major contributors to this report were Charles Barchok, 
Karen Kemper, and Richard Johnson.
                                       Lawrence J. Dyckman,
               Associate Director, Environmental Protection Issues.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                       Washington, DC, May 4, 1998.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 8, the Superfund 
Cleanup Acceleration Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts for Federal 
costs are Kim Cawley, who can be reached at 226-2860, and Perry 
Beider, who can be reached a 226-2940. The contact for the 
State and local impact is Pepper Santalucia, who can be reached 
at 225-3220, and the contacts for the private-sector impact are 
Patrice Gordon and Perry Beider, both of whom can be reached at 
226-2940.

            Sincerely,
                                           June E. O'Neill,
                                                          Director.
                                ------                                


               Congressional Budget Office Cost Estimate

    S. 8, Superfund Cleanup Acceleration Act of 1998, as 
ordered reported by the Senate Committee on Environment and 
Public Works on March 26, 1998.
Summary
    S. 8 would amend and reauthorize spending for the 
Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA), commonly known as the Superfund 
Act, which governs the cleanup of sites contaminated with 
hazardous substances. Because the bill would affect direct 
spending, pay-as-you-go procedures would apply.
    The Superfund program is administered by the Environmental 
Protection Agency (EPA), which evaluates the need for cleanup 
at sites brought to its attention, identifies parties liable 
for the costs of cleanup, and oversees cleanups conducted 
either by its own contractors or by the liable parties. These 
EPA activities are currently funded by appropriations from the 
Hazardous Substance Superfund Trust Fund and from the general 
fund of the Treasury.
    The bill would authorize appropriations of about $8 billion 
over the 1999-2003 period for the Superfund program. In 
addition, S. 8 would provide direct spending authority of about 
$1.3 billion over the same period for EPA to compensate certain 
private parties for completing cleanup activities for which 
they are not liable. Such cleanup costs would be defined as 
``orphan share'' spending under S. 8. Finally, the bill would 
result in a decrease in the amounts recovered by EPA from 
private parties who are liable for cleanup expenses incurred by 
that agency and would authorize EPA to spend the recovered sums 
without further appropriation. (Under current law, such 
recoveries are deposited in the Superfund Trust Fund, and any 
spending authority is subject to appropriation action.) New 
direct spending related to those recoveries would total about 
$1.2 billion over the 1999-2003 period.
    S. 8 would impose intergovernmental mandates as defined in 
Unfunded Mandates Reform Act of 1995 (UMRA). However, CBO 
estimates that the costs of complying with these mandates would 
not be significant and would not exceed the threshold 
established in the law ($50 million in 1996, indexed annually 
for inflation).
    S. 8 also would impose private-sector mandates as defined 
in UMRA by setting a temporary moratorium on certain lawsuits. 
CBO estimates that the direct costs of complying with these 
mandates would be well below the statutory threshold specified 
in UMRA ($100 million in 1996 dollars adjusted annually for 
inflation). Overall, the bill would tend to lower the costs to 
the private sector of complying with regulations under CERCLA.
Estimated Cost to the Federal Government
    The estimated budgetary impact of S. 8 is shown in the 
following table. The costs of this legislation fall within 
budget function 300 (natural resources and environment).

                                                                                                                
                                     By fiscal year, in millions of dollars                                     
----------------------------------------------------------------------------------------------------------------
                                                              1998     1999     2000     2001     2002     2003 
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION                                                                               
Superfund Spending Under Current Law......................                                                      
    Budget Authority \1\..................................    1,500      650        0        0        0        0
    Estimated Outlays.....................................    1,428    1,237      774      355      143       38
                                                                                                                
Proposed Changes..........................................                                                      
    Estimated Authorization Level.........................        0    1,609    1,609    1,609    1,609    1,609
    Estimated Outlays.....................................        0      408      987    1,308    1,458    1,533
                                                                                                                
Superfund Spending Under S. 8.............................                                                      
    Estimated Budget Authority/Authorization Level \1\....    1,500    2,259    1,609    1,609    1,609    1,609
    Estimated Outlays.....................................    1,428    1,645    1,761    1,663    1,601    1,571
                                                                                                                
CHANGES IN DIRECT SPENDING                                                                                      
Spending for Orphan Shares................................                                                      
    Estimated Budget Authority............................        0       91      350      300      300      300
    Estimated Outlays.....................................        0       91      350      300      300      300
                                                                                                                
Changes to Superfund Recoveries...........................                                                      
    Estimated Budget Authority............................        0      350      300      300      300      250
    Estimated Outlays.....................................        0       88      209      267      307      293
                                                                                                                
Total Changes in Direct Spending..........................                                                      
    Estimated Budget Authority............................        0      441      650      600      600      550
    Estimated Outlays.....................................        0      179      559      567      607     593 
----------------------------------------------------------------------------------------------------------------
\1\ The 1998 level is the amount appropriated for that year; the 1999 level reflects an advance appropriation   
  for 1999 made in 1998.                                                                                        

                           Basis of Estimate

    For purposes of this estimate, CBO assumes that S. 8 will 
be enacted by the end of this fiscal year, and that all funds 
authorized by the bill will be appropriated in equal annual 
amounts over the next 5 years. Estimated outlays are based on 
the historical spending patterns of the Superfund program.
Spending Subject to Appropriation
    Superfund Program. Title IX would authorize appropriations 
totaling $7.5 billion over the 1999-2003 period for EPA 
activities in support of the Superfund program. In addition, 
this title would authorize appropriations of $15 million over 
the 1999-2003 period for technical assistance grants to 
community action groups affected by a Superfund site. Title I 
would authorize the appropriation of $75 million annually over 
the 5-year period for grants to be used for site 
characterization, assessment, and cleanup actions at brownfield 
facilities. (Brownfield facilities are properties where the 
presence, or potential presence, of a hazardous substance 
complicates the expansion or redevelopment of the property.) 
These funds could also be used by States and local governments 
to establish revolving loan funds to provide money for eligible 
work at brownfield facilities. Title I also would authorize the 
appropriation of $25 million annually over the 1999-2003 period 
for grants to States to establish programs to facilitate the 
voluntary cleanup of properties contaminated with hazardous 
materials.
    Coeur d'Alene Basin. Title VII would authorize the 
appropriation of $5 million to Idaho to develop and implement a 
plan to restore, manage, and enhance the natural recovery of 
the Coeur d'Alene basin in Idaho. In addition, this title would 
authorize the appropriation of such sums as are necessary to 
the Federal trustees within the Coeur d'Alene basin to pay for 
the Federal costs associated with implementing a plan to 
restore the basin. We estimate that those costs would total 
about $20 million over the next 5 years, but that over the long 
term, total restoration costs could be much greater.
    Federal land managers (the Federal trustees) in this region 
include the Fish and Wildlife Service and the Forest Service. 
The basin in northern Idaho is over 3,000 square miles in size. 
Parts of this region have been contaminated with millions of 
tons of mining tailings and contaminated sediments from metals 
mining and ore processing activities in this area. The basin 
area includes one current Superfund site.
    S. 8 would require the Coeur d'Alene Basin Commission (an 
existing group that includes representatives of industry and of 
Federal, State, and local governments) to prepare a plan within 
2 years to restore, manage, and enhance the natural recovery of 
the basin. The amount and the timing of Federal funds that 
would be needed to implement such a plan is uncertain because 
it is unclear how much the plan would emphasize the enhancement 
of the natural recovery of the basin instead of traditional 
remedial actions to restore the basin. Also, until the plan is 
completed, CBO does not know which parts of the basin would be 
targeted for restoration. Preliminary estimates of the cost to 
restore the area range from less than $100 million to $1 
billion. Currently, the commission spends about $3 million 
annually on planning and restoration activities. It is also 
unclear how much of the cost the plan would assign to Federal 
agencies with responsibilities within the basin.
    CBO estimates that, over the next 5 years, the Federal 
contribution to implementing the basin restoration plan would 
be $5 million annually. In the decades ahead, however, Federal 
costs could be much larger, depending on the size of the region 
targeted and the approach to restoration that is adopted under 
the plan. Any Federal funds provided for restoring the basin 
would be subject to future appropriation acts.
    Superfund Cleanup Costs At Federal Sites. S. 8 would amend 
the procedures EPA uses to select appropriate cleanup solutions 
(known as remedies) at each Superfund site. Title IV would 
require EPA to consider future land use at a site when 
selecting an appropriate remedy, and would add reasonable cost 
as a factor to consider in remedy selection. The bill would 
also allow EPA to delegate oversight of the Superfund program 
for Federal facilities to individual States that choose to 
undertake this work. These changes in the remedy selection 
procedures and oversight could change the cost of future 
cleanup projects at Federal facilities. However, any savings or 
increases in costs would be small in the next 5 years because 
the changes would not dramatically affect spending at sites 
where remediation has begun.
Direct Spending
    Reimbursement for Orphan Share Spending. Title V would 
establish an entitlement to reimbursement from the Federal 
Government for certain Superfund cleanup expenditures made by 
private parties who are not liable for such costs. Title 9 
would limit the amount of such reimbursements to $200 million 
in 1999, $350 million in 2000, $300 million a year from 2001 
through 2003, and $250 million a year in 2004 and thereafter. 
Based on information from EPA, CBO estimates Government 
reimbursements would be about $ 1.3 billion over the 1999-2003 
period. Specifically, we expect that the new orphan share 
spending would be at the annual caps for 2000 through 2003, but 
significantly below the cap in the initial year of 1999.
    Title V would make several important changes to current law 
concerning Superfund liabilities of private parties and the 
procedures for allocating cleanup responsibilities equitably 
among the multiple ``potentially responsible parties,'' or PRPs 
(site owners and operators, and offsite parties that 
contributed hazardous substances), involved in a cleanup 
project. Section 504 defines how an independent ``allocator,'' 
chosen by EPA and the PRPs at a site, would determine the share 
of the cleanup costs that each PRP must contribute.
    The allocator would also be charged with determining the 
size of any ``orphan shares'' at a given site. Under S. 8, 
orphan shares consist primarily of two components, any 
liability assigned to defunct or insolvent private parties, and 
any liability that is eliminated or reduced by the provisions 
of the bill. In addition, S. 8 would eliminate, limit, or 
reduce the cleanup liability for some PRPs--notably small 
businesses, municipal governments that owned or operated 
landfills, and generators and transporters of municipal solid 
waste or recyclable materials. The difference between the 
cleanup cost attributed to a party by the allocator and a 
smaller amount actually paid by the party, because of a 
liability exemption, reduction, or limitation resulting from 
enactment of S. 8, would also become part of the orphan share. 
Based on the characteristics of sites currently in the 
Superfund program, CBO estimates that approximately one-third 
of cleanup costs would be assigned to the orphan share.
    The orphan share of Superfund cleanup expenses would be 
paid initially by one or more PRPs, who would later be 
reimbursed by the Federal Government. Based on information from 
EPA, CBO estimates that reimbursements for orphan shares would 
begin in late 1999, and would increase as cleanup progresses at 
sites currently undergoing remediation and as additional 
cleanup allocations are made and settlements reached under the 
new law. CBO estimates that direct spending resulting from this 
provision would be about $90 million in 1999 and at the caps 
cited above in subsequent years because, beginning in 2000, the 
demand for reimbursements would probably exceed the spending 
caps imposed by the bill. Spending would continue for many 
years into the future, though outlays in any 1 year could not 
exceed the annual limits set in Title IX. PRPs entitled to 
reimbursement of orphan share costs that would cause the 
Government to spend more than the annual limits in Title IX 
would be entitled to reimbursement (with interest) in the 
following year.
    Superfund Recoveries. EPA's enforcement program attempts to 
recover costs the agency incurs at cleanup projects that are 
the responsibility of private parties. Under current law, 
spending of the amounts recovered is subject to annual 
appropriation action, but Title IX would allow EPA to retain 
and spend any sums it recovers from PRPs at Superfund sites. 
Under current law, CBO estimates such recoveries would average 
about $300 million annually over the next 5 years. Under S. 8, 
however, such recoveries would decline because of the orphan 
share provisions and the changes made to the Superfund 
liability of private parties. As a result, we expect that 
enacting the bill would lead to a decrease in offsetting 
receipts to the Treasury of about $170 million over the 1999-
2003 period. In addition, we estimate the new authority to 
spend sums recovered from PRPs would result in new direct 
spending of about $ 1 billion over the next 5 years. In total, 
these provisions would cost about $1.2 billion over the 1999-
2003 period.

                      PAY-AS-YOU-GO CONSIDERATIONS

    Section 252 of the Balanced Budget and Emergency Deficit 
Control Act of 1985 sets up pay-as-you-go procedures for 
legislation affecting direct spending or receipts. The net 
changes in outlays that are subject to pay-as-you-go procedures 
are shown in the following table. For the purposes of enforcing 
pay-as-you-go procedures, only the effects in the current year, 
the budget year, and the succeeding 4 years are counted.

                                                                                                                                                        
                                                         By fiscal year, in millions of dollars                                                         
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   1998    1999    2000    2001    2002    2003    2004    2005    2006    2007    2008 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in outlays..............................................       0     179     559     567     607     593     529     508     497     468     455
Changes in receipts.............................................     N/A     N/A     N/A     N/A     N/A     N/A     N/A     N/A     N/A     N/A     N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------

        ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

    By preempting State laws and setting out new requirements 
for the State of Idaho, S. 8 would impose intergovernmental 
mandates as defined in UMRA. However, CBO estimates that the 
costs of complying with these mandates would not be significant 
and would not exceed the threshold established in the law ($50 
million in 1996, indexed annually for inflation). The bill 
would also benefit State, local, and tribal governments by 
reducing their share of cleanup costs.
Intergovernmental Mandates
    Preemption of State Liability Laws. Title V of the bill 
would limit or eliminate the liability of certain parties under 
Federal and State laws for future cleanup costs at Superfund 
sites. Parties receiving some liability relief would include 
generators and transporters of municipal solid waste and 
municipal owners or operators of certain landfills. Currently, 
States can sue PRPs at a Superfund site under their own 
hazardous waste cleanup laws. These preemptions of State laws 
would constitute intergovernmental mandates as defined in UMRA. 
However, according to EPA and State officials, States rarely 
take actions against PRPs at a Superfund site under their own 
laws. In addition, those States whose cleanup laws establish 
joint and several liability could in many cases recover their 
costs from other PRPs at the site. Therefore, COO estimates 
that the cost to States to comply with the mandates would not 
be significant.
    New Requirements for Idaho. Section 705 of the bill would 
require the Coeur d'Alene Basin Commission, an advisory 
committee of Idaho's environmental protection agency, to 
develop and submit to the Governor a plan to clean up the Coeur 
d'Alene river basin, which contains a Superfund site and has 
other environmental problems. The committee would have 2 years 
to submit the plan and the Governor would be required to 
finalize and implement the plan by negotiating enforceable 
agreements with responsible parties. The section would 
authorize appropriations of $5 million for the State to pay for 
the development and implementation of the plan. Under current 
law, the State is paying 10 percent of the costs of cleaning up 
a portion of the Superfund site in the river basin. It is 
unclear how much of the costs of implementing the plan the 
State would pay.
Other Impacts on State, Local, and Tribal Governments
    Enactment of S. 8 would benefit State, local, and tribal 
governments by creating new grant programs for States, 
affording States greater participation in cleanups, and 
relieving local governments from certain costs and liability 
under current law.
    New Grant Funding. Title I of the bill would create three 
new grant programs to fund State voluntary response programs 
and the assessment and cleanup of brownfield sites. States or 
localities would have to match some of the funds and pay for 
administering one of the programs. A total of $100 million for 
each of fiscal years 1999 through 2003 would be authorized for 
these programs.
    Expanded State Role. S. 8 would amend the current Superfund 
program to allow greater participation by the States. Under 
current law, States can enter into cooperative agreements with 
EPA to carry out most cleanup activities on a site-by-site 
basis, but only EPA has the authority to select the method of 
cleanup at each site. Under this bill, States could be granted 
the authority to apply their own cleanup requirements at 
Superfund sites within their borders or to perform certain 
regulatory activities under Federal law at the sites. States 
could also obtain the authority to oversee cleanups at 
federally owned Superfund sites. EPA would be authorized to 
provide grants to States or to enter into contracts or 
cooperative agreements with them. States receiving the 
authority to recover cleanup costs from responsible parties on 
behalf of the Federal Government would be allowed to retain 25 
percent of any Federal response costs recovered, as well as 
amounts equal to the States' own response costs.
    Lower State Cost-Share for Cleanups. S. 8 would lower the 
share of cleanup costs that State governments pay. Under 
current law, when the Federal Government conducts a site 
cleanup, the State in which the site is located must pay 10 
percent of the costs. If the site was owned or operated by the 
State or a local government, the State's share of the costs 
rises to at least 50 percent. States also must pay all 
operation and maintenance costs at a site after the cleanup is 
completed. S. 8 would amend the current arrangement to require 
States to pay 10 percent of all costs, including those for 
operation and maintenance. The bill would also lower States' 
share of the costs at sites owned or operated by State or local 
governments to 10 percent.
    Liability Relief for Local Governments. Two titles of the 
bill would limit or eliminate various parties' liability for 
cleanup costs. Title V would cap the liability of parties 
(including local governments) that generated or transported 
municipal solid waste or sewage sludge to a landfill that also 
accepted other wastes and that became a Superfund site. These 
landfills are known as ``co-disposal'' landfills. If they are 
not otherwise exempted from liability by the bill, these 
parties would have a total aggregate liability of 10 percent of 
cleanup costs.
    Title V would also cap the liability of municipalities that 
owned or operated co-disposal landfills on the NPL. Roughly 160 
(65 percent) of the approximately 250 co-disposal landfills on 
the NPL have at least one municipal owner or operator. With 
some exceptions, large municipalities would be held liable for 
no more than 20 percent of future cleanup costs, and small 
municipalities would be responsible for no more than 10 percent 
of the costs. Under current guidance, EPA can cap the liability 
of municipalities at 20 percent of estimated cleanup costs, 
although that percentage can be adjusted up or down for site-
specific factors. This title would also limit the liability of 
various local entities for cleanup costs at certain Superfund 
sites and would create an expedited settlement process for 
certain parties, including municipalities with a limited 
ability to pay.
    Limits on Natural Resource Damages. S. 8 would amend 
Federal law to limit the amount of money that the Federal 
Government, States, and Tribes could seek for damages to 
natural resources. Currently, governmental or tribal trustees 
can sue under Federal law for injury to, destruction of, or 
loss of natural resources. While this change could lower future 
damage awards that States and Tribes receive, many States could 
instead sue for damages under their own laws. As of 1995, 28 
States had laws allowing such suits.
    Lawsuit by the Coeur d'Alene Tribe. The bill could prevent 
the Coeur d'Alene Indian Tribe of Idaho from pursuing their 
pending lawsuit against several mining companies for damages to 
natural resources. The Tribe is seeking over $1 billion in 
damages. Section 705 would require the Governor of Idaho to 
seek to negotiate enforceable agreements with responsible 
parties in the Coeur d'Alene river basin regarding cleanup 
costs. Any party that settles with the Governor within 2 years 
would be protected from lawsuits under Federal environmental 
laws. Since the Tribe is suing the companies under CERCLA, this 
would preclude them from continuing their lawsuit. CBO cannot 
predict how much the Tribe would receive either from the 
pending lawsuit or from the agreements authorized by this bill.

                 ESTIMATED IMPACT ON THE PRIVATE SECTOR

    S. 8 would impose private-sector mandates by setting a 
temporary moratorium on litigation to recover response costs 
during the negotiation phase of an expedited settlement and 
during the determination phase of the allocation process. 
Section 503 would impose a temporary moratorium (for up to 1 
year) on litigation against parties engaged in an expedited 
settlement with the Federal Government. Under the bill, the 
Government would seek an expedited settlement in certain cases 
in which parties have a limited ability to pay or have made a 
small contribution to the hazardous substances (or toxic 
effect) at a site. Most of the parties that would be eligible 
for an expedited settlement under S. 8 would likely be 
protected from further liability under the expedited 
settlements granted under current law. Therefore, the cost of 
delaying potential litigation against such parties should be 
small.
    S. 8 would establish a new process for allocating liability 
at sites on Superfund's National Priorities List that meet 
certain criteria. The bill would impose a private-sector 
mandate by setting a temporary moratorium on litigation aimed 
at recovering response costs during the determination phase of 
the allocation process. Specifically, section 504 would 
prohibit anyone from asserting a claim until 4 months after the 
release of a final allocation report. (At the same time, the 
bill would allow potentially responsible parties to nominate 
other parties for consideration in the allocation process.) An 
allocation report would be released at the end of the 
determination phase, and would contain a list of parties deemed 
to be responsible for recovery costs at a Superfund site. CBO 
expects that the costs of delaying a claim to recover cleanup 
costs would be negligible, primarily because post-moratorium 
litigation is likely to be rare in view of the incentives to 
settle for the allocated share under the new process.
    Under current law, the liability standard for a Superfund 
site is retroactive, strict, and generally joint and several. 
Liability is retroactive because it applies to contamination 
caused by activities that took place before CERCLA was enacted 
in 1980. Liability is strict because a responsible party is 
liable even if it was not negligent. Liability is joint and 
several in cases where the responsibility for contamination at 
a site is not easily divisible. In such cases, the Government 
can hold one or more parties liable for the full costs of 
cleanup, even if other parties at the site are liable. Current 
law also permits third-party lawsuits, in which parties held 
responsible by EPA (or by other responsible parties) may sue 
others who do not settle with the Government for contribution.
    Generally, provisions of the bill are meant to speed up the 
process of cleanup at Superfund sites and reduce some of the 
burdens of compliance. S. 8 would direct the Government to 
identify the costs attributed to responsible parties exempted 
under the bill (orphan shares) and to cover the balance of 
costs left over when allocation shares have been capped or 
limited according to the rules specified in the bill. Projects 
covered by the allocation process would include new cleanup 
projects and ongoing projects that fit certain criteria in the 
bill. Potentially responsible parties at cleanup projects at 
certain other Superfund sites would be allowed to request the 
new allocation process, but an orphan share allocation would 
not apply in those cases. Because the Government would be 
responsible for covering the costs of the orphan shares, the 
portion of cleanup costs allocated to the private sector under 
the new allocation process would be lower than under current 
law.
    Estimate Prepared by: Federal Costs: Kim Cawley (226-2860) 
and Perry Beider (226-2940); Impact on State, Local, and Tribal 
Governments: Pepper Santalucia (225-3220); Impact on the 
Private Sector: Patrice Gordon and Perry Beider (226-2940).
    Estimate Approved by: Paul N. Van de Water, Assistant 
Director for Budget Analysis.
                 ADDITIONAL VIEWS OF SENATOR KEMPTHORNE

    One of the most difficult issues to resolve on Superfund 
reauthorization has been the restoration of natural resources. 
Natural resource damages are a battleground where the two sides 
have lined up on opposite sides of the courtroom. 
Unfortunately, with such a gulf separating the parties, both 
the environment and common sense have wound up the loser.
    The focus of the natural resource damages program now is on 
collecting large sums of money a ``mad dash for cash'' and that 
leads to endless litigation without benefit to the environment.
    Instead, we need to focus on doing what needs to be done to 
restore resources. That doesn't necessarily mean that you have 
to remove every molecule of a contaminant, but you should have 
to restore fully functioning ecosystems for the public.
    The bill reflects our commitment both to restoring natural 
resources that are injured or destroyed and our appreciation of 
the value of our natural resources.

Intrinsic Values

    I believe that a person who has injured or destroyed a 
natural resource, whether it's a stream or a lake or a 
population of endangered swans, should be responsible for fully 
restoring the resource to the conditions that existed before 
the damage occurred. I also believe that a person should have 
to provide alternative, replacement resources to make up for 
the lost services that would have been provided by the 
resource. If you destroy a trout stream in a national park, you 
should have to provide alternative fishing opportunities until 
the original resource is restored. And where a natural resource 
has unique intrinsic values, as a wilderness area or endangered 
species does, trustees should be able to consider those values 
to accelerate or enhance the restoration to bring back those 
unique intrinsic values.
    Certain places and certain things have unique intrinsic 
values. Wilderness areas, national monuments, endangered and 
threatened species should be considered to have unique 
intrinsic value. A unique intrinsic value is that thing which 
is so important and so separate from the general natural world 
that it distinguishes itself from other places or things.
    Section 107(f)(3)(B) provides that in selecting the 
appropriate measure to restore, replace or acquire the 
equivalent of a natural resource injured or destroyed, the 
trustee may take into consideration the ``unique intrinsic 
values'' as a factor in determining how restoration should take 
place. This scaling factor can be used to select either a 
faster timetable for restoration than might otherwise be called 
for if those unique intrinsic values had not been injured or 
destroyed or to enhance the restoration of the natural resource 
to ``replace the intrinsic values lost.'' Replacing ``the 
intrinsic values lost'' is a key factor that should not be 
overlooked.
    It is common practice now for a natural resource damage 
claim to seek restoration above a fully restored and fully 
functioning ecosystem. The monetary valuation of that excess 
over restoration is often used for functions which do not 
contribute or replace the uniqueness that has been lost. For 
example, providing additional public access to the natural 
resource is a typical use of these funds. Under the bill, if a 
unique intrinsic value has been lost the trustee may seek to 
use it as a scaling factor for a quicker restoration or to 
enhance the restoration to replace the intrinsic values lost. 
But, the enhancement of restoration of the lost intrinsic 
values must take place on the property injured or destroyed and 
must be such that it actually replaces the intrinsic values 
lost. Adding public access to an isolated wilderness may not be 
appropriate if the unique intrinsic value lost was not a public 
access loss. The key point is that rather than use natural 
resource damages as a ``cash cow'' for pet projects, 
enhancement should be concentrated on the resource lost and not 
for laundry list of projects which do nothing to restore that 
which was lost.

The Bunker Hill Superfund Site

    The Bunker Hill Superfund Site in Idaho remains locked in a 
litigation morass. The parties have no incentive to come 
together in a collaborative spirit. They seem unable to resolve 
the problem because of the legal exposure inherent in 
Superfund.
    Because of the fear created by this litigation the parties 
are polarized by the consequences of the litigation. They have 
jointly sought participation in non-binding mediation but 
continued suspicion over the acts of some Federal agencies may 
have ``poisoned the well'' for cooperation.
    I think we should take a new approach and try to resolve 
this matter in the spirit of collaborative decision making for 
the good of the people of Idaho. That's why I have introduced 
this amendment to try to bring cooperation where there is 
polarization--to try to bring results where there is little to 
show for all of the efforts made to resolve this dispute.
    There exists now in Idaho a unique opportunity for the 
parties to come together in a real spirit of doing right by the 
State, the people and the land. That is the purpose of this 
amendment. Led by the Governor of the State of Idaho, a 
commission comprising State and local officials, citizens and 
industry, trustees, Federal agencies and the affected tribal 
representatives already exists and can be delegated this task.
    This broadly representative group will be charged with 
coming up with a plan for restoring the Coeur D'Alene Basin and 
determining the costs to be assessed against responsible 
parties.
    Once these agreements have been reached they will be 
submitted to the appropriate Federal district court for its 
approval to determine if the agreements are fair, reasonable 
and in the public interest. No one's interests will be 
foreclosed.
    Our interest should be to resolve costly litigation that 
wastes funds which could be used to heal the land. A State-led 
consensus-based alternative to the waste that is Superfund 
could only serve the purposes of the people and the land.
            ADDITIONAL VIEWS OF SENATOR CHRISTOPHER S. BOND

    In my opinion, what the public wants is a Federal 
Government that is more effective and cost-conscious in 
performing its responsibilities; therefore, government 
agencies, Federal bureaucrats, and Congress must stop 
protecting some of the most troubled and inefficient programs 
in government from meaningful reform. The Superfund program is 
one of those. Status quo is not acceptable.
    There is no dispute that the law is broken. It was enacted 
in a bipartisan effort to ensure that contaminated sites were 
identified and cleaned up as soon as possible. Unfortunately, 
it has been far more effective at disposing of public and 
private dollars than it has in solving hazardous waste 
problems. Even the General Accounting Office has identified the 
Superfund program as one of the Federal Government's high risk 
programs--meaning the levels of waste fraud, abuse and 
mismanagement are intolerable.
    As a member of the Environment and Public Works Committee 
and as Chairman of the Environmental Protection Agency's 
appropriations subcommittee I believe that it is imperative 
that, as we both authorize and appropriate scarce Federal 
resources--taxpayer dollars--for the Superfund program, we 
reform the program to ensure that those taxpayer resources are 
not wasted and that real risks to our citizens and the 
environment are rapidly reduced. The leadership provided by 
Senators Chafee and Smith that produced the legislation 
reported from the Committee moves the Superfund program in the 
right direction.
    S. 8 will make the Superfund program more reasonable and 
workable. S. 8 will not relieve polluters of their 
responsibility, but it will take a fairer approach to assigning 
responsibility for cleanup and restoration of damaged public 
natural resources. In addition, the legislation bases cleanup 
decisions on protecting health and the environment by reducing 
real risks under actual conditions encountered at each site. 
These reforms, along with the many others contained in the 
legislation, will encourage responsible parties to step up to 
the task at hand and discourage excessive litigation.
     There is a section of the bill that I believe needs some 
more attention--brownfields.
     Brownfields are undevelopable tracts of land that could 
contain real or just perceived environmental contamination. As 
the U.S. Conference of Mayors pointed out in their reports, 
brownfields exist in every region of our country. However, the 
majority appear to be located in older industrial cities in the 
Northeast and the Midwest.
     Brownfields contribute to the urban sprawl that has 
occurred across the country. Industry, private citizens, not-
for-profits, etc. shy away from these sites because of 
potential liability under the Superfund program. We must work 
to address the funding and liability issues associated with 
brownfields to get the maximum return for the Federal 
investment and to assist in the revitalization of these 
properties.
     I support the creation of a revolving loan fund for 
brownfields. I believe that by capitalizing Federal funds we 
can leverage State, local, and private sector funds which will 
maximize the use of the resources provided and result in more 
assessments and response actions at brownfield sites. I agree 
that flexibility for grants needs to be included. Consistent 
with the revolving loan funds for the Clean Water and Safe 
Drinking Water programs, there will be special ``need'' cases 
where loan fund dollars will not be appropriate. However, the 
focus should stay on revolving loan funds.
     I am concerned that the provisions included in the bill 
for a Brownfield Revolving Loan Fund are too bureaucratic and 
cumbersome. In addition, I believe that the 1 million 
population minimum for a city or area to create their own 
revolving loan fund with seed money from the Federal Government 
may be too high.
     As S. 8 moves forward I look forward to working out a more 
suitable process for a Brownfield Revolving Loan Fund. It is 
important that this issue is addressed so we can return old 
industrial sites to productive use.
            SUPPLEMENTAL VIEWS OF SENATORS ALLARD AND WYDEN

    On September 26, 1997, we introduced S. 1224, legislation 
to amend the Comprehensive Environmental Response, 
Compensation, and Liability Act to ensure Federal agency 
compliance with that law. On March 25 the Committee on 
Environment and Public Works accepted S. 1224 in the form of an 
amendment to the Superfund Cleanup Acceleration Act of 1998. 
This language is supported by the Association of State and 
Territorial Solid Waste Management Officials, the National 
Governors Association, the National Association of Attorneys 
General, and the State of Washington Department of Ecology.
    The Federal Government has a long and undistinguished clean 
up record at facilities that they have owned and/or operated. 
This was recognized in Section 120 of the Superfund Amendments 
and Reauthorization Act of 1986 (SARA) which stated, ``Each 
department, agency, and instrumentality of the United States 
(including the executive, legislative, and judicial branches of 
government) shall be subject to, and comply with, this chapter 
in the same manner and to the same extent, both procedurally 
and substantively, as any nongovernmental entity . . . .'' The 
author of this section, Senator Stafford of Vermont, stated on 
the floor at the time of SARA's passage that, ``In 1980, the 
Congress went to great pains to assure that the U.S. government 
was treated, in all respects, like any other responsible party. 
The law's definition of a person accords no special treatment 
for the United States  . . . [b]ut no loophole, it seems, is 
too small to be found by the Federal Government.'' Senator 
Stafford's remarks at the time were prescient: since then 
Federal agencies have had some degree of success in fighting 
attempts to ensure that there is adequate independent oversight 
of Federal facilities. Furthermore, they have often not lived 
up to the standards required of private parties and State and 
local officials with respect to cleanup. The Allard/Wyden 
amendment should finally eliminate procedural arguments and 
ensure that Federal agencies concentrate on cleaning up the 
environment and protecting human health at Federal sites on the 
National Priority List instead of trying to avoid their 
responsibilities. This amendment will also ensure that there is 
an arms length regulator who can ensure the protection of human 
health and the environment when Federal facilities are cleaned 
up.
    This amendment is not targeted at one Federal agency, many 
have been guilty of implementing a lower standard of cleanup 
than is required of private parties. Many cases are glaring, 
like the treatment of the Colorado School of Mines. On January 
25, 1992 a city water main burst near a facility called the 
Colorado School of Mines Research Institute (CSMRI) spilling 
water into and through a holding pond containing various 
residues of material from research done at the site in previous 
years into Clear Creek. Subsequent water testing showed no 
degradation of the water, however, EPA issued a Unilateral 
Administrative Order (UAO) for disposal of 22,000 cubic yards 
of material.
    The School of Mines and the State of Colorado accepted 
responsibility for the cleanup. Unfortunately, that cannot be 
said of Federal facilities who contributed to the stockpile 
that was subject of the order. Those Federal agencies include 
the Department of Defense, the Department of Energy, the Bureau 
of Mines, and the Environmental Protection Agency. While they 
participated in the research that caused the residue of 
material subject to the removal order, they did not participate 
in the removal efforts.
    This is a glaring example of the Federal Government's 
double standard. While the State-run School of Mines and 
several private companies were forced to pay for cleanup, 
Federal agencies which also did work at CSMRI escaped any 
liability. This forced the state of Colorado to pick up the 
Federal Government's share of the removal action, taking state 
dollars away from other priorities.
    The Allard/Wyden amendment would eliminate this double 
standard by requiring Federal agencies to comply with all 
Federal, State, and local laws, ``. . . in the same manner, and 
to the same extent as any non-governmental entity.''
    Our amendment would also address one of the most egregious 
examples of how this double standard has been applied at the 
Hanford cleanup site. One Federal court decision that applied 
to Hanford, the Heart of America case, would allow Hanford to 
pollute the air and water and also contaminate the soil for 
decades. The Hanford site would also be immunized for any 
violations that occur before the cleanup is completed sometime 
in the next century.
    This court ruling further allowed the interagency agreement 
among the Department of Energy, the Environmental Protection 
Agency, and the Washington Department of Ecology that governs 
the Hanford cleanup to be used as shield to block an 
enforcement action against the Department of Energy for 
violations of the Clean Water Act. The Superfund law only 
authorizes interagency agreements for Federal facilities; there 
is no comparable immunity from enforcement for private sector 
sites.
    The Allard/Wyden amendment would put an end to the double 
standard, two examples of which we have illustrated. The 
amendment makes clear that Federal agencies and Federal 
facilities are subject to the law now, not sometime off in the 
future. It is our view that it is not possible for the Federal 
Government to regulate itself. We believe the public health and 
the environment are best served by having an independent 
regulator ensuring that cleanup at Federal Superfund sites is 
done to applicable local, State, and Federal levels. This 
amendment will accomplish both goals.
  MINORITY VIEWS OF SENATORS BAUCUS, LAUTENBERG, MOYNIHAN, LIEBERMAN, 
                            BOXER, AND WYDEN

    We support legislation to improve the Superfund program. 
But we cannot support this bill.
    In 1994, we voted for a reform bill that was supported by 
everyone from the Chemical Manufacturers Association to the 
National Federation of Independent Businesses to the Sierra 
Club. Unfortunately, that bill was not enacted into law. Since 
then, the Administration has undertaken a series of important 
reforms. The Superfund program is now more effective than it 
was 4 years ago. Even so, we continue to believe that Congress 
should go further, to reform the Superfund law itself, to make 
its implementation more efficient, effective, and fair.
    More specifically, we support changes to the liability 
provisions that would take small parties out of the liability 
system and allow an allocation process, including the provision 
of orphan share funding, for the parties that remain in the 
system and agree to perform the site cleanup. We support a 
series of changes to the remedy selection provisions to make 
cleanups faster and less costly, without compromising 
protection of public health and the environment. We support a 
shift in the natural resource damages program to focus on 
restoring resources rather than monetizing claims. We support 
the appropriate codification of the Administration's reforms. 
We support changes to increase community participation in the 
remedy selection process. We support increased attention to 
public health concerns, especially the health of children, 
particularly if remedy reforms will result in fewer permanent 
remedies and more hazardous wastes left in place. We support an 
increased role for States, commensurate with their abilities. 
And we support incentives for the redevelopment of 
``brownfields,'' to help rebuild communities and create jobs.
    Provisions in S. 8 address these issues, sometimes 
successfully. For example, Senator Boxer's amendment providing 
that remedies must ensure the protection of children and other 
vulnerable subpopulations was approved by the Committee. 
Unfortunately, in addition to constructive reforms, the bill 
contains many provisions that would weaken current law, in ways 
that threaten public health and the environment.
    The new cleanup standards in the bill would reduce the 
level of public health protection. For example, the bill would 
so limit the current preference for cleanups that involve the 
treatment of hazardous waste that this preference would seldom 
if ever apply. As a result, many dangerous substances would be 
left in place, untreated, creating dangers to public health and 
the environment. Senators Baucus, Moynihan and Boxer offered an 
amendment to replace this provision with one that took a more 
moderate approach, but the amendment was defeated.
    The cleanup provisions also would make it more likely that 
clean groundwater will be contaminated. Senators Boxer, 
Moynihan and Wyden offered an amendment providing that cleanups 
must protect uncontaminated ground water and surface water 
unless doing so is technically infeasible (or limited migration 
of contamination is necessary to facilitate restoration of 
ground water to beneficial use), but the amendment was 
defeated.
    We support giving States a greater role in the Superfund 
program, especially at ``brownfields'' sites that do not 
present high risks to public health and the environment. But 
the bill would turn key elements of the Superfund program over 
to States, without adequate safeguards. We believe that we 
should take a balanced approach, along the lines that have 
worked with other environmental laws, like the Clean Water Act 
and the Safe Drinking Water Act. Senators Lautenberg, Moynihan 
and Baucus offered amendments to provide balance by requiring 
State voluntary cleanup programs to meet minimum criteria and 
by restoring EPA's authority to take action when there is 
imminent and substantial endangerment, but the amendments were 
defeated.
    The natural resource damages provisions would make it less 
likely that damaged natural resources will be fully restored. 
Most significantly, the bill would limit the ability of Federal 
agencies, States, and Tribes to account for the intrinsic value 
of rivers, lakes, forests, and other damaged natural resources. 
Senators Baucus and Moynihan offered an amendment to allow the 
full consideration of intrinsic values, but the amendment was 
defeated.
    The liability provisions would reopen settled cases. This 
would divert resources away from sites that are not yet being 
cleaned up, introduce a new set of complexities that create 
litigation and other transaction costs, drain money from the 
Superfund, create incentives for the harassment of small 
parties by other PRPs, and potentially give a windfall to 
certain companies. Senators Baucus and Lautenberg offered an 
amendment to delete the provision reopening settled cases, but 
the amendment was defeated.
    The brownfields grants provisions would bring EPA's 
successful brownfields grants program to a halt. They would 
transform EPA's current practice--under which EPA awards grants 
mostly to cities and towns--and require that EPA give grants to 
States for redistribution to cities and towns. This would add a 
layer of bureaucracy and complexity to the process, and would 
slow things down. Senator Lautenberg filed an amendment that 
would restore EPA's ability to deal directly with cities, 
towns, or States, but did not offer the amendment, in response 
to Senators Chafee and Smith's offer to try to resolve these 
issues before the bill gets to the floor.
    Given these and other provisions, we believe that the bill, 
taken as a whole, would make the Superfund program worse, not 
better. It would reduce the protection of human health and the 
environment, impede the full restoration of damaged natural 
resources, and, in important respects, unnecessarily promote or 
continue litigation.
    In any event, it is unlikely that the bill can become law 
in anything like it's present form. Before the Committee 
markup, the Secretary of the Interior, the Secretary of 
Agriculture, the Administrator of the Environmental Protection 
Agency, the Chairman of the Council on Environmental Quality, 
the Assistant Commerce Secretary for Oceans and Atmosphere, and 
the Acting Assistant Attorney General for Legislative Affairs 
all wrote letters strongly opposing the bill. After the 
Committee voted to report the bill, Vice President Gore issued 
a statement saying that the bill ``would sacrifice our 
environment and public health to the interests of polluters.'' 
(The letters and statement are attached.)
    Time is running out this Congress. Unless we resume 
negotiations and develop a bill that reflects a broad 
bipartisan consensus, we fear that, regrettably, the enactment 
of legislation to improve the Superfund program will once again 
elude us.

                          Office of the Vice President,    
                                           The White House,
                                                    March 26, 1998.
    statement of vice president gore on senate superfund legislation
    The Republican Superfund bill that the Senate Environment and 
Public Works Committee approved today would sacrifice our environment 
and public health to the interests of polluters.
    The Committee is doing more than producing Superfund legislation 
that we strongly oppose. Because current law bars the release of 
critical 1999 cleanup funds until Superfund legislation is enacted, the 
Republican Congress is trying to force the Administration to accept 
legislation that lets polluters off the hook. I urge Congress to reject 
this misguided legislation. But regardless of this bill's fate, I also 
urge Congress to release these critical cleanup funds without delay. 
Communities living under the threat of toxics should not have to wait 
any longer.
    This bill is part of a disturbing anti-environmental trend emerging 
in this Congress. On issues ranging from takings legislation to 
national forests to clean air, the 105th Congress appears all too 
willing to trade away hard-won environmental protections.
    This Administration has made its goals for Superfund legislation 
clear: speeding cleanups, cutting litigation, and making polluters pay 
for the harm they cause. At the start of this Congress, the President 
and I met with the Congressional leadership to convey our strong view 
that the Senate bill would move in exactly the wrong direction, 
weakening cleanup standards and abandoning the ``polluter pays'' 
principle.
    Chairman Chafee sought to develop consensus reforms, but the 
Committee has produced a terrible product. It incorporates extreme 
proposals advanced by an army of special-interest lobbyists seeking to 
weaken Superfund or erase the cleanup obligations of particular 
companies. These proposals are the result of a lobbying effort that 
began in the 104th Congress and has stymied the cause of commonsense 
Superfund reform ever since.
    We will continue to search for common ground on Superfund reform. 
But I once again urge Congress to disavow proposals that would weaken, 
instead of strengthen, the Superfund law.
                                 ______
                                 
                                     The Administrator,    
                      U.S. Environmental Protection Agency,
                              Washington, DC 20460, March 24, 1998.

Hon. Max Baucus,
United States Senate,
Washington, DC 20510.

Dear Mr. Baucus: I am writing to voice my concerns on the latest 
version of S. 8 that will be marked up by the Senate Environment and 
Public Works Committee on March 24.
    I appreciate the hard work that you and Senators Smith, Chafee, and 
Lautenberg, other Committee members, and majority and minority staff 
have devoted to Superfund reform legislation. The new Chairman's mark 
has addressed some of the areas of concern I identified at the 
September 4, 1997 hearing before the Subcommittee on Superfund, Waste 
Control, and Risk Assessment. The new Chairman's mark also incorporates 
several of the agreements that we reached during negotiations last 
fall. However, the Administration continues strongly to oppose S. 8. 
The bill would still weaken public health and environmental protection, 
generate new litigation, delay cleanups, and inappropriately shift 
cleanup costs from parties that created toxic waste sites to the 
Superfund Trust Fund. Clearly, some of the provisions in the bill fail 
to meet the Administration's Superfund legislative principles released 
on May 7, 1997.
    Of particular concern are provisions that:

    1. limit the treatment of toxic waste, fail to adequately protect 
    uncontaminated ground water, and inappropriately elevate the use of 
    engineering and institutional controls rather than actual cleanup;
    2. severely limit Federal authority to clean up toxic waste sites 
    or respond to toxic chemical spills;
    3. reopen hundreds of final consent decrees and provide Federal 
    payments to parties that created toxic waste sites;
    4. contain undefined or confusing new terms and procedures that 
    will generate new rounds of expensive and time consuming disputes 
    and litigation and slow down cleanups.
    5. replace existing brownfields grant programs, rather than 
    supplementing them, with a revolving loan program for communities.

    I still believe it is possible to reach consensus on Superfund 
reform legislation that builds upon the significant improvements we 
have been able to achieve through EPA's administrative reforms. As 
always, I remain ready to work with you and all of the members of the 
Environment and Public Works Committee to enact responsible Superfund 
reform legislation this year.
    The Office of Management and Budget has advised that there is no 
objection to the Agency's views on S. 8 from the standpoint of the 
Administration's program.

            Sincerely,
                                          Carol M. Browner.
                                 ______
                                 
                                 Secretary of the Interior,
                                        Washington, March 24, 1998.

Honorable John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.

Dear Mr. Chairman: In anticipation of your Committee's markup on S. 8, 
the Superfund Cleanup Acceleration Act, beginning March 24, the 
Department of the Interior would like to voice its concerns with the 
bill. We appreciate the Senate Environment and Public Works Committee's 
efforts to move the Superfund reauthorization process forward. We 
strongly oppose S. 8 as currently drafted, but we are interested in 
continuing to work with the Committee in an effort to improve the 
legislation.
    As a natural resource damage (NRD) trustee, the Department of the 
Interior believes that the natural resource damage provisions of S. 8 
would leave injured resources unrestored and would deprive the public 
of full compensation for the loss of injured resources. We also fear 
that these provisions would generate high transaction costs by 
promoting increased litigation. The bill also fails to address several 
key reform issues, including the statute of limitations and record 
review, the role of tribal governments, and impacts to tribal cultural 
values and natural resources. We are troubled that the Committee has 
retreated from S. 8 as originally introduced, which did provide for 
judicial review on an administrative record.
    We are also concerned over the bill's potential impacts on cleanups 
on public lands. Any provisions in legislation addressing this issue 
should be certain to retain the primary authority that Federal land 
management agencies have to manage, clean up, and take enforcement 
actions on public lands that they manage.
    While we have significant concerns about other provisions of the 
bill, including those relating to liability and remedy, we understand 
other agencies will be commenting on these provisions. We welcome the 
opportunity to work with you and your staff to develop mutually 
acceptable language for reforming CERCLA.
    The Office of Management and Budget advises that there is no 
objection to the presentation of this report from the standpoint of the 
Administration's program.

            Sincerely,
                                             Bruce Babbitt.
                                 ______
                                 
                             Secretary of Agriculture,     
                            U.S. Department of Agriculture,
                              Washington, DC 20250, March 24, 1998.

Honorable John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.

Dear Mr. Chairman: In light of your Committee's upcoming markup of S. 
8, the ``Superfund Cleanup Acceleration Act,'' I would like to provide 
you with an overview of the Department of Agriculture's (USDA) concerns 
with the bill. We appreciate the Committee's efforts to move the 
Superfund reauthorization process forward. Though we strongly oppose S. 
8 as currently drafted, we remain interested in working with the 
Committee in an effort to improve the legislation. The following is a 
discussion of some of our issues.
    As a Natural Resource Damage (NRD) trustee, USDA believes that the 
NRD provisions of S. 8 would prevent restoration of critical resources 
and would deprive the public of full compensation for the loss of 
resources. We also few that these provisions would generate high 
transaction costs by promoting increased litigation.
    In addition, USDA is troubled that S. 8 would seriously undermine 
the ability of the Federal Government to protect Federal facilities and 
manage public lands. The transfer of authority to the States and the 
treatment of Federal facilities proposed under S. 8 would restrict the 
ability of the Federal Government to respond to environmental hazards 
when the Federal Government is in the best position to ensure that such 
hazards are addressed effectively and efficiently.
    For these reasons, we must strongly oppose S. 8 as currently 
written. However, we would welcome the opportunity to work with you and 
your staff more closely to develop mutually acceptable language for 
reforming CERCLA consistent with the Administration's principles.
    The Office Of Management and Budget has advised that there is no 
objection to the Department's views on S. 8; from the standpoint of the 
Administration's program.

            Sincerely,
                                              Dan Glickman,
                                                         Secretary.
                                 ______
                                 
                                U.S. Department of Justice,
                              Washington, DC 20530, March 23, 1998.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.

Dear Mr. Chairman: I am writing to express the Department of Justice's 
concerns with S. 8, the ``Superfund Cleanup Acceleration Act of 1997,'' 
which we understand your Committee will consider this week. As you 
know, the Department of Justice remains committed to responsible 
Superfund reform that will make cleanups faster, fairer, and more 
efficient. The Department has recently reviewed a revised version of S. 
8. We appreciate the changes you have made to the bill in order to 
address concerns previously expressed by the Department and others. 
Unfortunately, despite your recent revisions, the Department continues 
to believe that S. 8 would significantly increase litigation and would 
substantially impair the government's ability to ensure that the 
parties responsible for the contamination are also responsible of 
cleanup of those sites, and for this reason, we strongly oppose the 
bill.
    The Department of Justice is particularly concerned about 
provisions in S. 8 that would reopen past cleanup settlements that were 
negotiated with potentially responsible parties (PRPs) and entered as 
consent decrees by the courts. These prior settlements were intended to 
ensure that sites were cleaned up, legal and factual disputes with the 
settling PRPS were resolved, and the cost and burden of discovery and 
trial were avoided. S. 8 would undo many of those benefits by reopening 
these disputes for litigation in an elaborate allocation process, for 
the purpose of reimbursing PRPs for cleanup costs that they previously 
committed to pay. Inevitably, legal and technical resources that should 
be devoted to obtaining new settlements for new cleanups would be 
diverted to this massive PRP reimbursement project, resulting in more 
lawyer time, fewer new consent decrees, and a slower pace of cleanup.
    As you know, the Superfund process is settlement-driven. One of the 
great successes of the current program is the high proportion of 
cleanups now being performed efficiently by PRPs under settlements that 
resolve litigation and conserve the Superfund for use at sites for 
which no responsible party can be located. Unfortunately, the 
allocation provisions of S. 8 would reward recalcitrance and undermine 
incentives for PRPs to agree to cleanup settlements. Under S. 8, a 
recalcitrant PRP that refuses to enter into a cleanup settlement after 
an allocation may be treated better than a cooperative PRP that enters 
into a settlement and assumes responsibility for cleaning up the site. 
EPA's option for dealing with such a recalcitrant is to issue an 
Administrative Order under Section 106 requiring such a party to 
perform the cleanup. Under S. 8, the taxpayers must then reimburse the 
recalcitrant party for 100 percent of the costs such a party incurs in 
excess of his ``share'' as determined by the allocator. On top of this 
financial reward, the recalcitrant PRP is free to continue to litigate 
its liability, to challenge the remedy, to seek reimbursement from the 
Superfund for all of its costs at some point in the future, and to 
challenge settlements between the United States and other PRPs. Far 
from reducing litigation, S. 8 promotes it by undermining the 
incentives for settlement.
    As another example, S. 8 introduces unnecessary new legal obstacles 
for the Federal Government to take action to address an ``imminent and 
substantial endangerment'' at sites where a response action is 
proceeding under State law. Instead of using the well-established 
standard of ``imminent and substantial endangerment,'' S. 8 would 
determine this issue according to the following new, undefined 
statutory criteria: (a) whether the State is ``unwilling or unable'' to 
take action to cure a ``public health or environmental emergency;'' (b) 
whether the site presents a ``public health or environmental 
emergency;'' and (c) whether the facility presents a ``substantial risk 
requiring further remediation to protect health and environment.'' 
These undefined terms may interfere with the ability of the government 
to protect human health and the environment, and will spawn new 
litigation by displacing the now well-established caselaw under the 
existing statutory criteria for Federal action.
    As stated above, the Department remains committed to achieving 
responsible reform of the Superfund program. We cannot, however, 
support legislation that would lead to more litigation and fewer 
cleanups. For that reason, we must continue to oppose S. 8 strongly. We 
remain willing to work with you to correct these problems and to 
accomplish consensus Superfund reauthorization.
    The Office of Management and Budget has advised that there is no 
objection to the Department's views on S. 8 from the standpoint of the 
Administration's program.

            Sincerely,
                                               Ann Harkins,
                                 Acting Assistant Attorney General.
                                 ______
                                 
                     Executive Office of the President,    
                          Council on Environmental Quality,
                              Washington, DC 20503, March 24, 1998.

Hon. Max Baucus, Ranking Member,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.

Dear Senator Baucus: I am writing to express the Administration's views 
on the Chairman's mark to S. 8, ``The Superfund Cleanup Acceleration 
Act of 1998,'' in anticipation of a markup beginning on March 24, 1998.
    As you are aware, the Clinton Administration has long supported 
common-sense reforms to the Superfund law through a responsible 
reauthorization bill that ensures continued support for cleanups. At 
the same time, we must recognize and protect the impressive progress 
that the Environmental Protection Agency (EPA) and other Federal 
agencies have made in accelerating the cleanup process, restoring 
natural resources, and promoting better coordination between response 
and natural resource agencies. In the past 5 years, EPA has completed 
many more cleanups than were completed in the preceding 12, and will 
have made final cleanup decisions at 85 percent of the sites it 
oversees by the end of this fiscal year. Cleanup at two-thirds of EPA's 
national priority list sites will be completed by 2001. This progress 
has been achieved while implementing reforms that have ensured greater 
fairness in administering the liability system.
    Major progress also has been made in accelerating Superfund 
cleanups at Federal facilities through administrative reforms. In 
addition, natural resource trustees have been successful in reforming 
the natural resource damage programs under Superfund to focus on 
restoration, rather than monetization and protracted litigation to 
recover damages.
    We share your view that, despite this progress, there are areas 
where statutory reform continues to be needed and appropriate. We need 
to ensure, however, that any statutory change truly improves the 
Superfund program, enhances and accelerates restoration of natural 
resources, and eliminates rather than encourages excessive litigation. 
We regret that S. 8 does not meet this standard and threatens to stymie 
the progress that the Clinton Administration has made to date.
    We have expressed these concerns since the introduction of S. 8 at 
the start of the 105th Congress. We regret that your efforts over the 
past year to negotiate reasonable compromises on the issues that have 
divided us have been unavailing. As revised in the Chairman's mark, the 
bill still falls far short of one that would improve the Superfund 
program and has generated strong objections from an array of Federal 
agencies and the communities with which they work.
    Accordingly, the Administration would strongly oppose the bill if 
it is reported in its current form. We are particularly concerned about 
provisions in the bill that would encourage excessive litigation, 
undermine the ability of our Federal natural resource trustees fully to 
restore injured natural resources to our communities, and increase 
costs to parties performing cleanups. Regrettably, several of the 
provisions in S. 8 continue to reflect proposals advocated by a small 
set of companies seeking to create new and unwarranted obstacles to 
restoration at particular sites.
    I hope that you will afford the Administration a further 
opportunity to work with you to improve the provisions of the bill that 
are of concern to us. The Office of Management and Budget advises me 
that there is no objection to this letter from the standpoint of the 
President's program.

            Sincerely,
                                      Kathleeen A. McGinty,
                                                          Chairman.
                                 ______
                                 
         Assistant Secretary for Oceans and Atmosphere,    
                               U.S. Department of Commerce,
                              Washington, DC 20230, March 24, 1998.

The Honorable John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510-6175.

Dear Mr. Chairman: The National Oceanic and Atmospheric Administration 
(NOAA) of the Department of Commerce appreciates your efforts to reform 
Superfund during the 105th Congress. Nevertheless, after reviewing the 
natural resource damage provisions of the Chairman's mark, we maintain 
our strong opposition to S. 8: The Superfund Cleanup Acceleration Act. 
The most serious problems with this legislation include restrictions on 
the range of values that trustees may consider in achieving full 
restoration and its failure to clearly address the Administration's 
concerns regarding the statute of limitations and record review. NOAA 
is committed, as are all the Federal natural resource trustees, to 
restoring natural resources that have been injured by releases of 
hazardous materials, thereby preserving America's natural resource 
heritage for future generations. We are concerned that S. 8 would leave 
injured resources unrestored and generate extremely high transaction 
costs.
    We urge you to include in S. 8 provisions to clarify that natural 
resource damage claims are to focus on restoration and be presented in 
a more timely and orderly fashion than is currently required by law, 
thereby discouraging premature litigation and enhancing coordination 
and integration of remedy and restoration. We are strongly opposed to 
S. 8 in its present form because it would seriously curtail the ability 
of trustees to recover natural resource damages, thereby depriving the 
people of this Nation of the right to have their natural resources 
fully restored to health and productivity.
    NOAA stands ready to meet with you and your staff to discuss our 
objections and work on alternative language. Again, NOAA appreciates 
your efforts to develop CERCLA reform legislation acceptable to all 
stakeholders, and we look forward to working with you during the 
remainder of the 105th Congress.

            Sincerely,
                                           Terry D. Garcia.
            MINORITY VIEWS OF SENATORS BAUCUS AND LAUTENBERG

                              INTRODUCTION

    We have written these additional Minority views in order to 
provide further background and detail about why we oppose S. 8.
    The Superfund program plays a unique and important role 
among our environmental protection laws. At the end of the 20th 
century, we have confronted one of the century's unfortunate 
legacies. Industrial development dramatically increased our 
standard of living. But it left a legacy of hazardous waste 
sites, all across the country: chemical waste dumps in New 
Jersey; mine tailings that dot the landscape of the mountain 
west; the residue of huge Federal complexes at Rocky Mountain 
Arsenal in Colorado and Hanford, Washington. In 1980, this 
Committee found that ``[c]hemical spills capable of inflicting 
environmental harm occur about 3,500 times each year,'' and 
that ``[m]ore than 2,000 dumpsites containing hazardous 
chemicals are believed by the Environmental Protection Agency 
to pose threats to the public health.''
    These sites pollute drinking water, expose children to 
toxic chemicals, and destroy neighborhoods. In 1997, Senator 
Lautenberg said that:

        data from the Agency for Toxic Substances and Disease 
        Registry shows troubling trends in my home State of New 
        Jersey. The data show that in all but 1 of 21 counties, 
        cancer rates in areas around hazardous waste sites 
        exceed the national average. Studies from other parts 
        of the country--Idaho, Illinois, Kansas, Missouri, 
        Pennsylvania, California--also suggest that those 
        living near toxic waste sites, particularly children, 
        suffer disproportionately from serious health problems 
        . . . .

    In 1980, with the leadership of this Committee, Congress 
addressed the problem by enacting the Superfund program. 
Superfund complements pollution control laws, like the Clean 
Water Act and the Solid Waste Disposal Act, by providing for, 
in the words of the Act's preface, ``liability . . . cleanup, 
and emergency response for hazardous substances released into 
the environment and the cleanup of inactive hazardous waste 
disposal sites.'' By 1993, there were more than 1200 sites on 
the National Priorities List, slated for long-term cleanup 
actions, and construction had been completed at 164 sites. In 
addition, EPA had taken more than 3300 removal actions at 
nearly 2600 sites.
    By 1993, however, there was a growing sense that the 
Superfund program was not working as well as it should. 
Cleanups were too slow, and sometimes too costly. Litigation 
and other transaction costs were too high. Small businesses, 
scout troops, and residential homeowners were inappropriately 
caught up in the liability system. Local communities were not 
fully involved in important decisions about cleanup plans. The 
Federal-State relationship was strained.
    In his first address to Congress, President Clinton 
acknowledged these problems. Soon thereafter, EPA initiated a 
process to seek consensus among a wide range of interested 
parties, under the auspices of the National Advisory Committee 
on Environmental Policy and Technology (NACEPT); the Keystone 
Center and the University of Vermont Law School established a 
complementary group, the National Commission on Superfund. 
Around the same time, the Superfund Subcommittee began a series 
of hearings on the major issues facing the Superfund program.
    NACEPT and the Superfund Commission made their 
recommendations in late 1993. In February 1994, the 
Administration proposed legislation that embodied many of the 
recommendations of the two groups, and we introduced the 
Administration's proposal as S. 1834, The Superfund Reform Act 
of 1994. The Subcommittee and full Committee held several 
further hearings on the bill and, in August 1994, the Committee 
reported the bill by a vote of 13-4.
    S. 1834 wasn't perfect. But it did make several important 
changes to the Superfund program: reducing cleanup costs, 
taking small parties out of the liability system, streamlining 
the system for others, and increasing community participation. 
Overall, EPA estimated that the bill would reduce cleanup costs 
by 25 percent and litigation costs by 50 percent. The bill had 
broad bipartisan support, and was endorsed by groups ranging 
from the Chemical Manufacturers' Association to the National 
Federation of Independent Businesses to the Sierra Club.
    However, for a variety of reasons, S. 1834 was not enacted 
into law.
    Nevertheless, the Superfund program was changing, for the 
better. Not because of a new law, but because of improved 
implementation of the existing law. The improvements began 
under President Bush and EPA Administrator William Reilly. 
After S. 1834 was not enacted, EPA Administrator Browner and 
others in the Clinton Administration aggressively undertook a 
series of major administrative reforms. EPA established a 
remedy review board to review complex and high-cost cleanup 
plans. It began systematically offering ``orphan share'' 
funding to encourage settlements. It used its settlement 
authority to remove small volume waste contributors from the 
liability system. It negotiated memoranda of understanding with 
several States, whereby States take the lead in site assessment 
and cleanup. And it developed a ``Brownfields Action Agenda'' 
to promote cleanup and economic redevelopment.
    These and other reforms have had a significant effect. In 
September 1997, EPA Administrator Browner testified that:

        proof of a fairer, faster Superfund can be found in 
        several simple indicators. We have completed cleanup at 
        447 sites on the National Priorities List, and 500 more 
        are in construction. We have reduced by more than a 
        year the average duration of the long-term cleanup 
        process, with much faster cleanups, at sites using 
        presumptive remedies . . . . Our most recent analysis 
        makes us optimistic that we can continue to accelerate 
        the pace of cleanups and achieve our goal of a 20 
        percent reduction, or 2 years, in the total cleanup 
        process time. Additionally, responsible parties are 
        performing or funding approximately 70 percent of 
        Superfund long-term cleanups, saving taxpayers more 
        than $12 billion.

        Meanwhile, EPA has succeeded in removing over 14,000 
        small contributors from the liability system, 66 
        percent of these in the last 4 years. We offered orphan 
        share compensation of over $57 million last year to 
        responsible parties willing to negotiate long-term 
        cleanup settlements, and continued the process this 
        year at every eligible site. Finally, costs of cleanups 
        are decreasing because of a number of factors, 
        including: the use of reasonably anticipated future 
        land use determinations, which allow cleanups to be 
        tailored to specific sites; the use of a phased 
        approach to defining objectives and methods for 
        groundwater cleanups; and EPA's 15-plus years of 
        implementing the program providing greater efficiencies 
        and lower costs when selecting cleanup options.

    In the first session of the 104th Congress, most of the 
Majority members of the Committee introduced S. 1285, which 
contained provisions that went significantly beyond those of S. 
1834. For example, the bill would have given companies a 50 
percent tax credit for their pre-1980 cleanup costs, shifting a 
significant share of cleanup costs from potentially responsible 
parties to the general public. The bill also contained 
provisions that would have reopened potentially hundreds of 
settled cleanup decisions; completely eliminated the preference 
for remedies that treat hazardous waste (rather than leave it 
in place); repealed the requirement that cleanups meet 
applicable Federal and State standards; prohibited the 
consideration of the intrinsic value of damaged natural 
resources when determining how to restore those resources; 
allowed States to assume responsibility for the program with 
minimal review and oversight; and imposed an arbitrary cap on 
the number of Superfund sites on the National Priorities List. 
The bill was, in a word, extreme. Many of us who had supported 
the previous reform effort concluded that we had no choice but 
to strongly oppose S. 1285.
    After S. 1285 was introduced, Senators Chafee and Smith 
invited us to begin negotiations seeking a bipartisan 
compromise, and we agreed. Throughout 1996 and most of 1997, 
the negotiations continued. We made significant progress, 
resolving some important issues. Several revised versions of 
the bill were introduced or circulated, including S. 8; in most 
respects, each was an improvement. However, despite the good 
faith efforts of all parties, many important issues remained 
unresolved, including issues regarding cleanup standards, 
liability relief, community participation, the State role in 
the program, and natural resource damages.
    The Majority decided that, rather than seeking to resolve 
the remaining differences through continued negotiation, the 
Committee would proceed to markup. At the markup, we filed a 
complete substitute for the bill (which we refer to hereafter 
as ``the Substitute''). We also offered a series of amendments. 
Some were accepted; many were not, and were defeated.
    All told, the bill reported by the Committee reflects an 
extraordinary amount of work, and some significant compromises. 
But we should not judge the bill by the number of hours that 
have been spent working on it, or by the distance that has been 
traveled from the extreme bill that was considered early in the 
104th Congress. We should judge the bill by one measure only: 
whether, on balance, the bill gives the American people a 
better Superfund program--better for public health, better for 
the environment, better for communities, better for small 
businesses, and better for the economy.
    By that measure, the bill falls short, by a wide margin. 
Below, we explain why. \5\
---------------------------------------------------------------------------
    \5\ These views describe our main concerns, but are not intended to 
provide an exhaustive list of every concern that we have with S. 8.
---------------------------------------------------------------------------

                                 REMEDY

Introduction

    Before addressing our principal objections to S. 8's remedy 
provisions, we would be remiss if we did not note that during 
negotiations prior to markup we reached agreement with the 
Majority concerning several provisions, and that those changes 
are reflected in S. 8.
    These include: elimination of the requirement under current 
law that remedies meet ``relevant and appropriate'' 
requirements from other laws; consideration of future land use 
in selecting remedies; and codification of EPA's administrative 
reforms that accelerate remedy selection and cleanup by 
streamlining study phases, relying on standardized or 
``presumptive'' remedies, and increasing PRP involvement in 
cleanups.
    In addition, during markup, the Majority accepted three 
amendments offered by Democratic members to address some of our 
concerns with the cleanup provisions of S. 8: an amendment by 
Senator Boxer to make explicit that remedies must protect the 
health of children and other sensitive subpopulations; an 
amendment by Senator Wyden to strengthen the provision on 
cleanup of contaminated ground water; and an amendment by 
Senator Baucus to strike a provision that required 
institutional controls to be considered on equal footing with 
other alternatives.
    These amendments improve the bill. But the bill still falls 
far short of meeting our goals of ensuring that:

          Lremedies protect human health and the 
        environment over the long-run;
          Lcontaminated ground water is restored to 
        beneficial uses and clean ground water will not be 
        contaminated; and
          Lcleanups are accomplished more quickly and 
        efficiently and at less cost, without sacrificing 
        protection of human health or the environment.

    During markup it was asserted that although S. 8 was not 
perfect from the Majority's perspective or ours, it represented 
an improvement over current law. We disagree. We cannot support 
a bill that reduces the level of protection that the citizens 
of this country have come to expect, for themselves, their 
children, and the groundwater that they rely on for drinking 
water and other purposes, as would S. 8. It is with 
disappointment that we conclude that the remedy title of S. 8 
does more harm than good.
    The following discussion addresses some of the instances in 
which S. 8 would weaken cleanup of the most contaminated toxic 
waste sites in this country. The primary focus is the adverse 
impact that the bill would have on protection of human health 
and on the quality of our Nation's water resources, over the 
long run.
    First, we discuss two related provisions that would 
significantly influence the long-term reliability of remedies 
selected for cleanup of particular sites (i.e., treatment of 
waste versus efforts at on-site containment). Those are the so-
called ``preference for treatment,'' and provisions regarding 
institutional controls. Second, we discuss instances in which 
the bill would reduce protection of human health, by lowering 
the standard for what is considered to be an acceptable level 
of cancer risk to human health and by allowing for the waiver 
of protective standards on grounds that include cost. Third, we 
discuss some provisions that would compromise protection of 
clean ground water and surface water, and lead to inadequate 
cleanup of contaminated ground water and surface water. Fourth, 
we discuss concerns with the role of cost in cleanup decisions 
under S. 8. Finally, we discuss provisions that would divert 
resources from and delay cleanups.

The Bill Contains an Inadequate Preference for Treatment and Safeguards 
        for Waste Left in Place

    A. Preference for treatment. S. 8 fails to encourage the 
use of remedies that involve treatment for even the most toxic 
and mobile hazardous waste. Unlike S. 8 as introduced, the bill 
now does nominally contain a preference for treatment. But 
there are so many hurdles before the so-called preference would 
be triggered that it would rarely, if ever, apply. Thus, 
containment of waste on site would be used much more often. The 
uncertainties associated with the long-term effectiveness of 
containment remedies, and with use of institutional controls to 
prevent uses of land and groundwater that are incompatible with 
a remedy and level of cleanup, would significantly increase the 
risks of contaminant migration and of human exposure over time.
    Current law contains a preference for remedies that involve 
treatment of hazardous waste as a principal element and a 
mandate for use of permanent solutions and treatment to the 
maximum extent practicable:

        Remedial actions in which treatment which permanently 
        and significantly reduces the volume, toxicity or 
        mobility of the hazardous substances, pollutants, and 
        contaminants is a principal element, are to be 
        preferred over remedial actions not involving such 
        treatment . . . . The President shall select a remedial 
        action that . . . utilizes permanent solutions and 
        alternative treatment technologies . . . to the maximum 
        extent practicable'' (section 121(b)(1)).

    These provisions were added in the 1986 amendments to 
CERCLA, to address concerns regarding the extent of EPA's 
reliance on containment remedies under Superfund. At a 1984 
hearing before this Committee, a representative of the Clean 
Water Action Project described the inadequacy of Superfund 
remedies as follows:

        There is considerable evidence that the cleanups 
        currently being conducted or planned do not provide 
        adequately for the protection of public health . . . . 
        [T]o date the cleanups have been designed to contain, 
        rather than to eliminate (remove/detoxify), the 
        hazardous wastes and large volumes remain in the ground 
        . . . .

        In its attempts to hold down capital costs, EPA has 
        based cleanups largely on (1) surface removal (2) 
        containment of underground hazardous waste (3) 
        isolation of the wastes from rainfall and groundwater 
        infiltration (4) collection of leachates (5) pumping 
        and treatment of contaminated ground water and (6) 
        transfer to landfills. Unfortunately these methods have 
        been shown to break down rapidly; slurry walls and 
        liners leak, collection systems clog and clay caps are 
        vulnerable to erosion. Most importantly highly 
        concentrated sources of materials remain hazardous for 
        indefinitely long periods and the public continues to 
        be vulnerable and justifiably anxious. The danger 
        remains whether material is being contained at the 
        primary site or transported to a secondary site . . . 
        Congress should enact proposals to promote permanent 
        cleanups.

    In response to concerns like these, Senator Mitchell noted 
during the floor debate on the 1986 amendments that ``[i]t is a 
major purpose of this legislation to establish a statutory bias 
toward the implementation of permanent treatment technologies 
and permanent solutions in the selection of remedies, whenever 
they are feasible.''
    Since 1986, the preference for treatment and mandate for 
permanence have been criticized as resulting in the selection 
of treatment remedies in instances where other remedies would 
be protective at a lesser cost so-called ``treatment for 
treatments's sake.''
    To our knowledge complaints have subsided about instances 
where selection of a treatment remedy was overkill. EPA data 
bear this out, showing a trend away from treatment remedies. 
Between 1988 and 1993, EPA selected treatment remedies for 
source control approximately 70 percent of the time. In 1994 
and 1995 it selected treatment remedies 59 percent and 53 
percent of the time, respectively. EPA relies on containment 
remedies for wastes that pose relatively low long-term threats, 
or where treatment is impracticable, such as at extremely large 
sites. Therefore, remedies at landfills and mining sites 
routinely rely on containment as the predominant response. 
However, a treatment component may be appropriate at these 
sites too, such as treating groundwater that has been 
contaminated by the waste. At sites where treatment is found 
not to be practicable, it is not used or, in certain unusual 
circumstances, EPA may treat only part of a principal threat, 
and contain the rest. For example:

          LAt the Anaconda Company Smelter Site in 
        Anaconda, Montana, a new Jack Nicklaus signature golf 
        course was built over hazardous mining and smelter 
        tailings.
          LAt the Raymark Industries site in Stratford, 
        Connecticut, EPA did not treat principal threats due to 
        unacceptable adverse short-term impacts and high costs 
        associated with finding and treating hot spots amid the 
        480,000 cubic yards of fill that was up to 24 feet 
        deep. EPA did, however, require measures, including 
        extraction and treatment of solvents, to prevent 
        contamination of ground water from highly concentrated 
        pockets of liquid solvents at the site.
          LAt the Bunker Hill Mining site in Kellog, 
        Idaho, EPA did not require treatment of soils at the 
        1,800 residential properties within the site, based on 
        the nature of metal contamination, and because the 
        costs of treating such high volumes of contaminated 
        soil were prohibitive. Instead, contaminated yard soils 
        were excavated and disposed of in a repository onsite, 
        and yards replenished with clean soil. Treatment was 
        used to treat leachate, runoff from a portion of the 
        site, and contaminated wetlands at other parts of the 
        site.

    Under the current program, EPA targets treatment at 
``principal threats.'' The revised National Contingency Plan 
(NCP), promulgated in March of 1990, provides that EPA expects 
to use ``treatment to address the principal threats posed by a 
site, wherever practicable,'' and ``engineering controls, such 
as containment, for waste that poses a relatively low long-term 
threat.'' In November of 1991, EPA issued ``A Guide to 
Principal Threat and Low Level Threat Wastes,'' which provides 
guidance on how to make site-specific determinations regarding 
treatment versus containment. This guidance provides that 
``principal threat wastes are those source materials considered 
to be highly toxic or highly mobile that generally cannot be 
reliably contained or would present a significant risk to human 
health or the environment should exposure occur.'' For example, 
at Bayou Bonfuoca in Louisiana, EPA determined that 
incineration was necessary to treat creosote waste that had 
leaked into the bayou. The waste was so potent that divers 
received second degree chemical burns from contact with the 
contaminated sediments. The contamination also killed all life 
in the bayou.
    The current more limited use of treatment remedies has 
prompted some to question whether the treatment provisions 
under existing law should be modified at all. In testimony 
before this Committee, witnesses for the Environmental Defense 
Fund (EDF) (Karen Florini) and Natural Resources Defense 
Counsel (NRDC) (Jacqueline Hamilton) stated: ``Given current 
EPA practice of cleanup to unrestricted use at only one-third 
of sites even with the existing preference for treatment, we 
have increasing reservations about whether there is any 
rationale for changing this portion of the law.'' The 
Association of Metropolitan Water Agencies testified that it 
``supports the continuation of the current law's broad 
preference for treatment and could not support the narrow 
preference for `hot spots' only.''
    S. 8 eliminates the mandate for permanence and treatment, 
and provides that the preference for treatment does not apply 
unless each of five conditions are met: that contamination--

          Lcannot be reliably contained, and
          Lpresents a substantial risk to human health 
        and the environment, because it is highly toxic, and
          Lit is highly mobile, and
          Lthere is a reasonable probability that 
        actual exposure will occur, based on an evaluation of 
        site-specific factors.

    S. 8's so-called preference is so narrow that it would 
rarely apply, even where common sense tells us it should apply. 
It would not apply even at a site where hazardous waste could 
not be reliably contained and is highly toxic, and there is a 
reasonable probability of actual exposure, if the waste were 
not also highly mobile. Some examples of actual contaminants 
and sites illustrate the severity of the constraints on the 
purported preference in S. 8:

          LThe preference would not apply where 
        contaminants are highly toxic but not highly mobile, 
        such as dioxin (Love Canal in New York and Times Beach 
        in Missouri), PCB's (New Bedford Harbor in 
        Massachusetts and Wide Beach Development in New York) 
        (in some conditions PCBs can be so persistent that 
        levels remain virtually unchanged for decades), and 
        polyciclic aromatic hydrocarbons (PAHs) (Bayou Bonfuoca 
        in Louisiana).
          LThe preference would not apply where 
        contaminants are highly mobile but not highly toxic, 
        such as pentachlorophenol (PCP) (Libby Groundwater 
        Contamination site in Montana), organic solvents (the 
        Miami Drum site in Florida) (at the Miami Drum site 
        contamination caused the shutdown of several well 
        fields that supplied drinking water for much of 
        southeast Florida), trichloroethylene (TCE) (Advanced 
        Micro Devices in California), and solvents (Pasley 
        Solvents and Chemicals in New York).
          LThe preference would not apply where 
        chemicals can have acute toxicity at high 
        concentrations and chronic toxicity at low 
        concentrations, such as mercury (General Electrical Co. 
        Wiring Devices site in Puerto Rico).

    Of course, less treatment means that more contaminated 
material will remain on site and pose higher potential threats 
for future generations, should institutional or engineering 
controls fail. Less treatment also means more ``dead zones'' of 
unproductive, contaminated property, instead of encouraging 
beneficial reuse of Superfund sites.
    The Majority has argued that the preference for treatment 
in S. 8 must be read in conjunction with the remedy selection 
balancing factors. They suggest that where treatment is the 
appropriate remedy, it will be chosen due to the balancing 
factor pertaining to long term reliability. This argument 
misses the point. It is based on an assumption that we can 
somehow look into the future and know whether and when waste 
that was left in place will migrate into a clean aquifer, or 
excavation for new construction will destroy an essential 
component of a remedy. And when a remedy is selected there may 
be different views as to its long term reliability: the fact 
is, often we cannot know which view is the correct one. Hence 
the need for a preference for treatment. Any suggestion that 
the long term reliability factor constitutes an implicit 
preference for treatment is inconsistent with the provision in 
S. 8 that ``no single factor predominates over the others'' 
(section 121(a)(3)(A)).
    The preference for treatment is essential precisely because 
of the unavoidable limitations in our knowledge regarding the 
future speed and pathways of contaminant migration, future 
trends in population that will influence needs for land and 
ground water at particular locations, and human activities. In 
view of the high stakes--potential future contamination of 
drinking water sources, and threats to the health of our 
children and grandchildren--we should take a somewhat 
conservative approach to making decisions to leave toxic waste 
in place, untreated.
    A meaningful preference for treatment would tip the scales 
in favor of treatment of the principal threats. This can be 
accomplished in a way that does not lead to unjustifiably 
costly remedies. Moreover, the cost of treatment remedies 
really can only be appreciated in relation to the potential 
future cost of addressing unforseen conditions that may result 
from not treating the waste in the first instance. In other 
words, it pays to prevent. If the containment fails at any time 
in the future, people may be exposed to contamination and 
contamination may migrate into a clean aquifer, resulting in 
new threats, new uncertainties, and new costs. In addition, the 
claim that treatment remedies are significantly more costly 
than are remedies where the waste is left in place often is 
founded on an incomplete consideration of the potential costs 
associated with containment remedies. Unlike remedies that more 
permanently eliminate hazardous waste, containment remedies may 
require maintenance long into the future, meaning that the 
costs will have to be borne by future generations. Focusing on 
up-front capital costs, to the exclusion of potential future 
costs (that are less certain and more difficult to quantify) 
associated with containment remedies, frequently results in an 
understatement of the true costs of containment remedies.
    These considerations emphasize the importance of 
maintaining a meaningful preference for treatment.
    At markup, Senators Baucus, Moynihan and Boxer offered an 
amendment that would have stricken the so-called preference in 
S. 8, and inserted a preference for treatment of principal 
threats. The amendment would have modified current law by 
eliminating the mandates for permanent remedies and treatment 
and narrowing the scope of the preference for treatment from 
site-wide to principal threats. The Substitute contained the 
same provision.
    The amendment was intended to reflect current practice, 
which to our understanding is working well. To critics of the 
preference for treatment in current law, our amendment would 
have provided heightened assurance that EPA would not abandon 
its limiting interpretation of the current preference. We 
intended that such a change would reflect and codify, not 
reduce, the current approach to selection of treatment 
remedies. We were disappointed that the amendment was defeated.
    In all likelihood, the weak preference for treatment in S. 
8 would result in a sharp reduction in treatment remedies. That 
would mean that the effectiveness of our so-called 
``containment'' remedies would depend on how reliably they 
actually contain toxic waste over the long-term. And that, and 
our ability to prevent exposure, depend in large part on the 
effectiveness of institutional controls.
    B. Institutional Controls. Generally, institutional 
controls serve one of two functions: to protect the remedy, 
both during construction and over the long-run; and to prevent 
certain human activities that would be inconsistent with the 
remedy and which, if undertaken, would pose an unacceptable 
level of risk. For example, an institutional control may 
prohibit excavation at a park that is located on top of a 
landfill, to preserve the integrity of the landfill cap. 
Another may restrict a site to industrial use, due to levels of 
residual contaminants that render the site unsafe for 
residential use.
    In effect, a preference for treatment and against sole 
reliance upon institutional controls are flip sides of the same 
coin. As Administrator Browner testified before this Committee 
in September of 1997:

        the Administration supports treatment for those wastes 
        that are highly toxic or highly mobile, in light of the 
        continuing challenges in ensuring the long-term 
        reliability of engineering and institutional controls, 
        as well as the limitations that containment and 
        institutional controls place on productive reuse or 
        redevelopment of property.'' The limited effectiveness 
        of institutional controls is reflected in the NCP 
        provision that ``the use of institutional controls 
        shall not substitute for active response measures . . . 
        as the sole remedy unless . . . active measures are 
        determined not to be practicable (40 CFR 
        300.430(a)(iii)(D)).

    Issues relating to the use of institutional controls in 
connection with hazardous waste cleanup have come to the 
forefront relatively recently. Although EPA's use of 
institutional controls such as restrictive covenants, 
easements, and other deed restrictions as a component of 
remedial actions is not new, heightened scrutiny is now being 
given to the effectiveness of these mechanisms. The increased 
focus on institutional controls is not coincidental. As noted 
above, decreased use of remedies that treat waste to reduce its 
toxicity, mobility, and volume gives rise to a need for other 
means to prevent exposure over the long-run.
    In addition, the movement toward consideration of 
anticipated future land use in remedy selection decisions opens 
the door for less stringent cleanup standards in some 
instances. In a recent report on the problems associated with 
reliance on institutional controls for protection from threats 
associated with hazardous waste, Linking Land Use and Superfund 
Cleanups: Uncharted Territory, Resources for the Future 
cautions that land use designations (such as industrial, 
commercial, residential) are not always accurate as proxies for 
exposure, and that accurately predicting future uses is ``no 
easy task.''
    As noted earlier, the Majority accepted a Democratic 
amendment to strike the provision that remedies that rely on 
institutional controls shall be considered on equal footing 
with other remedial alternatives. That is a step in the right 
direction. However, it does not compensate for the absence of 
affirmative provisions in S. 8 sufficient to ensure the long-
term reliability of institutional controls.
    Since virtually all institutional controls are creatures of 
local or State property law, there is a great degree of 
variability, and EPA is forced to rely on a complex patchwork 
of mechanisms. In many instances institutional controls that 
are available under these laws have limitations that render 
them unreliable for use in the hazardous waste context. For 
example, some States' easements automatically terminate at a 
time certain, regardless of whether they continue to be needed 
for the remedy to be protective; some State laws require 
privity, so that institutional controls would not apply to 
subsequent property owners; some limit enforcement authority to 
the holder of the property interest. Resources for the Future 
also notes the sometimes highly political nature of zoning 
decisions and variances, making them particularly unreliable 
and ill suited as a component of a Superfund remedy. Since in 
many instances institutional controls are an essential element 
to ensuring protection at a site, ``the effectiveness of these 
controls becomes a crucial component of the remedy.''
    In testimony, EDF and NRDC summarized the problems with S. 
8's treatment of institutional controls as follows:

        The definition of ``institutional controls'' is itself 
        overly broad. While zoning, land use plans, and 
        notification systems may be extremely valuable as 
        supplements to institutional controls, these devices 
        are too ephemeral and/or too weak to serve as 
        institutional controls in this context . . . .

        Similarly, the bill's current ``requirements'' for 
        institutional controls--that they are ``adequate to 
        protect human health and the environment,'' ``ensure . 
        . . long-term reliability,'' and ``will be 
        appropriately implemented, monitored, and enforced''--
        are far too vague to be meaningful. Rather, the bill 
        must explicitly require that specific criteria be met 
        for any institutional control that is adopted as part 
        of a remedy. These include, at a minimum:

          Lpermanence (i.e., the control will remain in 
        effect until removed following an affirmative, site-
        specific determination that it is no longer needed 
        because the contamination is gone);

          Luniversality (i.e., applies to all current 
        and future interest-holders of the land or water);

          Lenforceability (i.e. by all interested 
        parties, including citizens); and

          Lpermanent notice (i.e., in land records 
        unless inappropriate given the specific nature of the 
        control).

    The consequences of failed institutional controls can be 
devastating. Most visible is the Love Canal site in the State 
of New York. For ten years between 1942 and 1952, 21,000 tons 
of chemical wastes, including dioxins, were disposed of in the 
former canal turned landfill. In 1953 the landfill area was 
covered and deeded to the Niagara Falls Board of Education. The 
deed of sale warned of the industrial wastes on the property. 
Subsequently, the area near the landfill was extensively 
developed, compromising the integrity of the landfill cover. In 
addition, the backyards of some of the newly built houses 
bordered the landfill and various storm drains and sanitary 
sewer lines punctured the sidewalls of the landfill. Toxic 
materials seeped into the basements of homes, and a rising 
water table caused chemicals to migrate from the landfill to 
nearby sewers and creeks. Deteriorating drums rose to the 
surface. Residents had to be relocated.
    As this example demonstrates, we must ensure that in 
instances where remedies do rely on containment, institutional 
controls will effectively limit the uses of land and 
groundwater to those that are compatible with the remedy. Where 
land use does change, then the protectiveness of the remedy 
must be reevaluated in light of the new use, and the remedy 
modified accordingly. And it must be clear who will bear 
responsibility for any necessary modifications. Since the PRPs 
incur fewer costs when remedies contain, rather than treat, 
hazardous waste, it is appropriate that they bear this 
responsibility. So, for example, if a lead-contaminated site is 
designated for industrial use and cleaned up only to levels 
appropriate for that use, then 20 years later becomes the site 
for a day-care center, children could be exposed to 
unacceptable levels of lead. Effective mechanisms are needed to 
ensure that either the remedy is upgraded to be protective for 
use as a day care center, or the property is not used for a day 
care center. The Association of State and Territorial Solid 
Waste Management Officials (ASTSWMO) testified concerning this 
issue:

        ASTSWMO does recommend that institutional controls and 
        other designated restrictions necessary to implement a 
        particular remedy be made legally enforceable, run with 
        the land, and be binding among all parties to implement 
        the restrictions. Financial responsibility mechanisms 
        should also be identified to provide for the perpetual 
        maintenance of these sites in case the responsible 
        parties are unable to do so.

    Our Substitute includes safeguards to prevent reliance on 
unreliable mechanisms to protect against the long-term threats 
posed by untreated toxic waste. For example, it contains 
baseline requirements for institutional controls before they 
may be relied on as part of a remedial action. These include 
requirements that any restrictions on land use or other 
activities are adequate to protect human health and the 
environment over the long term, are binding on current and 
future owners and lessees of the property, are enforceable, are 
publicly noticed, and will remain in effect until terminated 
upon a determination that they are no longer necessary to 
protect human health and the environment.
    The Substitute also creates a new authority for a Federal 
easement to restrict uses of property or activities that would 
be inconsistent with a remedy that leaves waste on site. This 
mechanism is intended to avoid the shortfalls of certain 
institutional controls currently available, which make them 
inadequate to protect human health and the environment over the 
long run. \6\
---------------------------------------------------------------------------
    \6\ Our Substitute would not create new authority to allow EPA and 
the States to dictate local land use. Rather, it would provide that if 
a remedy is selected assuming a particular land use (i.e., industrial, 
not residential), and that remedy will be protective only if the land 
use is so restricted, then if the land use is to change, the remedy 
must be reassessed and modified, as necessary, so that it will continue 
to be protective.
---------------------------------------------------------------------------

The Bill Reduces Protection of Human Health By Lowering the Current 
        Acceptable Level of Cancer Risk and Allowing a Waiver of Risk-
        Based Standards Based on Technical Impracticability

    During all of the hours of hearings, negotiations and 
markup, we do not recall ever having heard anyone say that they 
support rolling back the protection of human health. Yet that 
is exactly what S. 8 would do. Some of the provisions that 
contribute to the reduction of human health protection are 
discussed below.
    Currently CERCLA contains a narrative standard, which 
requires EPA to select remedies that ``attain a degree of 
cleanup of hazardous substances . . . at a minimum which 
assures protection of human health . . . .'' Under the National 
Contingency Plan (NCP), EPA has interpreted the statute to 
require cleanups to attain a cleanup level for carcinogens 
based on a cancer risk in the range of 10-4 to 
10-6, with 10-6 as the point of 
departure. Hence, the current standard uses 1 additional cancer 
death in a population of 1,000,000 as the starting point, but 
allows that standard to be reduced to 1/10,000. Movement from 
the point of departure may be based on considerations including 
technical limitations, such as quantification and detection 
limits for a particular contaminant.
    S. 8 departs from current law and practice in two 
significant respects. First, while using the same risk range as 
in the NCP, S. 8 eliminates the 10-6 point of 
departure. By eliminating the point of departure, the bill 
tilts remedy selection to the less protective end of the risk 
range. As witnesses from EDF and NRDC testified before this 
Committee: ``As a result, cost considerations are likely to 
tilt remedies toward the less-protective outcome, since 
cleaning up to a less protective level is almost always 
cheaper.''
    Second, S. 8 prescribes a numerical cleanup standard in the 
statute itself. Administrator Browner testified concerning the 
problems associated with prescribing numeric risk levels in the 
statute, rather than in regulation:

        by prescribing numeric risk goals, the bill would lock 
        the Agency into current methods of expressing and 
        measuring risk, which are in transition as the science 
        is changing. Under the Agency's new cancer guidelines, 
        there will be decreasing reliance on linear models 
        which underlie the risk range . . . and new units of 
        measures, including `margin of exposure' will begin to 
        be used.

    In any event, if numerical limits are used, they should at 
least strive to achieve levels that are protective. Yet, under 
S. 8, the level of protection is much more likely to be 1 in 
10,000, or 100 times less protective. \7\
---------------------------------------------------------------------------
    \7\ Despite numerous iterations of S.8 since its introduction, the 
bill persists in inappropriately linking the hazard index, which 
applies only to noncarcinogens, to ``threshold'' carcinogens.
---------------------------------------------------------------------------
    We are also concerned that the technical impracticability 
waiver in S. 8 expands the technical impracticability waiver in 
current law, opening the possibility that risk-based cleanup 
standards may be waived based on cost considerations. Under 
present law, remedies are required to meet cleanup levels 
derived from two sources. First, they must meet standards in 
other Federal or State environmental laws that are ``applicable 
or relevant and appropriate'' (ARARs) to the cleanup. (There is 
general agreement that this requirement should be modified to 
require compliance only with those standards that are 
``applicable.'') Second, since in some instances ARARs do not 
exist, or cleanup to applicable standards will not be 
sufficiently protective to meet the mandate to protect human 
health and the environment, remedies also are required to meet 
site-specific risk based standards.
    Current law authorizes the waiver of ARARs on specified 
grounds. But it does not authorize the waiver of risk based 
cleanup standards under any circumstances. One ground for 
waiver of ARARs is ``technical impracticability,'' which has 
been interpreted to mean (and in S. 8 is defined to mean) 
impracticable due to engineering infeasibility or inordinate 
cost.
    Although S. 8 is somewhat ambiguous on this point, the bill 
could be interpreted to allow the waiver of risk-based cleanup 
standards based on technical impracticability. On the one hand, 
section 121(b)(5)(A) seems to open the door for a waiver of 
risk-based standards, by saying that risk based standards may 
be waived based on technical impracticability (which includes 
consideration of cost), in which case a remedy must be selected 
that is technically practicable and ``will most closely 
achieve'' the ``goals'' of protecting human health, through 
cost-effective means. On the other hand, in a seemingly 
contradictory provision (section 121(a)(1)(B)(i)), the bill 
contains a more absolute requirement for remedies to protect 
human health.
    As Administrator Browner testified: ``We cannot afford any 
confusion over the fact that protection of human health and the 
environment is a fundamental mandate that must be met in all 
cases without exception.'' In view of the fact that protection 
of human health and the environment is the foundation of 
Superfund, we oppose any provision that leaves room for doubt 
as to whether there may be exceptions to the requirement to 
meet this standard, based on technical impracticability or any 
other grounds.

The Bill Will Lead to Inadequate Cleanup of Contaminated Water and Let 
        Clean Water Become Contaminated

    More than 85 percent of all fresh water in the United 
States is ground water. Over 50 percent of Americans get their 
drinking water from ground water, and this demand is steadily 
increasing. Between 1970 and 1990, Alaska, Arizona, California, 
Florida, Kentucky and Missouri all doubled their use of ground 
water for public water supply. Between 1985 and 1990, the 
population of the United States grew 4 percent, but ground 
water use grew 8 percent. Nine States rely on ground water to 
supply drinking water to over 75 percent of their population. 
Florida, New Mexico and Mississippi rely on ground water for at 
least 90 percent of their drinking water supply. In rural areas 
reliance on ground water for drinking water can be as high as 
95 percent of the population. Approximately 20 million 
Americans rely on private wells fed by ground water without any 
treatment, and 20 percent of drinking water systems supplied by 
ground water do not provide any treatment. Ground water also is 
the source for uses other than drinking water. It is the source 
of 37 percent of agricultural irrigation water and 14 percent 
of industrial process water.
    Toxic waste sites have and will continue to contaminate 
ground water, sometimes irreversibly. In those instances where 
ground water can in fact be remediated, the cost of remediation 
usually will far exceed the costs of prevention.
    According to EPA, 85 percent of Superfund sites have 
ground-water contamination. At more than 90 percent of NPL 
sites, one or more operable ground water well is located within 
1 mile of the site, and at 82 percent of NPL sites ground water 
is withdrawn for drinking purposes within 3 miles of the site. 
Existing drinking water wells were either contaminated or 
threatened by continued plume migration at 499 sites. At at 
least 359 of these sites, drinking water wells have been shut 
down due to contamination. In testimony submitted to this 
Committee, the American Water Works Association noted that 
``Increasingly, public water suppliers throughout the country 
are closing down wells due to pollution. The most recent highly 
publicized case is in San Bernardino, California, where some of 
the city wells had to be closed because of ammonium perchlorate 
contamination . . . .''
    The potential impacts of ground water contamination go 
beyond contamination of the aquifer that is initially impacted. 
Ground water is frequently connected to surface water or to 
other aquifers, or to ecologically sensitive environments such 
as wetlands that could be impaired by ground water 
contamination. In addition, contamination can impair other uses 
such as agricultural irrigation. And in the arid west where 
water is scarce, failure to adequately clean up contaminated 
ground water and to protect uncontaminated ground water could 
result in an irretrievable loss of the resource.
    As demonstrated by cleanups at Superfund sites to date, 
restoration is possible. According to EPA, as of 1997, 
Superfund actions have accomplished significant restoration of 
ground water at 119 out of 173 sites (69 percent) where a 
ground-water remedy has been in place for more than 2 years, 
and at an additional 91 sites, Superfund actions have prevented 
water supplies from becoming contaminated.
    We fear that a variety of provisions of S. 8, individually 
and cumulatively, will result in inadequate cleanup of 
contaminated ground water and contamination of clean ground 
water, including ground water that may be used for drinking 
water. In addition to the provisions discussed earlier, those 
discussed below contribute to these concerns.
    A. Inadequate Cleanup of Contaminated Ground Water. Our 
principal concerns are two. First, that contaminated ground 
water could be written off as a potential drinking water 
source, and therefore be cleaned up to less protective levels, 
even where it potentially could have been used for drinking 
water. Second, where ground water is not reasonably anticipated 
to be used in the future for drinking water, S. 8 fails to 
ensure that it will be restored to other potential beneficial 
uses. These concerns are addressed in turn below.
    Two provisions give rise to our conclusion that S. 8 would 
result in inadequate cleanup of potential drinking water 
sources. First, S. 8 provides that unless technically 
impracticable, contaminated ground water for which the 
``current or reasonably anticipated future use'' is drinking 
water shall be restored to a condition suitable for such use 
(section 121(b)(2)(C)(i)). We object to use of the standard 
``current or reasonably anticipated future use'' in connection 
with ground water. (Although this discussion focuses on use of 
this phrase in one provision, for the reasons discussed here we 
also object to the use of the phrase throughout the title.) The 
better standard would be whether drinking water is a 
``potential beneficial use.''
    The difference is more than linguistic. Determining the 
reasonably anticipated future use involves projections as to 
future need for the water as drinking water, which involves 
speculation as to future population trends and weather 
conditions, among other things. Our ability to anticipate these 
needs and conditions 20 or 50 or 100 years from now is 
imperfect, at best.
    We believe that ground water is a valuable and limited 
resource that should be protected regardless of our expectation 
today of its future use. Therefore, whenever ground water could 
potentially be a drinking water source, it should be restored 
and preserved for that beneficial use. S. 8 would instead allow 
for cleanup to a lesser standard, which would preclude its use 
as drinking water, based on speculative projections of future 
needs and uses.
    Second, S. 8 writes off potential drinking water sources 
through an overly broad definition of the phrase ``water that 
is not suitable for drinking water.'' Contaminated ground water 
that is not suitable for beneficial use as drinking water, 
unless technically impracticable, is required to ``attain a 
standard that is protective for the current or reasonably 
anticipated future uses'' (section 121(b)(2)(C)(vi)). In 
defining which water is not suitable for use as drinking water, 
S. 8 provides, for example, that ``ground water that is not 
suitable for use as drinking water because of . . . naturally 
occurring conditions . . . shall not be considered as suitable 
for beneficial use as drinking water'' (section 121(b)(2)(F)).
    Due to the circularity, breadth, and lack of specificity of 
this definition, it could exclude from the universe of 
potential drinking water sources any water that has been 
contaminated by ``naturally occurring conditions'' that someone 
determines renders it unsuitable for use as drinking water. It 
is unclear who makes this determination, what criteria guide 
the determination, and the nature of the naturally occurring 
conditions that may justify ruling out ground water as a 
potential source of drinking water. As a representative of the 
Association of Metropolitan Water Agencies testified:

        The proposal allows the existence of naturally 
        occurring contaminants in groundwater to preclude its 
        designation as a drinking water source, thus getting 
        around the cleanup of contaminants that are not 
        naturally occurring in the aquifer. AMWA believes 
        naturally occurring contamination should not be used as 
        a sole factor in determining the suitability of 
        groundwater as a drinking water source.

    Current EPA policy is to use a concentration of greater 
than 10,000 mg/l total dissolved solids (TDS) in defining 
ground water that would not be considered suitable for drinking 
water. Under S. 8, the presence of a much lower concentration 
of TDS, or some other naturally occurring condition, could 
preclude its cleanup to levels suitable for use as drinking 
water, even where ground water that might not currently be used 
as drinking water could be economically treated and an 
important source of drinking water. Under this provision, a 
potential drinking water source could be permanently written 
off as a future drinking water source, through a decision today 
to inadequately clean it up.
    In addition, S. 8 fails to ensure that water that is not 
anticipated for use as drinking water will be cleaned up to 
other beneficial uses. If water is not suitable for use as 
drinking water, the bill requires that it attain levels 
suitable to other beneficial uses. However, the bill is silent 
as to cleanup of water that is suitable for use as drinking 
water but for which drinking water is not an anticipated future 
use. While this gap may be inadvertent, it is nonetheless 
significant: it highlights the problem with use of the 
``anticipated future use'' standard in connection with ground 
water. If, based on our imperfect ability to predict future 
needs, we determine that water that is suitable for use as 
drinking water is not reasonably anticipated to be used as 
such, then S. 8 would seem to exempt that source from cleanup 
to standards suitable for drinking water or for any other 
beneficial use. This would squander future generations' 
resources because of our imperfect predictions of what they 
will want or need.
    B. Contamination of Clean Ground and Surface Water. One of 
our strongest objections to S. 8 is its failure to prevent 
contamination of clean water sources. Although Superfund is 
generally considered a remedial statute, it also serves a 
preventive function. To fulfill the statutory mandate to 
protect human health and the environment necessitates control 
and prevention of contaminant migration. As stated in the NCP, 
``when restoration of ground water to beneficial use is not 
practicable, EPA expects to prevent further migration of the 
plume, prevent exposure to the contaminated ground water, and 
evaluate further risk reduction.'' The American Water Works 
Association testified that ``at sites in which it has been 
determined that it is not technically practical to clean up 
groundwater as a part of remediation for the site, permanent 
measures must be implemented to prevent the contaminant [sic] 
of adjacent uncontaminated groundwater.'' Provisions discussed 
above (i.e., preference for treatment, institutional controls) 
contribute to the failure of S. 8 adequately to ensure that 
migration of contaminated water does not cause contamination of 
currently clean water. The provisions discussed below compound 
the problem.
    S. 8's exceptions to the general ``requirement'' to protect 
uncontaminated water inappropriately compromise the likelihood 
of actually keeping clean water clean. S. 8 provides that ``a 
remedial action shall seek to protect uncontaminated ground 
water that is suitable for use as drinking water for such 
beneficial use unless it is technically impracticable to do 
so'' (section 121(b)(2)(B)).
    At markup, Senators Boxer, Moynihan and Wyden offered an 
amendment to strike this provision and replace it with the 
following (below is the amendment as modified by Senator Boxer 
during markup):

        A remedial action shall protect uncontaminated ground 
        water and surface water unless technically infeasible 
        or limited migration of contamination is necessary to 
        facilitate restoration of ground water to beneficial 
        use.

    We strenuously oppose the provision in S. 8, and support 
the Boxer/Moynihan/Wyden amendment. The amendment differs from 
S. 8 in several significant respects.
    First, the amendment strikes the phrase ``seek to.'' This 
phrase makes the difference between an aspiration and a 
requirement. We believe that protection of clean water should 
be an outright requirement, not just something that one should 
seek to accomplish.
    Second, S. 8 would protect uncontaminated ground water only 
to the extent that it is suitable for use as drinking water. 
The amendment would require protection regardless of the 
potential beneficial use of uncontaminated ground water. For 
example, it may not be suitable for drinking water but could be 
used as industrial process water or for agricultural purposes 
or for feeding wetlands.
    Third, while S. 8 refers only to uncontaminated ground 
water, the protections under the amendment also apply to 
uncontaminated surface water.
    Fourth, the amendment strikes the exception for ``technical 
impracticability,'' and replaces it with two more narrowly 
defined instances in which migration may be allowed: (1) where 
protection of uncontaminated ground water and surface water is 
technically infeasible, or (2) where limited migration of 
contamination is necessary to facilitate restoration of ground 
water to beneficial use.
    The phrase ``technical impracticability'' refers to both 
engineering feasibility and reliability and inordinate costs. 
We oppose this use of a cost test for determining whether to 
allow uncontaminated ground water to become contaminated. Cost 
does, however, play a role in selecting remedies under current 
law and should continue to under any reauthorized program. 
Under current law, remedies have to meet the requirement of 
section 121(a) to be cost-effective. This standard is used in 
choosing among alternative remedies that meet the other 
statutory requirements. Hence, cost-effectiveness should be 
considered in choosing between alternative remediation methods 
that also protect uncontaminated ground water. However, cost 
should not be a factor in deciding whether clean water should 
stay clean. The technical infeasibility standard reflects the 
high value of water and the much greater cost to clean water 
that has become contaminated, compared to the cost of 
protecting it before it becomes contaminated.
    For example, some contaminants are highly mobile and toxic. 
According to EPA, a 10 gallon bucket of trichlorethylene (TCE) 
can migrate substantial distances in a matter of days, and has 
the potential to contaminate 800 million gallons of water at 
levels two times higher than drinking water standards. This 
corresponds to a plume approximately 1 mile long, 1000 feet 
wide and 50 feet deep. Subsurface pathways for contaminant 
migration can be complex and difficult or impossible to 
remediate; and, monitoring systems can fail to detect releases.
    Moreover, failure to prevent migration can create 
conditions that are orders of magnitude more costly to address 
than would be preventing migration in the first place. For 
example, at the Newmark Groundwater Contamination site in 
Southern California an 8-square-mile plume is threatening 
hundreds of municipal drinking water wells serving over half-
million people. EPA is spending $20 million dollars to stop the 
spread of contamination. By stopping the spread of this 
contamination, nearly 100 wells will be protected, saving over 
$200 million in total potential wellhead treatment costs.
    We are not suggesting that clean ground water must be kept 
clean even where to do so is impossible, or where limited 
migration is necessary to facilitate the restoration of ground 
water. That is why Senator Boxer modified her amendment at 
markup to add the exception for technical infeasibility. And 
the amendment recognizes that limited migration may be 
necessary to facilitate restoration of ground water to 
beneficial use, and allows for it in that circumstance. 
Creation of an additional exception based on inordinate cost 
fails to provide the necessary assurance that our clean water 
will remain clean, and that we may avoid potentially incurring 
even greater costs to address contamination of previously clean 
water.
    Additional provisions of S. 8 that would compromise the 
protection of clean ground and surface water allow remedies to 
rely too heavily on natural attenuation. S. 8 states that 
decisions regarding remediation of contaminated ground water 
must take into account ``any attenuation or biodegradation that 
would occur if no remedial action were taken'' (section 
121(b)(2)(A)(iii)(II)). This provision elevates natural 
attenuation, by requiring that it serve as a standard against 
which all potential remedies be evaluated. The bill further 
provides that ``monitored natural attenuation may be used as an 
element of a remedial action for contaminated ground water'' 
(section 121(b)(2)(D)). Both of these provisions fail to 
include limitations on the use of natural attenuation that are 
necessary to ensure that it would not be selected in 
circumstances where it would not be suitable.
    Current EPA policy recognizes that limited natural 
attenuation may be appropriate in certain narrow circumstances: 
where limited migration will help the aquifer to recover on its 
own through a natural degradation process, and there would not 
be significant contaminant migration or unacceptable impacts to 
receptors. EPA's monitored natural attenuation policy provides 
that ``monitored natural attenuation is an appropriate 
remediation method only where its use will be protective of 
human health and the environment and it will be capable of 
achieving site-specific remediation objectives within a time 
frame that is reasonable compared to other alternatives.'' 
Under S. 8, natural attenuation could potentially be used even 
where natural degradation processes are not occurring, the 
plume is not stable, or cleanup standards would not be met in a 
time frame that is reasonable compared to other alternatives. 
Unless appropriately narrowed, the bill could allow clean water 
to become contaminated under the guise of ``natural 
attenuation.''
    A third instance in which S. 8 would not adequately protect 
uncontaminated ground water, and would be inconsistent with 
current EPA guidance, arises in the technical impracticability 
waiver. In particular, the waiver fails to include two critical 
conditions: ``a requirement to contain and reduce sources of 
pollution that cannot be eliminated entirely and may continue 
to release pollutants to ground or surface water, and a 
requirement to contain the dissolved plume'' (testimony of 
Administrator Browner at hearing September 4, 1997). These two 
conditions are in EPA's current ground water policy. Without 
these conditions, the waiver threatens to allow the further 
spread of contamination over time.
    The importance of these two conditions has been recognized 
by a panel of experts in the report of the National Research 
Council, Alternatives for Ground Water Cleanup:

        Ground water contamination problems may become 
        increasingly complex with the passage of time because 
        of the potential for contaminants to migrate and 
        accumulate in less accessible zones. Measures to remove 
        contaminants from zones where the release occurred and 
        to contain contaminants that cannot be removed should 
        be taken as soon as possible after the contamination 
        occurs.

        At [sites where cleanup will most likely be infeasible 
        with current technology], the plume of dissolved 
        contaminants should be cleaned up, contaminant mass 
        should be removed from source areas to the extent 
        practicable, and remaining contaminant sources should 
        be contained.

The Bill Provides for Inappropriate Consideration of Cost in Cleanup 
        Decisions

    Cost can be an appropriate consideration with respect to 
Superfund cleanups. For example, under current law, remedies 
are required to be cost-effective. That standard is also in S. 
8 and in the Substitute. However, under current law, remedial 
alternatives must first be determined to meet cleanup standards 
and protect human health and the environment, and only then is 
cost-effectiveness considered, in connection with evaluating 
different technologies. Under the NCP, a remedial alternative 
is considered cost-effective if the cost is proportional to its 
overall effectiveness in achieving protection of human health 
and the environment.
    We support appropriate measures to reduce costs. Several of 
the reforms that we support would reduce unnecessary costs of 
cleanup. Examples include streamlining remedy selection through 
use of presumptive remedies, and providing for consideration of 
future land use in selection of remedial actions. However, we 
simply cannot condone use of a cost test that could sacrifice 
protection of human health and the environment or unnecessarily 
inject burdensome and time consuming new requirements into the 
remedy selection process.
    We have previously discussed provisions in S. 8 which could 
promote remedies that are less protective and less expensive, 
including: the extremely narrow preference for treatment 
(containment remedies are cheaper than treatment), the 
elimination of a point of departure in the risk range, and the 
expansion of the technical impracticability waiver to allow 
waivers based on consideration of cost of risk based standards 
and of the requirement to prevent contamination of clean ground 
water.
    Several additional provisions, some of which are discussed 
below, would allow cost to play an inappropriate role.
    First, the so-called fund-balancing waiver. Under current 
law this waiver is available only when the cleanup is funded 
``solely'' by the Superfund. The intent of the fund-balancing 
waiver was to excuse compliance with applicable standards only 
when the Fund was financing the entire remedial action, and 
compliance with these standards would deplete the Fund for use 
at other sites where there were no viable PRPs. S. 8 would 
change this waiver in one significant respect: that the waiver 
would apply more broadly, in instances where the remedy is 
``predominantly'' funded by the Superfund. This creates a 
potentially huge loophole in the requirement that remedies meet 
applicable standards: in view of the liberal use of orphan 
funding under S. 8, a large number of sites would receive at 
least some funding from the Superfund. And, in many instances 
funding could be ``predominantly'' from the Superfund.
    We cannot justify allowing otherwise applicable standards 
to be abandoned based on the fact that the Superfund may be 
paying 51 percent or more of the cleanup. Moreover, under S. 8 
it is not unlikely that at the very same sites where cleanup 
requirements have been compromised based on cost, PRPs would 
receive reimbursement checks from the Superfund.
    Second, the new requirement that remedies meet an undefined 
requirement to be ``cost reasonable.'' Under current law 
remedies are required to be cost-effective. This requirement is 
maintained in S. 8. But S. 8 compounds any cost analysis with a 
second requirement that remedies be ``cost reasonable.'' The 
bill neither defines this new term nor explains the 
interrelation between these two cost standards. \8\
---------------------------------------------------------------------------
    \8\ Contrary to the suggestion by the Majority, the reference, in a 
document attached to a memo concerning the remedy review board, to the 
reasonableness of cost estimates does not support S.8's new cost 
reasonableness balancing factor. That document listed a number of 
questions that the remedy review board may consider. Among them is the 
question: ``Are the cost estimates reasonable?'' Significantly, it does 
not ask ``are the costs reasonable?'' According to EPA, the question 
refers to the accuracy of the estimated costs of the remedy, not to the 
reasonableness of the remedy cost.
---------------------------------------------------------------------------
    In addition, we are concerned that ``cost-reasonable'' 
could be interpreted to require a cost-benefit analysis. A 
cost-benefit analysis would lead to an additional and 
unnecessary test that would needlessly complicate the remedy 
selection process. It would require an additional balancing of 
costs and benefits, before balancing of the remedy selection 
factors. In addition, cost-benefit analysis tends to undervalue 
those benefits that are difficult to quantify, such as benefits 
to future generations.
    Finally, S. 8 liberally allows waivers based on technical 
impracticability. Some of the instances where this waiver is 
available have already been addressed (i.e., waiver of risk 
based standards, waiver of requirement to protect 
uncontaminated ground water). The bill further elevates 
technical impracticability by authorizing waivers of any and 
all of the remedy selection rules based on this standard. 
Section 121(b)(5), the fifth of five remedy selection rules, 
allows waivers of any of the other four rules. These include 
rules relating to anticipated future use of land and water, 
ground water rules (such as requirements for long-term 
monitoring, requirements for alternate water supply, point-of-
entry, or point-of-use treatment to ensure there is no 
ingestion of contaminated water), and the meager preference for 
treatment and provisions regarding institutional controls. This 
overarching technical impracticability waiver raises, among 
others, concern that there is yet another cost test, so that 
remedies will have to pass three cost-based hurdles: that they 
be cost-effective, cost-reasonable, and not inordinately 
costly. As noted earlier, we believe that the technical 
impracticability waiver should be limited to applicable cleanup 
standards, similar to the scope of the waivers in current law.

The Bill's Remedy Provisions Will Divert Resources Away From and Delay 
        Cleanup

    The remedy title imposes unnecessary and burdensome new 
requirements that will divert resources away from and delay 
cleanup. We fear that the provisions in the following three 
areas, among others, would impair the ability of EPA and States 
to select remedies and clean up sites in an efficient and 
timely manner: reopening RODs; the remedy review board; and 
risk assessment and communication. \9\
---------------------------------------------------------------------------
    \9\ We note one improvement to the lead in soil amendment (Title 
VIII of S.8) offered during markup that would help avoid delay. We are 
pleased that the sponsors of the amendment agreed to drop language that 
could have limited EPA's ability to act until a regulation has been 
promulgated, and believe that this change will further our goal of 
minimizing or avoiding any delay. We remain concerned, however with the 
transfer of EPA decision-making to an outside entity which is not 
accountable to the President, and in accordance with the understanding 
reached at markup, we are reviewing whether it raises constitutional 
questions.
---------------------------------------------------------------------------
    The requirements in S. 8 for revisiting past cleanup 
decisions would require significantly more agency resources 
than under EPA's current policy and practice, \10\ and create 
new potential for cleanup delay. Many RODs are issued only 
after years of study and controversy. Throwing potentially 
hundreds of seemingly resolved decisions back into dispute 
would tie up resources that could be better used addressing 
other sites, and could delay cleanup at the site at issue, and 
upset the expectations of community members regarding cleanup 
of sites that impact their lives. Several aspects of the 
provision give rise to these concerns.
---------------------------------------------------------------------------
    \10\ Administrator Browner testified that EPA's reform relating to 
remedy updates ``is yielding $340 million in cost savings in fiscal 
year 1996 and another $280 million estimated to date for fiscal year 
1997.''
---------------------------------------------------------------------------
    First, although the bill leaves EPA discretion as to 
whether a particular remedy should be revised, it does mandate 
that EPA conduct a detailed analysis of each petition against 
eight factors, to set priorities as to which petitions it will 
accept (section 136(b)(3) and (4)). \11\ Administrator Browner 
testified that the resources required for these analyses would 
be substantial. Second, it is not clear that PRPs are required 
to continue implementing a remedy pending a decision on a 
petition. PRPs implementing remedies will have a strong 
incentive to argue that they should not have to spend 
additional money implementing the current remedy, since that 
remedy will change if the petition is granted. Therefore, 
absence of an explicit requirement to continue remedies during 
consideration of a petition would risk delay. Third, it is not 
clear that PRPs would be barred from bringing a lawsuit to 
challenge an adverse decision on their petition.
---------------------------------------------------------------------------
    \11\ A potentially large number of petitions will arrive in a short 
time frame, since a petition may be filed by one PRP implementing the 
remedy, regardless of how many PRPs are also involved, and in view of 
the 1 year deadline for submitting petitions. We have not been provided 
any estimate by the proponents of this provision as to the number of 
remedies that would be eligible for reconsideration.
---------------------------------------------------------------------------
    Another provision that would drain significant resources is 
the remedy review board. As noted earlier, we support 
appropriate codification of EPA's remedy review board reform, 
and included such a provision in our Substitute. But S. 8 would 
require review of an arbitrary number of sites--one-third of 
remedies selected in a year, which would amount to review of 
more than 50 per year--regardless of whether review of so large 
a number of remedies is feasible, warranted or even necessary. 
This requirement would add yet another significant resource 
demand.
    We also are concerned that provisions on risk assessment 
and communication will require analyses that are unnecessary or 
ill suited for the purpose for which they would be used. For 
example, as Administrator Browner testified, ``the requirement 
for `central, upper-bound and lower bound estimates' of risk 
for reach facility are inappropriate for site-specific risk 
assessments, but rather apply to chemical-specific risk 
assessments like those found in IRIS or to be performed under 
the Safe Drinking Water Act.'' According to EPA, central and 
lower-bound estimates only serve to illustrate how wide the 
range of toxicity may be, by estimating the two extremes; 
however, these values cannot be considered protective of public 
health. \12\ Moreover, it is unclear whether this provision is 
intended to reject the current approach under Superfund of 
relying on the reasonable maximum estimate of exposure (between 
a central and upper-bound estimate) that neither minimizes nor 
exaggerates risks posed by contaminants at the site, and 
considers sensitive sub-populations. According to EPA, this is 
the value that is of greatest significance to the public. We 
would be concerned with a requirement that would abandon this 
approach and compromise the transparency of risk communication 
to the public.
---------------------------------------------------------------------------
    \12\ In addition, these measures are not applicable to 
noncarcinogenic chemicals because the methodology for calculating those 
toxicity values is different.
---------------------------------------------------------------------------

                               LIABILITY

Introduction

    According to EPA, as of late October, 1997, cleanup 
construction was underway or had been completed at 89 percent 
(1200 of 1353) of the sites on the NPL. As of late February, 
1997, cleanup construction had been completed at 509 of these 
sites. The vast majority of cleanups at Superfund sites are 
conducted or funded by PRPs, under judicial consent decrees or 
administrative orders. Specifically, PRPs perform between 70 
and 75 percent of long-term cleanups at non-Federally owned NPL 
sites.
    The success of Superfund in holding those who had a role in 
creating hazardous waste sites responsible for their cleanup 
and avoiding cleanup delay from litigation is directly 
attributable to Superfund's liability scheme, the prohibition 
on pre-enforcement judicial review, and EPA's ``enforcement 
first'' policy. The bar on preenforcement review prevents the 
cleanup delay that would result if PRPs were allowed to 
challenge remedies in court in advance of any cleanup. Under 
the enforcement first policy, which EPA instituted in 1989, the 
Agency seeks to require PRPs to conduct cleanups, rather than 
EPA financing them through the Superfund and then suing to 
recover its costs. This policy reflects the reality that the 
Fund is limited and should be preserved for sites at which 
there are no viable PRPs. In view of the limited sums available 
in the Superfund, the only alternatives to a system that 
requires viable PRPs to conduct cleanups would be for the costs 
of cleanup to borne by the general taxpayer, or for sites not 
to be cleaned up, neither of which would be acceptable.
    Unfortunately, the liability title of S. 8 would set back, 
rather than build on, the strengths and successes of the 
current Superfund program in cleaning up hazardous waste sites. 
Our principal objections to the liability provisions of S. 8 
are --

      LIt does not go far enough in reducing litigation 
and other transaction costs, particularly for small parties 
such as municipalities, small businesses and other small waste 
contributors.
      LIn several instances the bill actually would 
create new opportunities for litigation and increase 
transaction costs, often at the risk of delaying cleanup.
      LThrough overly broad exemptions and PRP 
entitlements to reimbursement from the Superfund, S. 8 would 
shift to the Superfund responsibility for cleanup, rather than 
holding PRPs responsible for cleaning up conditions that they 
created and thereby conserving Superfund dollars for cleanups 
at sites where there are no viable PRPs.

The Bill Keeps Municipalities, Small Businesses, and Contributors of 
        Small Amounts of Waste Trapped in Superfund's Liability Net

    Notwithstanding the seemingly widespread recognition that 
any Superfund reform bill needs to provide small parties (whose 
transaction costs generally dwarf any amounts they could or 
should contribute to cleanup) relief from Superfund liability, 
the nature and scope of that relief have proven surprisingly 
controversial. As discussed below, S. 8 fails to provide 
adequate relief to small businesses, municipalities and other 
contributors of low volume or low toxicity waste.
    Although S. 8's various liability exemptions and 
limitations for these parties each raises unique concerns, 
there is one significant defect that they have in common: the 
failure to provide these parties any relief from claims for 
costs incurred prior to enactment of S. 8. Hence, S. 8 only 
partially lets these parties out. It says that small 
contributors of municipal solid waste (MSW), contributors of de 
micromis amounts of hazardous waste and small businesses cannot 
be sued for money spent after S. 8 is enacted into law; and it 
says that there are caps on the liability of larger 
contributors of MSW and municipal owners and operators of 
landfills--for some of the claims against them. That's a start. 
But it stops short of giving meaningful relief to many 
municipalities, contributors of MSW and small PRPs.
    Where large non-exempt PRPs spent money studying or 
cleaning up a site before the enactment of S. 8, they still can 
sue these contributors, and continue pending lawsuits, to 
recover some of those costs, which in many instances are very 
large sums. For a small nonprofit organization that sent only 
municipal waste to a site and is facing a lawsuit for tens of 
thousands of dollars, it is little consolation that it is being 
sued only for pre-enactment costs. In addition to paying any 
judgment to resolve the claim, it still has to pay lawyers to 
defend or settle these claims. And even though the individual 
contributions of waste by these parties is small and judgments 
against them individually would likely be relatively small, 
PRPs that are large contributors can and do pursue them in 
contribution actions. For example, in testimony before this 
Committee, Administrator Browner described the litigation at 
the Keystone site in Pennsylvania as follows:

        First are the large owner-operators, major industrial 
        generators. Those are the ones that EPA went to and 
        asked for them to contribute to the cleanup costs. 
        There were 11 at this site. Those 11, unfortunately, 
        did turn around and seek contribution for cleanup costs 
        from 168 other parties; those other 168 turned around 
        and sought contribution from 589.

    In fact, the well-publicized case of Barbara Williams, one 
of the 589 fourth-party defendants at the Keystone site, would 
not be resolved by S. 8. Even though Ms. Williams operates a 
small business and sent only municipal solid waste to the site, 
under S. 8 she would remain liable for claims by other PRPs for 
cleanup costs incurred prior to enactment of S. 8. Hers is not 
a unique situation, since Keystone is just one of many sites 
where PRPs have entered into cleanup agreements and have 
potential claims for unreimbursed pre-enactment costs. Nor is 
it hypothetical: at Keystone, as of October of 1997, the United 
States had incurred costs in excess of $6.4 million. These 
costs have not yet been recovered. Municipalities, who face 
similar claims, also raised concerns. James P. Perron, Mayor of 
Elkhart, Indiana, testified on behalf of the Conference of 
Mayors regarding his concern with S. 8's limits on relief for 
municipalities: ``We are concerned, however, that the bill does 
not provide generators and transporters of municipal solid 
waste protection from third-party contribution lawsuits, for 
cleanup costs incurred prior to the date of enactment at co-
disposal sites.''
    Some suggest that extending these liability exemptions and 
limitations to pre-enactment costs would unfairly deprive non-
exempt PRPs of their potential contribution claims against 
these small parties. We do not believe that this warrants 
denying relief to small parties. Our rationale differs with 
respect to different categories of PRPs.
    With respect to de micromis contributors and small 
contributors of MSW, we disagree that the exemptions would 
unfairly deprive other PRPs of any contribution claims. The 
contributions by the PRPs covered by these exemptions are 
``truly tiny,'' in the words of Administrator Browner. For 
example, at the Keystone site, parties EPA determined qualified 
for de micromis settlement offers comprise almost 50 percent of 
the total number of parties named as defendants at the site. 
Yet, collectively, they sent less than 5 percent of the total 
waste volume to the site. It is difficult to conceive that 
larger PRPs have any legitimate expectation of obtaining a 
judgment for significant sums from PRPs that sent two drums of 
waste (the cutoff for the de micromis exemption's threshold of 
110 gallons or 200 pounds), or from residential homeowners, 
small businesses or small nonprofit organizations that sent 
only municipal solid waste.
    We recognize that the small business exemption presents a 
significant issue that is not raised by the exemptions for de 
micromis contributors of hazardous waste and small contributors 
of MSW. That is, it is more likely that in some instances 
larger PRPs may have agreed to a cleanup settlement based on a 
well founded expectation that they could recover some of their 
costs in contribution suits against some of the small 
businesses covered by the exemption. But we believe that this 
issue can be addressed in a manner that allows recovery of 
costs in appropriate circumstances, and at the same time 
affords small businesses some protection with respect to claims 
for pre-enactment costs. Under the Substitute, small businesses 
that were sued would have an opportunity to avoid litigation 
and significant transaction costs by settling with EPA on the 
basis of what they could afford. EPA, in turn, could pass any 
sums recovered through settlements with the small businesses to 
PRPs who had legitimate expectations of recovery against these 
small businesses, to offset some of the cost of cleaning up the 
site.
    We believe that S. 8 tips the balance too far in the 
direction of preserving the ability of large non-exempt PRPs to 
sue small businesses for pre-enactment response costs. The 
approach in the Substitute, in contrast, strikes a reasonable 
balance between protecting small businesses from claims that 
exceed their ability to pay and from the transaction costs 
associated with defending a claim, and protecting any other 
PRPs' legitimate expectations of recovery from those small 
businesses.
    A. Additional concerns with exemption for small 
contributors of municipal solid waste. S. 8 creates an 
incentive for large non-exempt PRPs to pursue residential 
homeowners, small businesses and small nonprofit organizations 
for information regarding their contributions of municipal 
waste. It does so by shifting to the Superfund shares of 
cleanup costs attributable to these parties. Since the amount 
that the remaining PRPs have to pay is reduced by any sums that 
are shifted to the Superfund, those remaining PRPs have every 
incentive to track down PRPs whose shares may be shifted to the 
Fund. An exemption does not insulate a PRP from transaction 
costs incurred in response to discovery and information 
requests, including in some instances the cost of hiring an 
attorney.
    For example, at the South 8th Street Superfund site in 
Arkansas, which was part of EPA's pilot allocations project, 
PRPs nominated approximately 2,000 parties as additional PRPs 
at the site. The vast majority of these nominations were not 
supported by deposition testimony, sworn statements, or any 
other evidence specifically identifying the nominee as a person 
that arranged for the disposal of hazardous substances at the 
site. Rather, these parties were nominated based on their 
having been listed in the Yellow Pages at the time the facility 
was in operation, and the nominating PRPs' theory that those 
parties therefore were likely to have generated waste oil that 
was sent to the site.
    The better approach is that taken in our Substitute, which 
is the same as the approach that S. 8 takes with respect to de 
micromis parties: That is, to treat wastes contributed by small 
contributors of MSW as zero shares, since the amounts they 
contributed are so small and the toxicity so low. The situation 
of small contributors of municipal waste is comparable to that 
of contributors of de micromis amounts of waste, since in both 
cases whatever they could contribute to the cleanup would not 
be justified by the resources needed to calculate their shares.
    B. Additional Concerns with Liability Limitations for 
Larger Generators and Transporters of Municipal Waste. The 10 
percent liability cap under section 107(t)(1) (for generators 
and transporters of MSW) would impose further unnecessary 
transaction costs on municipalities and other contributors of 
municipal waste. We believe that these parties should have a 
choice, as in the Substitute, between the 10 percent cap and 
settling on the basis of a dollar per ton cost. The later 
option would give them the opportunity to resolve their 
liability earlier in the process and avoid transaction costs. 
We recognize that the bill we supported in the 103d Congress 
also capped liability of MSW contributors at 10 percent. But, 
since the 103d Congress, an alternative approach developed by 
EPA has gained considerable support from municipalities. On 
February 5, 1998, after public notice and comment, EPA issued a 
policy for settling claims against municipalities and 
contributors of municipal solid waste at NPL co-disposal 
landfill sites. The policy provides that EPA will offer to 
settle with generators and transporters of municipal waste for 
an amount calculated by multiplying the number of tons of MSW 
contributed by the PRP by $5.30. The $5.30 per ton figure was 
calculated based on estimates of the per unit costs of closure 
and post-closure activities at a representative landfill 
regulated under subtitle D of the Resource Conservation and 
Recovery Act. Senator Lautenberg introduced legislation earlier 
this Congress, S. 1497, which would codify a per ton settlement 
approach.
    This approach has many advantages, including that it 
provides greater certainty, allows for early expedited 
settlements without the need for allocation, reduces 
transaction costs, and is based on an estimate of actual costs 
of addressing MSW. The EPA policy has attracted widespread 
support from municipalities, including from the National 
Association of Counties, National League of Cities, National 
School Boards Association, and International City/County 
Management Association. In a letter to EPA dated February 23, 
1998, these organizations stated that: ``We support the . . . 
unit cost of $5.30 as the maximum settlement amount for 
generators/transporters of MSW/MSS. The amounts are equitable 
and are in line with the true costs of closure/post closure 
costs of municipal co-disposal landfills, as well as the 
historical settlements of local governments at sites similar to 
those included in the policy.'' These organizations further 
noted that the policy would allow municipalities to avoid the 
current financial burdens of defending against CERCLA lawsuits.
    In sum, if Congress is going to make a policy decision to 
finally address the problem of small parties being dragged into 
Superfund cases, then reform legislation should reflect a full 
commitment to that policy. S. 8, through its preservation of 
claims for pre-enactment costs, creation of incentives to 
pursue small parties through information requests, and failure 
to provide an expedited procedure to resolve claims against 
contributors of MSW, falls short.

The Bill Promotes Unnecessary Litigation and Transaction Costs

    We understand that the sponsors of S. 8 share our desire to 
reduce litigation under CERCLA. Some of the provisions in S. 8 
reflect an effort to accomplish that goal. However, in many 
instances the bill actually would promote litigation and 
increase transaction costs, diverting resources away from 
cleanup. Below are further examples of provisions that run 
counter to the goal of reducing litigation and transaction 
costs under CERCLA.
    A. Requires Settled Cases to be Reopened. One of our most 
significant concerns with S. 8 is its mandate to reopen consent 
decrees that previously were approved and entered by courts. 
Section 137(b) of the bill provides that ``[t]he Administrator 
shall conduct the allocation process under this section for 
each mandatory allocation facility.'' A ``mandatory allocation 
facility'' is defined under section 137(a)(5) as an NPL 
facility at which there are 2 or more PRPs (including exempt 
PRPs), if at least 1 is viable and not exempt, ``for which the 
potentially responsible parties demonstrate that the response 
costs to be incurred after the date of enactment of this Act 
will exceed $1,000,000.'' Section 137(b)(5) contains an 
extremely narrow exclusion which removes from the universe of 
mandatory allocation facilities any ``facility for which there 
was in effect as of the date of enactment of this section a 
settlement or order that determines the liability and allocated 
shares of all potentially responsible parties'' at the site. As 
discussed below, this exception would exclude few if any sites, 
and a significant number of sites also would not be screened 
out under another condition discussed below. As a result, 
allocations and orphan funding are mandatory at a large number 
of sites that already are being cleaned up under consent 
decrees or orders.
    This means that the government and PRPs are required to 
collect and present detailed evidence to an allocator regarding 
the nature and extent of each settling party's connection to 
the site. In other words, the very factual disputes that a 
prior settlement was designed to avoid would be litigated 
before the allocator, for the purpose of reimbursing 
responsible parties for response costs that they previously 
agreed to pay.
    This provision has been widely criticized as, for example, 
giving ``polluters who already agreed to carry out cleanups, an 
unwarranted windfall'' (letter dated March 23, 1998, to members 
of the Environment and Public Works Committee from six national 
environmental organizations). Administrator Browner noted that 
of ``particular concern are provisions that . . . reopen 
hundreds of final consent decrees and provide Federal payments 
to parties that created toxic waste sites'' (letter dated March 
24, 1998, from Carol Browner to Senator Baucus). Some of the 
problems associated with reopening consent decrees are captured 
in an excerpt from a letter from the Department of Justice:

        These prior settlements were intended to ensure that 
        sites were cleaned up, legal and factual disputes with 
        the settling PRPs were resolved, and the cost and 
        burden of discovery and trial were avoided. S. 8 would 
        undo many of these benefits by reopening these disputes 
        for litigation in an elaborate allocation process, for 
        the purpose of reimbursing PRPs for cleanup costs that 
        they previously committed to pay. Inevitably, legal and 
        technical resources that should be devoted to obtaining 
        new settlements for new cleanups would be diverted to 
        this massive PRP reimbursement project, resulting in 
        more lawyer time, fewer new consent decrees, and a 
        slower pace of cleanup. (Letter dated March 23, 1997, 
        from Ann Harkins, Acting Assistant Attorney General, to 
        Chairman Chafee).

    While reopening a settlement in any type of case could have 
some disadvantages, these are exacerbated in large, complex, 
multi-party cases such as those common under CERCLA. The 
heightened impact is attributable in part to the large number 
of settlements (and parties) potentially implicated, and the 
difficulty and sheer complexity of conducting allocations. 
Indeed, the mandate to reopen past settlements would eliminate 
much of the intended and expected benefits of settlement. 
Sizable resources would be consumed in revisiting old 
settlements, and resources would be diverted from new cleanups 
to settled cases. As stated by State Attorneys General, ``any 
settlement negotiation, whether it is the initial negotiation 
or a reopener, is extremely resource intensive. Given our 
limited budgets, a reallocation of time to old settlements at 
someone else's direction will clearly result in fewer new 
settlements, and thus fewer cleanups'' (letter dated March 25, 
1998, to Chairman Chafee from Peter Verniero, Attorney General 
of New Jersey and Chair of the Environment Committee, and Hardy 
Myers, Attorney General of Oregon, Chair and Vice Chair of the 
Environment Committee, of the National Association of Attorneys 
General, respectively). It is not unusual for Superfund 
settlements to involve hundreds of parties, take significant 
time and resources to negotiate, and involve cleanups worth 
tens or hundreds of millions of dollars. \13\
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    \13\ In addition to having to present its views during the 
consideration of a settled case before an allocator, the United States 
would maintain its broader role in the allocation as representative and 
trustee of the Superfund Trust Fund.
---------------------------------------------------------------------------
    Regardless of one's views as to the merits of granting PRPs 
further access to the Fund in connection with cases that had 
been settled prior to enactment, the transaction costs alone 
should give one pause. It would open wide the Superfund, 
originally intended to pay for cleanup of abandoned sites, to 
incalculable claims for PRP reimbursement at each of these 
sites. The resource demands imposed by S. 8's settlement 
reopener must be evaluated in context: sites where settlements 
are being reopened are competing for resources with sites that 
are not yet being cleaned up under consent decrees. According 
to EPA there are nearly 350 sites currently on the NPL at which 
there may in the future be settlements with PRPs for the 
performance of remedial design or remedial action at a site. 
And as more sites are added to the NPL (currently at a rate of 
20-30 per year), the likely number of additional settlements 
increases. The more personnel and other agency resources that 
are devoted to revisiting settled cases, the less that are 
available for moving new cases toward settlements under which 
PRPs would clean them up. Mandating the reopening of 
settlements would contribute to the cleanup delay that reform 
legislation is supposed to eliminate. This simply is not a wise 
use of our limited Fund resources.
    S. 8 mandates allocations and orphan funding for post-
enactment costs in connection with cases that were settled 
before February of 1998, so long as there is a request by two 
or more settling PRPs and the settlement meets the following 
criteria: \14\
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    \14\ These same criteria are used in S.8 to screen sites being 
cleaned up under administrative orders: if an administrative order has 
been issued prior to February 1, 1998, and PRPs demonstrate that they 
meet the cost thresholds, allocations and orphan funding are mandatory. 
This provision is discussed later.

          La settlement decree or order that was in 
        effect on the date of enactment of S. 8 did not 
        determine the liability and allocated shares of all 
        PRPs (sec. 137(b)(5));
          LPRPs demonstrate that response costs to be 
        incurred after enactment of S. 8 in connection with a 
        settlement prior to February 1, 1998, will exceed 
        $1,000,000 (sec. 137(a)(5)(A)); and
          La neutral third party determines, based on 
        information provided by PRPs, that the amount of the 
        orphan share of the response costs remaining to be 
        incurred for a settlement prior to February 1, 1998, 
        can reasonably be expected to amount to $500,000 or 
        more (sec. 137(b)(6)).

    Although the proponents of this provision have not provided 
us an estimate as to the number of consent decrees that would 
meet these criteria, clearly they are intended to and would 
reach a significant number of settled cases. The first 
criterion--that a pre-enactment settlement did not determine 
the liability and allocated shares of all PRPs--would screen 
out few if any sites. Under section 122(d)(1)(B) of CERCLA, 
settlements with the United States expressly preserve all 
arguments concerning liability: they do not constitute 
admissions of liability. In addition, if the settlement left 
unresolved a potential claim against even one defunct PRP, then 
under this criterion the case would be eligible for reopening, 
an allocation, and mandatory access to orphan share funding. 
Usually PRPs would be able to identify at least one PRP who was 
not included in a settlement, if they considered it to be in 
their interest to reopen the settlement and get orphan funding. 
The second and third criterion would screen out some sites, but 
a significant number would remain eligible for reopeners and 
orphan funding. Moreover, significant resources would be 
involved just in determining whether a site that is being 
cleaned up under a consent decree meets the criteria for 
mandatory allocations and orphan funding.
    The resource demands of conducting allocations for settled 
cases are exacerbated by the fact that, unlike sites that are 
newly entering the consent decree negotiation process, all of 
these past settlements will be eligible for allocations 
immediately on the date of enactment of S. 8. In fact, there is 
an incentive for PRPs to demand allocations quickly, before 
more money is spent on cleanup, reducing sums that count toward 
meeting the monetary thresholds, and to obtain an allocation 
and rebate more quickly. Introducing this slug of cases into 
the allocation system immediately on enactment could 
significantly impair the ability of EPA to timely clean up 
sites ready to begin remediation.
    As noted above, under S. 8 if there is a request by two or 
more settling PRPs for an allocation at a facility eligible for 
a mandatory allocation, then an allocation is required. This 
means that literally hundreds of settling PRPs can be dragged 
into a resource intensive and time consuming process at the 
behest of two outliers. In the course of presenting evidence, 
PRPs will hash out many of the same issues that supposedly had 
been resolved by the settlement. In some cases the issues were 
actually litigated the first time around. In others, the 
parties chose to avoid a contest by settling.
    This time, there is no choice. Some parties may not want to 
reopen a settlement. They have put it behind them, and figure 
that any refund they would get through an allocation is 
outweighed by the time and money they would have to spend to 
participate in an allocation. That doesn't matter.
    Certain provisions in S. 8 apparently are intended to 
mitigate some of the adverse impacts of reopening consent 
decrees. Unfortunately, these provisions would accomplish 
little, if anything, toward that end. For example, S. 8 
provides that allocations involving settled cases will be 
performed for the sole purpose of determining the orphan share 
(sec. 137(b)(6)(F)). Any safeguards created by this provision 
are illusory. The exercise is fraught with complexity and 
litigation bait.
    In order to determine the orphan share at a site, the total 
number of shares must be determined. And, to make that 
determination, the allocator must determine the shares of prior 
settling PRPs as well. Moreover, even if determining individual 
shares of settling PRPs could be dispensed with for purposes of 
ascertaining the orphan share, section 137(o) of S. 8 still 
would require the allocator to determine the shares of each 
settling PRP in order to determine its entitlement to 
reimbursement. Determination of shares will require enormous 
resources to wade through evidence on many issues, even though 
it was to avoid litigation and discovery over these issues that 
the parties entered into the settlement in the first place.
    Garnering the evidence that the allocator will need to make 
decisions can be exceedingly difficult and in some cases 
impossible. It requires detailed factual information, which may 
or may not still exist in old cases. Simply because EPA settled 
a case, it cannot be assumed that the evidence is sitting in a 
Federal archives someplace just waiting to be retrieved. In 
many cases the evidence was never collected: the parties 
instead concentrated their efforts on negotiating a settlement 
agreement.
    Finally, even after the allocator determines the respective 
shares attributable to the orphan and to other PRPs, an 
exceptionally difficult task still lies ahead: determining what 
compromises were made by EPA and for what reasons they were 
made. Any such determination generally would involve privileged 
information. Although it may be impossible to determine, 
information on past compromises is essential to avoid windfalls 
to PRPs.
    In the majority of settlements, EPA compromises its claim 
in some respect, usually for a combination of reasons. These 
reasons may include resource and strategy considerations that 
relate to the strength of the case or the importance of the 
legal issues involved, the existence of a large number of 
defunct and insolvent PRPs, and an assessment of what it would 
take to reach an acceptable settlement. Decisions to settle 
CERCLA cases also may be influenced by a need for PRP resources 
to conduct a cleanup, due to a lack of EPA resources to do so 
or a need for those resources at a site where there are no 
viable PRPs. Therefore, it is not at all uncommon for the 
United States to forgive all or a portion of its claim for past 
costs or future oversight costs, in exchange for an agreement 
by PRPs to conduct future cleanup work.
    Another instance where bill language cannot cure the 
complex problems created by reopening consent decrees is the 
provision that allocations involving settled cases must take 
into account any monetary or nonmonetary compromises made by 
EPA in the initial settlement (sec. 137(b)(6)(F)). We 
appreciate this recognition that settling PRPs should not get 
the benefit of the same compromise twice. Unfortunately, in 
practice it would be very difficult and resource intensive to 
actually prevent these windfalls. That is because of the 
difficulty in unraveling old deals to ascertain what 
compromises that the government may have made, and the reason 
that they were made. It can be very difficult to determine how 
much of a prior compromise, embodied in a consent decree, 
represents costs that are eligible for orphan funding.
    For example, EPA may say that its compromise of $1 million 
reflected the share attributable to insolvent PRPs. Therefore, 
the settling PRP should not be given orphan funding when the 
settlement is reopened: to do so would give the PRP a windfall. 
The settling PRP may say that EPA forgave its $1 million claim 
for past costs not because of any insolvent PRPs, but because 
there was a new issue of law in the case that EPA did not want 
to litigate. Therefore, the PRP would argue to the allocator 
that it is entitled to orphan share funding for the $1 million 
share attributable to the insolvent PRP. The allocator would 
have to decide.
    Proponents of reopening consent decrees focus principally 
on two arguments: fairness and reducing litigation. Neither one 
would justify the consent decree reopener provision in S. 8. We 
discuss them in turn below.
    We are not persuaded that claims of unfairness of 
settlements justify a mandate to reopen them. It is fair to let 
settled cases lie. Just because we have created a new pot of 
orphan share funding, PRPs who previously settled their 
liability have no right or legitimate expectation of access to 
it. After all, if we cut capital gains taxes, people who sold 
their stock before the rates were cut don't have a legitimate 
expectation that they should be able to get a refund. What's 
done is done. Congress amends laws all the time and we do not 
go back and unravel settlements that were concluded before the 
change.
    Proponents of the mandatory consent decree reopener 
provision focus almost exclusively on the perceived unfairness 
of holding settlors to their commitments, without any serious 
consideration of the unfairness of reopening consent decrees to 
others, including to many PRPs and to the public at large. We 
disagree that it is unfair to hold PRPs to commitments that 
they negotiated and voluntarily assumed through agreeing to a 
consent decree. Moreover, the suggestion of unfairness is based 
on a sweeping assumption that the terms of past consent decrees 
are unfair. That assumption is unfounded.
    Settlements reflect compromises on all sides. One of the 
key factors in EPA offering to compromise is the existence of 
insolvent or defunct PRPs in connection with a site. In fact, 
in accordance with its 1996 orphan share policy, EPA has 
routinely offered orphan share funding at eligible sites to 
parties who will agree to a cleanup settlement, in the form of 
forgiveness of claims for past costs or future oversight costs. 
According to EPA, the Agency has made offers of orphan funding 
under the policy estimated at more than $100 million in the 
first 2 years of the policy. Even before the policy, EPA often 
compromised its cost recovery claims to reach a settlement. 
Hence, any assumption that orphan funding would be a new 
opportunity with the passage of S. 8 and was unavailable 
previously is unfounded: it is more like a second bite at the 
apple. And reopening settlements could give windfalls to PRPs 
if compromises that they benefitted from under the original 
consent decree are not accounted for in re-assessing their 
``shares.''
    When PRPs elect to enter into settlements, they make a 
judgment that it is in their interest to do so: it is not 
unfair to hold them to that judgment. The decision whether to 
settle probably included consideration of whether some costs 
could be recovered from other parties. If the PRP entered the 
settlement knowing that all nonsettling PRPs are either 
insolvent or defunct, or too small to make meaningful 
contributions, then the PRP never had any expectation that it 
would recover its costs, and, for whatever reason, decided that 
it was more advantageous to settle than not to settle. If, on 
the other hand, a PRP enters a settlement with the intent of 
suing nonsettling PRPs to recoup some of its costs, then it has 
done so or can do so.
    Moreover, before entering a consent decree as an order of 
the court, a judge has to find that the settlement is fair, 
reasonable and in the public interest. Any PRP who considers a 
settlement unfair has the option of not settling, submitting 
comments during the public comment period on the consent 
decree, and even intervening in court for the purpose of 
challenging entry of the decree. And PRPs would have previously 
had an opportunity to comment on the proposed cleanup plan 
before EPA issued its Record of Decision selecting the remedy.
    In addition, the interests of any settling PRPs who do not 
want to reopen a settlement must be considered. They may be 
swept into an allocation at the request of two PRPs. Some 
assert that everyone would want to reopen their settlement, in 
order to benefit from reimbursements from the Fund for orphan 
shares. That view ignores the fact that the transaction costs 
may exceed any potential benefits to a PRP or its insurer.
    Another significant category of persons that would be 
prejudiced by reopening settlements is the public, including 
communities located near superfund sites, the taxpaying public, 
and future generations. They have a keen interest in judicious 
use of the Superfund, so that it will be available at abandoned 
sites where there are no PRPs to pay for a cleanup. We have 
already illustrated the magnitude of the resources that would 
be required to conduct an allocation in connection with even 
one settled case. Even if payments of orphan funding were from 
a separate account from cleanup money, that would not protect 
resources--personnel and money--required to go through the 
allocation process. Inevitably, the settled cases would divert 
these resources away from yet unsettled cases. They would 
create a massive bottleneck on the date of enactment that would 
significantly delay response actions at sites that are not yet 
undergoing cleanup.
    That is not to say that in every single case it would 
necessarily be inappropriate to conduct an allocation or for 
EPA to offer orphan funding in connection with a site that is 
subject to a consent decree. But the provision in S. 8 for 
permissive allocations could be used in any appropriate case, 
based on case by case considerations and the availability of 
funding and other resources for revisiting past settlements. As 
State Attorneys General observe in their March 25, 1998 letter, 
``This problem [depletion of limited resources from reopening 
consent decrees] can be avoided if we simply leave the law the 
way it stands today, which allows EPA or a State agency to 
determine whether the reopening of settlements is necessary in 
order to achieve a better or less costly cleanup. We therefore 
urge you to remove [consent decree reopeners] from S. 8.''
    Proponents of this provision assert that reopening consent 
decrees may expedite resolution of litigation by PRPs against 
other PRPs, through the enticement of orphan funding. That 
misses the point. Allocations with respect to these and other 
claims addressed in past settlements would divert EPA resources 
from cleanups at sites that are not yet being cleaned up. And 
allocations in connection with past settlements would open up a 
whole host of issues for resolution that are not raised by 
third-party litigation. Other tools are available to facilitate 
the resolution of third-party claims without drawing down 
resources that could be better used to negotiate a settlement 
at a site that is not yet being cleaned up, so that it might be 
cleaned up.
    The Majority asserts that reopening consent decrees and 
providing orphan share funding is necessary in order to reduce 
third-party litigation, particularly when it involves small 
parties. We are in favor of reducing third-party litigation, 
including when it involves small parties. We do not think that 
mandating the reopening of consent decrees gets us there, for 
three reasons.
    First, defendants in third-party litigation are not jointly 
and severally liable. As provided in section 113(f)(1) of 
CERCLA, ``In resolving contribution claims, the court may 
allocate response costs among liable parties using such 
equitable factors as the court determines are appropriate.''
    Second, arbitration and dispute resolution have always been 
available as tools to resolve cases short of trial. They can be 
used in third-party litigation too. So can allocation. Both S. 
8 and the Substitute provide for ``permissive'' allocation, 
that is, discretionary use of allocation in appropriate cases. 
These third-party claims are eligible for permissive 
allocation.
    Third, small party interests simply are not what is driving 
the consent decree reopener provision. As discussed above, the 
way to protect small parties is through liability exemptions 
and limitations that apply to claims for both past and future 
costs. It is not to reopen settled cases, devote substantial 
resources to allocations, and pay orphan funding to larger 
nonexempt PRPs.
    If small parties were exempt, then they would not be liable 
in third-party cases for past or future costs. If they already 
settled, then they are covered by contribution protection and 
do not have to worry about being sued. Moreover, if they 
already settled they are probably the least likely parties to 
benefit from the consent decree reopeners in S. 8. That is due 
to the fact that settlements between EPA and small parties 
virtually always are ``cash outs.'' In other words, they make 
payments, often in one lump sum within a specified number of 
days after a consent decree has been entered, and then their 
obligations are complete. They are not the ones spending money 
over the course of years implementing a remedy and therefore 
eligible for reimbursement under S. 8. Further, small 
contributors that cash out typically are given more complete 
covenants not to sue than are those performing the work. \15\ 
Therefore, they had an even greater expectation that the 
settlement would put the case behind them, forever. S. 8 would 
undermine that expectation. Hence, in all likelihood, small 
entities that settled prior to enactment would not benefit, and 
in fact could be harmed, by the reopeners.
---------------------------------------------------------------------------
    \15\ For example, the 1986 amendments to Superfund added a 
provision (section 122(g)) to promote expedited final settlements with 
contributors of low volume or low toxicity waste. Reopening settlements 
with these parties would undermine the benefits of that provision.
---------------------------------------------------------------------------
    As the State Attorneys General caution: it ``is important 
to note that in our discussions with small business owners and 
local officials, they have clearly indicated that they do not 
want to reopen old settlements. They also have limited 
resources, and feel, as we do, that whatever the outcome, it is 
time to put settlements that have been concluded behind us'' 
(letter dated March 25, 1998, to Chairman Chafee from Peter 
Verniero and Hardy Myers).
    B. Other Provisions that Invite Litigation. The bill 
contains several additional provisions that would promote 
litigation in their own right and due to inconsistencies with 
other provisions. Following are some examples.
    First, the bill creates a disincentive to settle and 
promotes litigation by allowing PRPs to obtain reimbursement 
from the Fund for cleanup costs they incur in excess of their 
allocated shares, even when the PRPs refuse to settle and 
preserve their ability to bring lawsuits for various potential 
claims related to cleanup of the site.
    PRPs conduct cleanups either under a judicial consent 
decree or under an administrative order issued by EPA or 
another duly delegated Federal agency. \16\ One of the primary 
advantages of consent decrees is that they more completely 
resolve the range of potential claims related to a hazardous 
waste site. For example, settlements generally include 
agreements to waive potential claims to challenge the remedy or 
settlements between EPA and other PRPs, to litigate the 
liability of settling parties, for reimbursement from the 
Superfund, and against other settling PRPs. In addition, 
consent decrees often resolve EPA's claims for past costs and 
future oversight costs. By contrast, when PRPs refuse to settle 
and instead conduct a cleanup under an administrative order, 
they preserve rights to sue that under a consent decree they 
generally would have to waive as a condition of settlement. 
\17\
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    \16\ S. 8 may create an entitlement to 100 percent of orphan 
funding where cleanup is under an order, rather than the 90 percent 
available under post-allocation settlements. We support offering 90 
percent of orphan funding for post-allocation settlements, to create an 
incentive for the parties to resolve their internal disputes through a 
less resource intensive settlement process. However, PRPs who do not 
settle, and instead clean up under an administrative order, should not 
be entitled to more orphan funding than those who settle. This would be 
a further disincentive to settle.
    \17\ Although new section 137(o) provides that as a condition of 
receiving orphan funding a PRP must waive claims against other PRPs for 
cost recovery or contribution, it does not require a waiver of other 
claims. By contrast, section 137(n)(2) requires a broader waiver of 
claims as a condition of settlement.
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    Because of the advantages of settlements in reducing 
litigation, PRPs should be given incentives to settle. Orphan 
funding provides that incentive. But the strength of the 
incentive is reduced if orphan funding is made available even 
if a PRP refuses to settle, and instead cleans up under an 
administrative order, preserving certain rights to sue.
    Under S. 8, PRPs conducting cleanups under administrative 
orders issued before February 1, 1998, clearly are entitled to 
allocations and orphan funding, and still reserve their rights 
to bring a variety of claims in connection with the site. S. 8 
also may create a right to reimbursement for PRPs who conduct 
cleanups under administrative orders issued after February 1, 
1998: section 137(o)(1) creates an entitlement to reimbursement 
for post-allocation payments in excess of a PRPs share, as 
determined by an allocator. This provision does not condition 
payment on cleanup being conducted under a consent decree. 
However, elsewhere S. 8 provides that a ``potentially 
responsible party that does not agree to a settlement under 
paragraph (4) is subject to post-settlement litigation,'' which 
suggests that orphan funding may be available only to PRPs that 
enter into judicial consent decrees.
    S. 8 thereby promotes two layers of litigation: first, it 
creates an ambiguity as to whether a PRP conducting a cleanup 
under a post-enactment administrative order is entitled to an 
allocation and reimbursement. Second, it promotes challenges to 
the remedy, claims against the fund and other litigation, by 
creating an entitlement to orphan funding without requiring 
that PRPs waive these claims.
    The Department of Justice summarized as follows its 
concerns with S. 8's provision for reimbursement of PRPs who do 
not enter into settlements:

        Unfortunately, the allocation provisions of S. 8 would 
        reward recalcitrance and undermine incentives for PRPs 
        to agree to cleanup settlements. Under S. 8, a 
        recalcitrant PRP that refuses to enter into a cleanup 
        settlement after an allocation may be treated better 
        than a cooperative PRP that enters into a settlement 
        and assumes responsibility for cleaning up the site. 
        EPA's option for dealing with such a recalcitrant is to 
        issue an Administrative Order under Section 106 
        requiring such a party to perform the cleanup. Under S. 
        8, the taxpayers must then reimburse the recalcitrant 
        party for 100 percent of the costs such a party incurs 
        in excess of his ``share'' as determined by the 
        allocator. On top of this financial reward, the 
        recalcitrant PRP is free to continue to litigate its 
        liability, to challenge the remedy, to seek 
        reimbursement from the Superfund for all of its costs 
        at some point in the future, and to challenge 
        settlements between the United States and other PRPs. 
        Far from reducing litigation, S. 8 promotes it by 
        undermining the incentives for settlement.

    A second provision ripe for litigation is section 
137(f)(3)(D) of the bill, which creates a new right to bring a 
lawsuit to challenge an allocator's decision. It is incongruous 
to create a cause of action to challenge a decision made in 
connection with a process established for the purpose of 
avoiding litigation. Under this provision, parties could 
challenge the allocator on virtually any exercise of discretion 
in the allocation process. And each challenge could delay the 
process, pending judicial resolution, which may take a very 
long time. This provision has the potential of taking a process 
that is intended to expedite settlements and cleanups, and 
grinding it to a halt.
    Juxtaposed with this provision is section 137(h)(5), which 
provides that a ``draft allocation report or final allocation 
report of an allocator and any other determination made by the 
Administrator or the allocator for the purposes of [subsection 
(h)] shall not be subject to judicial review.'' Arguably every 
decision of an allocator is ``for purposes of'' subsection (h), 
which concerns the allocation report, since the report is the 
culmination of the allocation process. But that would render 
section 137(f)(3)(D) meaningless. Reconciling these two 
provisions could give rise to an additional layer of 
litigation.
    Third, S. 8 will create unnecessary litigation over new 
undefined and untested standards and terms. It is not unusual 
for new laws to generate litigation, until the meaning of new 
standards and requirements is settled through judicial 
interpretation. However, S. 8 would needlessly generate 
litigation by unnecessarily introducing a variety of new and 
ambiguous standards. For example, title IV (Remedy) of S. 8 
contains a new definition of protection of the environment. It 
provides that a determination of whether a remedial action is 
protective of the environment ``shall not be based on the 
impact to an individual plant or animal in the absence of an 
impact at the population, community, or ecosystem level . . .'' 
(section 121(a)(1)(B)(ii)(II)). Since the words ``population,'' 
``community,'' and ``ecosystem'' are subject to different 
interpretations and are not defined in the bill, use of these 
terms has the potential to create new litigation. Additional 
new phrases that are likely to generate litigation are 
addressed in the discussions of other titles.
    According to State Attorneys General, ``It is changes such 
as these, imposing new language and new standards, which will, 
we fear, lead to new litigation or diversion of resources from 
what everyone professes to be the goal of this statute, which 
is faster, more efficient cleanups without the involvement of 
litigation.'' The Department of Justice expressed similar 
concerns: ``These undefined terms may interfere with the 
ability of the government to protect human health and the 
environment, and will spawn new litigation by displacing the 
now well-established case law under the existing statutory 
criteria for Federal action.''

The Bill Contains Overly Broad Liability Exemptions and Limitations, 
        and Fails to Protect and Preserve the Superfund Trust Fund for 
        Cleanup of Abandoned Sites

    We support appropriate contribution from the Fund, in 
connection with a cleanup settlement, of shares attributable to 
certain exempt, insolvent and defunct parties. Orphan funding 
is an effective tool for achieving settlements and at the same 
time removing from CERCLA liability those parties who would be 
unable to make significant payments or whose share is minimal.
    But many of the exemptions and requirements for orphan 
funding in S. 8 simply go too far. Some examples have already 
been discussed: the mandate to provide orphan funding to PRPs 
who are already under a legal obligation to conduct a cleanup, 
and the mandate to provide orphan funding to PRPs who are 
conducting a cleanup under an administrative order.
    While this discussion is not intended to be exhaustive, 
there are a few additional instances of inappropriate 
exemptions and S. 8's failure to protect and preserve the Fund 
that warrant mention: the overly broad small business 
exemption; mandatory allocations and orphan funding at sites 
where all PRPs are current or former owners or operators of the 
facility, and at Federally owned facilities; the overly broad 
recycling exemption; preemption of State laws with respect to 
liability of response action contractors; and the requirement 
that EPA accept a settlement offer based on an allocation 
without regard to whether it would impair the Agency's ability 
to address cleanup of other hazardous waste sites.
    A. Small Businesses Exemption. S. 8 exempts too many 
parties under the guise of a small business exemption. Under 
section 107(s) of S. 8, a small business is exempt if:
    (1) during the taxable year preceding notification that it 
is a PRP the business (a) employed not more than 75 full-time 
employees or full-time equivalents, or (b) reported $3 million 
or less in annual gross revenue; and
    (2) ``The activities specifically attributable to the 
person resulted in the disposal or treatment of material 
containing a hazardous substance at the vessel or facility 
before January 1, 1997'' (section 107(s)(1).
    We oppose this provision on two grounds: first, the 
definition of a small business at 75 employees or $3 million 
captures too many companies that contributed more than de 
minimis amounts of hazardous waste and can afford to pay their 
share of a cleanup. Of course, the larger the exemption, the 
greater the costs that are shifted to the Superfund and are 
unavailable for cleanup at other sites. Second, it goes beyond 
exempting small business generators and transporters, to exempt 
owners and operators of hazardous waste sites. We address these 
issues in turn.
    The incremental expansion of this exemption over the course 
of this Congress prompted Senator Baucus to observe at markup 
that we are approaching the point that the exemption is 
swallowing the rule. A brief chronology illustrates the point:
    In the 103d Congress, S.1834 did not have a small business 
exemption per se. Instead, it provided liability relief to 
small business generators and transporters through a variety of 
other liability exemptions and limitations, such as: exemptions 
for de micromis contributors of hazardous waste and small 
business contributors of municipal solid waste; and expedited 
settlements for de minimis amounts of waste, for PRPs whose 
ability to pay is limited, and for small business.
    During the negotiations in the 104th Congress, we and EPA 
proposed an exemption for small business generators with fewer 
than 25 employees and less than $2 million in gross annual 
revenues. As Administrator Browner explained in testimony 
before this Committee, the small business exemption is intended 
to serve as a proxy for ability to pay. Since evaluation of the 
ability of small businesses to pay is resource-intensive, and 
generally small businesses are small contributors and have a 
limited ability to pay, the exemption enhances efficiency and 
reduces transaction costs by serving as a presumptive 
``inability to pay'' exemption.
    In S. 8, as introduced at the beginning of the 105th 
Congress, the small business exemption applied to small 
businesses that employed on average fewer than 30 employees 
during the taxable year, or reported $3 million or less in 
annual gross revenues. The use of ``or'' rather than ``and'' 
significantly increased the number of businesses covered by the 
exemption. Then, a revised Mark released in February of 1998 
increased the employee cutoff to 50, and at markup 50 employees 
was further increased to 75 employees.
    No showing has been made, nor evidence offered, to 
demonstrate any need for further expanding the scope of the 
exemption by increasing the employee threshold. When a 
representative of the National Federation of Independent 
Businesses (NFIB) testified on S. 8 in September of 1997, she 
did not suggest that there was any problem with the employee 
threshold, which at that time was only 30. Nonetheless, S. 8 
has since more than doubled that number. According to NFIB, the 
vast majority of small businesses have fewer than 50 employees: 
of the 6 million businesses in the United States, 94 percent 
employ fewer than 50 persons, and almost 90 percent employ 
fewer than 20. Moreover, even among PRPs with fewer than 50 
employees, many have annual gross revenues well in excess of $3 
million. Increasing the employee cutoff to 75 would only 
increase the number of exempt businesses that are fully capable 
of contributing toward cleanup, and who as a policy matter 
should be required to contribute toward remediating conditions 
that they helped create.
    We also oppose exempting PRPs who own or operate hazardous 
waste sites. These are parties that exercise control over the 
property, and in many cases either caused the problem or are 
current owners that paid a reduced purchase price to a seller 
who caused the problem. Yet, they would be allowed to benefit 
from an increase in their property value as a result of a 
government financed cleanup. Further, if they are unable to 
pay, they would receive the benefit of the expedited settlement 
provisions for ``inability to pay'' settlements. If, however, 
they can afford to pay, then exempting them from responsibility 
to clean up their own property constitutes another imprudent 
use of the Fund.
    Some of the worst Superfund sites have been owned or 
operated by small businesses. For example, the Lipari landfill, 
which was number one on the NPL, was operated by a sole 
proprietor, Nick Lipari, who permitted industrial customers to 
back their trucks up to a hole on his property and dump 
millions of gallons of toxic liquids into the ground. Later he 
cooperated with the government and contributed over $1 million 
toward the cleanup.
    B. Mandatory Allocations and Orphan Funding at Owner/
Operator and Federal Facilities. Under S. 8, owner/operator 
sites are within the universe of facilities at which 
allocations and orphan funding are mandatory, so long as 
certain minimal conditions are met: that response costs to be 
incurred after enactment will exceed $1 million; and there must 
be 2 or more PRPs (which may include one that is exempt).
    So-called ``owner/operator'' sites are sites where all 
contamination was caused by the current and former owners and 
operators of the facility. No contamination was contributed by 
off-site generators or transporters. Many owner/operator sites 
constitute ``chain of title'' sites, where a series of 
different, though often related, parties have owned the 
facility, and some or all of them have contributed to the 
contamination over time. Title to the site has passed from one 
owner to another over the years. Advocates of mandatory 
allocations and orphan funding for this type of owner/operator 
sites argue that the taxpayers should compensate current owners 
for the ``shares'' of prior owners that are now defunct or 
unable to pay.
    We believe there are strong policy reasons against 
mandating allocations, and provision of orphan share funding, 
at owner/operator sites. First, owner/operator sites are not 
the type at which allocations are necessarily needed or suited. 
Typically, they have smaller numbers of PRPs than do multi-
party generator/transporter sites. Allocations are a valuable 
settlement tool at the sites with large numbers of PRPs, such 
as co-disposal landfills. Due to the large number of parties, 
transaction costs for litigation are particularly high. Owner/
operator sites generally have fewer PRPs, so the potential 
savings on transaction costs from an allocation are more 
limited.
    The types of issues raised are distinguishable as well. 
Generator/transporter sites usually pose issues which to a 
large extent are factual, often focusing principally on the 
volume and toxicity of waste each PRP contributed to the site. 
By contrast, owner/operator sites often pose issues that are 
more legal in nature, such as whether the current owner, a 
successor, is legally responsible for the acts of a related 
company that is its predecessor, the prior owner. Requiring 
mandatory allocations and orphan funding at these sites will 
force highly complex legal issues into a process not best 
suited to their resolution.
    In addition, it is not unfair to hold property owners 
responsible for conditions on their property, subject to the 
innocent landowner defense. Current owners who acquired the 
site after the dumping ceased, and did not know of the 
contamination despite exercising due diligence, already have a 
defense to liability under the ``innocent landowner'' provision 
of Section 107(b)(3) of CERCLA. Such parties need no mandatory 
orphan funding because they have no liability to begin with.
    That leaves owners who acquired the site with actual or 
constructive knowledge of contamination, or who failed to 
exercise due diligence to ascertain site conditions. It is fair 
to require such owners to take full responsibility for 
hazardous conditions on that property. Common law routinely 
imposes such responsibility on current owners. For example, the 
current owner of a decrepit apartment building is responsible 
for dangerous conditions such as broken stairs, even if the 
hazard existed before the current owner bought the building. 
The taxpayers are not forced to provide ``orphan funding'' for 
repairs if the prior owner is defunct. In addition, the 
purchase price may well have been reduced to reflect the 
contamination. Use of Fund money to address those conditions 
would improve the value of the property and give a windfall to 
the current owner.
    At many chain of title sites, title has passed by means of 
a transactions among affiliated or related entities. In these 
cases, the current owner is often legally responsible for the 
liabilities of the defunct prior owner under one or more of 
several complex legal principles of successor liability such as 
de facto merger, assumption of liability, or ``substantial 
continuity.'' In such cases, a defunct prior owner's liability 
has legally passed to a subsequent owner, or ``successor.'' It 
is inappropriate to invite current owners to attempt to 
transfer their legal successor liability for their predecessors 
to the taxpayers through the allocation process.
    The National Association of Attorneys General expressed 
their opposition to mandating allocations at owner/operator 
sites. They stated: ``In our experience, these sites do not 
present the problems of factual issues that warrant findings by 
an allocator. They present only legal issues that are best left 
to the courts, generally through motion practice. To require 
allocation will delay resolution of these matters, and 
significantly increase, not decrease, their cost.''
    Mandatory orphan funding at owner/operator sites, which 
constitute approximately 50 percent of the sites on the NPL, 
including some that cost in the hundreds of millions of dollars 
to clean up, could have a major financial impact on the Fund. 
That is not to say that orphan funding will never be warranted 
at an owner/operator site. It may. But orphan funding should 
not be broadly mandated for this category of sites. They could 
remain eligible for permissive allocations. That way, in truly 
compelling cases that would not create a windfall for the 
current owner, orphan funding may be offered, at the discretion 
of and in amounts determined by the Administrator. \18\
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    \18\ Under current law, EPA sometimes makes compromises at owner/
operator sites to reflect fairness and account for the contribution of 
parties that are now defunct. In addition, owners and operators at 
these sites also have some protection through provisions for ability to 
pay settlements, where conditions warrant.
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    The Substitute excludes owner/operator sites from the 
definition of mandatory allocation facilities, but leaves them 
eligible for allocations and orphan funding at the discretion 
of the Administrator (``permissive allocation''). Mandatory 
allocation and orphan funding at these sites would not be an 
appropriate use of the Fund.
    We also oppose mandatory allocation and orphan funding at 
Federal facilities. Among other reasons, section 111(e)(3) of 
CERCLA bars the use of Superfund money for remedial activities 
at Federal facilities. In addition, Federal facilities are 
similar to owner/operator sites in that generally they involve 
a relatively small number of PRPs. Hence, like owner/operator 
sites, potential resources required to conduct an allocation 
may outweigh any reduction in transaction costs that could be 
realized from mandatory allocations. And, often when the United 
States brings claims regarding Federal facilities, those claims 
are in the nature of contribution claims. As noted earlier, 
under section 113(f)(1) of CERCLA, parties in contribution 
actions are not jointly and severally liable.
    B. Recycling exemption. We supported the recycling 
provisions in the consensus bill in the 103d Congress. And we 
supported the bill introduced by Senator Warner in the 104th 
Congress, S. 607, which was in most respects identical to the 
recycling provisions in the Superfund bill from the 103d. We 
continue to support an approach such as in those two proposals, 
as evidenced by the recycling provision in the Substitute.
    We are concerned with S. 8's departure from these 
proposals. First, the momentum that has held together the 
agreement of the 103d Congress is lost with the new proposal. A 
broad range of interested parties reached agreement in 
connection with the recycling provisions in S.1834 in the 103d 
Congress, and that group has vigorously attempted to preserve 
that agreement, notwithstanding the fact that much of the rest 
of S. 1834 has since been revisited and revised. These efforts 
seem to reflect not that the agreement is necessarily perfect 
from the standpoint of any one interest, but that reopening the 
agreement in any way risks losing the broad based support. We 
are concerned that without the momentum behind the agreement 
and the Warner bill, amendments will take this provision even 
further from the original purpose of a recycling provision than 
has S. 8. More specifically, our primary concerns with S. 8's 
recycling provisions are these:
    First, the exemption has been enlarged to encompass waste 
other than post-consumer use waste. The original goal of the 
recycling proposals was to avoid penalizing post-consumer use 
recycling efforts. S. 8 would expand the liability exemption to 
cover entities that generate and transport byproducts and 
wastes in the course of certain traditional manufacturing 
activities.
    For example, S. 8 exempts generators and transporters of 
copper and copper alloy byproducts as ``scrap metal 
recyclers.'' S. 8 defines ``scrap metal'' to include byproducts 
of copper and copper-based alloy production processes, and 
removes a previously proposed requirement that scrap metal 
cannot be ``melted.'' ``Scrap metals'' under this bill appear 
to be aimed at covering smelter wastes, as long as they are 
``sold'' to someone. For example, the exemption could subsume 
copper smelting sites where copper smelting slags were sold as 
fill. At some NPL sites, smelting slags have been sold to 
companies that have broken the slags into pieces and 
distributed them as ``fill.'' Heavy metals contamination has 
resulted. If this language is enacted, smelters could argue 
that their wastes qualify as ``recyclable scrap metal,'' and 
they would be exempt from liability as generators and 
transporters.
    S. 8 also contains an exemption for ``toll processing'' of 
batteries. Under this provision, PRPs that normally might 
recycle batteries themselves (and thus be liable for any 
contamination as owners and operators) are permitted to evade 
liability as ``generators'' of waste by subcontracting the 
recycling off-site, while they nonetheless keep the valuable 
components of the batteries that are recovered through the 
recycling process. This will create poor waste handling 
incentives and undermine environmental protection.
    We also are concerned that S. 8 departs from the agreement 
reached in the 103d Congress insofar as it fails to provide a 
heightened standard of care for persons seeking the exemption 
for post-enactment recycling transactions. Lastly, we are very 
concerned that this exemption adds yet another inappropriate 
burden on the Superfund Trust Fund. For example, at NPL sites 
the Superfund would be responsible for paying the share of pre-
enactment cleanup costs attributable to a smelter that is 
exempted as a scrap metal recycler.
    C. Pre-Emption of State Laws on Liability of Response 
Action Contractors. Our principal concern with S. 8's provision 
concerning response action contractors is its preemption of 
State negligence law. Specifically, S. 8 provides that the 
negligence standard under section 119 of CERCLA applies in any 
lawsuit against a response action contractor not only under 
CERCLA, but also under State law, unless a State enacts a 
statute that establishes a standard for liability of response 
action contractors.
    We believe that, for purposes of CERCLA, response action 
contractors should be subject to liability only in limited 
circumstances. But we also believe that States should be able 
to make their own decisions about the liability of response 
action contractors under their own State hazardous waste 
cleanup and tort laws. Moreover, we see no reason why a State 
legislature should have to pass a statute specifically 
addressing the liability of response action contractors in 
order to avoid Federal preemption. A State may be perfectly 
happy with its common law, or believe that the matter is best 
addressed generally rather than by a law specifically 
addressing the liability of response action contractors. As 
Stated by State Attorneys General in their letter of March 25, 
1998, ``[liability of] response action contractors . . . is 
another area best left to the States.''
    D. EPA May Not Reject a Settlement Offer on Grounds that it 
Would Impair the Ability of EPA to Conduct Cleanups at Other 
Sites. S. 8 limits the grounds on which the United States may 
reject an allocator's report to two: (1) that it does not 
provide a basis for settlement that is fair, reasonable and 
consistent with CERCLA; or (2) that the allocation process was 
directly and substantially affected by bias, procedural error, 
fraud, or unlawful conduct (section 137(l)). Absent one of 
these conditions, EPA is required to accept a settlement offer 
based on the share allocated to a PRP in the allocator's 
report, so long as the PRP agrees to other terms and conditions 
specified in the bill (section 137(n)).
    As one of those conditions EPA may require that a PRP 
conduct a response action. But, in addition to any orphan 
share, EPA would be required to reimburse the PRP for estimated 
shares attributed to nonsettling parties. So, for example, if 
one PRP whose allocated share is 5 percent agrees to conduct 
the cleanup and to other conditions, then EPA would be required 
to settle with the PRP and, within strict time frames, 
reimburse the PRP for orphan share and costs of nonsettling 
PRPs. In this example, assuming there was no orphan share, EPA 
would have to reimburse the PRP for 95 percent of the cleanup 
costs. These payments from the Fund must be made periodically 
during the course of the response action, and not later than 
120 days after completion of construction of a remedy that 
takes less than a year to construct.
    This means that EPA must pay shares attributable to 
nonexempt, viable, liable nonsettlors even if doing so would 
adversely impact the Agency's ability to respond at other 
sites. S. 8 thereby creates the possibility that EPA would be 
required to reimburse settling PRPs for shares attributable to 
parties who refuse to settle, to the detriment of another site 
at which those resources are needed for cleanup. In view of all 
of the other costs that S. 8 shifts to the Fund, it is quite 
possible that payment of a significant recalcitrant share could 
impair EPA's ability to fulfill its primary mission, to clean 
up hazardous waste sites.
    The Substitute protects against this situation by providing 
that the United States may reject an allocation report if 
settlement based on the report would adversely impact the 
Agency's ability to take action at other sites. PRPs would 
still have the option of settling if they paid the ``orphan 
share'' and assumed the responsibility for recovering 
nonsettlors' shares in a contribution action. Failure to 
include such a safety valve unnecessarily risks depleting the 
Fund and places reimbursement of settling PRPs ahead of 
protecting human health and the environment.

                              BROWNFIELDS

Introduction

    We have two principal sets of concerns with S. 8's 
Brownfields title. First, changes from previous legislative 
proposals for funding brownfields assessment and cleanup would 
significantly reduce the role of municipalities, unnecessarily 
increase the complexity of funding mechanisms, and fail to 
ensure adequate resources for assessment of brownfields. On the 
first day of this Congress in January of 1997, we introduced 
brownfields legislation, S. 18, to promote brownfields 
assessment and cleanup. Minority Leader Daschle designated S.18 
one of the Senate Democrats' top legislative priorities. We 
fear that S. 8 would adversely impact our longstanding efforts 
to return brownfields to productive use.
    Second, we believe that S. 8's voluntary cleanup 
provisions, by imposing significant constraints on EPA's 
enforcement authority without corresponding assurances of the 
adequacy of cleanups under State programs, would place our 
communities at risk.

The Bill Would Adversely Affect the Current Program for Providing 
        Brownfields Assistance

    At the outset, we note our dismay with the fundamental 
changes that S. 8 would make to EPA's ongoing program for the 
assessment and cleanup of contamination at brownfields sites. 
We are not aware of any need or justification for these 
changes. None was offered at the multiple Superfund hearings 
held before this Committee, including one devoted entirely to 
brownfields and voluntary cleanup programs. In fact, by 
virtually all accounts, the program has been quite successful. 
EPA's site assessment grants have already yielded more than 
2000 jobs (either cleanup jobs, or jobs resulting from 
brownfields redevelopment), and nearly $1 billion for cleanup 
and redevelopment. \19\ It is too soon to judge EPA's Revolving 
Loan Fund (RLF) grant program, which began in 1997. However, 
already there have been successes. For example, the City of 
Dallas just voted to match EPA's $350,000 RLF capitalization 
grant.
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    \19\ For example, as a result of a $250,000 site assessment grant, 
the city of Dallas leveraged nearly $53 million in public and private 
funding for cleanup and redevelopment of a former landfill, industrial 
facility, and vacant lots. In St. Louis, the 12-block Dr. Martin Luther 
King Business Park, which consisted of idle industrial facilities and a 
vacant brewery and hotel, has been cleaned up and redeveloped to create 
businesses expected to yield 2000-3000 new jobs.
---------------------------------------------------------------------------
    It is unnecessary and inefficient to start over with a host 
of new and untested procedures for a program that has a very 
good track record and concerning which there has been broad-
based bipartisan support. Instead, we should build on the 
program's success. \20\
---------------------------------------------------------------------------
    \20\ Until the Chairman's Mark to S. 8, legislative proposals on 
brownfields (including S. 8 and S. 18) had very similar brownfields 
funding provisions, which would have built upon EPA's existing 
procedures. They contained provisions that authorized EPA's 
establishment of two programs with which to award grants to States, 
cities, towns, or Tribes: one to perform site assessments; and one to 
capitalize RLFs to make cleanup loans. They also would also have 
codified criteria, similar to those EPA uses today, as the basis for 
EPA decisions on grant awards.
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    More specifically, we have three principal concerns with 
the funding provisions of S. 8. First, it significantly limits 
the role of municipalities in any loan program. Under EPA's 
pilot program and under prior versions of S. 8, both local 
governments and States were eligible to receive capitalization 
grants for RLF programs, from which they would award loans for 
cleanup of brownfield sites. This would change under the bill: 
States would have first rights to brownfields capitalization 
grants. Cities could receive these grants only if the State 
declined, and even then only cities with populations over 1 
million are eligible.
    We are concerned with the requirement that Federal loans 
and grants flow through States (in S. 8's State Loan Fund 
Provision), making them intermediaries between EPA and 
municipalities. We have heard no testimony indicating that 
States seek to displace local governments as the chief agents 
of brownfields redevelopment. States may apply to EPA for 
capitalization grants today under the pilot program, but the 
majority of applications have been submitted by, and awards 
made to, cities, towns, or local redevelopment associations. 
Indeed, a recent report by the United States Conference of 
Mayors indicates that cities have eagerly seized brownfields 
assistance opportunities, while States have shown little 
interest. A recent letter from the Mayors to this Committee 
emphasizes their bipartisan support for brownfields grant 
provisions that ``ensure much needed resources are available 
directly to the communities which are ready to tackle their 
brownfields inventories aggressively.'' (emphasis theirs).
    Second, we are concerned that there is no mechanism to 
ensure that site assessments will be adequately funded. There 
is no set-aside for assessment funding, nor any assurance that 
any assessment funding will be available through grants rather 
than loans. By collapsing the two grant programs into one, 
without any set-aside for assessment grants, funding for 
cleanup could consume too many of the limited Federal dollars, 
and leave too little for site assessments, the critical first 
step in initiating brownfields cleanup and redevelopment 
activities. For a relatively small investment, an assessment 
grant potentially opens the door to redevelopment: often 
assessments reveal relatively light or no contamination, and 
cleanup and redevelopment can proceed. On the other hand, if an 
assessment reveals conditions that are not suitable for cleanup 
under a brownfields program or for redevelopment, assessment 
costs may not be recouped. Providing grants for assessments 
creates a heightened incentive to conduct an assessment; and, 
since assessments are less expensive than cleanup, Federal 
money will go further if a minimum amount is reserved for 
assessments.
    Finally, we have serious concerns with the new requirement 
for development of a distribution formula pursuant to a 
negotiated rule-making. In contrast to the State revolving 
funds under the Clean Water and Safe Drinking Water Acts, both 
of which rely on formulas, the brownfields loan fund will 
involve relatively small sums of money. A requirement to 
develop a formula after a negotiated rule-making introduces 
unnecessary complexity and potential delay. Further, S. 8 would 
require that the formula be updated at least every 2 years. The 
amount of money involved does not justify so resource intensive 
a funding mechanism, particularly considering the risk of 
delay. Moreover, there is no need for a formula. A combination 
of criteria and statutorily specified caps (contemplated in all 
previous legislative proposals) could ensure a fair 
distribution of scarce Federal dollars.
    The Conference of Mayors has testified that ``redevelopment 
of brownfields is our top national priority.'' Communities, 
cities and others are anxious to move forward with brownfields 
cleanup and redevelopment while the economy is strong, and 
before expiration at the end of the year 2000 of the law that 
makes brownfields cleanup costs tax deductible. Administrator 
Browner highlighted S. 8's new State Loan Fund requirement as 
one of her significant concerns with S. 8. We are concerned 
that S. 8 would slow the momentum.

The Bill's Voluntary Cleanup Provisions Would Bar EPA Action Without 
        Adequate Safeguards

    We support measures to promote the development and 
enhancement of State voluntary cleanup programs, in order to 
promote cleanup of the nation's hundreds of thousands of lower 
risk sites unlikely to warrant EPA attention under CERCLA.
    Our concerns with S. 8 relate to a narrower but critical 
issue: if a site is addressed under a State program, to what 
extent and under what circumstances is it appropriate to limit 
EPA's authority under Superfund? Any resolution of this 
question must take into consideration three factors: (1) the 
assurances of the adequacy of a State program that should be 
required as a precondition to restricting EPA authority; (2) 
the nature of any restrictions and the circumstances under 
which those restrictions should be lifted; and (3) the sites 
that should be possible candidates for restrictions. The manner 
in which S. 8 answers these questions would severely constrain 
Federal authority without sufficient assurances that sites 
would be addressed in a manner that protects human health and 
the environment.
    Proponents of this provision in S. 8 rely largely on 
concerns that the fear of CERCLA liability may deter property 
transfers and redevelopment. We share those concerns, but 
believe that they must be considered in perspective and 
addressed in a more balanced and protective manner.
    First, in many instances those concerns would be addressed 
by a prospective purchaser exemption, which we support and 
which is in our Substitute. And, in most respects, we agree 
with the prospective purchaser exemption in S. 8. Under that 
provision, a purchaser of contaminated property is exempt, 
provided that specified conditions are met.
    Second, the desire to provide developers certainty with 
respect to potential CERCLA liability must be balanced against 
the needs of municipalities and community members for certainty 
that someone will be there to protect them from threats 
associated with releases of toxic waste. Representatives of 
local governments have testified that they are concerned that 
they will bear the brunt of any inadequate site assessment or 
cleanup. On those relatively rare occasions when a site that is 
being or has been handled under a State program does require 
EPA intervention, citizens need to know that obstacles will not 
stand in the way of their protection. This point was 
underscored by the Environmental Justice Resource Center and 
other local community groups who wrote: ``Our communities know 
from painful experience that some States have weak programs; 
even States with good programs need a Federal back-stop.''
    Third, potential CERCLA liability may be an important 
reason that some real estate transactions do not occur, but 
usually it is not the only reason. Other possible deterrents to 
redevelopment include lack of infrastructure or a high crime 
rate. In other words, the problems surrounding brownfields are 
complex, and cannot be resolved by a change to the CERCLA 
liability scheme, no matter how extreme. Therefore, changes to 
CERCLA should not be based on the assumption that the greater 
the restriction on EPA authority, the more we are promoting 
brownfields cleanup and redevelopment. The standard for 
evaluating any change should be whether it will ensure 
protection of human health and the environment. We hope and 
believe that changes to CERCLA could be made that would both 
promote cleanups under State programs and meet this standard. 
Unfortunately, S. 8 does not.
    A. Limitations on EPA authority. New section 129(a) 
provides that, subject to limited exceptions, ``neither the 
President nor any other person may use any authority under this 
Act to take an enforcement action against any person regarding 
any matter that is within the scope of a response action that 
is being conducted or has been completed under State law.'' The 
bill goes on to attempt to define the limited circumstances 
when this bar could be lifted. We have serious concerns with 
the scope of the bar and the inadequacy of the exceptions. We 
address them in turn below.
    The bar on enforcement clearly would preclude any action by 
EPA to require PRPs to conduct a cleanup or for recovery of 
costs spent by the United States in conducting a cleanup. In 
addition, it potentially could impede EPA's ability, even using 
Fund money, to respond to conditions that present an imminent 
and substantial endangerment to public health or the 
environment. For example, if EPA requires access to property to 
assess conditions or conduct a cleanup, and a PRP refuses to 
comply with a request for access, S. 8 would preclude an action 
to compel site access. If EPA cannot get onto a site (because 
it cannot get access), it cannot perform a response. In 
addition, if the Federal program is underfunded, there may be 
no one to respond, if EPA cannot order performance. \21\
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    \21\ We also oppose S.8's bar against enforcement by persons other 
than EPA, which is even broader, since the bill does not provide for 
lifting the bar on their enforcement actions under any circumstances.
---------------------------------------------------------------------------
    The scope of the bar also is unclear. An action could not 
be taken regarding any matter ``within the scope of a response 
action'' under State law. Particularly in States that do not 
require the preparation and approval of cleanup plans before 
cleanup may begin, it may be difficult to know what is within 
the scope of the response.
    The exceptions to the bar are too narrow and burdensome, 
and do not allow EPA to ensure the protection of public health 
and the environment. The first would lift the bar at a State's 
request. We hope and expect that in most circumstances a State 
would request EPA involvement where it was needed. But 
experience shows that that does not always occur, and citizens 
should not be put at risk due to the absence of a request, for 
whatever reason. The second would lift the bar if contamination 
crossed State lines, a condition that may occur infrequently. 
The third applies after a cleanup, and requires that EPA 
determine both that the State is unwilling or unable to take 
appropriate action after notice and an opportunity to cure, and 
that there is a substantial risk requiring further remediation 
to protect human health or the environment because of unknown 
conditions, fraud, remedy failure, or a change in land use 
giving rise to a clear threat of exposure. In addition to 
introducing uncertainty because of new and untested standards 
such as ``substantial risk'' and ``clear threat of exposure,'' 
these provisions may unnecessarily place people at risk by 
precluding intervention until conditions have escalated 
significantly.
    The fourth condition would lift the enforcement bar if EPA 
determines that a State is unwilling or unable to take 
appropriate action and provides the State notice and an 
opportunity to cure and determines that there is a ``public 
health or environmental emergency under section 104(a)(4)'' of 
existing law. This standard, too, is untested. We are not aware 
of any judicial interpretation of the standard, and, according 
to EPA, it has never been invoked.
    By imposing a bar on EPA's ability to act, and extremely 
narrow conditions for overcoming that bar, S. 8 creates a 
heightened standard for EPA action. Other Federal environmental 
laws allow EPA to step in and ``overfile'' using the same 
standard it would have used, had it taken the enforcement 
action to begin with. We should not risk public health while we 
debate whether a hazardous substance release has risen to a 
new, undefined, level of ``emergency'' that warrants EPA 
action. As the National Association of Attorneys General wrote, 
changing the current standard from ``imminent and substantial 
endangerment'' to ``emergency'' will ``lead to new litigation 
or diversion of resources from what everyone professes to be 
the goal of this statute, which is faster, more efficient 
cleanups without the involvement of litigation.'' A letter from 
the Environmental Justice Resource Center echos these 
sentiments, and expresses concerns that the new standards will 
cause confusion and ``delay action in the face of health 
threats.''
    Proponents of the new limitations on EPA reject the current 
standard of imminent and substantial endangerment in this 
context on grounds that it can be too easily met. Some base 
this conclusion on court holdings under the current standard. 
But that conclusion ignores a key distinction between the 
situation in those cases and the situation here: the case law 
on ``imminent and substantial endangerment'' interprets the 
standard as the basis for EPA's taking action before a cleanup 
has commenced. It is not surprising that the standard would be 
met before any cleanup has taken place. But in the case of 
voluntary cleanups, the issue of EPA intervention generally 
would arise after a cleanup has taken place. It should be 
significantly more difficult to meet this standard after a 
cleanup. If conditions do present an imminent and substantial 
endangerment after a cleanup, then the law should not impede 
EPA's ability to take or require a response. \22\
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    \22\ One such instance occurred where the State of New Jersey gave 
a clean bill of health at a warehouse cleaned up under a State 
voluntary program. Later, after the building had been converted into 
condominiums, the new owners discovered that the building was heavily 
contaminated with mercury. The city and State asked EPA to assume the 
lead in evacuating the residents (some of whom tested positive for 
mercury poisoning) and remediating the problem.
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    Finally, experience shows that cleanup and redevelopment of 
brownfields is occurring all over the country notwithstanding 
EPA's authority to step in under the ``imminent and 
substantial'' standard in current law. And we are not hearing 
any complaints that EPA has stepped in at sites being addressed 
under State programs. In addition, we have heard from 
developers and municipalities alike that Memoranda of Agreement 
between EPA and certain States, under which EPA states its 
general intent not to take response actions at sites being 
addressed under approved programs, have encouraged cleanup of 
brownfields in those States. \23\ Significantly, those MOA's 
generally include an exception to this general intent not to 
act fashioned on the imminent and substantial endangerment 
standard. Lorrie Louder, on behalf of the National Association 
of Local Government Environmental Professionals, testified that 
NALGEP would support a reopener based on an imminent and 
substantial endangerment standard. And Richard Gimello, the 
Deputy Commissioner of the New Jersey Department of 
Environmental Protection, testified that ``in the event EPA 
discovers an imminent and substantial threat to human health 
and the environment at a site, it should be able to continue 
using its emergency removal authority.''
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    \23\ An interim guidance that EPA issued in November, 1996, applied 
to MOAs that EPA entered into after that date. EPA then issued a final 
draft guidance in September, 1997, but withdrew this due to a lack of 
consensus on a range of issues among a variety of persons who submitted 
comments on the draft guidance. These comments included criticism of 
EPA's proposed new method for distinguishing low risk from high risk 
sites. EPA's November, 1996 interim guidance remains intact.
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    B. Minimum Criteria. S. 8 contains no minimum standards to 
ensure that a State cleanup program will protect public health 
and the environment. This is extremely troubling, since the 
only criterion that has to be met to trigger the limitations on 
EPA authority is that a person is taking or has taken a 
response action under State law. Under S. 8, what that law does 
or does not require is of no consequence. Again, the question 
is not whether States can operate their own cleanup programs. 
They can, and do, without any EPA evaluation, approval or 
oversight. The question is whether actions under State programs 
should bar EPA's authority to respond, even if there is an 
imminent and substantial endangerment. This authority is 
central to CERCLA's purpose. Even assuming some limitation were 
acceptable, there must be some assurances that the State 
program taking its place meets minimum standards. \24\
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    \24\ The absence of minimum standards is unprecedented in the 
analogous situation, where Federal environmental laws allow for State 
implementation: every one does so only on the condition that EPA find 
that the State program meets minimum criteria.
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    Ms. Louder testified in support of requiring that State 
voluntary cleanup programs meet minimum standards as a 
prerequisite to placing any limits on EPA action: ``States vary 
widely with their technical expertise, staffing, statutory 
authority and commitment necessary to ensure that brownfields 
cleanups are adequately protective of public health and the 
environment.'' \25\
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    \25\ A 1997 General Accounting Office report indicates that of the 
17 voluntary cleanup programs studied, some allowed for less 
comprehensive cleanups or cleanups that did not permanently treat waste 
but relied upon restricting site use; all of the programs reduced the 
requirements they imposed on voluntary cleanups to cut time and costs; 
three did not require long-term monitoring of nonpermanent cleanups or 
oversight; and eight required no public participation in the cleanup 
process other than filing a notice in a local newspaper.
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    We recognize the importance of ensuring that any Federal 
criteria strike an appropriate balance between setting a 
protective baseline and leaving States flexibility to shape 
their own laws. Amendments offered at markup by Senators 
Baucus, Lautenberg and Moynihan struck that balance. So does 
our Substitute. They require such things as adequate site 
assessments, protection of human health and the environment, a 
mechanism for State approval of a cleanup plan and 
certification of completion, meaningful opportunities for 
public participation, and adequate oversight, enforcement 
authorities, and resources.
    C. Site Eligibility. The concerns discussed above are 
compounded by the fact that under S. 8, EPA action may be 
barred even at high risk sites. For example, the enforcement 
bar would apply at all of the approximately 14,000 sites 
remaining on CERCLIS, including approximately 3,000 that are 
known to pose health and environmental risks serious enough to 
warrant listing on the NPL (the other approximately 11,000 have 
not been evaluated or have been deemed low-risk); and at all 
sites added to CERCLIS in the future, unless EPA lists the site 
on its NPL within 2 years. \26\
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    \26\ We are also concerned about the large number of sites that 
either have not been evaluated, or have been evaluated but for which 
listing decisions have not been made. But there is no bar today on the 
cleanup of these sites under State programs. We hope that the combined 
efforts by EPA and States will speed the evaluation and cleanup of 
these sites.
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    It is inappropriate to constrain EPA authority at high-risk 
sites, particularly when they have been addressed through 
programs that were designed to foster expedited cleanups of 
lightly contaminated sites and may be inadequate to address 
high risk sites. A representative of NALGEP testified that 
constraints on EPA authority should be confined only to low-
risk sites. Mayor Chris Bollwage also testified that the U.S. 
Conference of Mayors seeks a legislative ``bright line 
distinction'' between Superfund-caliber and brownfield sites.
    A combination of baseline criteria, fewer restrictions on 
EPA authority, and a more effective method to ensure that EPA 
authority will not be compromised at high risk sites could help 
provide certainty to developers, municipalities and communities 
alike. However, as it stands now, the bill could seriously 
weaken EPA's ability to protect public health and the 
environment by constraining EPA's authority at high risk sites, 
failing to require that programs meet minimum standards as a 
prerequisite to any bar on Federal enforcement authority, and 
imposing inappropriate restrictions on EPA action and an 
inadequate mechanism to lift the enforcement bar.

                               STATE ROLE

Introduction

    The hazardous waste sites addressed in this title, those on 
the NPL, are among the most hazardous in the Nation. We support 
a responsible transfer of CERCLA cleanup authority with respect 
to these sites to qualified States and Tribes. The challenge is 
to fashion legislation that accounts for the significant 
variability among States, and within a given State over time, 
with respect to their capability, authority and resources to 
assume primary responsibility at NPL sites. Any statutory 
division of labor must maintain the checks and balances common 
to other environmental laws, which help to ensure that 
statutory requirements will be fulfilled by the States, that 
Federal authorities will be preserved as a backstop, and that 
the purposes of CERCLA will be achieved.
    But the approach in S. 8 to transferring authority to 
States omits fundamental safeguards to ensure that protection 
of human health and the environment is not compromised. This is 
due to a combination of factors, including the inadequacy of 
criteria against which State capabilities would be evaluated 
and transfers approved; the possibility of State program 
approval without any review, under the expedited approval 
process; and extreme limitations on the authority of EPA to 
take action at sites that are under a State program. \27\ In 
addition, we fear that this title's failure to ensure 
conservation of the Superfund Trust Fund could result in there 
being insufficient resources to address toxic waste sites at 
which there are no viable PRPs. And, the bill fails to include 
amendments to current law necessary to address matters that 
involve Tribes in various aspects of the Superfund program.
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    \27\ Several of our concerns with the State title also apply to the 
Federal Facilities title. Others that were discussed earlier in our 
discussion of the voluntary cleanup provisions of Title I are equally 
applicable here.
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The Bill Fails to Include Adequate Criteria for Approval of State 
        Programs

    Federal legislation must contain standards against which a 
State program may be measured, to ensure that any increase in a 
State's authority to implement the Federal program will be 
commensurate with the State's abilities, experience, 
authorities and resources. S. 8 fundamentally departs from the 
methods we have traditionally relied on to sanction transfer of 
other environmental programs, such as the Clean Water Act and 
Safe Drinking Water Act. Many of the considerations that are 
relevant to transfers of responsibility under those laws are 
equally applicable here: we should build on the experience 
under these programs. \28\ S. 8's criteria are inadequate to 
distinguish between States that have the capability to assume a 
greater role under the Superfund program and those that do not.
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    \28\ That is not to say that criteria for approval of State 
Superfund programs should be identical to criteria for State approval 
under other environmental laws. A major difference arises from the 
remedial nature of Superfund, and the existence of the Superfund Trust 
Fund. As discussed later, this gives rise to additional considerations 
that are unique to Superfund.
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    First, S. 8 provides that a State program must be 
implemented in a manner that is protective of public health and 
the environment. Although this standard is a familiar one, it 
is not sufficiently specific to be useful in this context. 
Other environmental laws contain Federal floors--minimum 
Federal standards to ensure that citizens in all States receive 
at least a baseline level of protection. Under other laws, a 
State program must meet these minimum standards to be eligible 
for assumption of authority under Federal law. \29\ The 
standard in S. 8 is too general to ensure a baseline level of 
protection, and it lacks the specificity necessary to serve as 
an objective standard against which EPA, a court, or the public 
may evaluate the adequacy of a State program. Moreover, it does 
not provide States adequate notice as to the prerequisites for 
transfer of Federal authority.
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    \29\ For example, the Safe Drinking Water Act requires that State 
regulations be ``no less stringent'' than EPA's regulations.
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    In addition, this criterion stops short of requiring that a 
State program have requirements that are protective: it 
requires only that they be implemented in a protective manner, 
which could be considerably more difficult for EPA to evaluate. 
This is a projection about the future, but does not guide an 
initial determination about whether to approve a program.
    Second, S. 8 provides that for a State program to be 
authorized, it must have procedures to ensure public notice 
and, ``as appropriate,'' opportunity for public comment on 
cleanup plans, consistent with section 117 of CERCLA. This is 
inadequate to ensure that States whose applications are 
approved will provide for public involvement as required under 
section 117 of CERCLA, or that the public will have 
opportunities to participate in decisions about State cleanups 
of NPL sites in their communities to the same extent as they 
would if the cleanup were being handled by EPA. As Karen 
Florini testified on behalf of the Environmental Defense Fund, 
the ``as appropriate'' language is ``a gigantic loophole'' 
through which one could drive ``the proverbial mack truck.''
    Third, S. 8 requires that a State have adequate financial 
and personnel resources, organization, and expertise to 
implement a hazardous substance response program. Notably 
absent is a requirement that the State have comparable 
experience. S. 1834, for example, required that the State 
demonstrate experience in adequately performing or ensuring 
adequate performance of similar response actions.
    In addition, the standard is not adequate to ensure that a 
State will have adequate resources over the long term. State 
capabilities vary over time for reasons that may be beyond 
their control. We have been told of several States in which 
resources for hazardous waste cleanup programs have been 
significantly cut over the past several years. Similarly, many 
States have made significant changes to their laws governing 
hazardous waste cleanup, which could impact the States' 
continued capacity to carry out the Superfund program. But, the 
bill does not require that the State demonstrate periodically 
that it continues to have adequate resources or that new laws 
continue to meet the criteria for approval. Periodic 
demonstration that a State continues to have necessary 
resources and to meet other criteria is particularly important 
in view of the limitations on EPA authority under S. 8: a 
State's capacity to run a cleanup program can deteriorate and 
the bars on EPA authority may eliminate any Federal backstop. 
\30\
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    \30\ Although S.8 allows EPA withdrawal of a State program, this 
can be a dramatic measure and more than is called for under the 
circumstances. Moreover, withdrawal can take significant time, during 
which sites may go unaddressed.
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     These deficiencies in the approval process are compounded 
by additional provisions in the bill. First, S. 8 bars EPA from 
imposing any terms or conditions on its approval of a State 
application for transfer of authority. This prohibition could 
prevent EPA from approving some but not all of the 
responsibility that a State seeks in its application for 
authorization, where the State has the capacity to manage some 
but not all of the activities and site conditions it seeks to 
assume. Unlike delegation, where S. 8 would allow EPA to 
approve all or part of an application, \31\ it appears that for 
authorization EPA must make an all or nothing determination on 
an application. It could also result in EPA disapproving an 
application despite its determination that the application 
would be approvable if a condition were met, such as requiring 
that a State adopt a regulation that has only been proposed by 
the State. In either event, the State or the public could sue 
to challenge EPA's determination. It would seem to be in the 
interest of EPA, the States, and the public that EPA have 
flexibility to partially approve an application, so that a 
State may assume at least a portion of the program, or to add 
needed conditions.
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    \31\ S. 8 provides that EPA may approve or disapprove a State's 
application for delegation ``regarding any or all of the facilities 
with respect to which a delegation of authority is requested or with 
respect to any or all of the authorities that are requested.'' By 
contrast, S. 8 provides only that EPA may ``approve or disapprove'' a 
State's application for authorization.
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    In addition, the bill establishes an unnecessary and 
cumbersome process for EPA to obtain additional information to 
make a determination on a State application. EPA is required to 
approve or disapprove an application within 120 or 180 days. 
Frequently EPA requires additional information before it can 
make a determination on a State application. If a State does 
not agree to an extension of time (in view of any deficiencies 
in the application), then EPA has to either disapprove the 
application, which the State can challenge in Court, or EPA can 
delay making a determination. In the later case, the State can 
sue EPA to compel EPA's determination. It is only once in court 
that EPA can ask the court to grant a 90-day extension to allow 
EPA to consider additional information. This situation could be 
handled in a far more efficient manner, without the litigation 
that this provision in S. 8 could promote.
    The inadequacy of the process for granting State authority 
under S. 8 is most pronounced in the bill's provisions for 
``expedited'' approval of at least six States that meet yet to 
be promulgated criteria. Under this program, a State program 
may be approved without ever having been reviewed by EPA or the 
public: if EPA fails to make a determination on a State 
application within the 180 day deadline, then the program is 
``deemed'' approved. The bill also would bar judicial review of 
an ``expedited'' authorization. Ms. Subra, a technical advisor 
to several community groups concerning hazardous waste sites in 
their communities, points out that this approach could result 
in unqualified States being transferred responsibility. She 
testified: ``if EPA gets overburdened and States apply, whether 
or not they are adequate, whether they have the rules, whether 
they have the finances, under default they are going to get the 
program.''

The Bill Virtually Eliminates Any Federal Safety Net For Sites 
        Addressed Under State Programs

    Once a State application for authorization or delegation 
has been approved, S. 8 severely constrains EPA's ability to 
take action at a site in the State program. In particular, it 
provides that a State to which responsibility is transferred 
shall have ``sole authority'' to perform the transferred 
authority, subject to limited exceptions. \32\ It specifically 
bars administrative and judicial enforcement actions by EPA or 
any other person regarding a matter that is within the scope of 
responsibility transferred to a State.
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    \32\ We note also that while S. 8 bars citizens from taking 
enforcement actions against persons acting under approved State 
programs, it provides no circumstances that would reinstate citizens' 
rights to sue. Ms. Florini has testified that ``[t]hese limitations are 
radical and unwarranted departures from prior law not only under 
Superfund, but indeed virtually all Federal environmental programs.''
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    In taking away EPA's ability to use its imminent and 
substantial endangerment authority, and injecting in its place 
heightened standards for EPA action, S. 8 is inconsistent with 
other environmental laws, which preserve EPA's ability to take 
action using the same standard that would have applied absent a 
transfer of authority to a State. \33\
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    \33\ A 1995 survey by the Environmental Commissioners of States 
showed that between 1994 and 1995, EPA overfiled under such other 
environmental laws on only 15 occasions, or on approximately 0.1 
percent of State actions.
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    There are two exceptions to S. 8's enforcement bar. \34\ 
Section 130(f)(4)(B)(i) would lift the bar on EPA enforcement 
at the State's request. But we cannot condition the protection 
of citizens on an expectation that States will always seek 
intervention by EPA when needed: experience shows that, for 
whatever reasons, States do not always seek EPA assistance. For 
example, Ms. Subra testified that her State refused to propose 
sites for NPL listing, because it ``did not want the stigma of 
hazardous waste sites being on a Federal list,'' and that 
``[t]he majority of the National Priorities List sites in 
Louisiana were submitted to EPA by citizens groups.'' We are 
aware of an instance in another State, where EPA has taken 
action at the request of county personnel dissatisfied with 
response actions taken by their State.
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    \34\ As noted in the discussion of the voluntary cleanup provisions 
in Title I, constraints on ``enforcement'' could preclude EPA from 
taking a response action.
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    Section 130(f)(4)(B)(ii) would lift the enforcement bar if 
EPA determines that the State is unwilling or unable to take 
appropriate action and that the release constitutes a public 
health or environmental emergency, and EPA goes to court and 
obtains a declaratory judgment that the State has failed to 
make reasonable progress in performing a remedial action at a 
facility. We believe these compound conditions will seldom be 
met. Even if they could be met, it may be too late to protect 
public health and the environment. According to estimates by 
the Administrative Office of the U.S. Courts, it can take at 
least 18 months for a court to issue a declaratory judgment if 
a trial is required, or 13 months, if the action is resolved 
prior to trial, but after commencement of discovery.
    Also troublesome, the bill limits EPA's ability to use its 
removal authorities, which most agree EPA uses successfully. S. 
8 requires that EPA provide 48 hours notice, await notice from 
the State whether it intends to act, then allow another 
reasonable period of time to give the State an opportunity to 
act. Only if the Administrator finds a ``public health or 
environmental emergency under section 104(a)(4)''--again, a new 
standard that will likely be litigated, and an abolition of 
EPA's ability to use ``imminent and substantial endangerment'' 
under section 106--may EPA act without providing notice. Again, 
these are untenable options. Forty-eight hours can be critical 
in the ``removal'' scenario. Further, as we noted earlier, when 
the public is at risk, we ought not to be litigating for the 
first time whether a release of hazardous substance meets the 
new, heightened threshold of an ``emergency.''
    We agree that an appropriate division of responsibility 
between EPA and States, which provided a greater role for 
States, could enhance efficiency in the cleanup of NPL sites. 
But we are concerned that S. 8's method for drawing lines 
between State and Federal authorities strike too deeply at the 
Federal authorities, potentially at the expense of public 
health and the environment.

The Bill Lacks Adequate Safeguards to Conserve the Superfund Trust Fund

    The existence of a Trust Fund raises complex issues that 
are not posed by transfers of Federal authority under other 
Federal environmental laws. S. 8 does not adequately address 
these issues. For example, the bill fails to provide safeguards 
sufficient to ensure that the Fund is conserved for use at high 
risk sites where there are no viable PRPs, and that the 
standards for access to the Fund for orphan funding are 
consistent across the various States.
    For example, to access Trust Fund dollars to finance a 
response action, S. 8 requires only that a State certify that 
it has been unable to locate any viable PRPs, or that 
enforcement measures have been attempted and the remedial 
action would be delayed without Federal funding. These 
standards are not adequate to ensure that States will maximize 
funding from PRPs before seeking Fund dollars to finance a 
cleanup. We have been told of instances in which a State has 
concluded that there are no viable PRPs at a site, and EPA has 
then located viable PRPs who performed multi-million dollar 
cleanups. Unless there are safeguards to prevent this type of 
occurrence, a State that devotes little effort to obtaining a 
cleanup by PRPs could get more Fund money than a State that 
devotes the resources necessary for a thorough PRP search and 
cleanup negotiations. The other criterion--that enforcement 
measures have been attempted and the remedial action would be 
delayed without Federal funding--imposes only a minimal 
obligation on a State to pursue PRPs before looking to the 
Fund. EPA has greatly leveraged the resources of the Fund: 
approximately 70 percent of cleanups are financed or performed 
by PRPs. Only approximately 30 percent of cleanups are Fund-
financed. This has been critical to EPA's success in getting 
cleanup construction complete at more than 500 sites. Any 
reform to Superfund should increase, and at a minimum maintain, 
this significant level of PRP participation. S. 8 fails to do 
so.
    S. 8 also fails to ensure that the Fund will not be 
inappropriately drawn down through orphan spending in State-run 
allocations. For example, one of the criterion for transfer of 
authority to a State is that the ``State agrees to exercise its 
enforcement authorities to require persons that are potentially 
liable under section 107(a), to the extent practicable, to 
perform and pay for the response actions.'' This provision is 
inadequate to conserve the Fund. Since it requires only that a 
State agree to exercise its enforcement authorities to require 
PRPs to perform and pay for cleanups, it falls short of 
requiring that an authorized State either rely on section 107 
of CERCLA, \35\ or actually have and exercise enforcement 
authorities that require parties who are liable under CERCLA to 
pay for and perform cleanups. This standard would make it 
exceedingly difficult for EPA to evaluate whether a State meets 
this criterion for authorization, since the requirement only 
goes to how the State exercises its authority, not to the 
substance of any State law authority. Moreover, if an 
authorized State's liability provisions are different from 
those under CERCLA, it seems that S. 8 may require that the 
State exercise its authority in a way that may be inconsistent 
with State law. And, the ``to the extent practicable'' 
qualifier could further weaken any requirement that an 
authorized State pursue parties that are PRPs under CERCLA.
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    \35\ The broad requirement that delegated States use State 
enforcement authorities potentially creates unnecessary problems, in 
view of the fact that today States can and sometimes do rely on Section 
107 of CERCLA.
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    Opening the Fund to a potentially large number of 
additional sovereigns raises many challenging issues as to how 
EPA, the Trustee of the Fund, may safeguard the Fund to 
maximize the cleanup of hazardous waste sites. Problems are 
compounded by the fact that, under S. 8, each State could be 
operating under a different liability scheme. For a transfer of 
Superfund authority and Fund money to States to succeed, these 
issues must be satisfactorily addressed.
    We also are concerned that cost recovery provisions in S. 8 
are inadequate to maximize recovery of Fund money from PRPs. 
The bill would allow the United States to bring a cost recovery 
action if a State notifies EPA that it does not intend to do so 
itself, or if it fails to do so within a reasonable time. The 
bill also provides that a State may retain 25 percent of any 
Federal funds it recovers, to provide an incentive for States 
to attempt to recover costs from PRPs. These provisions are 
deficient in several respects. First, there is not a sufficient 
affirmative obligation for States to bring cost recovery 
actions: some States may not have the resources to file these 
cases, or have other priorities for use of limited resources. 
For these States, the 25 percent bonus may not be sufficient 
incentive to bring an action. But the United States would not 
be able to recover the State costs unless the State had 
maintained adequate cost documentation to prove its case, and 
there is no obligation that a State maintain this evidence. 
Also problematic, there is no requirement that States use the 
25 percent bonus for hazardous waste site cleanup. While 
creating an incentive for States to recover costs from PRPs may 
be appropriate, providing Fund money without limiting its use 
to cleanup of Superfund sites is an inappropriate use of the 
Fund.

The Bill Does Not Adequately Address the Role of Tribes Under Superfund

    At markup Senators Chafee and Baucus offered an amendment 
providing that Tribes may seek the same role and authorities as 
States under the State Role title. We are pleased that the 
amendment passed, but believe that the bill still does not 
adequately address the role of Tribes: further amendments to 
current law are necessary to expand the role of and address 
matters that relate to Tribes in various aspects of the 
Superfund program.

                        COMMUNITY PARTICIPATION

Introduction

    At the outset, we want to emphasize the importance of 
maximizing community participation in the process of deciding 
how to clean up Superfund sites. More than 40 million Americans 
live within 4 miles of a Superfund site; it is their health and 
livelihoods that are most at stake. Deeohn Ferris, of the 
Lawyers' Committee on Civil Rights, put it this way at one of 
our first Superfund reform hearings, in 1993: ``Public 
participation is essential because it ensures that EPA is 
accountable to those whose health it is obligated to protect, 
and it is desirable because it enhances the efficiency and 
effectiveness of the Superfund program.''
    It is not only community members who believe that public 
participation improves the Superfund process. Industry 
representatives also support early and complete public 
participation. Robert N. Burt, Chairman of FMC Corp., testified 
on behalf of the Business Roundtable that:

        It is the experience of many of our members that 
        [citizen] involvement can assist in developing remedies 
        which are truly protective of human health and the 
        environment, while taking into account the specific 
        concerns of communities about comparative risks of 
        alternative remedies. More often than not, citizens are 
        looking to return Superfund sites to some productive 
        use where this is consistent with meeting appropriate 
        health and environmental standards.

    The bill that the Committee reported during the 103d 
Congress, S. 1834, contained many provisions designed to 
increase community participation, and was supported by a wide 
range of stakeholders. When S. 8 was introduced, Title III, 
which pertains to community participation in the Superfund 
decision-making process, contained only three provisions that 
would have increased community participation. During subsequent 
negotiations, several of our proposals to expand opportunities 
for community participation were incorporated into the bill. 
These significantly improved the bill. However, the reported 
bill still omits several important provisions that would help 
to ensure that citizens have meaningful opportunities to 
participate in decisions regarding the cleanup of hazardous 
waste sites in their communities.

The Bill Fails to Include Important Provisions that Would Increase 
        Community Participation

    First, S. 8 fails to ensure that there will be 
opportunities for public participation in the development of 
sampling and monitoring plans. Sampling plans are vital to any 
efforts to characterize the nature and extent of contamination 
at a site; sampling is in some respects the foundation of 
remedy selection, since sampling results are relied on in 
determining which areas need to be cleaned up. The 
effectiveness of a remedy is only as good as the information on 
which it is based: so, for example, if a highly contaminated 
area is never sampled, or testing is for contaminants other 
than those present, then it is far less likely that the remedy 
will address those contaminants. Citizen participation at this 
early and fundamental stage of Superfund planning is critical.
    In addition, citizens should be ensured an opportunity to 
review and comment on plans for monitoring during and after 
implementation of the remedy. Again, the consequences of 
inadequate monitoring--in the wrong locations or for the wrong 
contaminants--are significant. And it is the community that 
will suffer those consequences.
    One of the reasons that community involvement is critical 
is that residents may know things about the site that nobody 
else knows; after all, they live there. A representative of the 
American Public Health Association testified that community 
members ``know how a site has been used in the past, who lived 
near the site, and who has moved away. This information is 
essential to the conduct of studies that help us understand 
both the short-term and long-term health effects associated 
with a hazardous waste site.'' This is not merely conjecture. 
We are aware of sites where community members' knowledge of 
companies' historic disposal practices was instrumental in 
EPA's identification of the sources of contamination.
    In addition, community participation in the development of 
sampling plans helps community members to better understand 
site conditions, which will in turn enhance their ability to 
participate effectively in other remedy decisions. We have been 
told about one site where community members were concerned that 
an EPA contractor failed to sample white dusty material he 
encountered when boring a hole into soil, and sampled only the 
soil itself. The community members took their own sample of the 
material, had it analyzed, and confirmed that it was DDT. 
Because of that experience, EPA and the PRPs had to spend 
significant resources in regaining the community's trust that 
site sampling had accurately located the sources of 
contamination.
    Our Substitute would require that EPA seek community input 
on sampling and monitoring plans. We believe this would improve 
decision-making, increase community confidence in the cleanup 
plan, and, in the long run, expedite and reduce the cost of 
cleanups. \36\
---------------------------------------------------------------------------
    \36\ It has been alleged that to allow citizens to conduct sampling 
and monitoring could risk worsening site conditions. That issue is 
irrelevant to the modest proposal in our Substitute, which would only 
ensure that citizens had an opportunity to comment on sampling and 
monitoring plans.
---------------------------------------------------------------------------
    Second, S. 8 fails to include a provision establishing a 
central clearinghouse where people may obtain information about 
Superfund sites in their States. We have heard repeatedly from 
community representatives that they want to participate in the 
Superfund process, but that they are often unaware of the 
existence of a program like EPA's Technical Assistance Grant 
program; or they found the documentation required for the TAG 
application overly burdensome. They also made clear that their 
failure to, for example, attend a meeting where EPA would be 
explaining how to apply for a TAG grant did not indicate a lack 
of interest, but rather that they may be holding down more than 
one job, and can't meet on an EPA employee's schedule.
    We should take affirmative steps to help people benefit 
from information and knowledge gained at other sites, rather 
than having to start from scratch. The bill that was reported 
in the 103d Congress, S. 1834, did this by creating Community 
Information Access Offices, or ``CIAOs.'' These were to be 
citizen-run offices that would serve as clearinghouses to 
provide citizens with information regarding the Superfund sites 
in each State. These CIAOs were controversial. Some Committee 
members argued that the $25 million authorization was too high 
and could overlap or interfere with the activities of State and 
local officials.
    In response to these arguments, we made a more modest 
proposal, which is contained in the Substitute. We reduced the 
authorization level to $12 million, and the offices (called 
Waste Site Information Offices) would be operated by States 
rather than local citizens (unless a State chose not to operate 
the office, in which case EPA would). So, in each State, there 
would be an office that would serve as a clearinghouse. It 
would provide information about how Federal and State hazardous 
waste laws work. And it would provide information about the 
sites in the State, including information about the location of 
each site, the contaminants present, the response actions being 
undertaken, any institutional controls that have been 
established, and any health studies that have been done. It 
also would identify additional sources of information and 
explain how people could participate in the decision making 
process at the site.
    This proposal would help people play a more active role in 
decisions that affect them, their families, and their 
communities. We are disappointed that it has not been included 
in S. 8. As a result, we agree with representatives of 
environmental groups, who wrote that ``[t]he bill fails to 
establish community-oriented information offices that are 
needed to provide meaningful access to information and enhance 
communities' ability to participate effectively in cleanup 
decisions.''

The Bill Fails to Sufficiently Enhance Public Health Officials' 
        Involvement in Superfund Decision-Making

    CERCLA has always treated cleanup responsibilities and 
public health responsibilities distinctly. Evaluation and 
prevention of the adverse health effects caused by toxic waste 
exposure is one of the primary goals of Superfund. Authority 
for these crucial functions is vested in the Agency for Toxic 
Substances and Disease Registry (ATSDR), not EPA. Thus, under 
CERCLA, EPA samples and analyzes site media, and removes 
contaminants from exposure pathways; ATSDR investigates the 
acute and chronic health effects of such exposure, and takes 
certain actions, or recommends response actions to EPA, that 
will mitigate the adverse health effects associated with 
exposure.
    When S. 8 was introduced, it did not contain any provisions 
addressing public health authorities. As with community 
involvement, subsequent negotiations resulted in adding 
provisions to S. 8 that address public health authorities in 
Superfund. However, we are concerned that S. 8 still would fail 
to provide an adequate role for ATSDR and other health 
officials in Superfund decision-making. This is contrary to the 
recommendations of experts, such as the American Public Health 
Association, who believe that increased involvement of public 
health officials in all aspects of the Superfund process is 
important. A representative of APHA testified that ``the full 
potential of public health approaches to improve the efficiency 
and effectiveness of Superfund has never been fully realized. 
To achieve this potential, the Superfund program must require 
early, strong, and meaningful involvement of public health 
agencies and experts at local hazardous waste sites, beginning 
at discovery.''
    The bill falls short of this goal in several significant 
ways.
    First, the bill authorizes only $50 million to ATSDR, $25 
million less than the level Congress appropriated in this 
fiscal year. Funding for ATSDR should be maintained at current 
levels, if not increased. The demands on ATSDR may be 
increasing. New data are showing that past exposures to 
hazardous substances can cause latent health effects. For 
example, in Idaho, ATSDR found that 20 years after the Bunker 
Hill site had been closed down, health effects persisted. Adult 
women who had worked at the site's smelter were more likely to 
report having an increased number of neurologic symptoms and 
early menopause. These data show the need for continued 
surveillance of populations exposed to hazardous substances, 
even after the remedy at a site has been implemented, or 
exposure has long since ended. In addition, since the bill's 
remedy provisions will result in fewer permanent cleanups and 
more hazardous waste left in place, there likely will be more 
cases that ATSDR must monitor over the long-run.
    Second, the bill fails to authorize ATSDR's study of 
additional hazardous substances. Current law requires that 
ATSDR prepare toxicological profiles on 275 of the most 
commonly found hazardous substances and make those profiles 
available to the public, including Federal, State, Tribal, and 
local environmental regulators, and local health officials. In 
a July, 1997 report, the Environmental Defense Fund estimated 
that of the 30,000 chemicals in use today, there are data on 
the health effects of less than 10 percent. And experience 
shows that some of the most significant heath effects occur as 
a result of exposure to uncommon hazardous substances. In Dover 
Township, New Jersey, particularly in the Toms River section 
(where a former dye- and chemical-manufacturing plant and 
illegal toxic dump site are located), children have developed 
leukemia and cancers of the brain and central nervous system at 
higher-than-normal rates. It is suspected that the cancers are 
caused by exposure to acrylonitrile, a rare chemical not 
included on the list of the 275 hazardous substances for which 
ATSDR is required to prepare toxicological profiles.
    It is important that ATSDR be able to fill in some of the 
gaps, and provide information on health effects of chemicals, 
whether or not those chemicals happen to be on the list of 275 
most commonly detected hazardous substances. The Substitute 
would have required ATSDR to prepare profiles of additional 
substances that have been detected at sites ``and are 
determined by the Administrator of ATSDR to be of health 
concern.''
    Third, S. 8 maintains the requirement that ATSDR perform a 
full-blown health assessment in all cases, even though more 
tailored activities may make the most sense. For example, in 
the methyl parathion cases (in Mississippi and Louisiana, among 
other States), ATSDR advised EPA to perform urine testing in 
conjunction with its indoor sampling of walls with residuals 
from the methyl parathion spraying (although these cases did 
not arise at NPL sites, they illustrate the point). These 
results allowed EPA to more precisely define the residents who 
would need relocation. Accordingly, EPA was able to relocate 
far fewer residents (perhaps hundreds fewer) than it had 
originally projected, since those residents were not showing 
adverse health effects.
    To get the most ``bang'' for the clean-up ``buck,'' ATSDR 
should have flexibility to determine whether to conduct a 
health assessment or more tailored health activity, such as the 
type of analysis used for the methyl parathion cases. We 
acknowledge that S. 8 would allow ATSDR to conduct health 
education activities to make a community aware of steps it may 
take to mitigate or prevent exposure. That's a good step. But 
our Substitute would have relieved ATSDR of the statutory 
obligation to perform a full-blown health assessment at a 
particular site, and instead would have allowed it to perform 
``other health-related activity.''
    Fourth, S. 8 does not provide for full consideration of the 
effects of hazardous substances on children and other highly 
exposed or highly susceptible subpopulations. ATSDR has 
testified that children are likely to experience more exposure 
than similarly situated adults because ``they play vigorously 
outdoors (splashing, digging, and exploring) and they often 
bring food into contaminated areas. They are shorter than 
adults which means they breathe dust, soil, and heavy vapors 
close to the ground; they are also smaller, which means they 
get higher doses per body weight.'' Indeed, the September 29, 
1997 New York Times reported that the rate of cancer among 
American children has been rising for decades, and ``[a]lthough 
the reasons remain unclear, many experts suspect the increase 
may be partly the result of growing exposure to new chemicals 
in the environment.''
    Children are not the only subpopulation more vulnerable to 
the effects of exposure. For example, Native American women who 
live on a reservation bordering a Superfund site, and whose 
diets consisted largely of area fish and wildlife, were found 
to have PCBs in their breast milk at levels many times higher 
than that of the non-Native American women also living very 
close to the Superfund site.
    The Substitute would have specifically required that ATSDR 
health assessments consider impacts on children and other 
highly susceptible or highly exposed subpopulations.

                        NATURAL RESOURCE DAMAGES

Introduction

    As Assistant Commerce Secretary Terry Garcia testified, 
``CERCLA was enacted to address the legacy of hazardous 
substance contamination created by over 100 years of harmful 
disposal practices in this country.'' Its purpose is not only 
to protect public health and the environment, but also to 
``allow us to reclaim our environment and restore those natural 
resources that have been degraded or destroyed by years of 
harmful hazardous waste disposal.'' Accordingly, CERCLA 
authorizes Federal, State, and Tribal trustees to bring actions 
for ``damages for injury to, destruction of, or loss of natural 
resources . . . resulting from a release [of hazardous 
substances].'' Trustees must use any amounts collected as 
damages to restore, replace, or acquire the equivalent of the 
damaged natural resources.
    At some CERCLA sites, the remedial action that is 
undertaken to eliminate threats to human health and the 
environment also is sufficient to restore any injured natural 
resources. However at other sites, natural resources remain 
injured after the remedial action is completed, and further 
action is required if the natural resources are to be restored.
    Since 1980, the Federal government, at least 18 States, and 
several Indian Tribes have brought natural resource damage 
claims. Most have been settled quickly and for relatively small 
amounts. In 1995, the General Accounting Office found that 
Federal trustees had settled 98 natural resource damage cases 
under CERCLA, for a total of $106 million. Of those, 48 settled 
for no payment, and 36 settled for less than $500,000 each.
    In some cases, however, the remaining natural resource 
damage is substantial, and large natural resource damage claims 
have been brought. An example is the Upper Clark Fork River 
Basin in western Montana, which, with its four NPL sites, is 
the nation's largest contiguous grouping of NPL sites. In 1995, 
Montana's Chief Deputy Attorney General, Chris Tweeten, 
testified about natural resource injuries there. Over many 
years, mining and smelting operations released millions of tons 
of wastes to the air, water, and land over a 150 mile-long 
area. ``These wastes,'' he testified, ``not entirely spent of 
their metals and metalloids like arsenic, continue to release 
hazardous substances into groundwater and surface water, 
resulting in contamination and harm to fish and wildlife.'' 
When the State of Montana assessed the damage to natural 
resources in the Basin, Tweeten continued, it found the 
following:

        Silver Bow Creek, which is nearly 25 miles long, 
        contains no fish as a result of extremely high 
        concentrations of metals in the water, in the sediments 
        of the Creek, and in the floodplain of the Creek. 
        Although it is not as injured as Silver Bow Creek, 125 
        miles of the Clark Fork River are also impacted by high 
        metal concentrations in the river, in sediments, and on 
        the floodplain. In addition, aquatic insects, upon 
        which fish feed, are also contaminated. The end result 
        is that trout populations in the Clark Fork River are 
        one-sixth what they would be if hazardous substances 
        had not been released. Floodplain contamination along 
        Silver Bow Creek and the Clark Fork River is severe and 
        extensive. More than a thousand acres of floodplain are 
        denuded of vegetation, and accordingly fail to provide 
        wildlife habitat, due to the presence of metals. Three-
        thousand-four-hundred acres of what were formerly 
        wetlands have been filled in with contaminated material 
        and cannot support any life. Seventeen square miles of 
        mountainous terrain around the city of Anaconda have 
        been effectively denuded of vegetation and are unable 
        to support viable wildlife populations. Lastly, some 
        600,000 acre feet of groundwater in the Basin are 
        contaminated. Moreover, this volume of groundwater 
        contamination is expected to continue to expand in 
        size.

    In addition to the Upper Clark Fork River natural resource 
damages claim, several other large claims have been settled or 
are pending. For example, the Federal Government, the State of 
Washington, and several Tribes brought large claims for injury 
to Elliot Bay in Washington; the Federal government has brought 
a large claim for extensive injury to natural resources off the 
Los Angeles Coast due to contamination with PCBs and DDT; and 
Federal trustees and the Coeur d'Alene Tribe have brought large 
claims with respect to the Coeur d'Alene Basin in Idaho.
    Critics have argued that the natural resource damage 
program should be reformed. They argue that more emphasis 
should be put on restoration rather than assessing monetary 
damages, and that coordination between the remedial and natural 
resource damage programs, and among trustees, should be 
improved. Some also have called for ``reforms'' that go much 
further, and that would dramatically weaken the ability of 
Federal, State, and Tribal trustees to restore damaged natural 
resources.
    We agree that some reforms are appropriate. For example, we 
support changes to the law to focus the NRD program more 
closely on restoration (so long as there is an appropriate 
transition provision for cases where significant resources have 
been invested under current law). And we support changes to 
improve coordination between the CERCLA remediation and NRD 
programs and improve coordination among trustees. But we oppose 
changes that would deprive the public of full restoration of 
damaged natural resources. Unfortunately, despite improvements 
from previous versions, the bill would do just that.

The Bill Prevents Trustees From Fully Considering the Intrinsic Value 
        of Injured Natural Resources

    When natural resources are injured, part of the harm 
suffered by the public can be measured by lost ``use values'' 
experienced by those who would have directly used the 
resource--for example, if a forest has been denuded and its 
streams no longer support fish populations, people have lost 
opportunities to hike, hunt, and fish.
    But, when a forest, river, or other natural resource is 
damaged, we don't just lose the opportunity to use the 
resource. We also lose something more. We lose the beauty of a 
forest or a clear-running stream. We lose the natural value of 
an ecosystem teeming with wildlife. We lose the value of 
passing natural treasures along to our grandchildren. We lose 
the value of knowing that a natural resource like a remote 
wilderness or an endangered bird species exists, even if we do 
not ``use'' it directly. Gordon Johnson, New York State 
Assistant Attorney General, put it this way:

        The value of a natural resource is a combination of its 
        value as a useful commodity, such as the value of an 
        aquifer as drinking water or seal pelts as clothing, 
        and its passive values. These passive values include 
        the value placed on having a resource available for 
        future use, and the fact that we repeatedly pay to have 
        resources available merely because we value their 
        existence. My State expends thousands of dollars a year 
        to protect and propagate endangered species, even 
        though we cannot think of any use for a piping plover, 
        for instance. We protect whales and will incur costs to 
        save stranded ones not because the whales are `useful' 
        as commodities, but because we value their existence. 
        Unique resources, such as majestic canyons and rivers 
        like the Grand Canyon and the Hudson River, are 
        valuable to society not only for their actual uses as 
        parks, waterways, or recreational facilities, but 
        because they just are.

    These values are referred to as ``passive,'' ``non-use,'' 
or ``intrinsic'' values. Their validity is well accepted. As a 
panel of distinguished economists explained in 1993, ``for at 
least the last twenty-five years, economists have recognized 
the possibility that individuals who make no active use of a 
particular beach, river, bay, or other such natural resource 
might, nevertheless, derive satisfaction from its mere 
existence, even if they never intend to make active use of 
it.''
    The consideration of the intrinsic value of natural 
resources also has an important practical effect. We agree that 
the focus of the program should be on restoring injured natural 
resources, including compensatory restoration to reflect losses 
that the public suffers until the resource is fully restored. 
If, however, in determining the scope of restoration, we 
exclude the consideration of intrinsic values, we may wind up 
restoring, replacing, or acquiring far less than has been lost. 
For example, if the value of a wilderness area is defined as 
nothing more than the hiking, hunting, and fishing days that it 
supports, we might decline to restore the wilderness area and 
instead provide equivalent hiking, hunting, and fishing days by 
improving access to some forests and streams near town. The 
cost may be lower, but the wilderness area will not be 
restored, and the public will be shortchanged. New Mexico 
Assistant Attorney General Charles de Saillan testified: ``If 
you just consider natural resources based on the value of the 
board feet of the timber in the forest, or the market value of 
the fish in the stream, you wind up undervaluing the 
resources.''
    Previous versions of the bill would have prohibited 
trustees from considering intrinsic values. For example, the 
introduced version of S. 8 provided that ``there shall be no 
recovery under this Act for any impairment of nonuse values,'' 
and the Chairman's Mark contained a similar prohibition 
(although referring to ``psychological damages'' rather than 
``non-use values''). This prohibition would have dramatically 
undermined trustees' ability to restore injured natural 
resources. As Terry Garcia testified, ``to exclude non-use 
values, as specified in S. 8, means that the public will not be 
fairly and fully compensated for loss of resources.''
    The bill no longer contains a flat prohibition on the 
consideration of intrinsic values. Instead, section 701(b) of 
the bill would create new CERCLA section 107(f)(3)(B), which 
provides that, in developing restoration measures, a trustee 
``may take into consideration unique intrinsic values 
associated with the natural resource to justify the selection 
of measures that will provide for expedited or enhanced 
restoration of the natural resource to replace the intrinsic 
values lost, provided that the incremental costs associated 
with the measures selected are reasonable.'' Although an 
improvement over previous versions, this provision and a 
related provision create three potentially serious impediments 
to the full consideration of the intrinsic values of damaged 
natural resources.
    First, section 107(f)(3)(B) permits trustees to consider 
only ``unique'' intrinsic values. It is unclear what the word 
``unique'' means in this context. For example, a pristine 
stretch of river undoubtedly has significant intrinsic values, 
but if trustees must prove that those values are somehow 
different from the values provided by any other pristine 
stretch of river, they may well be prevented from taking them 
into account. In any event, natural resource damage cases will 
be significantly complicated by litigation over whether the 
intrinsic values of a particular resource are unique.
    Second, section 107(f)(3)(B) subjects a trustee's 
consideration of intrinsic value to a difficult standard. 
Trustees may take unique intrinsic values into account only if 
they show that the ``incremental costs'' of doing so are 
``reasonable.'' This appears to require trustees to perform a 
kind of cost-benefit analysis, requiring cumbersome, expensive, 
and perhaps impractical economic analyses. Moreover, trustees 
could be required to calculate costs while being precluded from 
calculating full benefits of a particular restoration option 
(because, as discussed above, they can only take ``unique'' 
intrinsic values into account, and, as discussed below, the 
costs of an important method of calculating such benefits, 
contingent valuation, are not recoverable). At the very least, 
this provision will further complicate natural resource damages 
restoration planning and litigation. More significantly, it 
will impede trustees' ability to restore damaged resources.
    Third, this impact is exacerbated by a provision that 
discourages the use of one of the principal methods by which 
intrinsic values are measured. Unlike the value of lost uses of 
a resource, such as lost hiking or fishing opportunities, 
intrinsic values do not have a market price. However, 
economists have developed a method to measure intrinsic values 
(generally referring to them as non-use or passive use values), 
through the use of sample surveys, commonly referred to as 
``contingent valuation.'' In a 1996 appendix to a regulation, 
the National Oceanic and Atmospheric Administration (NOAA) 
described contingent valuation as follows:

        The contingent valuation (CV) method determines the 
        value of goods and services based on the results of 
        carefully designed surveys. The CV method obtains an 
        estimate of the total value, including both direct and 
        passive use values of a good or service by using a 
        questionnaire designed to objectively collect 
        information about the respondent's willingness to pay 
        for the good or service. A CV survey contains three 
        basic elements: (i) A description of the good/service 
        to be valued and the context in which it will be 
        provided, including the method of payment; (ii) 
        questions regarding the respondent's willingness to pay 
        for the good or service; and (iii) questions concerning 
        demographics or other characteristics of the respondent 
        to interpret and validate survey responses.

    Although some industry groups and others have sharply 
criticized the use of contingent valuation, many economists 
have concluded that it is appropriate. Several years ago, NOAA 
convened a panel of economists to review the use of contingent 
valuation in natural resource damage cases. In January, 1993, 
the panel issued its report. The panel ``start[ed] from the 
premise that passive-use loss . . . is a meaningful component 
of the total damage resulting from environmental accidents.'' 
Then the panel rejected the ``extreme arguments'' that 
contingent valuation does not provide useful information. 
Instead, the panel outlined several guidelines necessary to 
assure the adequacy of a contingent valuation study. If done in 
conformity with these guidelines, the panel said, ``CV studies 
can produce estimates reliable enough to be the starting point 
of a judicial process of damage assessment, including passive 
use values.''
    New section 107(f)(1)(C)(iii) provides that trustees may 
recover their reasonable assessment costs, ``but not including 
the costs of conducting any type of study relying on the use of 
contingent valuation methodology.'' This creates an 
inappropriate barrier against the use of a legitimate method of 
assessing natural resource damages. Contingent valuation 
studies can be expensive, especially under the guidelines 
proposed by the NOAA panel, which stress the use of pre-testing 
and extensive cross tabulations. If trustees cannot recover the 
cost of conducting a contingent valuation survey, they may, as 
a practical matter, be precluded from conducting the survey. 
That, in turn, may make it impossible for them to demonstrate 
the loss of intrinsic values, even when the losses to the 
public are severe, either because the trustees will not be able 
to determine and document the extent of the lost values, or 
because trustees will not be able to show that the incremental 
costs of considering those lost values is reasonable.
    During the committee markup, Senators Baucus and Moynihan 
offered an amendment to delete the provisions that create these 
impediments, but the amendment was defeated.

The Bill Fails to Include Changes that Would Strengthen the NRD Program

    In addition to making changes that would weaken the NRD 
program, the bill fails to make two changes, proposed by 
Federal, State, and Tribal trustees, that would strengthen the 
program.
    The first relates to the judicial review of trustees' 
restoration plans. Under current law, when a Federal district 
court reviews a trustee's damage assessment, it is not clear 
whether the assessment is subject to deferential review based 
on the administrative record or instead trial de novo. \37\ The 
bill maintains the status quo. In doing so, the bill misses an 
opportunity to reduce litigation by resolving the question in 
favor of deferential review based on the administrative record.
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    \37\ Both Federal and State trustees have argued that, under 
current law, damage assessments should be subject to deferential review 
based on the administrative record. At the time of the Committee 
markup, only one Federal district court had ruled on the question, 
holding that a damage assessment is subject to trial de novo. State of 
Montana v. Atlantic Richfield Co., C.V.. Case No. 83-317-HEN-P.H. (D. 
Mont., March 3, 1997). After markup, another district court reached a 
similar decision. United States v. ASARCO, Inc, No. CV 96-0122-N-ECL 
(D. Idaho, March 31, 1998). However, no court of appeals has ruled on 
the issue, and it is unsettled.
---------------------------------------------------------------------------
    Record review would complement the shift, in this bill, 
from an emphasis on assessing damages to an emphasis on 
developing an appropriate restoration plan. The development of 
a restoration plan involves highly technical biological, 
chemical, and toxicological decisions. Such decisions should 
largely be based on the trustee's scientific and technical 
expertise. This is particularly true in light of the other 
changes that the bill makes to the natural resource damage 
provisions. The bill adds several new detailed requirements for 
natural resource damage restoration planning. For example, new 
section 107(f)(3) requires trustees to select measures that 
achieve an ``appropriate balance'' among identified factors, 
based on the ``best scientific evidence available.'' By failing 
to clearly establish record review, and by creating new 
detailed requirements for restoration planning, the bill 
creates new issues for litigation.
    Record review also would improve the restoration planning 
process. It would encourage the full involvement of both 
responsible parties and the general public. It also would 
ensure that the final decisions regarding restoration will be 
made by a trustee that considers public views, rather than by a 
court which has no obligation to consider such views. New 
Mexico Attorney General Tom Udall testified: ``If an 
administrative record is mandated, each side will have a strong 
incentive to submit its studies and reports into the record to 
be considered by the court. A much more open and efficient, 
less litigious process will result.'' One example of the 
process without record review is an NRD case pending in 
California, United States and State of California v. Montrose 
Chemical Corp. of California, et al. In that litigation, the 
discovery phase has been underway for 8 years.
    In the 1986 amendments, Congress subjected CERCLA remedial 
actions to record review. The report of the House Committee on 
Energy and Commerce explained the reasons for the change as 
follows:

        Reliance on an administrative record helps assure that 
        the basis for the response decision is clearly 
        articulated and open to scrutiny by the public and 
        responsible parties. It also encourages full 
        responsible party and public participation in 
        development of the record before the remedy is 
        selected. Moreover, limiting judicial review of 
        response actions to the administrative record expedites 
        the process of review, avoids the need for time-
        consuming and burdensome discovery, reduces litigation 
        costs, and ensures that the reviewing court's attention 
        of focused on the . . . criteria used in selecting the 
        response.

    For similar reasons, we agree with the Administration, the 
National Governors Association, the National Association of 
Attorneys General, and the Council of Western Attorneys General 
that the bill should include a provision that, as a resolution 
of the National Association of Attorneys General says, 
``[c]larifies that in any legal action, restoration decisions 
of a natural resource trustee shall be reviewed on the 
administrative record and shall be upheld unless found to be 
arbitrary and capricious or otherwise not in accordance with 
law.'' Our Substitute would have provided for record review.
    In addition, the bill fails to address the statute of 
limitations for non-NPL sites. Under current law, the statute 
of limitations at non-NPL sites has two alternative tests. An 
action can be brought within 3 years of either the ``the date 
of the discovery of the loss and its connection with the 
release in question'' or ``the date on which regulations are 
promulgated'' under the natural resource damages provision. 
Under the discovery test, it is not clear how courts will 
interpret the terms ``discovery of the loss'' and the 
``connection with the release.'' This ambiguity generates 
unnecessary litigation over the provision's meaning, and 
premature filing of natural resource damages claims, because, 
as Gordon Johnson testified, ``the trustee may have to bring 
suit before he or she has sufficient information to determine 
the scope of the injury or to quantify damages.''
    To address these problems, our Substitute included a 
provision that would have amended the statute of limitations to 
provide that actions could be brought within 3 years of the 
completion of a damage assessment or comparable restoration 
plan (or six years from the date the potentially responsible 
party provides funding for an assessment by all trustees). In 
addition, the Substitute would have imposed a moratorium on the 
filing of any actions until the completion of an assessment 
plan.
    By failing to include a provision along these lines, the 
bill assures that litigation over the current statute of 
limitations will continue and that trustees will continue to be 
compelled to file claims prematurely.

Some Provisions Require Further Clarification

    Several other provisions of the bill are ambiguous and may 
require further clarification (or deletion). Two are 
particularly significant.
    The first provision relates to double recovery. In the 1986 
amendments, Congress enacted CERCLA section 107(f), which 
provides that there ``shall be no double recovery under this 
chapter for natural resource damages . . . for the same release 
and natural resource.'' This provision stands for the 
straightforward proposition that a party should not have to pay 
the same damages twice. For example, if one trustee collects 
$100,000 in damages for injuries to a fishery, another trustee 
should not be able to come in later and collect another 
$100,000 for the same damages. However, as the 1986 conference 
report Statement of Managers says, the provision is not 
intended ``to prohibit different claims or actions for 
different damages stemming from the same injury to the same 
natural resource.''
    New section 107(f)(1)(D)(ii) revises the current double 
recovery provision. The revision may be intended to clarify the 
operation of the current provision, without significantly 
expanding its scope. The Committee report appears to support 
this interpretation. We are concerned, however, that the 
language may be interpreted more broadly, to preclude cleanup 
and natural resource restoration at many sites and undermine 
efforts to coordinate restoration planning with cleanup 
efforts. As New York State Assistant Attorney General Gordon 
Johnson testified about an earlier version of the double 
recovery language (in the August, 1997, Chairman's Mark), one 
reading of the new language ``may suggest that anyone who has 
recovered response costs which are used to restore an injured 
resource--and remedial work often has that consequence, 
obviously--cannot recover natural resource damages.''
    If this interpretation were upheld, trustees would be 
compelled to file NRD claims simultaneously with EPA or a 
State's response costs claims, whether or not trustees have had 
resource concerns addressed during cleanup or whether trustees 
have had the opportunity to determine whether there will be 
residual resource injury once response actions are complete. 
Response action agencies and natural resource trustees might be 
forced into a race to the courthouse to litigate their claim 
first. At many sites, trustees would be compelled to file 
protective claims before they have had a meaningful opportunity 
to determine whether injury will remain on-site after the 
conclusion of a response action. This would undermine the goal 
of focusing NRD claims on costs of restoring the injured 
resources. Further, at the numerous sites where EPA has already 
collected response costs, it could be argued that this 
provision bars trustees altogether from seeking restoration of 
natural resources, to the extent that EPA has collected 
response costs arguably addressing injury to a particular 
resource.
    The second provision relates to releases that occurred 
before the enactment of CERCLA. Current law provides that there 
is no recovery in any case in which both the release and the 
resulting ``damages'' occurred wholly before December 11, 1980. 
New section 107(f)(1)(D)(iii) revises this provision, to 
provide that there is no recovery in any case in which the 
release and the ``injury, destruction, or loss'' occurred 
before that date. We are concerned, however, that in light of 
the way one court has interpreted the terms ``damages'' and 
``injury,'' it could be argued that the change precludes 
recovery in any case in which injury, destruction, or loss 
began before December 11, 1980, but the damage persists 
thereafter. (See, In Re Acushnet River & New Bedford Harbor 
Proceedings, 716 F. Supp. 676 (D. Mass. 1989)). Such an 
interpretation would extinguish some existing claims. And it 
would do so inappropriately, because, as New York State 
Assistant Attorney General Gordon Johnson testified, ``[a]t 
common law, the creator of a nuisance which continues to cause 
damage after its creation still is liable for its abatement.''

The Bill Creates a Special Natural Resource Damages Program for the 
        Coeur d'Alene Basin that Jeopardizes the Rights of Some Parties 
        and May Result in Inadequate Restoration

    Section 705 of the bill is a free-standing provision of law 
relating to the Coeur d'Alene Basin. It directs the Coeur 
d'Alene Basin Commission, an entity created under Idaho law, to 
recommend a basin restoration plan to the Governor of Idaho. 
The Governor may revise the Plan and finalize it. Once the Plan 
is in effect, the Governor may enter into enforceable 
agreements with potentially responsible parties, whereby those 
parties agree to contribute to the implementation of the Plan. 
Each agreement must be approved by the Federal district court 
under the standard applicable to the approval of consent 
decrees (``fair, reasonable, and in the public interest''). 
Once an agreement is approved, parties to the agreement may ask 
the courts to stay any proceeding that is pending against them 
under CERCLA, the Clean Water Act, or the Resource Conservation 
and Recovery Act, for certain actions that they took in the 
Basin.
    We understand that the provision reflects an effort to 
expedite cleanup and restoration of the Coeur d'Alene Basin. 
But we oppose the provision, primarily for two reasons.
    First, the provision allows the Governor of Idaho to 
determine the rights of other parties who have important 
interests, under Federal law, concerning the Basin. Federal 
trustees, EPA, the Coeur d'Alene Tribe, and the State of 
Washington all have interests in the cleanup and restoration of 
the Basin. Many of the resources at the site are of special 
Federal interest, such as migratory birds and Federal lands. 
Both Federal trustees and the Tribe have pending natural 
resource damage claims. The Tribe's claim, brought in 1991, is 
for more than $1 billion. The Federal claim, brought in 1996, 
is for several hundred million dollars.
    Although Federal, State, and Tribal representatives are 
members of the Basin Commission, the bill gives the Governor 
the exclusive authority to determine the final Basin plan. It 
also gives the Governor the exclusive authority to negotiate 
with PRPs the terms of enforceable agreements, which, after 
approval by the Federal district court, would have the effect 
of extinguishing pending claims. Presumably, the Federal 
Trustees, the Tribe, and the State of Washington could comment 
to the court about whether the court should approve an 
enforceable agreement that the Governor submits. But this is no 
substitute for the power to assert their own legal rights, 
preserving their discretion to settle on terms they see fit.
    Second, the bill does not assure that injured natural 
resources will be restored to the same extent as they would 
under the general natural resource damages provisions of 
CERCLA. Section 705(b) provides that the goals of the Basin 
restoration plan are to ``restore, manage, and enhance the 
natural recovery'' of the Basin, ``consistent with the 
objectives'' of CERCLA, in a cost-effective manner. It is not 
clear whether and why this standard differs from the general 
standard for restoring injured natural resources. In any event, 
it is not clear how the standard could be enforced. For 
example, if one of the Federal trustees believed that the 
Governor's Plan would not restore, manage, and enhance natural 
recovery in a way that was consistent with the objectives of 
CERCLA, it is not clear that the trustee would have any way to 
directly challenge the adequacy of the Plan.

                               CONCLUSION

    Pulling all of this together, we believe that, despite S. 
8's positive provisions, it contains many flaws. The bill:

          Lcontains an inadequate preference for 
        treatment and safeguards for waste left in place;
          Lreduces protection of human health by 
        lowering the current acceptable level of cancer risk 
        and allowing a waiver of risk-based standards based on 
        technical impracticability;
          Lwill lead to inadequate cleanup of 
        contaminated water and let clean water become 
        contaminated;
          Lprovides for inappropriate consideration of 
        cost in cleanup decisions;
          Ldiverts resources away from and delays 
        cleanup through requirements that EPA reconsider past 
        cleanup decisions and conduct new and sometimes 
        inappropriate risk assessments;
          Lkeeps municipalities, small businesses, and 
        contributors of small amounts of waste trapped in 
        Superfund's liability net;
          Lpromotes unnecessary litigation and 
        transaction costs, by requiring settled cases to be 
        reopened and through other provisions that invite 
        litigation;
          Lcontains overly broad liability exemptions 
        and limitations, and fails to protect and preserve the 
        Superfund Trust Fund for cleanup of abandoned sites;
          Lwould adversely affect the current program 
        for providing brownfields assistance;
          Lwould bar EPA action at hazardous waste 
        sites, without adequate safeguards;
          Lfails to include adequate criteria for 
        approval of State programs;
          Lvirtually eliminates any Federal safety net 
        for sites addressed under State programs;
          Llacks adequate safeguards to conserve the 
        Superfund Trust Fund;
          Ldoes not adequately address the role of 
        Tribes under Superfund;
          Lfails to include important provisions that 
        would increase community participation;
          Lfails to sufficiently enhance public health 
        officials' involvement in Superfund decision-making;
          Lprevents trustees from fully considering the 
        intrinsic value of injured natural resources;
          Lfails to include changes that would 
        strengthen the Natural Resource Damages restoration 
        program; and
          Lcreates a special natural resource damages 
        program for the Coeur d'Alene Basin that jeopardizes 
        the rights of some parties and may result in inadequate 
        restoration.

    Given these many flaws, we agree with Administrator 
Browner's assessment, prior to markup, that S. 8 ``would still 
weaken public health and environmental protection, generate new 
litigation, delay cleanups, and inappropriately shift cleanup 
costs from parties that created toxic waste sites to the 
Superfund Trust Fund.''
    At the same time, we remain willing to resume negotiations 
to develop a Superfund reform bill that makes practical, common 
sense reforms and can attract broad bipartisan consensus 
support.
                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: existing law as proposed to 
be omitted is printed in bold and enclosed in brackets; new 
matter proposed to be added to existing law is printed in 
italic; and existing law in which no change is proposed is 
shown in roman.

 COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT 
                        OF 1980 (SUPERFUND) \38\

           [As Amended Through P.L. 105-62, October 13, 1997]

 AN ACT To provide for liability, compensation, cleanup, and emergency 
response for hazardous substances released into the environment and the 
          cleanup of inactive hazardous waste disposal sites.

    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act may be cited as the ``Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980''.
---------------------------------------------------------------------------
    \38\ The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (42 U.S.C. 9601-9675), commonly known as 
``Superfund,'' consists of Public Law 96-510 (Dec. 11, 1980) and the 
amendments made by subsequent enactments.
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    TITLE I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION

                              definitions

      Sec. 101. For purpose of this title--
            (1) The term ``act of God'' means an unanticipated 
        grave natural disaster or other natural phenomenon of 
        an exceptional, inevitable, and irresistible character, 
        the effects of which could not have been prevented or 
        avoided by the exercise of due care or foresight.
            (2) The term ``Administrator'' means the 
        Administrator of the United States Environmental 
        Protection Agency.
            (3) The term ``barrel'' means forty-two United 
        States gallons at sixty degrees Fahrenheit.
            (4) The term ``claim'' means a demand in writing 
        for a sum certain.
            (5) The term ``claimant'' means any person who 
        presents a claim for compensation under this Act.
            (6) The term ``damages'' means damages for injury 
        or loss of natural resources as set forth in section 
        107(a) or 111(b) of this Act.
            (7) The term ``drinking water supply'' means any 
        raw or finished water source that is or may be used by 
        a public water system (as defined in the Safe Drinking 
        Water Act) or as drinking water by one or more 
        individuals.
            (8) The term ``environment'' means (A) the 
        navigable waters, the waters of the contiguous zone, 
        and the ocean waters of which the natural resources are 
        under the exclusive management authority of the United 
        States under the Fishery Conservation and Management 
        Act of 1976, and (B) any other surface water, ground 
        water, drinking water supply, land surface or 
        subsurface strata, or ambient air within the United 
        States or under the jurisdiction of the United States.
            (9) The term ``facility'' means (A) any building, 
        structure, installation, equipment, pipe or pipeline 
        (including any pipe into a sewer or publicly owned 
        treatment works), well, pit, pond, lagoon, impoundment, 
        ditch, landfill, storage container, motor vehicle, 
        rolling stock, or aircraft, or (B) any site or area 
        where a hazardous substance has been deposited, stored, 
        disposed of, or placed, or otherwise come to be 
        located; but does not include any consumer product in 
        consumer use or any vessel.
            (10) The term ``federally permitted release'' means 
        (A) discharges in compliance with a permit under 
        section 402 of the Federal Water Pollution Control Act, 
        (B) discharges resulting from circumstances identified 
        and reviewed and made part of the public record with 
        respect to a permit issued or modified under section 
        402 of the Federal Water Pollution Control Act and 
        subject to a condition of such permit, (C) continuous 
        or anticipated intermittent discharges from a point 
        source, identified in a permit or permit application 
        under section 402 of the Federal Water Pollution 
        Control Act, which are caused by events occurring 
        within the scope of relevant operating or treatment 
        systems, (D) discharges in compliance with a legally 
        enforceable permit under section 404 of the Federal 
        Water Pollution Control Act, (E) releases in compliance 
        with a legally enforceable final permit issued pursuant 
        to section 3005 (a) through (d) of the Solid Waste 
        Disposal Act from a hazardous waste treatment, storage, 
        or disposal facility when such permit specifically 
        identifies the hazardous substances and makes such 
        substances subject to a standard of practice, control 
        procedure or bioassay limitation or condition, or other 
        control on the hazardous substances in such releases, 
        (F) any release in compliance with a legally 
        enforceable permit issued under section 102 of \39\ 
        section 103 of the Marine Protection, Research, and 
        Sanctuaries Act of 1972, (G) any injection of fluids 
        authorized under Federal underground injection control 
        programs or State programs submitted for Federal 
        approval (and not disapproved by the Administrator of 
        the Environmental Protection Agency) pursuant to part C 
        of the Safe Drinking Water Act, (H) any emission into 
        the air subject to a permit or control regulation under 
        section 111, section 112, title I part C, title I part 
        D, or State implementation plans submitted in 
        accordance with section 110 of the Clean Air Act (and 
        not disapproved by the Administrator of the 
        Environmental Protection Agency), including any 
        schedule or waiver granted, promulgated, or approved 
        under these sections, (I) any injection of fluids or 
        other materials authorized under applicable State law 
        (i) for the purpose of stimulating or treating wells 
        for the production of crude oil, natural gas, or water, 
        (ii) for the purpose of secondary, tertiary, or other 
        enhanced recovery of crude oil or natural gas, or (iii) 
        which are brought to the surface in conjunction with 
        the production of crude oil or natural gas and which 
        are reinjected, (J) the introduction of any pollutant 
        into a publicly owned treatment works when such 
        pollutant is specified in and in compliance with 
        applicable pretreatment standards of section 307 (b) or 
        (c) of the Clean Water Act and enforceable requirements 
        in a pretreatment program submitted by a State or 
        municipality for Federal approval under section 402 of 
        such Act, and (K) any release of source, special 
        nuclear, or byproduct material, as those terms are 
        defined in the Atomic Energy Act of 1954, in compliance 
        with a legally enforceable license, permit, regulation, 
        or order issued pursuant to the Atomic Energy Act of 
        1954.
---------------------------------------------------------------------------
    \39\ So in law. Probably should be ``or''.
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            (11) The term ``Fund'' or ``Trust Fund'' means the 
        Hazardous Substance Response Fund established by 
        section 221 of this Act or, in the case of a hazardous 
        waste disposal facility for which liability has been 
        transferred under section 107(k) of this Act, the Post-
        closure Liability Fund established by section 232 of 
        this Act.
            (12) The term ``ground water'' means water in a 
        saturated zone or stratum beneath the surface of land 
        or water.
            (13) The term ``guarantor'' means any person, other 
        than the owner or operator, who provides evidence of 
        financial responsibility for an owner or operator under 
        this Act.
            (14) The term ``hazardous substance'' means (A) any 
        substance designated pursuant to section 311(b)(2)(A) 
        of the Federal Water Pollution Control Act, (B) any 
        element, compound, mixture, solution, or substance 
        designated pursuant to section 102 of this Act, (C) any 
        hazardous waste having the characteristics identified 
        under or listed pursuant to section 3001 of the Solid 
        Waste Disposal Act (but not including any waste the 
        regulation of which under the Solid Waste Disposal Act 
        has been suspended by Act of Congress), (D) any toxic 
        pollutant listed under section 307(a) of the Federal 
        Water Pollution Control Act, (E) any hazardous air 
        pollutant listed under section 112 of the Clean Air 
        Act, and (F) any imminently hazardous chemical 
        substance or mixture with respect to which the 
        Administrator has taken action pursuant to section 7 of 
        the Toxic Substances Control Act. The term does not 
        include petroleum, including crude oil or any fraction 
        thereof which is not otherwise specifically listed or 
        designated as a hazardous substance under subparagraphs 
        (A) through (F) of this paragraph, and the term does 
        not include natural gas, natural gas liquids, liquefied 
        natural gas, or synthetic gas usable for fuel (or 
        mixtures of natural gas and such synthetic gas).
            (15) The term ``navigable waters'' or ``navigable 
        waters of the United States'' means the waters of the 
        United States, including the territorial seas.
            (16) The term ``natural resources'' means land, 
        fish, wildlife, biota, air, water, ground water, 
        drinking water supplies, and other such resources 
        belonging to, managed by, held in trust by, 
        appertaining to, or otherwise controlled by the United 
        States (including the resources of the fishery 
        conservation zone established by the Fishery 
        Conservation and Management Act of 1976), any State, 
        local government, or any foreign government, any Indian 
        Tribe, or, if such resources are subject to a trust 
        restriction or alienation, any member of an Indian 
        Tribe.
            (17) The term ``offshore facility'' means any 
        facility of any kind located in, on, or under, any of 
        the navigable waters of the United States, and any 
        facility of any kind which is subject to the 
        jurisdiction of the United States and is located in, 
        on, or under any other waters, other than a vessel or a 
        public vessel.
            (18) The term ``onshore facility'' means any 
        facility (including, but not limited to, motor vehicles 
        and rolling stock) of any kind located in, on, or 
        under, any land or nonnavigable waters within the 
        United States.
            (19) The term ``otherwise subject to the 
        jurisdiction of the United States'' means subject to 
        the jurisdiction of the United States by virtue of 
        United States citizenship, United States vessel 
        documentation or numbering, or as provided by 
        international agreement to which the United States is a 
        party.
            (20)(A) The term ``owner or operator'' means (i) in 
        the case of a vessel, any person owning, operating, or 
        chartering by demise, such vessel, (ii) in the case of 
        an onshore facility or an offshore facility, any person 
        owning or operating such facility, and (iii) in the 
        case of any facility, title or control of which was 
        conveyed due to bankruptcy, foreclosure, tax 
        delinquency, abandonment, or similar means to a unit of 
        State or local government, any person who owned, 
        operated, or otherwise controlled activities at such 
        facility immediately beforehand. Such term does not 
        include a person, who, without participating in the 
        management of a vessel or facility, holds indicia of 
        ownership primarily to protect his security interest in 
        the vessel or facility.
            (B) In the case of a hazardous substance which has 
        been accepted for transportation by a common or 
        contract carrier and except as provided in section 
        107(a) (3) or (4) of this Act, (i) the term ``owner or 
        operator'' shall mean such common carrier or other bona 
        fide for hire carrier acting as an independent 
        contractor during such transportation, (ii) the shipper 
        of such hazardous substance shall not be considered to 
        have caused or contributed to any release during such 
        transportation which resulted solely from circumstances 
        or conditions beyond his control.
            (C) In the case of a hazardous substance which has 
        been delivered by a common or contract carrier to a 
        disposal or treatment facility and except as provided 
        in section 107(a) (3) or (4) (i) the term ``owner or 
        operator'' shall not include such common or contract 
        carrier, and (ii) such common or contract carrier shall 
        not be considered to have caused or contributed to any 
        release at such disposal or treatment facility 
        resulting from circumstances or conditions beyond its 
        control.
            (D) The term ``owner or operator'' does not include 
        a unit of State or local government which acquired 
        ownership or control through seizure or otherwise in 
        connection with law enforcement activity or 
        involuntarily through bankruptcy, tax delinquency, 
        abandonment, or other circumstances in which the 
        government involuntarily acquires title by virtue of 
        its function as sovereign. The exclusion provided under 
        this paragraph shall not apply to any State or local 
        government which has caused or contributed to the 
        release or threatened release of a hazardous substance 
        from the facility, and such a State or local government 
        shall be subject to the provisions of this Act in the 
        same manner and to the same extent, both procedurally 
        and substantively, as any nongovernmental entity, 
        including liability under section 107.
                    (E) \40\ Exclusion of lenders not 
                participants in management.--
                            (i) Indicia of ownership to protect 
                        security.--The term ``owner or 
                        operator'' does not include a person 
                        that is a lender that, without 
                        participating in the management of a 
                        vessel or facility, holds indicia of 
                        ownership primarily to protect the 
                        security interest of the person in the 
                        vessel or facility.
---------------------------------------------------------------------------
    \40\ So in law. Indentation of subparagraphs (E) through (G) is 
incorrect.
---------------------------------------------------------------------------
                            (ii) Foreclosure.--The term ``owner 
                        or operator'' does not include a person 
                        that is a lender that did not 
                        participate in management of a vessel 
                        or facility prior to foreclosure, 
                        notwithstanding that the person--
                                    (I) forecloses on the 
                                vessel or facility; and
                                    (II) after foreclosure, 
                                sells, re-leases (in the case 
                                of a lease finance 
                                transaction), or liquidates the 
                                vessel or facility, maintains 
                                business activities, winds up 
                                operations, undertakes a 
                                response action under section 
                                107(d)(1) or under the 
                                direction of an on-scene 
                                coordinator appointed under the 
                                National Contingency Plan, with 
                                respect to the vessel or 
                                facility, or takes any other 
                                measure to preserve, protect, 
                                or prepare the vessel or 
                                facility prior to sale or 
                                disposition,
                        if the person seeks to sell, re-lease 
                        (in the case of a lease finance 
                        transaction), or otherwise divest the 
                        person of the vessel or facility at the 
                        earliest practicable, commercially 
                        reasonable time, on commercially 
                        reasonable terms, taking into account 
                        market conditions and legal and 
                        regulatory requirements.
                    (F) Participation in management.--For 
                purposes of subparagraph (E)--
                            (i) the term ``participate in 
                        management''--
                                    (I) means actually 
                                participating in the management 
                                or operational affairs of a 
                                vessel or facility; and
                                    (II) does not include 
                                merely having the capacity to 
                                influence, or the unexercised 
                                right to control, vessel or 
                                facility operations;
                            (ii) a person that is a lender and 
                        that holds indicia of ownership 
                        primarily to protect a security 
                        interest in a vessel or facility shall 
                        be considered to participate in 
                        management only if, while the borrower 
                        is still in possession of the vessel or 
                        facility encumbered by the security 
                        interest, the person--
                                    (I) exercises 
                                decisionmaking control over the 
                                environmental compliance 
                                related to the vessel or 
                                facility, such that the person 
                                has undertaken responsibility 
                                for the hazardous substance 
                                handling or disposal practices 
                                related to the vessel or 
                                facility; or
                                    (II) exercises control at a 
                                level comparable to that of a 
                                manager of the vessel or 
                                facility, such that the person 
                                has assumed or manifested 
                                responsibility--
                                            (aa) for the 
                                        overall management of 
                                        the vessel or facility 
                                        encompassing day-to-day 
                                        decisionmaking with 
                                        respect to 
                                        environmental 
                                        compliance; or
                                            (bb) over all or 
                                        substantially all of 
                                        the operational 
                                        functions (as 
                                        distinguished from 
                                        financial or 
                                        administrative 
                                        functions) of the 
                                        vessel or facility 
                                        other than the function 
                                        of environmental 
                                        compliance;
                            (iii) the term ``participate in 
                        management'' does not include 
                        performing an act or failing to act 
                        prior to the time at which a security 
                        interest is created in a vessel or 
                        facility; and
                            (iv) the term ``participate in 
                        management'' does not include--
                                    (I) holding a security 
                                interest or abandoning or 
                                releasing a security interest;
                                    (II) including in the terms 
                                of an extension of credit, or 
                                in a contract or security 
                                agreement relating to the 
                                extension, a covenant, 
                                warranty, or other term or 
                                condition that relates to 
                                environmental compliance;
                                    (III) monitoring or 
                                enforcing the terms and 
                                conditions of the extension of 
                                credit or security interest;
                                    (IV) monitoring or 
                                undertaking 1 or more 
                                inspections of the vessel or 
                                facility;
                                    (V) requiring a response 
                                action or other lawful means of 
                                addressing the release or 
                                threatened release of a 
                                hazardous substance in 
                                connection with the vessel or 
                                facility prior to, during, or 
                                on the expiration of the term 
                                of the extension of credit;
                                    (VI) providing financial or 
                                other advice or counseling in 
                                an effort to mitigate, prevent, 
                                or cure default or diminution 
                                in the value of the vessel or 
                                facility;
                                    (VII) restructuring, 
                                renegotiating, or otherwise 
                                agreeing to alter the terms and 
                                conditions of the extension of 
                                credit or security interest, 
                                exercising forbearance;
                                    (VIII) exercising other 
                                remedies that may be available 
                                under applicable law for the 
                                breach of a term or condition 
                                of the extension of credit or 
                                security agreement; or
                                    (IX) conducting a response 
                                action under section 107(d) or 
                                under the direction of an on-
                                scene coordinator appointed 
                                under the National Contingency 
                                Plan,
                        if the actions do not rise to the level 
                        of participating in management (within 
                        the meaning of clauses (i) and (ii)).
                    (G) Other terms.--As used in this Act:
                            (i) Extension of credit.--The term 
                        ``extension of credit'' includes a 
                        lease finance transaction--
                                    (I) in which the lessor 
                                does not initially select the 
                                leased vessel or facility and 
                                does not during the lease term 
                                control the daily operations or 
                                maintenance of the vessel or 
                                facility; or
                                    (II) that conforms with 
                                regulations issued by the 
                                appropriate Federal banking 
                                agency or the appropriate State 
                                bank supervisor (as those terms 
                                are defined in section 3 of the 
                                Federal Deposit Insurance Act 
                                (12 U.S.C. 1813) or with 
                                regulations issued by the 
                                National Credit Union 
                                Administration Board, as 
                                appropriate.
                            (ii) Financial or administrative 
                        function.--The term ``financial or 
                        administrative function'' includes a 
                        function such as that of a credit 
                        manager, accounts payable officer, 
                        accounts receivable officer, personnel 
                        manager, comptroller, or chief 
                        financial officer, or a similar 
                        function.
                            (iii) Foreclosure; foreclose.--The 
                        terms ``foreclosure'' and ``foreclose'' 
                        mean, respectively, acquiring, and to 
                        acquire, a vessel or facility through--
                                    (I)(aa) purchase at sale 
                                under a judgment or decree, 
                                power of sale, or nonjudicial 
                                foreclosure sale;
                                    (bb) a deed in lieu of 
                                foreclosure, or similar 
                                conveyance from a trustee; or
                                    (cc) repossession,
                        if the vessel or facility was security 
                        for an extension of credit previously 
                        contracted;
                                    (II) conveyance pursuant to 
                                an extension of credit 
                                previously contracted, 
                                including the termination of a 
                                lease agreement; or
                                    (III) any other formal or 
                                informal manner by which the 
                                person acquires, for subsequent 
                                disposition, title to or 
                                possession of a vessel or 
                                facility in order to protect 
                                the security interest of the 
                                person.
                            (iv) Lender.--The term ``lender'' 
                        means--
                                    (I) an insured depository 
                                institution (as defined in 
                                section 3 of the Federal 
                                Deposit Insurance Act (12 
                                U.S.C. 1813));
                                    (II) an insured credit 
                                union (as defined in section 
                                101 of the Federal Credit Union 
                                Act (12 U.S.C. 1752));
                                    (III) a bank or association 
                                chartered under the Farm Credit 
                                Act of 1971 (12 U.S.C. 2001 et 
                                seq.);
                                    (IV) a leasing or trust 
                                company that is an affiliate of 
                                an insured depository 
                                institution;
                                    (V) any person (including a 
                                successor or assignee of any 
                                such person) that makes a bona 
                                fide extension of credit to or 
                                takes or acquires a security 
                                interest from a nonaffiliated 
                                person;
                                    (VI) the Federal National 
                                Mortgage Association, the 
                                Federal Home Loan Mortgage 
                                Corporation, the Federal 
                                Agricultural Mortgage 
                                Corporation, or any other 
                                entity that in a bona fide 
                                manner buys or sells loans or 
                                interests in loans;
                                    (VII) a person that insures 
                                or guarantees against a default 
                                in the repayment of an 
                                extension of credit, or acts as 
                                a surety with respect to an 
                                extension of credit, to a 
                                nonaffiliated person; and
                                    (VIII) a person that 
                                provides title insurance and 
                                that acquires a vessel or 
                                facility as a result of 
                                assignment or conveyance in the 
                                course of underwriting claims 
                                and claims settlement.
                            (v) Operational function.--The term 
                        ``operational function'' includes a 
                        function such as that of a facility or 
                        plant manager, operations manager, 
                        chief operating officer, or chief 
                        executive officer.
                            (vi) Security interest.--The term 
                        ``security interest'' includes a right 
                        under a mortgage, deed of trust, 
                        assignment, judgment lien, pledge, 
                        security agreement, factoring 
                        agreement, or lease and any other right 
                        accruing to a person to secure the 
                        repayment of money, the performance of 
                        a duty, or any other obligation by a 
                        nonaffiliated person.
                    (H) Liability of contractors.--
                            (i) In general.--The term ``owner 
                        or operator'' does not include a 
                        response action contractor (as defined 
                        in section 119(e)).
                            (ii) Liability limitations.--A 
                        person described in clause (i) shall 
                        not, in the absence of negligence by 
                        the person, be considered to--
                                    (I) cause or contribute to 
                                any release or threatened 
                                release of a hazardous 
                                substance, pollutant, or 
                                contaminant;
                                    (II) arrange for disposal 
                                or treatment of a hazardous 
                                substance, pollutant, or 
                                contaminant;
                                    (III) arrange with a 
                                transporter for transport or 
                                disposal or treatment of a 
                                hazardous substance, pollutant, 
                                or contaminant; or
                                    (IV) transport a hazardous 
                                substance, pollutant, or 
                                contaminant.
                            (iii) Exceptions.--This 
                        subparagraph does not apply--
                                    (I) to a person that is 
                                potentially responsible under 
                                section 106 or 107 other than a 
                                person that is associated 
                                solely with the provision of a 
                                service relating to a response 
                                action; or
                                    (II) with respect to 
                                liability for a facility at 
                                which a response action 
                                contractor did not perform a 
                                response action.
                    (I) Religious, charitable, scientific, and 
                educational organizations.--The term ``owner or 
                operator'' includes an organization described 
                in section 501(c)(3) of the Internal Revenue 
                Code of 1986 that is organized and operated 
                exclusively for religious, charitable, 
                scientific, or educational purposes and that 
                holds legal or equitable title to a vessel or 
                facility.
            (21) The term ``person'' means an individual, firm, 
        corporation, association, partnership, consortium, 
        joint venture, commercial entity, United States 
        Government, State, municipality, commission, political 
        subdivision of a State, or any interstate body.
            (22) The term ``release'' means any spilling, 
        leaking, pumping, pouring, emitting, emptying, 
        discharging, injecting, escaping, leaching, dumping, or 
        disposing into the environment (including the 
        abandonment or discarding of barrels, containers, and 
        other closed receptacles containing any hazardous 
        substance or pollutant or contaminant), but excludes 
        (A) any release which results in exposure to persons 
        solely within a workplace, with respect to a claim 
        which such persons may assert against the employer of 
        such persons, (B) emissions from the engine exhaust of 
        a motor vehicle, rolling stock, aircraft, vessel, or 
        pipeline pumping station engine, (C) release of source, 
        byproduct, or special nuclear material from a nuclear 
        incident, as those terms are defined in the Atomic 
        Energy Act of 1954, if such release is subject to 
        requirements with respect to financial protection 
        established by the Nuclear Regulatory Commission under 
        section 170 of such Act, or, for the purposes of 
        section 104 of this title or any other response action, 
        any release of source byproduct, or special nuclear 
        material from any processing site designated under 
        section 102(a)(1) or 302(a) of the Uranium Mill 
        Tailings Radiation Control Act of 1978, and (D) the 
        normal application of fertilizer.
            (23) The terms \41\ ``remove'' or ``removal'' means 
        the cleanup or removal of released hazardous substances 
        from the environment, such actions as may be necessary 
        taken in the event of the threat of release of 
        hazardous substances into the environment, such actions 
        as may be necessary to monitor, assess, and evaluate 
        the release or threat of release of hazardous 
        substances, the disposal of removed material, or the 
        taking of such other actions as may be necessary to 
        prevent, minimize, or mitigate damage to the public 
        health or welfare or to the environment, which may 
        otherwise result from a release or threat of release. 
        The term includes, in addition, without being limited 
        to, security fencing or other measures to limit access, 
        provision of alternative water supplies, temporary 
        evacuation and housing of threatened individuals not 
        otherwise provided for, action taken under section 
        104(b) of this Act, and any emergency assistance which 
        may be provided under the Disaster Relief and Emergency 
        Assistance Act. \42\
---------------------------------------------------------------------------
    \41\ So in law. Probably should be ``term''.
    \42\ Should refer to the ``Robert T. Stafford Disaster Relief and 
Emergency Assistance Act'', pursuant to the amendment to the short 
title of such Act made by section 102 of Public Law 100-707.
---------------------------------------------------------------------------
            (24) The terms \1\ ``remedy'' or ``remedial 
        action'' means those actions consistent with permanent 
        remedy taken instead of or in addition to removal 
        actions in the event of a release or threatened release 
        of a hazardous substance into the environment, to 
        prevent or minimize the release of hazardous substances 
        so that they do not migrate to cause substantial danger 
        to present or future public health or welfare or the 
        environment. The term includes, but is not limited to, 
        such actions at the location of the release as storage, 
        confinement, perimeter protection using dikes, 
        trenches, or ditches, clay cover, neutralization, 
        cleanup of released hazardous substances and associated 
        contaminated materials, recycling or reuse, diversion, 
        destruction, segregation of reactive wastes, dredging 
        or excavations, repair or replacement of leaking 
        containers, collection of leachate and runoff, onsite 
        treatment or incineration, provision of alternative 
        water supplies, and any monitoring reasonably required 
        to assure that such actions protect the public health 
        and welfare and the environment. The term includes the 
        costs of permanent relocation of residents and 
        businesses and community facilities where the President 
        determines that, alone or in combination with other 
        measures, such relocation is more cost-effective than 
        and environmentally preferable to the transportation, 
        storage, treatment, destruction, or secure disposition 
        offsite of hazardous substances, or may otherwise be 
        necessary to protect the public health or welfare; the 
        term includes offsite transport and offsite storage, 
        treatment, destruction, or secure disposition of 
        hazardous substances and associated contaminated 
        materials.
            (25) The terms \43\ ``respond'' or ``response'' 
        means remove, removal, remedy, and remedial action;, 
        \44\ all such terms (including the terms ``removal'' 
        and ``remedial action'') include enforcement activities 
        related thereto.
---------------------------------------------------------------------------
    \43\ So in law. Probably should be ``term''.
    \44\ So in law.
---------------------------------------------------------------------------
            (26) The terms \1\ ``transport'' or 
        ``transportation'' means the movement of a hazardous 
        substance by any mode, including a hazardous liquid 
        pipeline facility (as defined in section 60101(a) of 
        title 49, United States Code), and in the case of a 
        hazardous substance which has been accepted for 
        transportation by a common or contract carrier, the 
        term ``transport'' or ``transportation'' shall include 
        any stoppage in transit which is temporary, incidental 
        to the transportation movement, and at the ordinary 
        operating convenience of a common or contract carrier, 
        and any such stoppage shall be considered as a 
        continuity of movement and not as the storage of a 
        hazardous substance.
            (27) The terms ``United States'' and ``State'' 
        include the several States of the United States, the 
        District of Columbia, the Commonwealth of Puerto Rico, 
        Guam, American Samoa, the United States Virgin Islands, 
        the Commonwealth of the Northern Marianas, and any 
        other territory or possession over which the United 
        States has jurisdiction.
            (28) The term ``vessel'' means every description of 
        watercraft or other artificial contrivance used, or 
        capable of being used, as a means of transportation on 
        water.
            (29) The terms ``disposal'', ``hazardous waste'', 
        and ``treatment'' shall have the meaning provided in 
        section 1004 of the Solid Waste Disposal Act.
            (30) The terms ``territorial sea'' and ``contiguous 
        zone'' shall have the meaning provided in section 502 
        of the Federal Water Pollution Control Act.
            (31) The term ``national contingency plan'' means 
        the national contingency plan published under section 
        311(c) of the Federal Water Pollution Control Act or 
        revised pursuant to section 105 of this Act.
            (32) The terms \1\ ``liable'' or ``liability'' 
        under this title shall be construed to be the standard 
        of liability which obtains under section 311 of the 
        Federal Water Pollution Control Act.
            (33) The term ``pollutant or contaminant'' shall 
        include, but not be limited to, any element, substance, 
        compound, or mixture, including disease-causing agents, 
        which after release into the environment and upon 
        exposure, ingestion, inhalation, or assimilation into 
        any organism, either directly from the environment or 
        indirectly by ingestion through food chains, will or 
        may reasonably be anticipated to cause death, disease, 
        behavioral abnormalities, cancer, genetic mutation, 
        physiological malfunctions (including malfunctions in 
        reproduction) or physical deformations, in such 
        organisms or their offspring; except that the term 
        ``pollutant or contaminant'' shall not include 
        petroleum, including crude oil or any fraction thereof 
        which is not otherwise specifically listed or 
        designated as a hazardous substance under subparagraphs 
        (A) through (F) of paragraph (14) and shall not include 
        natural gas, liquefied natural gas, or synthetic gas of 
        pipeline quality (or mixtures of natural gas and such 
        synthetic gas).
            (34) The term ``alternative water supplies'' 
        includes, but is not limited to, drinking water and 
        household water supplies.
            (35)(A) The term ``contractual relationship'', for 
        the purpose of section 107(b)(3) includes, but is not 
        limited to, land contracts, [deeds or] deeds, 
        easements, leases, or other instruments transferring 
        title or possession, unless the real property on which 
        the facility concerned is located was acquired by the 
        defendant after the disposal or placement of the 
        hazardous substance on, in, or at the facility, and one 
        or more of the circumstances described in clause (i), 
        (ii), or (iii) is also established by the defendant by 
        a preponderance of the evidence:
                    (i) At the time the defendant acquired the 
                facility the defendant did not know and had no 
                reason to know that any hazardous substance 
                which is the subject of the release or 
                threatened release was disposed of on, in, or 
                at the facility.
                    (ii) The defendant is a government entity 
                which acquired the facility by escheat, or 
                through any other involuntary transfer or 
                acquisition, or through the exercise of eminent 
                domain authority by purchase or condemnation.
                    (iii) The defendant acquired the facility 
                by inheritance or bequest.
        In addition to establishing the foregoing, the 
        defendant must establish that [he] the defendant has 
        satisfied the requirements of section 107(b)(3) (a) and 
        (b)[.], has provided full cooperation, assistance, and 
        facility access to the persons that are responsible for 
        response actions at the facility, including the 
        cooperation and access necessary for the installation, 
        integrity, operation, and maintenance of any complete 
        or partial response action at the facility, and has 
        taken no action that impeded the effectiveness or 
        integrity of any institutional control employed under 
        section 121 at the facility.
            [(B) To establish that the defendant had no reason 
        to know, as provided in clause (i) of subparagraph (A) 
        of this paragraph, the defendant must have undertaken, 
        at the time of acquisition, all appropriate inquiry 
        into the previous ownership and uses of the property 
        consistent with good commercial or customary practice 
        in an effort to minimize liability. For purposes of the 
        preceding sentence the court shall take into account 
        any specialized knowledge or experience on the part of 
        the defendant, the relationship of the purchase price 
        to the value of the property if uncontaminated, 
        commonly known or reasonably ascertainable information 
        about the property, the obviousness of the presence or 
        likely presence of contamination at the property, and 
        the ability to detect such contamination by appropriate 
        inspection.]
            (B) Reason to know.--
                    (i) All appropriate inquiries.--To 
                establish that the defendant had no reason to 
                know of the matter described in subparagraph 
                (A)(i), the defendant must show that--
                            (I) at or prior to the date on 
                        which the defendant acquired the 
                        facility, the defendant undertook all 
                        appropriate inquiries into the previous 
                        ownership and uses of the facility in 
                        accordance with generally accepted good 
                        commercial and customary standards and 
                        practices; and
                            (II) the defendant exercised 
                        appropriate care with respect to each 
                        hazardous substance found at the 
                        facility by taking reasonable steps to 
                        stop any continuing release, prevent 
                        any threatened future release and 
                        prevent or limit human or natural 
                        resource exposure to any previously 
                        released hazardous substance.
                    (ii) Standards and practices.--The 
                Administrator shall by regulation establish as 
                standards and practices for the purpose of 
                clause (i)--
                            (I) the American Society for 
                        Testing and Materials (ASTM) Standard 
                        E1527-94, entitled Standard Practice 
                        for Environmental Site Assessments: 
                        Phase I Environmental Site Assessment 
                        Process; or
                            (II) alternative standards and 
                        practices under clause (iii).
                    (iii) Alternative standards and 
                practices.--
                            (I) In general.--The Administrator 
                        may by regulation issue alternative 
                        standards and practices or designate 
                        standards developed by other 
                        organizations than the American Society 
                        for Testing and Materials after 
                        conducting a study of commercial and 
                        industrial practices concerning the 
                        transfer of real property in the United 
                        States.
                            (II) Considerations.--In issuing or 
                        designating alternative standards and 
                        practices under subclause (I), the 
                        Administrator shall consider including 
                        each of the following:
                                    (aa) The results of an 
                                inquiry by an environmental 
                                professional.
                                    (bb) Interviews with past 
                                and present owners, operators, 
                                and occupants of the facility 
                                and the facility's real 
                                property for the purpose of 
                                gathering information regarding 
                                the potential for contamination 
                                at the facility and the 
                                facility's real property.
                                    (cc) Reviews of historical 
                                sources, such as chain of title 
                                documents, aerial photographs, 
                                building department records, 
                                and land use records to 
                                determine previous uses and 
                                occupancies of the real 
                                property since the property was 
                                first developed.
                                    (dd) Searches for recorded 
                                environmental cleanup liens, 
                                filed under Federal, State, or 
                                local law, against the facility 
                                or the facility's real 
                                property.
                                    (ee) Reviews of Federal, 
                                State, and local government 
                                records (such as waste disposal 
                                records), underground storage 
                                tank records, and hazardous 
                                waste handling, generation, 
                                treatment, disposal, and spill 
                                records, concerning 
                                contamination at or near the 
                                facility or the facility's real 
                                property.
                                    (ff) Visual inspections of 
                                the facility and facility's 
                                real property and of adjoining 
                                properties.
                                    (gg) Specialized knowledge 
                                or experience on the part of 
                                the defendant.
                                    (hh) The relationship of 
                                the purchase price to the value 
                                of the property if the property 
                                was uncontaminated.
                                    (ii) Commonly known or 
                                reasonably ascertainable 
                                information about the property.
                                    (jj) The degree of 
                                obviousness of the presence or 
                                likely presence of 
                                contamination at the property, 
                                and the ability to detect such 
                                contamination by appropriate 
                                investigation.
                    (iv) Site inspection and title search.--In 
                the case of property for residential use or 
                other similar use purchased by a 
                nongovernmental or noncommercial entity, a 
                facility inspection and title search that 
                reveal no basis for further investigation shall 
                be considered to satisfy the requirements of 
                this subparagraph.
            (C) Nothing in this paragraph or in section 
        107(b)(3) shall diminish the liability of any previous 
        owner or operator of such facility who would otherwise 
        be liable under this Act. Notwithstanding this 
        paragraph, if the defendant obtained actual knowledge 
        of the release or threatened release of a hazardous 
        substance at such facility when the defendant owned the 
        real property and then subsequently transferred 
        ownership of the property to another person without 
        disclosing such knowledge, such defendant shall be 
        treated as liable under section 107(a)(1) and no 
        defense under section 107(b)(3) shall be available to 
        such defendant.
            (D) Nothing in this paragraph shall affect the 
        liability under this Act of a defendant who, by any act 
        or omission, caused or contributed to the release or 
        threatened release of a hazardous substance which is 
        the subject of the action relating to the facility.
            (36) The term ``Indian tribe'' means any Indian 
        tribe, band, nation, or other organized group or 
        community, including any Alaska Native village but not 
        including any Alaska Native regional or village 
        corporation, which is recognized as eligible for the 
        special programs and services provided by the United 
        States to Indians because of their status as Indians.
            (37)(A) The term [``service station dealer''] 
        ``service station or automobile dealer'' means any 
        person--
                    (i) who owns or operates a motor vehicle 
                service station, filling station, garage, 
                dealership, or similar retail establishment 
                engaged in the business of selling, repairing, 
                or servicing motor vehicles, where a 
                significant percentage of the gross revenue of 
                the establishment is derived from the fueling, 
                repairing, [or servicing] servicing, or selling 
                of motor vehicles, and
                    (ii) who accepts for collection, 
                accumulation, and delivery to an oil recycling 
                facility, recycled oil that (I) has been 
                removed from the engine of a light duty motor 
                vehicle or household appliances by the owner of 
                such vehicle or appliances, and (II) is 
                presented, by such owner, to such person for 
                collection, accumulation, and delivery to an 
                oil recycling facility.
            (B) For purposes of [section 114(c)] section 
        114(b), the term [``service station dealer''] service 
        station or automobile dealer shall, notwithstanding the 
        provisions of subparagraph (A), include any government 
        agency that establishes a facility solely for the 
        purpose of accepting recycled oil that satisfies the 
        criteria set forth in subclauses (I) and (II) of 
        subparagraph (A)(ii), and, with respect to recycled oil 
        that satisfies the criteria set forth in subclauses (I) 
        and (II), owners or operators of refuse collection 
        services who are compelled by State law to collect, 
        accumulate, and deliver such oil to an oil recycling 
        facility.
            (C) The President shall promulgate regulations 
        regarding the determination of what constitutes a 
        significant percentage of the gross revenues of an 
        establishment for purposes of this paragraph.
            (38) The term ``incineration vessel'' means any 
        vessel which carries hazardous substances for the 
        purpose of incineration of such substances, so long as 
        such substances or residues of such substances are on 
        board.
            (39) Qualifying state voluntary response program.--
        The term ``qualifying State voluntary response 
        program'' means a State program that includes the 
        elements described in section 128(b).
            (40) Bona fide prospective purchaser.--The term 
        ``bona fide prospective purchaser'' means a person that 
        acquires ownership of a facility after the date of 
        enactment of this paragraph, or a tenant of such a 
        person, that establishes each of the following by a 
        preponderance of the evidence:
                    (A) Disposal prior to acquisition.--All 
                deposition of hazardous substances at the 
                facility occurred before the person acquired 
                the facility.
                    (B) Inquiries.--
                            (i) In general.--The person made 
                        all appropriate inquiries into the 
                        previous ownership and uses of the 
                        facility and the facility's real 
                        property in accordance with generally 
                        accepted good commercial and customary 
                        standards and practices.
                            (ii) Standards and practices.--The 
                        standards and practices referred to in 
                        paragraph (35)(B)(ii) or those issued 
                        or adopted by the Administrator under 
                        that paragraph shall be considered to 
                        satisfy the requirements of this 
                        subparagraph.
                            (iii) Residential use.--In the case 
                        of property for residential or other 
                        similar use purchased by a 
                        nongovernmental or noncommercial 
                        entity, a facility inspection and title 
                        search that reveal no basis for further 
                        investigation shall be considered to 
                        satisfy the requirements of this 
                        subparagraph.
                    (C) Notices.--The person provided all 
                legally required notices with respect to the 
                discovery or release of any hazardous 
                substances at the facility.
                    (D) Care.--The person exercised appropriate 
                care with respect to each hazardous substance 
                found at the facility by taking reasonable 
                steps to stop any continuing release, prevent 
                any threatened future release and prevent or 
                limit human or natural resource exposure to any 
                previously released hazardous substance.
                    (E) Cooperation, assistance, and access.--
                The person has not failed to substantially 
                comply with the requirement stated in 
                subsection (y) with respect to the facility.
                    (F) No affiliation.--The person is not 
                affiliated through any familial or corporate 
                relationship with any person that is or was a 
                party potentially responsible for response 
                costs at the facility.
            (41) ATSDR.--The term ``ATSDR'' means the Agency 
        for Toxic Substances and Disease Registry.
            (42) Technically impracticable.--The term 
        ``technically impracticable'' means impracticable due 
        to engineering infeasibility or unreliability or 
        inordinate costs.
            (43) Beneficial use.--The term ``beneficial use'' 
        means the use of land on completion of a response 
        action in a manner that confers economic, social, 
        environmental, conservation, or aesthetic benefit.
            (44) Codisposal landfill.--The term ``codisposal 
        landfill'' means a landfill that--
                    (A) was listed on the National Priorities 
                List as of January 1, 1997;
                    (B) received for disposal municipal solid 
                waste or sewage sludge; and
                    (C) may also have received, before the 
                effective date of requirements under subtitle C 
                of the Solid Waste Disposal Act (42 U.S.C. 6921 
                et seq.), any hazardous waste, if the landfill 
                contains predominantly municipal solid waste or 
                sewage sludge that was transported to the 
                landfill from outside the facility.
            (45) Municipal solid waste.--
                    (A) In general.--The term ``municipal solid 
                waste'' means waste material generated by--
                            (i) a household (such as a single- 
                        or multi-family residence) or a public 
                        lodging (such as a hotel or motel); or
                            (ii) a commercial, institutional, 
                        or industrial source, to the extent 
                        that--
                                    (I) the waste material is 
                                substantially similar to waste 
                                normally generated by a 
                                household or public lodging 
                                (without regard to differences 
                                in volume); or
                                    (II) the waste material is 
                                collected and disposed of with 
                                other municipal solid waste or 
                                sewage sludge and, regardless 
                                of when generated, would be 
                                conditionally exempt small 
                                quantity generator waste under 
                                the regulation issued under 
                                section 3001(d) of the Solid 
                                Waste Disposal Act (42 U.S.C. 
                                6921(d)).
                    (B) Inclusions.--The term ``municipal solid 
                waste'' includes food and yard waste, paper, 
                clothing, appliances, consumer product 
                packaging, disposable diapers, office supplies, 
                cosmetics, glass and metal food containers, 
                elementary or secondary school science 
                laboratory waste, and household hazardous 
                waste.
                    (C) Exclusions.--The term ``municipal solid 
                waste'' does not include combustion ash 
                generated by resource recovery facilities or 
                municipal incinerators or waste from 
                manufacturing or processing (including 
                pollution control) operations that is not 
                described in subclause (I) or (II).
            (46) Municipality.--
                    (A) In general.--The term ``municipality'' 
                means a political subdivision of a State 
                (including a city, county, village, town, 
                township, borough, parish, school district, 
                sanitation district, water district, or other 
                public entity performing local governmental 
                functions).
                    (B) Inclusions.--The term ``municipality'' 
                includes a natural person acting in the 
                capacity of an official, employee, or agent of 
                any entity described in subparagraph (A) in the 
                performance of a governmental function.
            (47) Sewage sludge.--The term ``sewage sludge'' 
        means solid, semisolid, or liquid residue removed 
        during the treatment of municipal waste water, domestic 
        sewage, or other waste water at or by publicly owned 
        treatment works.
            (48) Consuming facility.--The term ``consuming 
        facility' means a facility at which recyclable material 
        is handled, processed, reclaimed, or otherwise managed.
            (49) Recyclable material.--
                    (A) In general.--The term ``recyclable 
                material' means--
                            (i) scrap glass, paper, plastic, 
                        rubber, or textile;
                            (ii) scrap metal; and
                            (iii) spent batteries.
                    (B) Inclusions.--The term ``recyclable 
                material' includes small amounts of any type of 
                material that is incident to or adherent to 
                material described in subparagraph (A) as a 
                result of the normal and customary use of the 
                material before the material becomes scrap.
                    (C) Exclusions.--The term ``recyclable 
                material' does not include--
                            (i) a shipping container that--
                                    (I) has (or, when intact, 
                                had) a capacity of not less 
                                than 30 and not more than 3,000 
                                liters; and
                                    (II) has any hazardous 
                                substance contained in or 
                                adherent to it (not including 
                                any small pieces of metal that 
                                may remain after a hazardous 
                                substance has been removed from 
                                the container or any alloy or 
                                other material that may be 
                                chemically or metallurgically 
                                bonded in the container 
                                itself);
                            (ii) any material described in 
                        subparagraph (A) that the Administrator 
                        may by regulation exclude from the 
                        meaning of the term; or
                            (iii) a whole tire.
            (50) Scrap metal.--
                    (A) In general.--The term ``scrap metal' 
                means--
                            (i) a bit or piece of a metal part 
                        (such as a bar, turning, fine, rod, 
                        sheet, or wire);
                            (ii) material comprised of metal 
                        pieces that may be combined with bolts 
                        or soldering (such as a radiator, 
                        automobile, or railroad boxcar); or
                            (iii) a metal byproduct of copper 
                        and a copper-based alloy that--
                                    (I) is not 1 of the primary 
                                products of a secondary 
                                production process;
                                    (II) is not solely or 
                                separately produced by the 
                                production process;
                                    (III) is not stored in a 
                                pile or surface impoundment; 
                                and
                                    (IV) is sold to another 
                                recycler that is not 
                                speculatively accumulating such 
                                metal byproducts;
                        which, when worn or superfluous, can be 
                        recycled.
                    (B) Speculative accumulation.--For the 
                purposes of a sale under subparagraph 
                (A)(iii)(IV), a recycler to which a metal 
                byproduct described in subparagraph (A)(iii) is 
                sold shall be considered to be accumulating the 
                metal byproduct speculatively if 75 percent of 
                more of the mass of the metal byproducts 
                purchased by the recycler during the 12-month 
                period beginning on the date of the sale is not 
                reprocessed.

[42 U.S.C. 9601]

           reportable quantities and additional designations

      Sec. 102. (a) The Administrator shall promulgate and 
revise as may be appropriate, regulations designating as 
hazardous substances, in addition to those referred to in 
section 101(14) of this title, such elements, compounds, 
mixtures, solutions, and substances which, when released into 
the environment may present substantial danger to the public 
health or welfare or the environment, and shall promulgate 
regulations establishing that quantity of any hazardous 
substance the release of which shall be reported pursuant to 
section 103 of this title. The Administrator may determine that 
one single quantity shall be the reportable quantity for any 
hazardous substance, regardless of the medium into which the 
hazardous substance is released.
      For all hazardous substances for which proposed 
regulations establishing reportable quantities were published 
in the Federal Register under this subsection on or before 
March 1, 1986, the Administrator shall promulgate under this 
subsection final regulations establishing reportable quantities 
not later than December 31, 1986. For all hazardous substances 
for which proposed regulations establishing reportable 
quantities were not published in the Federal Register under 
this subsection on or before March 1, 1986, the Administrator 
shall publish under this subsection proposed regulations 
establishing reportable quantities not later than December 31, 
1986, and promulgate final regulations under this subsection 
establishing reportable quantities not later than April 30, 
1988.
      (b) Unless and until superseded by regulations 
establishing a reportable quantity under subsection (a) of this 
section for any hazardous substance as defined in section 
101(14) of this title, (1) a quantity of one pound, or (2) for 
those hazardous substances for which reportable quantities have 
been established pursuant to section 311(b)(4) of the Federal 
Water Pollution Control Act, such reportable quantity, shall be 
deemed that quantity, the release of which requires 
notification pursuant to section 103 (a) or (b) of this title.

[42 U.S.C. 9602]

                           notices, penalties

      Sec. 103. (a) Any person in charge of a vessel or an 
offshore or an onshore facility shall, as soon as he has 
knowledge of any release (other than a federally permitted 
release) of a hazardous substance from such vessel or facility 
in quantities equal to or greater than those determined 
pursuant to section 102 of this title, immediately notify the 
National Response Center established under the Clean Water Act 
of such release. The National Response Center shall convey the 
notification expeditiously to all appropriate Government 
agencies, including the Governor of any affected State.
      (b) Any person--
            (1) in charge of a vessel from which a hazardous 
        substance is released, other than a federally permitted 
        release, into or upon the navigable waters of the 
        United States, adjoining shorelines, or into or upon 
        the waters of the contiguous zone, or
            (2) in charge of a vessel from which a hazardous 
        substance is released, other than a federally permitted 
        release, which may affect natural resources belonging 
        to, appertaining to, or under the exclusive management 
        authority of the United States (including resources 
        under the Fishery Conservation and Management Act of 
        1976), and who is otherwise subject to the jurisdiction 
        of the United States at the time of the release, or
            (3) in charge of a facility from which a hazardous 
        substance is released, other than a federally permitted 
        release, in a quantity equal to or greater than that 
        determined pursuant to section 102 of this title who 
        fails to notify immediately the appropriate agency of 
        the United States Government as soon as he has 
        knowledge of such release or who submits in such a 
        notification any information which he knows to be false 
        or misleading shall, upon conviction, be fined in 
        accordance with the applicable provisions of title 18 
        of the United States Code or imprisoned for not more 
        than 3 years (or not more than 5 years in the case of a 
        second or subsequent conviction), or both. Notification 
        received pursuant to this subsection or information 
        obtained by the exploitation of such notification shall 
        not be used against any such person in any criminal 
        case, except a prosecution for perjury or for giving a 
        false statement.
      (c) Within one hundred and eighty days after the 
enactment of this Act, any person who owns or operates or who 
at the time of disposal owned or operated, or who accepted 
hazardous substances for transport and selected, a facility at 
which hazardous substances (as defined in section 101(14)(C) of 
this title) are or have been stored, treated, or disposed of 
shall, unless such facility has a permit issued under, or has 
been accorded interim status under, subtitle C of the Solid 
Waste Disposal Act, notify the Administrator of the 
Environmental Protection Agency of the existence of such 
facility, specifying the amount and type of any hazardous 
substance to be found there, and any known, suspected, or 
likely releases of such substances from such facility. The 
Administrator may prescribe in greater detail the manner and 
form of the notice and the information included. The 
Administrator shall notify the affected State agency, or any 
department designated by the Governor to receive such notice, 
of the existence of such facility. Any person who knowingly 
fails to notify the Administrator of the existence of any such 
facility shall, upon conviction, be fined not more than 
$10,000, or imprisoned for not more than one year, or both. In 
addition, any such person who knowingly fails to provide the 
notice required by this subsection shall not be entitled to any 
limitation of liability or to any defenses to liability set out 
in section 107 of this Act: Provided, however, That 
notification under this subsection is not required for any 
facility which would be reportable hereunder solely as a result 
of any stoppage in transit which is temporary, incidental to 
the transportation movement, or at the ordinary operating 
convenience of a common or contract carrier, and such stoppage 
shall be considered as a continuity of movement and not as the 
storage of a hazardous substance. Notification received 
pursuant to this subsection or information obtained by the 
exploitation of such notification shall not be used against any 
such person in any criminal case, except a prosecution for 
perjury or for giving a false statement.
      (d)(1) The Administrator of the Environmental Protection 
Agency is authorized to promulgate rules and regulations 
specifying, with respect to--
            (A) the location, title, or condition of a 
        facility, and
            (B) the identity, characteristics, quantity, 
        origin, or condition (including containerization and 
        previous treatment) of any hazardous substances 
        contained or deposited in a facility;
the records which shall be retained by any person required to 
provide the notification of a facility set out in subsection 
(c) of this section. Such specification shall be in accordance 
with the provisions of this subsection.
      (2) Beginning with the date of enactment of this Act, for 
fifty years thereafter or for fifty years after the date of 
establishment of a record (whichever is later), or at any such 
earlier time as a waiver if obtained under paragraph (3) of 
this subsection, it shall be unlawful for any such person 
knowingly to destroy, mutilate, erase, dispose of, conceal, or 
otherwise render unavailable or unreadable or falsify any 
records identified in paragraph (1) of this subsection. Any 
person who violates this paragraph shall, upon conviction, be 
fined in accordance with the applicable provisions of title 18 
of the United States Code or imprisoned for not more than 3 
years (or not more than 5 years in the case of a second or 
subsequent conviction), or both.
      (3) At any time prior to the date which occurs fifty 
years after the date of enactment of this Act, any person 
identified under paragraph (1) of this subsection may apply to 
the Administrator of the Environmental Protection Agency for a 
waiver of the provisions of the first sentence of paragraph (2) 
of this subsection. The Administrator is authorized to grant 
such waiver if, in his discretion, such waiver would not 
unreasonably interfere with the attainment of the purposes and 
provisions of this Act. The Administrator shall promulgate 
rules and regulations regarding such a waiver so as to inform 
parties of the proper application procedure and conditions for 
approval of such a waiver.
      (4) Notwithstanding the provisions of this subsection, 
the Administrator of the Environmental Protection Agency may in 
his discretion require any such person to retain any record 
identified pursuant to paragraph (1) of this subsection for 
such a time period in excess of the period specified in 
paragraph (2) of this subsection as the Administrator 
determines to be necessary to protect the public health or 
welfare.
      (e) This section shall not apply to the application of a 
pesticide product registered under the Federal Insecticide, 
Fungicide, and Rodenticide Act or to the handling and storage 
of such a pesticide product by an agricultural producer.
      (f) No notification shall be required under subsection 
(a) or (b) of this section for any release of a hazardous 
substance--
            (1) which is required to be reported (or 
        specifically exempted from a requirement for reporting) 
        under subtitle C of the Solid Waste Disposal Act or 
        regulations thereunder and which has been reported to 
        the National Response Center, or
            (2) which is a continuous release, stable in 
        quantity and rate, and is--
                    (A) from a facility for which notification 
                has been given under subsection (c) of this 
                section, or
                    (B) a release of which notification has 
                been given under subsections (a) and (b) of 
                this section for a period sufficient to 
                establish the continuity, quantity, and 
                regularity of such release:
        Provided, That notification in accordance with 
        subsections (a) and (b) of this paragraph shall be 
        given for releases subject to this paragraph annually, 
        or at such time as there is any statistically 
        significant increase in the quantity of any hazardous 
        substance or constituent thereof released, above that 
        previously reported or occurring.

[42 U.S.C. 9603]

                          response authorities

      Sec. 104. (a)(1) Whenever (A) any hazardous substance is 
released or there is a substantial threat of such a release 
into the environment, or (B) there is a release or substantial 
threat of release into the environment of any pollutant or 
contaminant which may present an imminent and substantial 
danger to the public health or welfare, the President is 
authorized to act, consistent with the national contingency 
plan, to remove or arrange for the removal of, and provide for 
remedial action relating to such hazardous substance, 
pollutant, or contaminant at any time (including its removal 
from any contaminated natural resource), or take any other 
response measure consistent with the national contingency plan 
which the President deems necessary to protect the public 
health or welfare or the environment. When the President 
determines that such action will be done properly and promptly 
by the owner or operator of the facility or vessel or by any 
other responsible party, the President may allow such person to 
carry out the action, conduct the remedial investigation, or 
conduct the feasibility study in accordance with section 122. 
No remedial investigation or feasibility study (RI/FS) shall be 
authorized except on a determination by the President that the 
party is qualified to conduct the RI/FS and only if the 
President contracts with or arranges for a qualified person to 
assist the President in overseeing and reviewing the conduct of 
such RI/FS and if the responsible party agrees to reimburse the 
Fund for any cost incurred by the President under, or in 
connection with, the oversight contract or arrangement. In no 
event shall a potentially responsible party be subject to a 
lesser standard of liability, receive preferential treatment, 
or in any other way, whether direct or indirect, benefit from 
any such arrangements as a response action contractor, or as a 
person hired or retained by such a response action contractor, 
with respect to the release or facility in question. The 
President shall give primary attention to those releases which 
the President deems may present a public health threat.
      (2) Removal Action.--Any removal action undertaken by the 
President under this subsection (or by any other person 
referred to in section 122) should, to the extent the President 
deems practicable, contribute to the efficient performance of 
any long term remedial action with respect to the release or 
threatened release concerned.
      (3) Limitations on Response.--The President shall not 
provide for a removal or remedial action under this section in 
response to a release or threat of release--
            (A) of a naturally occurring substance in its 
        unaltered form, or altered solely through naturally 
        occurring processes or phenomena, from a location where 
        it is naturally found;
            (B) from products which are part of the structure 
        of, and result in exposure within, residential 
        buildings or business or community structures; or
            (C) into public or private drinking water supplies 
        due to deterioration of the system through ordinary 
        use.
      (4) Exception to Limitations.--Notwithstanding paragraph 
(3) of this subsection, to the extent authorized by this 
section, the President may respond to any release or threat of 
release if in the President's discretion, it constitutes a 
public health or environmental emergency and no other person 
with the authority and capability to respond to the emergency 
will do so in a timely manner.
      (b)(1) Information; Studies and Investigations.--Whenever 
the President is authorized to act pursuant to subsection (a) 
of this section, or whenever the President has reason to 
believe that a release has occurred or is about to occur, or 
that illness, disease, or complaints thereof may be 
attributable to exposure to a hazardous substance, pollutant, 
or contaminant and that a release may have occurred or be 
occurring, he may undertake such investigations, monitoring, 
surveys, testing, and other information gathering as he may 
deem necessary or appropriate to identify the existence and 
extent of the release or threat thereof, the source and nature 
of the hazardous substances, pollutants or contaminants 
involved, and the extent of danger to the public health or 
welfare or to the environment. In addition, the President may 
undertake such planning, legal, fiscal, economic, engineering, 
architectural, and other studies or investigations as he may 
deem necessary or appropriate to plan and direct response 
actions, to recover the costs thereof, and to enforce the 
provisions of this Act.
      (2) Coordination of Investigations.--The President shall 
promptly notify the appropriate Federal and State natural 
resource trustees of potential damages to natural resources 
resulting from releases under investigation pursuant to this 
section and shall seek to coordinate the assessments, 
investigations, and planning under this section with such 
Federal and State trustees.
      (3) Notice to health authorities.--The President shall 
notify State, local, and tribal public health authorities 
whenever a release of a hazardous substance, pollutant, or 
contaminant has occurred, is occurring, or is about to occur, 
or there is a threat of such a release, and the release or 
threatened release is under investigation pursuant to this 
section.
      [(c)(1) Unless] (c) Miscellaneous Limitations and 
Requirements.--
            (1) Continuance of obligations from fund.--Unless 
        (A) the President finds that (i) continued response 
        actions are immediately required to prevent, limit, or 
        mitigate an emergency, (ii) there is an immediate risk 
        to public health or welfare or the environment, and 
        (iii) such assistance will not otherwise be provided on 
        a timely basis, or (B) the President has determined the 
        appropriate remedial actions pursuant to paragraph (2) 
        of this subsection and the State or States in which the 
        source of the release is located have complied with the 
        requirements of paragraph (3) of this subsection, or 
        (C) continued response action is otherwise appropriate 
        and [consistent with the remedial action to be taken] 
        not inconsistent with any remedial action that has been 
        selected or is anticipated at the time of any removal 
        action at a facility, obligations from the Fund, other 
        than those authorized by subsection (b) of this 
        section, shall not continue after [$2,000,000] 
        $5,000,000 has been obligated for response actions or 
        [12 months] 3 years has elapsed from the date of 
        initial response to a release or threatened release of 
        hazardous substances.
      [(2) The President] (2) Consultation.--The President 
shall consult with the affected State or States before 
determining any appropriate remedial action to be taken 
pursuant to the authority granted under subsection (a) of this 
section.
      [(3) The President shall not provide any remedial actions 
pursuant to this section unless the State in which the release 
occurs first enters into a contract or cooperative agreement 
with the President providing assurances deemed adequate by the 
President that (A) the State will assure all future maintenance 
of the removal and remedial actions provided for the expected 
life of such actions as determined by the President; (B) the 
State will assure the availability of a hazardous waste 
disposal facility acceptable to the President and in compliance 
with the requirements of subtitle C of the Solid Waste Disposal 
Act for any necessary offsite storage, destruction, treatment, 
or secure disposition of the hazardous substances; and (C) the 
State will pay or assure payment of (i) 10 per centum of the 
costs of the remedial action, including all future maintenance, 
or (ii) 50 percent (or such greater amount as the President may 
determine appropriate, taking into account the degree of 
responsibility of the State or political subdivision for the 
release) of any sums expended in response to a release at a 
facility, that was operated by the State or a political 
subdivision thereof, either directly or through a contractual 
relationship or otherwise, at the time of any disposal of 
hazardous substances therein. For the purpose of clause (ii) of 
this subparagraph, the term ``facility'' does not include 
navigable waters or the beds underlying those waters. The 
President shall grant the State a credit against the share of 
the costs for which it is responsible under this paragraph for 
any documented direct out-of-pocket non-Federal funds expended 
or obligated by the State or a political subdivision thereof 
after January 1, 1978, and before the date of enactment of this 
Act for cost-eligible response actions and claims for damages 
compensable under section 111 of this title relating to the 
specific release in question: Provided, however, That in no 
event shall the amount of the credit granted exceed the total 
response costs relating to the release. In the case of remedial 
action to be taken on land or water held by an Indian tribe, 
held by the United States in trust for Indians, held by a 
member of an Indian tribe (if such land or water is subject to 
a trust restriction on alienation), or otherwise within the 
borders of an Indian reservation, the requirements of this 
paragraph for assurances regarding future maintenance and cost-
sharing shall not apply, and the President shall provide the 
assurance required by this paragraph regarding the availability 
of a hazardous waste disposal facility.]
            (3) State cost share.--
                    (A) In general.--The Administrator shall 
                not provide any funding for remedial action 
                under this section unless the State in which 
                the release occurs first enters into a contract 
                or cooperative agreement with the Administrator 
                providing assurances deemed adequate by the 
                Administrator that the State will pay, in cash 
                or through in-kind contributions, 10 percent of 
                the costs of the remedial action and operation 
                and maintenance costs.
                    (B) Activities with respect to which state 
                cost share is required.--No State cost share 
                shall be required except for remedial actions 
                under section 104.
                    (C) Indian tribes.--In the case of remedial 
                action to be taken on land or water held by an 
                Indian Tribe, held by the United States in 
                trust for an Indian Tribe, held by a member of 
                an Indian Tribe (if the land or water is 
                subject to a trust restriction on alienation), 
                or otherwise within the borders of an Indian 
                reservation, the requirements of this paragraph 
                shall not apply.
      (4) Selection of Remedial Action.--The President shall 
select remedial actions to carry out this section in accordance 
with section 121 of this Act (relating to cleanup standards).
    (5) State Credits.--
            (A) Granting of credit.--The President shall grant 
        a State a credit against the share of the costs, for 
        which it is responsible under paragraph (3) with 
        respect to a facility listed on the National Priorities 
        List under the National Contingency Plan, for amounts 
        expended by a State for remedial action at such 
        facility pursuant to a contract or cooperative 
        agreement with the President. The credit under this 
        paragraph shall be limited to those State expenses 
        which the President determines to be reasonable, 
        documented, direct out-of-pocket expenditures of non-
        Federal funds.
            (B) Expenses before listing or agreement.--The 
        credit under this paragraph shall include expenses for 
        remedial action at a facility incurred before the 
        listing of the facility on the National Priorities List 
        or before a contract or cooperative agreement is 
        entered into under subsection (d) for the facility if--
                    (i) after such expenses are incurred the 
                facility is listed on such list and a contract 
                or cooperative agreement is entered into for 
                the facility, and
                    (ii) the President determines that such 
                expenses would have been credited to the State 
                under subparagraph (A) had the expenditures 
                been made after listing of the facility on such 
                list and after the date on which such contract 
                or cooperative agreement is entered into.
            (C) Response actions between 1978 and 1980.--The 
        credit under this paragraph shall include funds 
        expended or obligated by the State or a political 
        subdivision thereof after January 1, 1978, and before 
        December 11, 1980, for cost-eligible response actions 
        and claims for damages compensable under section 111.
            (D) State expenses after december 11, 1980, in 
        excess of 10 percent of costs.--The credit under this 
        paragraph shall include 90 percent of State expenses 
        incurred at a facility owned, but not operated, by such 
        State or by a political subdivision thereof. Such 
        credit applies only to expenses incurred pursuant to a 
        contract or cooperative agreement under subsection (d) 
        and only to expenses incurred after December 11, 1980, 
        but before the date of the enactment of this paragraph.
            (E) Item-by-item approval.--In the case of 
        expenditures made after the date of the enactment of 
        this paragraph, the President may require prior 
        approval of each item of expenditure as a condition of 
        granting a credit under this paragraph.
            (F) Use of credits.--Credits granted under this 
        paragraph for funds expended with respect to a facility 
        may be used by the State to reduce all or part of the 
        share of costs otherwise required to be paid by the 
        State under paragraph (3) in connection with remedial 
        actions at such facility. If the amount of funds for 
        which credit is allowed under this paragraph exceeds 
        such share of costs for such facility, the State may 
        use the amount of such excess to reduce all or part of 
        the share of such costs at other facilities in that 
        State. A credit shall not entitle the State to any 
        direct payment.
    (6) Operation and Maintenance.--For the purposes of 
paragraph (3) of this subsection, in the case of ground or 
surface water contamination, completed remedial action includes 
the completion of treatment or other measures, whether taken 
onsite or offsite, necessary to restore ground and surface 
water quality to a level that assures protection of human 
health and the environment. With respect to such measures, the 
operation of such measures for a period of up to 10 years after 
the construction or installation and commencement of operation 
shall be considered remedial action. Activities required to 
maintain the effectiveness of such measures following such 
period or the completion of remedial action, whichever is 
earlier, shall be considered operation or maintenance.
    (7) Limitation on Source of Funds for O&M.--During; any 
period after the availability of funds received by the 
Hazardous Substance Superfund established under subchapter A of 
chapter 98 of the Internal Revenue Code of 1954 from tax 
revenues or appropriations from general revenues, the Federal 
share of the payment of the cost of operation or maintenance 
pursuant to paragraph (3)(C)(i) or paragraph (6) of this 
subsection (relating to operation and maintenance) shall be 
from funds received by the Hazardous Substance Superfund from 
amounts recovered on behalf of such fund under this Act.
      (8) Recontracting.--The President is authorized to 
undertake or continue whatever interim remedial actions the 
President determines to be appropriate to reduce risks to 
public health or the environment where the performance of a 
complete remedial action requires recontracting because of the 
discovery of sources, types, or quantities of hazardous 
substances not known at the time of entry into the original 
contract. The total cost of interim actions undertaken at a 
facility pursuant to this paragraph shall not exceed 
$2,000,000.
      (9) Siting.--Effective 3 years after the enactment of the 
Superfund Amendments and Reauthorization Act of 1986, the 
President shall not provide any remedial actions pursuant to 
this section unless the State in which the release occurs first 
enters into a contract or cooperative agreement with the 
President providing assurances deemed adequate by the President 
that the State will assure the availability of hazardous waste 
treatment or disposal facilities which--
            (A) have adequate capacity for the destruction, 
        treatment, or secure disposition of all hazardous 
        wastes that are reasonably expected to be generated 
        within the State during the 20-year period following 
        the date of such contract or cooperative agreement and 
        to be disposed of, treated, or destroyed,
            (B) are within the State or outside the State in 
        accordance with an interstate agreement or regional 
        agreement or authority,
            (C) are acceptable to the President, and
            (D) are in compliance with the requirements of 
        subtitle C of the Solid Waste Disposal Act.
      (d)(1) Cooperative Agreements.--
            (A) State applications.--A State or political 
        subdivision thereof or Indian tribe may apply to the 
        President to carry out actions authorized in this 
        section. If the President determines that the State or 
        political subdivision or Indian tribe has the 
        capability to carry out any or all of such actions in 
        accordance with the criteria and priorities established 
        pursuant to section 105(a)(8) and to carry out related 
        enforcement actions, the President may enter into a 
        contract or cooperative agreement with the State or 
        political subdivision or Indian tribe to carry out such 
        actions. The President shall make a determination 
        regarding such an application within 90 days after the 
        President receives the application.
            (B) Terms and conditions.--A contract or 
        cooperative agreement under this paragraph shall be 
        subject to such terms and conditions as the President 
        may prescribe. The contract or cooperative agreement 
        may cover a specific facility or specific facilities.
            (C) Reimbursements.--Any State which expended funds 
        during the period beginning September 30, 1985, and 
        ending on the date of the enactment of this 
        subparagraph for response actions at any site included 
        on the National Priorities List and subject to a 
        cooperative agreement under this Act shall be 
        reimbursed for the share of costs of such actions for 
        which the Federal Government is responsible under this 
        Act.
      (2) If the President enters into a cost-sharing agreement 
pursuant to subsection (c) of this section or a contract or 
cooperative agreement pursuant to this subsection, and the 
State or political subdivision thereof fails to comply with any 
requirements of the contract, the President may, after 
providing sixty days notice, seek in the appropriate Federal 
district court to enforce the contract or to recover any funds 
advanced or any costs incurred because of the breach of the 
contract by the State or political subdivision.
      (3) Where a State or a political subdivision thereof is 
acting in behalf of the President, the President is authorized 
to provide technical and legal assistance in the administration 
and enforcement of any contract or subcontract in connection 
with response actions assisted under this title, and to 
intervene in any civil action involving the enforcement of such 
contract or subcontract.
      (4) Where two or more noncontiguous facilities are 
reasonably related on the basis of geography, or on the basis 
of the threat, or potential threat to the public health or 
welfare or the environment, the President may, in his 
discretion, treat these related facilities as one for purposes 
of this section.
      (e) Information Gathering and Access.--
            (1) Action authorized.--Any officer, employee, or 
        representative of the President, duly designated by the 
        President, is authorized to take action under paragraph 
        (2), (3), or (4) (or any combination thereof) at a 
        vessel, facility, establishment, place, property, or 
        location or, in the case of paragraph (3) or (4), at 
        any vessel, facility, establishment, place, property, 
        or location which is adjacent to the vessel, facility, 
        establishment, place, property, or location referred to 
        in such paragraph (3) or (4). Any duly designated 
        officer, employee, or representative of a State or 
        political subdivision under a contract or cooperative 
        agreement under subsection (d)(1) is also authorized to 
        take such action. The authority of paragraphs (3) and 
        (4) may be exercised only if there is a reasonable 
        basis to believe there may be a release or threat of 
        release of a hazardous substance or pollutant or 
        contaminant. The authority of this subsection may be 
        exercised only for the purposes of determining the need 
        for response, or choosing or taking any response action 
        under this title, or otherwise enforcing the provisions 
        of this title.
            (2) Access to information.--Any officer, employee, 
        or representative described in paragraph (1) may 
        require any person who has or may have information 
        relevant to any of the following to furnish, upon 
        reasonable notice, information or documents relating to 
        such matter:
                    (A) The identification, nature, and 
                quantity of materials which have been or are 
                generated, treated, stored, or disposed of at a 
                vessel or facility or transported to a vessel 
                or facility.
                    (B) The nature or extent of a release or 
                threatened release of a hazardous substance or 
                pollutant or contaminant at or from a vessel or 
                facility.
                    (C) Information relating to the ability of 
                a person to pay for or to perform a cleanup.
        In addition, upon reasonable notice, such person either 
        (i) shall grant any such officer, employee, or 
        representative access at all reasonable times to any 
        vessel, facility, establishment, place, property, or 
        location to inspect and copy all documents or records 
        relating to such matters or (ii) shall copy and furnish 
        to the officer, employee, or representative all such 
        documents or records, at the option and expense of such 
        person.
            (3) Entry.--Any officer, employee, or 
        representative described in paragraph (1) is authorized 
        to enter at reasonable times any of the following:
                    (A) Any vessel, facility, establishment, or 
                other place or property where any hazardous 
                substance or pollutant or contaminant may be or 
                has been generated, stored, treated, disposed 
                of, or transported from.
                    (B) Any vessel, facility, establishment, or 
                other place or property from which or to which 
                a hazardous substance or pollutant or 
                contaminant has been or may have been released.
                    (C) Any vessel, facility, establishment, or 
                other place or property where such release is 
                or may be threatened.
                    (D) Any vessel, facility, establishment, or 
                other place or property where entry is needed 
                to determine the need for response or the 
                appropriate response or to effectuate a 
                response action under this title.
            (4) Inspection and samples.--
                    (A) Authority.--Any officer, employee or 
                representative described in paragraph (1) is 
                authorized to inspect and obtain samples from 
                any vessel, facility, establishment, or other 
                place or property referred to in paragraph (3) 
                or from any location of any suspected hazardous 
                substance or pollutant or contaminant. Any such 
                officer, employee, or representative is 
                authorized to inspect and obtain samples of any 
                containers or labeling for suspected hazardous 
                substances or pollutants or contaminants. Each 
                such inspection shall be completed with 
                reasonable promptness.
                    (B) Samples.--If the officer, employee, or 
                representative obtains any samples, before 
                leaving the premises he shall give to the 
                owner, operator, tenant, or other person in 
                charge of the place from which the samples were 
                obtained a receipt describing the sample 
                obtained and, if requested, a portion of each 
                such sample. A copy of the results of any 
                analysis made of such samples shall be 
                furnished promptly to the owner, operator, 
                tenant, or other person in charge, if such 
                person can be located.
            (5) Compliance orders.--
                    (A) Issuance.--If consent is not granted 
                regarding any request made by an officer, 
                employee, or representative under paragraph 
                (2), (3), or (4), the President may issue an 
                order directing compliance with the request. 
                The order may be issued after such notice and 
                opportunity for consultation as is reasonably 
                appropriate under the circumstances.
                    (B) Compliance.--The President may ask the 
                Attorney General to commence a civil action to 
                compel compliance with a request or order 
                referred to in subparagraph (A). Where there is 
                a reasonable basis to believe there may be a 
                release or threat of a release of a hazardous 
                substance or pollutant or contaminant, the 
                court shall take the following actions:
                            (i) In the case of interference 
                        with entry or inspection, the court 
                        shall enjoin such interference or 
                        direct compliance with orders to 
                        prohibit interference with entry or 
                        inspection unless under the 
                        circumstances of the case the demand 
                        for entry or inspection is arbitrary 
                        and capricious, an abuse of discretion, 
                        or otherwise not in accordance with 
                        law.
                            (ii) In the case of information or 
                        document requests or orders, the court 
                        shall enjoin interference with such 
                        information or document requests or 
                        orders or direct compliance with the 
                        requests or orders to provide such 
                        information or documents unless under 
                        the circumstances of the case the 
                        demand for information or documents is 
                        arbitrary and capricious, an abuse of 
                        discretion, or otherwise not in 
                        accordance with law.
                The court may assess a civil penalty not to 
                exceed $25,000 for each day of noncompliance 
                against any person who unreasonably fails to 
                comply with the provisions of paragraph (2), 
                (3), or (4) or an order issued pursuant to 
                subparagraph (A) of this paragraph.
            (6) Other authority.--Nothing in this subsection 
        shall preclude the President from securing access or 
        obtaining information in any other lawful manner.
            (7) Confidentiality of information.--(A) Any 
        records, reports, or information obtained from any 
        person under this section (including records, reports, 
        or information obtained by representatives of the 
        President) shall be available to the public not later 
        than 14 days after the records, reports, or information 
        is obtained, except that upon a showing satisfactory to 
        the President (or the State, as the case may be) by any 
        person that records, reports, or information, or 
        particular part thereof (other than health or safety 
        effects data), to which the President (or the State, as 
        the case may be) or any officer, employee, or 
        representative has access under this section if made 
        public would divulge information entitled to protection 
        under section 1905 of title 18 of the United States 
        Code, such information or particular portion thereof 
        shall be considered confidential in accordance with the 
        purposes of that section, except that such record, 
        report, document or information may be disclosed to 
        other officers, employees, or authorized 
        representatives of the United States concerned with 
        carrying out this Act, or when relevant in any 
        proceeding under this Act.
            (B) Any person not subject to the provisions of 
        section 1905 of title 18 of the United States Code who 
        knowingly and willfully divulges or discloses any 
        information entitled to protection under this 
        subsection shall, upon conviction, be subject to a fine 
        of not more than $5,000 or to imprisonment not to 
        exceed one year, or both.
            (C) In submitting data under this Act, a person 
        required to provide such data may (i) designate the 
        data which such person believes is entitled to 
        protection under this subsection and (ii) submit such 
        designated data separately from other data submitted 
        under this Act. A designation under this paragraph 
        shall be made in writing and in such manner as the 
        President may prescribe by regulation.
            (D) Notwithstanding any limitation contained in 
        this section or any other provision of law, all 
        information reported to or otherwise obtained by the 
        President (or any representative of the President) 
        under this Act shall be made available, upon written 
        request of any duly authorized committee of the 
        Congress, to such committee.
            (E) No person required to provide information under 
        this Act may claim that the information is entitled to 
        protection under this paragraph unless such person 
        shows each of the following:
                    (i) Such person has not disclosed the 
                information to any other person, other than a 
                member of a local emergency planning committee 
                established under title III of the Amendments 
                and Reauthorization Act of 1986, an officer or 
                employee of the United States or a State or 
                local government, an employee of such person, 
                or a person who is bound by a confidentiality 
                agreement, and such person has taken reasonable 
                measures to protect the confidentiality of such 
                information and intends to continue to take 
                such measures.
                    (ii) The information is not required to be 
                disclosed, or otherwise made available, to the 
                public under any other Federal or State law.
                    (iii) Disclosure of the information is 
                likely to cause substantial harm to the 
                competitive position of such person.
                    (iv) The specific chemical identity, if 
                sought to be protected, is not readily 
                discoverable through reverse engineering.
            (F) The following information with respect to any 
        hazardous substance at the facility or vessel shall not 
        be entitled to protection under this paragraph:
                    (i) The trade name, common name, or generic 
                class or category of the hazardous substance.
                    (ii) The physical properties of the 
                substance, including its boiling point, melting 
                point, flash point, specific gravity, vapor 
                density, solubility in water, and vapor 
                pressure at 20 degrees celsius.
                    (iii) The hazards to health and the 
                environment posed by the substance, including 
                physical hazards (such as explosion) and 
                potential acute and chronic health hazards.
                    (iv) The potential routes of human exposure 
                to the substance at the facility, 
                establishment, place, or property being 
                investigated, entered, or inspected under this 
                subsection.
                    (v) The location of disposal of any waste 
                stream.
                    (vi) Any monitoring data or analysis of 
                monitoring data pertaining to disposal 
                activities.
                    (vii) Any hydrogeologic or geologic data.
                    (viii) Any groundwater monitoring data.
      (f) In awarding contracts to any person engaged in 
response actions, the President or the State, in any case where 
it is awarding contracts pursuant to a contract entered into 
under subsection (d) of this section, shall require compliance 
with Federal health and safety standards established under 
section 301(f) of this Act by contractors and subcontractors as 
a condition of such contracts.
      (g)(1) All laborers and mechanics employed by contractors 
or subcontractors in the performance of construction, repair, 
or alteration work funded in whole or in part under this 
section shall be paid wages at rates not less than those 
prevailing on projects of a character similar in the locality 
as determined by the Secretary of Labor in accordance with the 
Davis-Bacon Act. The President shall not approve any such 
funding without first obtaining adequate assurance that 
required labor standards will be maintained upon the 
construction work.
      (2) The Secretary of Labor shall have, with respect to 
the labor standards specified in paragraph (1), the authority 
and functions set forth in Reorganization Plan Numbered 14 of 
1950 (15 F.R. 3176; 64 Stat. 1267) and section 276c of title 40 
of the United States Code.
      (h) Notwithstanding any other provision of law, subject 
to the provisions of section 111 of this Act, the President may 
authorize the use of such emergency procurement powers as he 
deems necessary to effect the purpose of this Act. Upon 
determination that such procedures are necessary, the President 
shall promulgate regulations prescribing the circumstances 
under which such authority shall be used and the procedures 
governing the use of such authority.
      (i)(1) There is hereby established within the Public 
Health Service an agency, to be known as the Agency for Toxic 
Substances and Disease Registry, which shall report directly to 
the Surgeon General of the United States. The Administrator of 
said Agency shall, with the cooperation of the Administrator of 
the Environmental Protection Agency, the Commissioner of the 
Food and Drug Administration, the Directors of the National 
Institute of Medicine, National Institute of Environmental 
Health Sciences, National Institute of Occupational Safety and 
Health, Centers for Disease Control and Prevention, the 
Administrator of the Occupational Safety and Health 
Administration, the Administrator of the Social Security 
Administration, the Secretary of Transportation, [and 
appropriate State and local health officials] the Indian Health 
Service, and appropriate State, tribal, and local health 
officials, effectuate and implement the health related 
authorities of this Act. In addition, said Administrator 
shall--
            (A) in cooperation with the States and Indian 
        Tribes, establish and maintain a national registry of 
        serious diseases and illnesses and a national registry 
        of persons exposed to toxic substances;
            (B) establish and maintain inventory of literature, 
        research, and studies on the health effects of toxic 
        substances;
            (C) in cooperation with the States and Indian 
        Tribes, and other agencies of the Federal Government, 
        establish and maintain a complete listing of areas 
        closed to the public or otherwise restricted in use 
        because of toxic substance contamination;
            (D) in cases of public health emergencies caused or 
        believed to be caused by exposure to toxic substances, 
        provide medical care and testing to exposed 
        individuals, including but not limited to tissue 
        sampling, chromosomal testing where appropriate, 
        epidemiological studies, or any other assistance 
        appropriate under the circumstances; and
            (E) either independently or as part of other health 
        status survey, conduct periodic survey and screening 
        programs to determine relationships between exposure to 
        toxic substances and illness. In cases of public health 
        emergencies, exposed persons shall be eligible for 
        [admission to hospitals and other facilities and 
        services operated or provided by the Public Health 
        Service] referral to licensed or accredited health care 
        providers.
      (2)(A) Within 6 months after the enactment of the 
Superfund Amendments and Reauthorization Act of 1986, the 
Administrator of the Agency for Toxic Substances and Disease 
Registry (ATSDR) and the Administrator of the Environmental 
Protection Agency (``EPA'') shall prepare a list, in order of 
priority, of at least 100 hazardous substances which are most 
commonly found at facilities on the National Priorities List 
and which, in their sole discretion, they determine are posing 
the most significant potential threat to human health due to 
their known or suspected toxicity to humans and the potential 
for human exposure to such substances at facilities on the 
National Priorities List or at facilities to which a response 
to a release or a threatened release under this section is 
under consideration.
      (B) Within 24 months after the enactment of the Superfund 
Amendments and Reauthorization Act of 1986, the Administrator 
of ATSDR and the Administrator of EPA shall revise the list 
prepared under subparagraph (A). Such revision shall include, 
in order of priority, the addition of 100 or more such 
hazardous substances. In each of the 3 consecutive 12-month 
periods that follow, the Administrator of ATSDR and the 
Administrator of EPA shall revise, in the same manner as 
provided in the 2 preceding sentences, such list to include not 
fewer than 25 additional hazardous substances per revision. The 
Administrator of ATSDR and the Administrator of EPA shall not 
less often than once every year thereafter revise such list to 
include additional hazardous substances in accordance with the 
criteria in subparagraph (A).
      (3) Based on all available information, including 
information maintained under paragraph (1)(B) and data 
developed and collected on the health effects of hazardous 
substances under this paragraph, the Administrator of ATSDR 
shall prepare toxicological profiles of each of the substances 
listed pursuant to paragraph (2). The toxicological profiles 
shall be prepared in accordance with guidelines developed by 
the Administrator of ATSDR and the Administrator of EPA. Such 
profiles shall include, but not be limited to each of the 
following:
            (A) An examination, summary, and interpretation of 
        available toxicological information and epidemiologic 
        evaluations on a hazardous substance in order to 
        ascertain the levels of significant human exposure for 
        the substance and the associated acute, subacute, and 
        chronic health effects.
            (B) A determination of whether adequate information 
        on the health effects of each substance is available or 
        in the process of development to determine levels of 
        exposure which present a significant risk to human 
        health of acute, subacute, and chronic health effects.
            (C) Where appropriate, an identification of 
        toxicological testing needed to identify the types or 
        levels of exposure that may present significant risk of 
        adverse health effects in humans.
Any toxicological profile or revision thereof shall reflect the 
Administrator of ATSDR's assessment of all relevant 
toxicological testing which has been peer reviewed. The 
profiles required to be prepared under this paragraph for those 
hazardous substances listed under subparagraph (A) of paragraph 
(2) shall be completed, at a rate of no fewer than 25 per year, 
within 4 years after the enactment of the Superfund Amendments 
and Reauthorization Act of 1986. A profile required on a 
substance listed pursuant to subparagraph (B) of paragraph (2) 
shall be completed within 3 years after addition to the list. 
The profiles prepared under this paragraph shall be of those 
substances highest on the list of priorities under paragraph 
(2) for which profiles have not previously been prepared. 
Profiles required under this paragraph shall be revised and 
republished as necessary, [but no less often than once every 3 
years] if the Administrator of ATSDR determines that there is 
significant new information. Such profiles shall be provided to 
the States and Indian Tribes and made available to other 
interested parties.
      (4) The Administrator of the ATSDR shall provide 
consultations upon request on health issues relating to 
exposure to hazardous or toxic substances, on the basis of 
available information, to the Administrator of EPA, [State 
officials] State, tribal, and local officials. Such 
consultations to individuals may be provided by States or 
Indian Tribes under cooperative agreements established under 
this Act.
      (5)(A) For each hazardous substance listed pursuant to 
paragraph (2), the Administrator of ATSDR (in consultation with 
the Administrator of EPA and other agencies and programs of the 
Public Health Service and the Indian Health Service) shall 
assess whether adequate information on the health effects of 
such substance is available. For any such substance for which 
adequate information is not available (or under development), 
the Administrator of ATSDR, in cooperation with the Director of 
the National Toxicology Program, shall assure the initiation of 
a program of research conducted directly or by such means as 
cooperative agreements and grants with appropriate public and 
nonprofit institutions. The program shall be designed to 
determine the health effects (and techniques for development of 
methods to determine such health effects) of such substance. 
Where feasible, such program shall seek to develop methods to 
determine the health effects of such substance in combination 
with other substances with which it is commonly found. Before 
assuring the initiation of such program, the Administrator of 
ATSDR shall consider recommendations of the Interagency Testing 
Committee established under section 4(e) of the Toxic 
Substances Control Act on the types of research that should be 
done. Such program shall include, to the extent necessary to 
supplement existing information, but shall not be limited to--
            (i) laboratory and other studies to determine 
        short, intermediate, and long-term health effects;
            (ii) laboratory and other studies to determine 
        organ-specific, site-specific, and system-specific 
        acute and chronic toxicity;
            (iii) laboratory and other studies to determine the 
        manner in which such substances are metabolized or to 
        otherwise develop an understanding of the biokinetics 
        of such substances; and
            (iv) where there is a possibility of obtaining 
        human data, the collection of such information.
      (B) In assessing the need to perform laboratory and other 
studies, as required by subparagraph (A), the Administrator of 
ATSDR shall consider--
            (i) the availability and quality of existing test 
        data concerning the substance on the suspected health 
        effect in question;
            (ii) the extent to which testing already in 
        progress will, in a timely fashion, provide data that 
        will be adequate to support the preparation of 
        toxicological profiles as required by paragraph (3); 
        and
            (iii) such other scientific and technical factors 
        as the Administrator of ATSDR may determine are 
        necessary for the effective implementation of this 
        subsection.
      (C) In the development and implementation of any research 
program under this paragraph, the Administrator of ATSDR and 
the Administrator of EPA shall coordinate such research program 
implemented under this paragraph with the National Toxicology 
Program and with programs of toxicological testing established 
under the Toxic Substances Control Act and the Federal 
Insecticide, Fungicide and Rodenticide Act. The purpose of such 
coordination shall be to avoid duplication of effort and to 
assure that the hazardous substances listed pursuant to this 
subsection are tested thoroughly at the earliest practicable 
date. Where appropriate, consistent with such purpose, a 
research program under this paragraph may be carried out using 
such programs of toxicological testing.
      (D) It is the sense of the Congress that the costs of 
research programs under this paragraph be borne by the 
manufacturers and processors of the hazardous substance in 
question, as required in programs of toxicological testing 
under the Toxic Substances Control Act. Within 1 year after the 
enactment of the Superfund Amendments and Reauthorization Act 
of 1986, the Administrator of EPA shall promulgate regulations 
which provide, where appropriate, for payment of such costs by 
manufacturers and processors under the Toxic Substances Control 
Act, and registrants under the Federal Insecticide, Fungicide, 
and Rodenticide Act, and recovery of such costs from 
responsible parties under this Act.
      [(6)(A) The Administrator of ATSDR shall perform a health 
assessment for each facility on the National Priorities List 
established under section 105. Such health assessment shall be 
completed not later than December 10, 1988, for each facility 
proposed for inclusion on such list prior to the date of the 
enactment of the Superfund Amendments and Reauthorization Act 
of 1986 or not later than one year after the date of proposal 
for inclusion on such list for each facility proposed for 
inclusion on such list after such date of enactment.]
      (6) Health assessments and related health activities.--
                    (A) Requirements.--The Administrator of 
                ATSDR shall perform a health assessment for 
                each covered facility unless the Administrator 
                publishes a finding that the facility presents 
                no significant health risk.
      (B) The Administrator of ATSDR may perform health 
assessments for releases or facilities where individual persons 
or licensed physicians provide information that individuals 
have been exposed to a hazardous substance, for which the 
probable source of such exposure is a release. In addition to 
other methods (formal or informal) of providing such 
information, such individual persons or licensed physicians may 
submit a petition to the Administrator of ATSDR providing such 
information and requesting a health assessment. If such a 
petition is submitted and the Administrator of ATSDR does not 
initiate a health assessment, the Administrator of ATSDR shall 
provide a written explanation of why a health assessment is not 
appropriate.
      (C) In determining the priority in which to conduct 
health assessments under this subsection, the Administrator of 
ATSDR, in consultation with the Administrator of EPA, shall 
give priority to those facilities at which there is documented 
evidence of the release of hazardous substances, at which the 
potential risk to human health appears highest, and for which 
in the judgment of the Administrator of ATSDR existing health 
assessment data are inadequate to assess the potential risk to 
human health as provided in subparagraph (F). In determining 
the priorities for conducting health assessments under this 
subsection, the Administrator of ATSDR shall consider the 
National Priorities List schedules and the needs of the 
Environmental Protection Agency and other Federal agencies 
pursuant to schedules for remedial investigation and 
feasibility studies.
      (D) Where a health assessment is done at a site on the 
National Priorities List, the Administrator of ATSDR shall 
complete such assessment promptly and, to the maximum extent 
practicable, before the completion of the remedial 
investigation and feasibility study at the facility concerned. 
The President and the Administrator of ATSDR shall, for each 
facility that is placed on the National Priorities List on or 
after the date of enactment of the Superfund Cleanup 
Acceleration Act of 1998, complete a health assessment prior to 
the completion of the remedial investigation and feasibility 
study, but in no circumstance shall the President delay the 
progress of a remedial action pending completion of a health 
assessment. When appropriate, the Administrator of ATSDR shall, 
in cooperation with State and local health officials, provide 
to the President recommendations for sampling environmental 
media. To the extent practicable, the President shall 
incorporate the recommendations into facility characterization 
activities.
      (E) Any State, [or political subdivision carrying out a 
health assessment] Indian Tribe, or political subdivision of a 
State carrying out a health assessment for a facility shall 
report the results of the assessment to the Administrator of 
ATSDR and the Administrator of EPA and shall include 
recommendations with respect to further activities which need 
to be carried out under this section. The Administrator of 
ATSDR shall state such recommendation in any report on the 
results of any assessment carried out directly by the 
Administrator of ATSDR for such facility and shall issue 
periodic reports which include the results of all the 
assessments carried out under this subsection.
      [(F) For the purposes]
                    (F) Definition of health assessments.--
                            (i) In general.--For the purposes 
                        of health assessments of this 
                        subsection and section 111(c)(4), the 
                        term ``health assessments'' shall 
                        include preliminary assessments of the 
                        potential risk to human health posed by 
                        individual sites and facilities, based 
                        on such factors as the nature and 
                        extent of contamination, the [existence 
                        of potential] past, present, and future 
                        potential pathways of human exposure 
                        (including ground or surface water 
                        contamination, air emissions, and food 
                        chain contamination), the size and 
                        potential susceptibility of the 
                        community within the likely pathways of 
                        exposure, [the comparison] of expected 
                        human exposure levels to the short-term 
                        and long-term health effects associated 
                        with identified hazardous substances 
                        and any available recommended exposure 
                        or tolerance limits for such hazardous 
                        substances, and the comparison of 
                        existing morbidity and mortality data 
                        on diseases that may be associated with 
                        the observed levels of exposure. [The 
                        Administrator of ATSDR shall use 
                        appropriate data, risk assessments, 
                        risk evaluations and studies available 
                        from the Administrator of EPA.]
                            (ii) Provision of data.--The 
                        Administrator shall consider 
                        information provided by State, Indian 
                        Tribe, and local health officials and 
                        the affected community (including a 
                        community advisory group, if one has 
                        been established under subsection (g)) 
                        as is necessary to perform a health 
                        assessment.
      (G) The purpose of health assessments under this 
subsection shall be to assist in determining whether actions 
under paragraph (11) of this subsection should be taken to 
reduce human exposure to hazardous substances from a facility 
and whether additional information on human exposure and 
associated health risks is needed and should be acquired by 
conducting epidemiological studies under paragraph (7), 
establishing a registry under paragraph (8), establishing a 
health surveillance program under paragraph (9), or through 
other means. [In using the results of health assessments for 
determining additional actions to be taken] In performing 
health assessments under this section, the Administrator of 
ATSDR may consider additional information on the risks to the 
potentially affected population from all sources of such 
hazardous substances including known point or nonpoint sources 
other than those from the facility in question and shall give 
special consideration, where appropriate, to any practices of 
the affected community that may result in increased exposure to 
hazardous substances, pollutants, or contaminants, such as 
subsistence hunting, fishing, and gathering.
      (H) At the completion of each health assessment, the 
Administrator of ATSDR shall provide the Administrator of EPA 
and [each affected State] appropriate State, Indian Tribe, and 
local health officials and community advisory groups with the 
results of such assessment, together with any recommendations 
for further actions under this subsection or otherwise under 
this Act. In addition, if the health assessment indicates that 
the release or threatened release concerned may pose a serious 
threat to human health or the environment, the Administrator of 
ATSDR shall so notify the Administrator of EPA who shall 
promptly evaluate such release or threatened release in 
accordance with the hazard ranking system referred to in 
section 105(a)(8)(A) to determine whether the site shall be 
placed on the National Priorities List or, if the site is 
already on the list, the Administrator of ATSDR may recommend 
to the Administrator of EPA that the site be accorded a higher 
priority.
      (7)(A) Whenever in the judgment of the Administrator of 
ATSDR it is appropriate on the basis of the results of a health 
assessment, the Administrator of ATSDR shall conduct a pilot 
study of health effects for selected groups of exposed 
individuals in order to determine the desirability of 
conducting full scale epidemiological or other health studies 
of the entire exposed population.
      (B) Whenever in the judgment of the Administrator of 
ATSDR it is appropriate on the basis of the results of such 
pilot study or other study or health assessment, the 
Administrator of ATSDR shall conduct such full scale 
epidemiological or other health studies as may be necessary to 
determine the health effects on the population exposed to 
hazardous substances from a release or threatened release. If a 
significant excess of disease in a population is identified, 
the letter of transmittal of such study shall include an 
assessment of other risk factors, other than a release, that 
may, in the judgment of the peer review group, be associated 
with such disease, if such risk factors were not taken into 
account in the design or conduct of the study.
      (8) In any case in which the results of a health 
assessment indicate a potential significant risk to human 
health, the Administrator of ATSDR shall consider whether the 
establishment of a registry of exposed persons would contribute 
to accomplishing the purposes of this subsection, taking into 
account circumstances bearing on the usefulness of such a 
registry, including the seriousness or unique character of 
identified diseases or the likelihood of population migration 
from the affected area.
      (9) Where the Administrator of ATSDR has determined that 
there is a significant increased risk of adverse health effects 
in humans from exposure to hazardous substances based on the 
results of a health assessment conducted under paragraph (6), 
an epidemiologic study conducted under paragraph (7), or an 
exposure registry that has been established under paragraph 
(8), and the Administrator of ATSDR has determined that such 
exposure is the result of a release from a facility, the 
Administrator of ATSDR shall initiate a health surveillance 
program for such population. This program shall include but not 
be limited to--
            (A) periodic medical testing where appropriate of 
        population subgroups to screen for diseases for which 
        the population or subgroup is at significant increased 
        risk; and
            (B) a mechanism to refer for treatment those 
        individuals within such population who are screened 
        positive for such diseases.
      (10) [Two years after the date of the enactment of the 
Superfund Amendments and Reauthorization Act of 1986, and every 
2 years thereafter] Every 2 years, the Administrator of ATSDR 
shall prepare and submit to the Administrator of EPA and to the 
Congress a report on the results of the activities of ATSDR 
regarding--
            (A) health assessments and pilot health effects 
        studies conducted;
            (B) epidemiologic studies conducted;
            (C) hazardous substances which have been listed 
        under paragraph (2), toxicological profiles which have 
        been developed, and toxicologic testing which has been 
        conducted or which is being conducted under this 
        subsection;
            (D) registries established under paragraph (8); 
        [and]
            (E) an overall assessment, based on the results of 
        activities conducted by the Administrator of ATSDR of 
        the linkage between human exposure to individual or 
        combinations of hazardous substances due to releases 
        from facilities covered by this Act or the Solid Waste 
        Disposal Act and any increased incidence or prevalence 
        of adverse health effects in humans[.]; and
                    (F) the health impacts on Indian Tribes of 
                hazardous substances, pollutants, and 
                contaminants from covered facilities.
      (11) If a health assessment or other study carried out 
under this subsection contains a finding that the exposure 
concerned presents a significant risk to human health, the 
President shall take such steps as may be necessary to reduce 
such exposure and elimi- 
nate or substantially mitigate the significant risk to human 
health. Such steps may include the use of any authority under 
this Act, including, but not limited to--
            (A) provision of alternative water supplies, and
            (B) permanent or temporary relocation of 
        individuals.
In any case in which information is insufficient, in the 
judgment of the Administrator of ATSDR or the President to 
determine a significant human exposure level with respect to a 
hazardous substance, the President may take such steps as may 
be necessary to reduce the exposure of any person to such 
hazardous substance to such level as the President deems 
necessary to protect human health.
    (12) In any case which is the subject of a petition, a 
health assessment or study, or a research program under this 
subsection, nothing in this subsection shall be construed to 
delay or otherwise affect or impair the authority of the 
President, the Administrator of ATSDR or the Administrator of 
EPA to exercise any authority vested in the President, the 
Administrator of ATSDR or the Administrator of EPA under any 
other provision of law (including, but not limited to, the 
imminent hazard authority of section 7003 of the Solid Waste 
Disposal Act) or the response and abatement authorities of this 
Act.
      (13) All studies and results of research conducted under 
this subsection (other than health assessments) shall be 
reported or adopted only after appropriate peer review. Such 
peer review shall be completed, to the maximum extent 
practicable, within a period of 60 days. In the case of 
research conducted under the National Toxicology Program, such 
peer review may be conducted by the Board of Scientific 
Counselors. In the case of other research, such peer review 
shall be conducted by panels consisting of no less than three 
nor more than seven members, who shall be disinterested 
scientific experts selected for such purpose by the 
Administrator of ATSDR or the Administrator of EPA, as 
appropriate, on the basis of their reputation for scientific 
objectivity and the lack of institutional ties with any person 
involved in the conduct of the study or research under review. 
Support services for such panels shall be provided by the 
Agency for Toxic Substances and Disease Registry, or by the 
Environmental Protection Agency, as appropriate.
      (14) In the implementation of this subsection and other 
health-related authorities of this Act, the Administrator of 
ATSDR shall assemble, develop as necessary, and [distribute to 
the States, and upon request to medical colleges, physicians, 
and]distribute--
            (A) to the States and local health officials, and 
        upon request to medical colleges, medical centers, 
        local health practitioners, and other health 
        professionals, appropriate educational materials 
        (including short courses) on the medical surveillance, 
        screening, and [methods of diagnosis and treatment] 
        methods of prevention, diagnosis, and treatment of 
        injury or disease related to exposure to hazardous 
        substances (giving priority to those listed in 
        paragraph (2)), through such means as the Administrator 
        of ATSDR deems appropriate[.]; and
            (B) to the community potentially affected by a 
        facility appropriate educational materials, facility-
        specific information, and other information on human 
        health effects of hazardous substances using available 
        community information networks, including, if 
        appropriate, or a community advisory group.
      (15) The activities of the Administrator of ATSDR 
described in this subsection and section 111(c)(4) shall be 
carried out by the Administrator of ATSDR, either directly or 
[through cooperative agreements with States (or political 
subdivisions thereof) which the Administrator] through grants 
to, or cooperative agreements or contracts with, States (or 
political subdivisions of States) or other appropriate public 
authorities or private nonprofit entities, public or private 
institutions, colleges or universities, or professional 
associations that the Administrator of ATSDR determines are 
capable of carrying out such activities. Such activities shall 
include provision of consultations on health information, the 
conduct of health assessments, including those required under 
section 3019(b) of the Solid Waste Disposal Act, health 
studies, registries, and health surveillance.
      (16) The President shall provide adequate personnel for 
ATSDR, which shall not be fewer than 100 employees. For 
purposes of determining the number of employees under this 
subsection, an employee employed by ATSDR on a part-time career 
employment basis shall be counted as a fraction which is 
determined by dividing 40 hours into the average number of 
hours of such employee's regularly scheduled workweek.
      (17) In accordance with section 120 (relating to Federal 
facilities), the Administrator of ATSDR shall have the same 
authorities under this section with respect to facilities owned 
or operated by a department, agency, or instrumentality of the 
United States as the Administrator of ATSDR has with respect to 
any nongovernmental entity.
      (18) If the Administrator of ATSDR determines that it is 
appropriate for purposes of this section to treat a pollutant 
or contaminant as a hazardous substance, such pollutant or 
contaminant shall be treated as a hazardous substance for such 
purpose.
      (19) Public health education.--
                    (A) In general.--If the Administrator of 
                ATSDR considers it appropriate, the 
                Administrator of ATSDR, in cooperation with 
                State, Indian Tribe, and other interested 
                Federal and local officials, shall conduct 
                health education activities to make a community 
                near a covered facility aware of the steps the 
                community may take to mitigate or prevent 
                exposure to hazardous substances and the health 
                effects of hazardous substances.
                    (B) Dissemination.--In disseminating public 
                health information under this paragraph 
                relating to a covered facility, the 
                Administrator of ATSDR shall use community 
                health centers, area health education centers, 
                or other community information networks, 
                including a community advisory group, or a 
                technical assistance grant recipient.
      (j) Acquisition of Property.--
            (1) Authority.--The President is authorized to 
        acquire, by purchase, lease, condemnation, donation, or 
        otherwise, any real property or any interest in real 
        property that the President in his discretion 
        determines is needed to conduct a remedial action under 
        this Act. There shall be no cause of action to compel 
        the President to acquire any interest in real property 
        under this Act.
            (2) State assurance.--The President may use the 
        authority of paragraph (1) for a remedial action only 
        if, before an interest in real estate is acquired under 
        this subsection, the State in which the interest to be 
        acquired is located assures the President, through a 
        contract or cooperative agreement or otherwise, that 
        the State will accept transfer of the interest 
        following completion of the remedial action.
            (3) Exemption.--No Federal, State, or local 
        government agency shall be liable under this Act solely 
        as a result of acquiring an interest in real estate 
        under this subsection.

[42 U.S.C. 9604]

                       national contingency plan

      Sec. 105. (a) Revision and Republication.--Within one 
hundred and eighty days after the enactment of this Act, the 
President shall, after notice and opportunity for public 
comments, revise and republish the national contingency plan 
for the removal of oil and hazardous substances, originally 
prepared and published pursuant to section 311 of the Federal 
Water Pollution Control Act, to reflect and effectuate the 
responsibilities and powers created by this Act, in addition to 
those matters specified in section 311(c)(2). \45\ Such 
revision shall include a section of the plan to be known as the 
national hazardous substance response plan which shall 
establish procedures and standards for responding to releases 
of hazardous substances, pollutants, and contaminants, which 
shall include at a minimum:
---------------------------------------------------------------------------
    \45\ Probably should refer to section 311(d)(2), pursuant to 
general amendments made to such section by section 4201(a) of Public 
Law 101-380.
---------------------------------------------------------------------------
            (1) methods for discovering and investigating 
        facilities at which hazardous substances have been 
        disposed of or otherwise come to be located;
            (2) methods for evaluating, including analyses of 
        relative cost, and remedying any releases or threats of 
        releases from facilities which pose substantial danger 
        to the public health or the environment;
            (3) methods and criteria for determining the 
        appropriate extent of removal, remedy, and other 
        measures authorized by this Act;
            (4) appropriate roles and responsibilities for the 
        Federal, State, and local governments and for 
        interstate and nongovernmental entities in effectuating 
        the plan;
            (5) provision for identification, procurement, 
        maintenance, and storage of response equipment and 
        supplies;
            (6) a method for and assignment of responsibility 
        for reporting the existence of such facilities which 
        may be located on federally owned or controlled 
        properties and any releases of hazardous substances 
        from such facilities;
            (7) means of assuring that remedial action measures 
        are cost-effective over the period of potential 
        exposure to the hazardous substances or contaminated 
        materials;
            (8)(A) criteria for determining priorities among 
        releases or threatened releases throughout the United 
        States for the purpose of taking remedial action and, 
        to the extent practicable taking into account the 
        potential urgency of such action, for the purpose of 
        taking removal action. Criteria and priorities under 
        this paragraph shall be based upon relative risk or 
        danger to public health or welfare or the environment, 
        in the judgment of the President, taking into account 
        to the extent possible the population at risk, the 
        hazard potential of the hazardous substances at such 
        facilities, the potential for contamination of drinking 
        water supplies, the potential for direct human contact, 
        the potential for destruction of sensitive eco-systems, 
        the damage to natural resources which may affect the 
        human food chain and which is associated with any 
        release or threatened release, the contamination or 
        potential contamination of the ambient air which is 
        associated with the release or threatened release, 
        State preparedness to assume State costs and 
        responsibilities, and other appropriate factors;
            (B) based upon the criteria set forth in 
        subparagraph (A) of this paragraph, the President shall 
        list as part of the plan national priorities among the 
        known releases or threatened releases throughout the 
        United States and shall revise the list no less often 
        than annually. Within one year after the date of 
        enactment of this Act, and annually thereafter, each 
        State shall establish and submit for consideration by 
        the President priorities for remedial action among 
        known releases and potential releases in that State 
        based upon the criteria set forth in subparagraph (A) 
        of this paragraph. In assembling or revising the 
        national list, the President shall consider any 
        priorities established by the States. To the extent 
        practicable, the highest priority facilities shall be 
        designated individually and shall be referred to as the 
        ``top priority among known response targets'', and, to 
        the extent practicable, shall include among the one 
        hundred highest priority facilities one such facility 
        from each State which shall be the facility designated 
        by the State as presenting the greatest danger to 
        public health or welfare or the environment among the 
        known facilities in such State. A State shall be 
        allowed to designate its highest priority facility only 
        once. Other priority facilities or incidents may be 
        listed singly or grouped for response priority 
        purposes;
            (C) provision that, to the extent practicable, in 
        listing a facility on the National Priorities List, the 
        Administrator will not include any parcel of real 
        property at which no release has actually occurred, but 
        to which a released hazardous substance, pollutant, or 
        contaminant has migrated in ground water that has moved 
        through subsurface strata from another parcel of real 
        estate at which the release actually occurred, unless--
                    (i) the ground water is in use as a public 
                drinking water supply or was in such use at the 
                time of the release; and
                    (ii) the owner or operator of the facility 
                is liable, or is affiliated with any other 
                person that is liable, for any response costs 
                at the facility, through any direct or indirect 
                familial relationship, or any contractual, 
                corporate, or financial relationship other than 
                that created by the instruments by which title 
                to the facility is conveyed or financed.
            (9) specified roles for private organizations and 
        entities in preparation for response and in responding 
        to releases of hazardous substances, including 
        identification of appropriate qualifications and 
        capacity therefor and including consideration of 
        minority firms in accordance with subsection (f); [and]
            (10) standards and testing procedures by which 
        alternative or innovative treatment technologies can be 
        determined to be appropriate for utilization in 
        response actions authorized by this Act[.]; and
            (11) procedures for conducting response actions, 
        including facility evaluations, remedial 
        investigations, feasibility studies, remedial action 
        plans, remedial designs, and remedial actions, which 
        procedures shall--
                    (A) use a results-oriented approach to 
                minimize the time required to conduct response 
                measures and reduce the potential for exposure 
                to the hazardous substances, pollutants, and 
                contaminants in an efficient, timely, and cost-
                effective manner;
                    (B) require, at a minimum, expedited 
                facility evaluations and risk assessments, 
                timely negotiation of response action goals, a 
                single engineering study, streamlined oversight 
                of response actions, and consultation with 
                interested parties throughout the response 
                action process;
                    (C) be subject to the requirements of 
                sections 117, 120, 121, and 133 in the same 
                manner and to the same degree as those sections 
                apply to response actions; and
                    (D) be required to be used for each 
                remedial action conducted under this Act unless 
                the Administrator determines that their use 
                would not be cost-effective or result in the 
                selection of a response action that achieves 
                the goals of protecting human health and the 
                environment stated in section 121(a)(1)(B).
The plan shall specify procedures, techniques, materials, 
equipment, and methods to be employed in identifying, removing, 
or remedying releases of hazardous substances comparable to 
those required under section 311(c)(2) (F) and (G) and (j)(1) 
of the Federal Water Pollution Control Act. Following 
publication of the revised national contingency plan, the 
response to and actions to minimize damage from hazardous 
substances releases shall, to the greatest extent possible, be 
in accordance with the provisions of the plan. The President 
may, from time to time, revise and republish the national 
contingency plan.
      (b) Revision of Plan.--Not later than 18 months after the 
enactment of the Superfund Amendments and Reauthorization Act 
of 1986, the President shall revise the National Contingency 
Plan to reflect the requirements of such amendments. The 
portion of such Plan known as ``the National Hazardous 
Substance Response Plan'' shall be revised to provide 
procedures and standards for remedial actions undertaken 
pursuant to this Act which are consistent with amendments made 
by the Superfund Amendments and Reauthorization Act of 1986 
relating to the selection of remedial action.
      (c) Hazard Ranking System.--
            (1) Revision.--Not later than 18 months after the 
        enactment of the Superfund Amendments and 
        Reauthorization Act of 1986 and after publication of 
        notice and opportunity for submission of comments in 
        accordance with section 553 of title 5, United States 
        Code, the President shall by rule promulgate amendments 
        to the hazard ranking system in effect on September 1, 
        1984. Such amendments shall assure, to the maximum 
        extent feasible, that the hazard ranking system 
        accurately assesses the relative degree of risk to 
        human health and the environment posed by sites and 
        facilities subject to review. The President shall 
        establish an effective date for the amended hazard 
        ranking system which is not later than 24 months after 
        enactment of the Superfund Amendments and 
        Reauthorization Act of 1986. Such amended hazard 
        ranking system shall be applied to any site or facility 
        to be newly listed on the National Priorities List 
        after the effective date established by the President. 
        Until such effective date of the regulations, the 
        hazard ranking system in effect on September 1, 1984, 
        shall continue in full force and effect.
            (2) Health assessment of water contamination 
        risks.--In carrying out this subsection, the President 
        shall ensure that the human health risks associated 
        with the contamination or potential contamination 
        (either directly or as a result of the runoff of any 
        hazardous substance or pollutant or contaminant from 
        sites or facilities) of surface water are appropriately 
        assessed where such surface water is, or can be, used 
        for recreation or potable water consumption. In making 
        the assessment required pursuant to the preceding 
        sentence, the President shall take into account the 
        potential migration of any hazardous substance or 
        pollutant or contaminant through such surface water to 
        downstream sources of drinking water.
            (3) Reevaluation not required.--The President shall 
        not be required to reevaluate, after the date of the 
        enactment of the Superfund Amendments and 
        Reauthorization Act of 1986, the hazard ranking of any 
        facility which was evaluated in accordance with the 
        criteria under this section before the effective date 
        of the amendments to the hazard ranking system under 
        this subsection and which was assigned a national 
        priority under the National Contingency Plan.
            (4) New information.--Nothing in paragraph (3) 
        shall preclude the President from taking new 
        information into account in undertaking response 
        actions under this Act.
      (d) Petition for Assessment of Release.--Any person who 
is, or may be, affected by a release or threatened release of a 
hazardous substance or pollutant or contaminant, may petition 
the President to conduct a preliminary assessment of the 
hazards to public health and the environment which are 
associated with such release or threatened release. If the 
President has not previously conducted a preliminary assessment 
of such release, the President shall, within 12 months after 
the receipt of any such petition, complete such assessment or 
provide an explanation of why the assessment is not 
appropriate. If the preliminary assessment indicates that the 
release or threatened release concerned may pose a threat to 
human health or the environment, the President shall promptly 
evaluate such release or threatened release in accordance with 
the hazard ranking system referred to in paragraph (8)(A) of 
subsection (a) to determine the national priority of such 
release or threatened release.
      (e) Releases From Earlier Sites.--Whenever there has 
been, after January 1, 1985, a significant release of hazardous 
substances or pollutants or contaminants from a site which is 
listed by the President as a ``Site Cleaned Up To Date'' on the 
National Priorities List (revised edition, December 1984) the 
site shall be restored to the National Priorities List, without 
application of the hazard ranking system.
      (f) Minority Contractors.--In awarding contracts under 
this Act, the President shall consider the availability of 
qualified minority firms. The President shall describe, as part 
of any annual report submitted to the Congress under this Act, 
the participation of minority firms in contracts carried out 
under this Act. Such report shall contain a brief description 
of the contracts which have been awarded to minority firms 
under this Act and of the efforts made by the President to 
encourage the participation of such firms in programs carried 
out under this Act.
      (g) Special Study Wastes.--
            (1) Application.--This subsection applies to 
        facilities--
                    (A) which as of the date of enactment of 
                the Superfund Amendments and Reauthorization 
                Act of 1986 were not included on, or proposed 
                for inclusion on, the National Priorities List; 
                and
                    (B) at which special study wastes described 
                in paragraph (2), (3)(A)(ii) or (3)(A)(iii) of 
                section 3001(b) of the Solid Waste Disposal Act 
                are present in significant quantities, 
                including any such facility from which there 
                has been a release of a special study waste.
            (2) Considerations in adding facilities to npl.--
        Pending revision of the hazard ranking system under 
        subsection (c), the President shall consider each of 
        the following factors in adding facilities covered by 
        this section to the National Priorities List:
                    (A) The extent to which hazard ranking 
                system score for the facility is affected by 
                the presence of any special study waste at, or 
                any release from, such facility.
                    (B) Available information as to the 
                quantity, toxicity, and concentration of 
                hazardous substances that are constituents of 
                any special study waste at, or released from 
                such facility, the extent of or potential for 
                release of such hazardous constituents, the 
                exposure or potential exposure to human 
                population and the environment, and the degree 
                of hazard to human health or the environment 
                posed by the release of such hazardous 
                constituents at such facility. This 
                subparagraph refers only to available 
                information on actual concentrations of 
                hazardous substances and not on the total 
                quantity of special study waste at such 
                facility.
            (3) Savings provisions.--Nothing in this subsection 
        shall be construed to limit the authority of the 
        President to remove any facility which as of the date 
        of enactment of the Superfund Amendments and 
        Reauthorization Act of 1986 is included on the National 
        Priorities List from such List, or not to list any 
        facility which as of such date is proposed for 
        inclusion on such list.
            (4) Information gathering and analysis.--Nothing in 
        this Act shall be construed to preclude the expenditure 
        of monies from the Fund for gathering and analysis of 
        information which will enable the President to consider 
        the specific factors required by paragraph (2).
      (h) Listing of Particular Parcels.--
            (1) Definition.--In subsection (a)(8)(C) and 
        paragraph (2) of this subsection, the term ``parcel of 
        real property'' means a parcel, lot, or tract of land 
        that has a separate legal description from that of any 
        other parcel, lot, or tract of land the legal 
        description and ownership of which has been recorded in 
        accordance with the law of the State in which it is 
        located.
            (2) Statutory construction.--Nothing in subsection 
        (a)(8)(C) shall be construed to limit the 
        Administrator's authority under section 104 to obtain 
        access to and undertake response actions at any parcel 
        of real property to which a released hazardous 
        substance, pollutant, or contaminant has migrated in 
        the ground water.

[42 U.S.C. 9605]

                            abatement action

      Sec. 106. [(a) In addition] (a) Order.--
            (1) In general.--In addition to any other action 
        taken by a State or local government, when the 
        President determines that there may be an imminent and 
        substantial endangerment to the public health or 
        welfare or the environment because of an actual or 
        threatened release of a hazardous substance from a 
        facility, he may require the Attorney General of the 
        United States to secure such relief as may be necessary 
        to abate such danger or threat, and the district court 
        of the United States in the district in which the 
        threat occurs shall have jurisdiction to grant such 
        relief as the public interest and the equities of the 
        case may require. The President may also, after notice 
        to the affected State, take other action under this 
        section including, but not limited to, issuing such 
        orders as may be necessary to protect public health and 
        welfare and the environment.
            (2) Contents of order.--An order under paragraph 
        (1) shall provide information concerning the evidence 
        that indicates that each element of liability described 
        in section 107(a)(1) (A), (B), (C), and (D), as 
        applicable, is present.
      (b)(1) Any person who, without sufficient cause, 
willfully violates, or fails or refuses to comply with, any 
order of the President under subsection (a) may, in an action 
brought in the appropriate United States district court to 
enforce such order, be fined not more than $25,000 for each day 
in which such violation occurs or such failure to comply 
continues.
      (2)(A) Any person who receives and complies with the 
terms of any order issued under subsection (a) may, within 60 
days after completion of the required action, petition the 
President for reimbursement from the Fund for the reasonable 
costs of such action, plus interest. Any interest payable under 
this paragraph shall accrue on the amounts expended from the 
date of expenditure at the same rate as specified for interest 
on investments of the Hazardous Substance Superfund established 
under subchapter A of chapter 98 of the Internal Revenue Code 
of 1954.
      (B) If the President refuses to grant all or part of a 
petition made under this paragraph, the petitioner may within 
30 days of receipt of such refusal file an action against the 
President in the appropriate United States district court 
seeking reimbursement from the Fund.
      (C) Except as provided in subparagraph (D), to obtain 
reimbursement, the petitioner shall establish by a 
preponderance of the evidence that it is not liable for 
response costs under section 107(a) and that costs for which it 
seeks reimbursement are reasonable in light of the action 
required by the relevant order.
      (D) A petitioner who is liable for response costs under 
section 107(a) may also recover its reasonable costs of 
response to the extent that it can demonstrate, on the 
administrative record, that the President's decision in 
selecting the response action ordered was arbitrary and 
capricious or was otherwise not in accordance with law. 
Reimbursement awarded under this subparagraph shall include all 
reasonable response costs incurred by the petitioner pursuant 
to the portions of the order found to be arbitrary and 
capricious or otherwise not in accordance with law.
      (E) Reimbursement awarded by a court under subparagraph 
(C) or (D) may include appropriate costs, fees, and other 
expenses in accordance with subsections (a) and (d) of section 
2412 of title 28 of the United States Code.
    (c) Within one hundred and eighty days after enactment of 
this Act, the Administrator of the Environmental Protection 
Agency shall, after consultation with the Attorney General, 
establish and publish guidelines for using the imminent hazard, 
enforcement, and emergency response authorities of this section 
and other existing statutes administered by the Administrator 
of the Environmental Protection Agency to effectuate the 
responsibilities and powers created by this Act. Such 
guidelines shall to the extent practicable be consistent with 
the national hazardous substance response plan, and shall 
include, at a minimum, the assignment of responsibility for 
coordinating response actions with the issuance of 
administrative orders, enforcement of standards and permits, 
the gathering of information, and other imminent hazard and 
emergency powers authorized by (1) sections 311(c)(2), \46\ 
308, 309, and 504(a) of the Federal Water Pollution Control 
Act, (2) sections 3007, 3008, 3013, and 7003 of the Solid Waste 
Disposal Act, (3) sections 1445 and 1431 of the Safe Drinking 
Water Act, (4) sections 113, 114, and 303 of the Clean Air Act, 
and (5) section 7 of the Toxic Substances Control Act.
---------------------------------------------------------------------------
    \46\ See footnote 1 under section 105.
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[42 U.S.C. 9606]

                               [liability

    [Sec. 107. (a) Notwithstanding]

SEC. 107. LIABILITY.

    (a) In General.--
            (1) Persons liable.--Notwithstanding any other 
        provision or rule of law, and subject only to the 
        defenses set forth in subsection (b) [of this section] 
        and the exemptions and limitations stated in this 
        section--
                    [(1)] (A) the owner and operator of a 
                vessel or a facility,
                    [(2)] (B) any person who at the time of 
                disposal of any hazardous substance owned or 
                operated any facility at which such hazardous 
                substances were disposed of,
                    [(3)] (C) any person who by contract, 
                agreement, or otherwise arranged for disposal 
                or treatment, or arranged with a transporter 
                for transport for disposal or treatment, of 
                hazardous substances owned or possessed by such 
                person, by any other party or entity, at any 
                facility or incineration vessel owned or 
                operated by another party or entity and 
                containing such hazardous substances, and
                    [(4)] (D) 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--] hazardous substance;
        shall be liable for the costs and damages described in 
        paragraph (2).
            (2) Costs and damages.--A person described in 
        paragraph (1) shall be liable for--
                    (A) all costs of removal or remedial action 
                incurred by the United States Government or a 
                State or an Indian tribe not inconsistent with 
                the national contingency plan;
                    (B) any other necessary costs of response 
                incurred by any other person consistent with 
                the national contingency plan;
                    (C) damages for injury to, destruction of, 
                or loss of natural resources, including the 
                reasonable costs of assessing such injury, 
                destruction, or loss resulting from such a 
                release; and
                    (D) the costs of any health assessment or 
                health effects study carried out under section 
                104(i).
[The amounts]
            (3) Interest.--The amounts recoverable in an action 
        under this section shall include interest on the 
        amounts recoverable under [subparagraphs (A) through 
        (D)] paragraph (2). Such interest shall accrue from the 
        later of (i) the date payment of a specified amount is 
        demanded in writing, or (ii) the date of the 
        expenditure concerned. The rate of interest on the 
        outstanding unpaid balance of the amounts recoverable 
        under this section shall be the same rate as is 
        specified for interest on investments of the Hazardous 
        Substance Superfund established under subchapter A of 
        chapter 98 of the Internal Revenue Code of 1954. For 
        purposes of applying such amendments to interest under 
        this subsection, the term ``comparable maturity'' shall 
        be determined with reference to the date on which 
        interest accruing under this subsection commences. \47\
---------------------------------------------------------------------------
    \47\ Section 209 of the Water Resources Development Act of 1996 
(Public Law 104-303; 110 Stat. 3681) provides:
---------------------------------------------------------------------------

SEC. 209. [42 U.S.C. 9607 note] RECOVERY OF COSTS.
---------------------------------------------------------------------------
      Amounts recovered under section 107 of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 (42 
U.S.C. 9607) for any response action taken by the Secretary in support 
of the civil works program of the Department of the Army and any other 
amounts recovered by the Secretary from a contractor, insurer, surety, 
or other person to reimburse the Department of the Army for any 
expenditure for environmental response activities in support of the 
Army civil works program shall be credited to the appropriate trust 
fund account from which the cost of such response action has been paid 
or will be charged.
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      (b) There shall be no liability under subsection (a) of 
this section for a person otherwise liable who can establish by 
a preponderance of the evidence that the release or threat of 
release of a hazardous substance and the damages resulting 
therefrom were caused solely by--
            (1) an act of God;
            (2) an act of war;
            (3) an act or omission of a third party other than 
        an employee or agent of the defendant, or than one 
        whose act or omission occurs in connection with a 
        contractual relationship, existing directly or 
        indirectly, with the defendant (except where the sole 
        contractual arrangement arises from [a published tariff 
        and acceptance] a contract for carriage by a common 
        carrier by rail), if the defendant establishes by a 
        preponderance of the evidence that (a) \48\ he 
        exercised due care with respect to the hazardous 
        substance concerned, taking into consideration the 
        characteristics of such hazardous substance, in light 
        of all relevant facts and circumstances, and (b) \49\ 
        he took precautions against foreseeable acts or 
        omissions of any such third party and the consequences 
        that could foreseeably result from such acts or 
        omissions; or
---------------------------------------------------------------------------
    \48\ So in law. Probably should be ``(A)''.
    \49\ So in law. Probably should be ``(B)''.
---------------------------------------------------------------------------
            (4) any combination of the foregoing paragraphs.
      (c)(1) Except as provided in paragraph (2) of this 
subsection, the liability under this section of an owner or 
operator or other responsible person for each release of a 
hazardous substance or incident involving release of a 
hazardous substance shall not exceed--
            (A) for any vessel, other than an incineration 
        vessel, which carries any hazardous substance as cargo 
        or residue, $300 per gross ton, or $5,000,000, 
        whichever is greater;
            (B) for any other vessel, other than an 
        incineration vessel, $300 per gross ton, or $500,000, 
        whichever is greater;
            (C) for any motor vehicle, aircraft, hazardous 
        liquid pipeline facility (as defined in section 
        60101(a) of title 49, United States Code), or rolling 
        stock, $50,000,000 or such lesser amount as the 
        President shall establish by regulation, but in no 
        event less than $5,000,000 (or, for releases of 
        hazardous substances as defined in section 101(14)(A) 
        of this title into the navigable waters, $8,000,000). 
        Such regulations shall take into account the size, 
        type, location, storage, and handling capacity and 
        other matters relating to the likelihood of release in 
        each such class and to the economic impact of such 
        limits on each such class; or
            (D) for any incineration vessel or any facility 
        other than those specified in subparagraph (C) of this 
        paragraph, the total of all costs of response plus 
        $50,000,000 for any damages under this title.
      (2) Notwithstanding the limitations in paragraph (1) of 
this subsection, the liability of an owner or operator or other 
responsible person under this section shall be the full and 
total costs of response and damages, if (A)(i) the release or 
threat of release of a hazardous substance was the result of 
willful misconduct or willful negligence within the privity or 
knowledge of such person, or (ii) the primary cause of the 
release was a violation (within the privity or knowledge of 
such person) of applicable safety, construction, or operating 
standards or regulations; or (B) such person fails or refuses 
to provide all reasonable cooperation and assistance requested 
by a responsible public official in connection with response 
activities under the national contingency plan with respect to 
regulated carriers subject to the provisions of title 49 of the 
United States Code or vessels subject to the provisions of 
title 33 or 46 of the United States Code, subparagraph (A)(ii) 
of this paragraph shall be deemed to refer to Federal standards 
or regulations.
      (3) If any person who is liable for a release or threat 
of release of a hazardous substance fails without sufficient 
cause to properly provide removal or remedial action upon order 
of the President pursuant to section 104 or 106 of this Act, 
such person may be liable to the United States for punitive 
damages in an amount at least equal to, and not more than three 
times, the amount of any costs incurred by the Fund as a result 
of such failure to take proper action. The President is 
authorized to commence a civil action against any such person 
to recover the punitive damages, which shall be in addition to 
any costs recovered from such person pursuant to section 112(c) 
of this Act. Any moneys received by the United States pursuant 
to this subsection shall be deposited in the Fund.
      (d) Rendering Care or Advice.--
            (1) In general.--Except as provided in paragraph 
        (2), no person shall be liable under this title for 
        costs or damages as a result of actions taken or 
        omitted in the course of rendering care, assistance, or 
        advice in accordance with the National Contingency Plan 
        (``NCP'') or at the direction of an on-scene 
        coordinator appointed under such plan, with respect to 
        an incident creating a danger to public health or 
        welfare or the environment as a result of any releases 
        of a hazardous substance or the threat thereof. This 
        paragraph shall not preclude liability for costs or 
        damages as the result of negligence on the part of such 
        person.
            (2) State and local governments.--No State or local 
        government shall be liable under this title for costs 
        or damages as a result of actions taken in response to 
        an emergency created by the release or threatened 
        release of a hazardous substance generated by or from a 
        facility owned by another person. This paragraph shall 
        not preclude liability for costs or damages as a result 
        of gross negligence or intentional misconduct by the 
        State or local government. For the purpose of the 
        preceding sentence, reckless, willful, or wanton 
        misconduct shall constitute gross negligence.
            (3) Savings provision.--This subsection shall not 
        alter the liability of any person covered by [the 
        provisions of paragraph (1), (2), (3), or (4) of 
        subsection (a) of this section] subsection a with 
        respect to the release or threatened release concerned.
      (e)(1) No indemnification, hold harmless, or similar 
agreement or conveyance shall be effective to transfer from the 
owner or operator of any vessel or facility or from any person 
who may be liable for a release or threat of release under this 
section, to any other person the liability imposed under this 
section. Nothing in this subsection shall bar any agreement to 
insure, hold harmless, or indemnify a party to such agreement 
for any liability under this section.
      (2) Nothing in this title, including the provisions of 
paragraph (1) of this subsection, shall bar a cause of action 
that an owner or operator or any other person subject to 
liability under this section, or a guarantor, has or would 
have, by reason of subrogation or otherwise against any person.
      (f)[(1) Natural Resources Liability.--In the case of an 
injury to, destruction of, or loss of natural resources under 
subparagraph (C) of subsection (a) liability shall be to the 
United States Government and to any State for natural resources 
within the State or belonging to, managed by, controlled by, or 
appertaining to such State and to any Indian tribe for natural 
resources belonging to, managed by, controlled by, or 
appertaining to such tribe, or held in trust for the benefit of 
such tribe, or belonging to a member of such tribe if such 
resources are subject to a trust restriction on alienation: 
Provided, however, That no liability to the United States or 
State or Indian tribe shall be imposed under subparagraph (C) 
of subsection (a), where the party sought to be charged has 
demonstrated that the damages to natural resources complained 
of were specifically identified as an irreversible and 
irretrievable commitment of natural resources in an 
environmental impact statement, or other comparable environment 
analysis, and the decision to grant a permit or license 
authorizes such commitment of natural resources, and the 
facility or project was otherwise operating within the terms of 
its permit or license, so long as, in the case of damages to an 
Indian tribe occurring pursuant to a Federal permit or license, 
the issuance of that permit or license was not inconsistent 
with the fiduciary duty of the United States with respect to 
such Indian tribe. The President, or the authorized 
representative of any State, shall act on behalf of the public 
as trustee of such natural resources to recover for such 
damages. Sums recovered by the United States Government as 
trustee under this subsection shall be retained by the trustee, 
without further appropriation, for use only to restore, 
replace, or acquire the equivalent of such natural resources. 
Sums recovered by a State \50\ as trustee under this subsection 
shall be available for use only to restore, replace, or acquire 
the equivalent of such natural resources by the State. \13\ The 
measure of damages in any action under subparagraph (C) of 
subsection (a) shall not be limited by the sums which can be 
used to restore or replace such resources. There shall be no 
double recovery under this Act for natural resource damages, 
including the costs of damage assessment or restoration, 
rehabilitation, or acquisition for the same release and natural 
resource. There shall be no recovery under the authority of 
subparagraph (C) of subsection (a) where such damages and the 
release of a hazardous substance from which such damages 
resulted have occurred wholly before the enactment of this 
Act.]
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    \50\ [The words ``or the Indian tribe'' were apparently intended to 
be inserted after the word ``State'' in this sentence. (See sections 
107(d)(2) and 207(c)(2)(D) of the Superfund Amendments and 
Reauthorization Act of 1986). Two simultaneous amendments were 
inadvertently made to the same provision.]
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      (1) Natural resources liability.--
            (A) General.--In the case of an injury to, 
        destruction of, or loss of natural resources under 
        subsection (a)(4)(C), liability shall be to the United 
        States Government and to any State for natural 
        resources within the State or belonging to, managed by, 
        controlled by, or appertaining to such State and to any 
        Indian Tribe for natural resources belonging to, 
        managed by, controlled by, or appertaining to such 
        Tribe, or held in trust for the benefit of such Tribe 
        if such resources are subject to a trust restriction on 
        alienation.
            (B) Action as trustee.--The President, or the 
        authorized representative of any State, shall act on 
        behalf of the public as trustee of such natural 
        resources to recover for such damages for the natural 
        resource injured, destroyed or lost by the release of a 
        hazardous substance.
            (C) Measure of damages.--Any person liable for an 
        injury to, destruction of, or loss of a natural 
        resource caused by the release of a hazardous substance 
        shall be liable for--
                    (i) the costs of restoring the natural 
                resource to the condition that would have 
                existed but for the release of the hazardous 
                substance, replacing or acquiring the 
                equivalent of the natural resource if the 
                resource will not be restored to that condition 
                as a result of any response action;
                    (ii) replacement of the lost services 
                provided by the injured, destroyed, or lost 
                natural resource; and
                    (iii) the reasonable costs of assessing 
                damages, including the costs associated with 
                the development and consideration of 
                alternative restoration measures but not 
                including the costs of conducting any type of 
                study relying on the use of contingent 
                valuation methodology.
            (D) Limitations on liability.--
                    (i) Commitment of natural resources in an 
                environmental impact statement.--No liability 
                to the United States or State or Indian Tribe 
                shall be imposed under subsection (a)(4)(C) 
                where the party sought to be charged has 
                demonstrated that the injury to, destruction 
                of, or loss of natural resources complained of 
                was specifically identified as an irreversible 
                and irretrievable commitment of natural 
                resources in an environmental impact statement, 
                or other comparable environmental analysis, and 
                the decision to grant a permit or license 
                authorizes such commitment of natural 
                resources, and the facility or project was 
                otherwise operating within the terms of its 
                permit or license, so long as, in the case of 
                damages to an Indian Tribe occurring pursuant 
                to a Federal permit or license, the issuance of 
                the permit or license was not inconsistent with 
                the fiduciary duty of the United States with 
                respect to such Indian Tribe.
                    (ii) No double recovery.--A person shall 
                not be liable for damages, response costs, 
                assessment costs, or any other costs for an 
                injury to, destruction of, or loss of a natural 
                resource, or a loss of the services provided by 
                the natural resource, that have been recovered 
                under this Act or any other Federal, State or 
                Tribal law for the same injury to, destruction 
                of or loss of the natural resource or loss of 
                the services provided by the natural resource.
                    (iii) Releases before december 11, 1980.--
                There shall be no recovery under this section 
                where the natural resource injury, destruction, 
                or loss for which restoration, replacement or 
                acquisition is sought and the release of the 
                hazardous substance that caused the injury, 
                destruction, or loss occurred wholly before 
                December 11, 1980.
                    (iv) Lost use damages before december 11, 
                1980.--There shall be no recovery from any 
                person under this section for the value of the 
                lost services provided by a natural resource 
                before December 11, 1980.
            (E) Use of recovered sums.--
                    (i) United states government as trustee.--
                Sums recovered by the United States Government 
                as trustee under this subsection shall be 
                retained by the trustee, without further 
                appropriation, for use only to restore, 
                replace, or acquire the equivalent of such 
                natural resources.
                    (ii) State as trustee.--Sums recovered by a 
                State as trustee under this subsection shall be 
                available for use only to restore, replace, or 
                acquire the equivalent of such natural 
                resources by the State.
                    (iii) Tribe as trustee.--Sums recovered by 
                an Indian Tribe as trustee under this 
                subsection shall be available for use only to 
                restore, replace, or acquire the equivalent of 
                such natural resources by the Indian Tribe.
            (F) Payment period.--In entering into an agreement 
        regarding the payment of damages for an injury to, 
        destruction of or loss of a natural resource under this 
        section, a trustee may permit payment over a period of 
        time that is appropriate in view of the amount of the 
        damages, the financial ability of the responsible party 
        to pay the damages, and the time period over which and 
        the pace at which expenditures are expected to be made 
        for the restoration, replacement or acquisition 
        activities.
      (2) Designation of federal and state officials.--
            (A) Federal.--The President shall designate in the 
        National Contingency Plan published under section 105 
        of this Act the Federal officials who shall act on 
        behalf of the public as trustees for natural resources 
        under this Act and section 311 of the Federal Water 
        Pollution Control Act. Such officials shall assess 
        damages for injury to, destruction of, or loss of 
        natural resources for purposes of this Act and such 
        section 311 for those resources under their trusteeship 
        and may, upon request of and reimbursement from a State 
        and at the Federal officials' discretion, assess 
        damages for those natural resources under the State's 
        trusteeship.
            (B) State.--The Governor of each State shall 
        designate State officials who may act on behalf of the 
        public as trustees for natural resources under this Act 
        and section 311 of the Federal Water Pollution Control 
        Act and shall notify the President of such 
        designations. Such State officials shall assess damages 
        to natural resources for the purposes of this Act and 
        such section 311 for those natural resources under 
        their trusteeship.
            (C) Rebuttable presumption.--Any determination or 
        assessment of damages to natural resources for the 
        purposes of this Act and section 311 of the Federal 
        Water Pollution Control Act made by a Federal or State 
        trustee in accordance with the regulations promulgated 
        under section 301(c) of this Act shall have the force 
        and effect of a rebuttable presumption on behalf of the 
        trustee in any administrative or judicial proceeding 
        under this Act or section 311 of the Federal Water 
        Pollution Control Act.
      (3) Consideration of alternative restoration measures.--
            (A) Alternative measures.--A trustee seeking 
        damages under this section for an injury to, 
        destruction of or loss of a natural resource shall, on 
        the basis of the best scientific information available, 
        consider alternative measures to achieve the 
        restoration of the natural resource, including an 
        alternative that relies on natural restoration. The 
        trustee shall select measures that achieve an 
        appropriate balance among the following factors:
                    (i) Technical feasibility.
                    (ii) Cost effectiveness.
                    (iii) The period of time in which the 
                natural resource is likely to be restored.
            (B) Consideration of intrinsic values.--In 
        selecting measures to restore, replace or acquire the 
        equivalent of a natural resource injured, destroyed, or 
        lost by the release of a hazardous substance pursuant 
        to paragraph (1)(C)(i), the trustee may take into 
        consideration unique intrinsic values associated with 
        the natural resource to justify the selection of 
        measures that will provide for expedited or enhanced 
        restoration of the natural resource to replace the 
        intrinsic values lost, provided that the incremental 
        costs associated with the measures selected are 
        reasonable.
            (4) Relationship to response action.--A natural 
        reso