STATEMENT OF SENATOR JOHN H. CHAFEE
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
SUBCOMMITTEE ON SUPERFUND, WASTE CONTROL, AND RISK ASSESSMENT
Hearing to consider S. 8, the "Superfund Cleanup Acceleration Act of 1997"
March 5, 1997

Good morning. I want to thank Senator Smith for holding this hearing on S.8, the Superfund Cleanup Acceleration Act of 1997. Thanks to his leadership, we are closer to comprehensive reform of this troubled program. We are off to a very fast start this year. Working together with the Minority and Administration, we stand a good chance of enacting Superfund reform legislation in the 105th Congress.

I also want to thank Senators Baucus and Lautenberg. While I know they continue to have problems with provisions in S.8, I know they are ready to roll up their sleeves and get to work on our common agenda: real legislative reform for Superfund's problems.

Finally, I want to thank Carol Browner, EPA Administrator and the Administration's leader on Superfund. We have spent many hours together personally trying to bridge our differences on Superfund. I look forward to her testimony today and to a successful conclusion to the bipartisan negotiations we started but could not finish in the 104th Congress.

I would like to say a few words about how S.8 was developed. At the outset of the 105th Congress, the Republican Conference collectively decided to include a Superfund reform bill as one of its ten highest legislative priorities. S.8 was drafted in a short period of time in order to be introduced with other Republican Leadership priority bills on January 21, 1997.

S.8 is based on the discussions and negotiations conducted in the 104th Congress on S.1285. It differs significantly from its 104th Congress predecessor in a number of key areas. The most significant changes in S.8 from S.1285 are in titles dealing with brownfields, selection of remedial actions, liability, and natural resource damages. We intentionally drafted S.8 to considerably narrow the differences with the Minority and the Administration that were identified in the previous negotiations on S.1285. I must say, however, after reading through EPA's testimony I fear the Administrator may think that this bill moved away from her position and not towards it.

Superfund remains our most troubled environmental statute. The time has come to reform this program, which was designed to clean up toxic waste sites. Instead, it has brought about too much litigation, not enough cleanup, inefficient use of scarce resources, and decaying cities, where many abandoned sites are not being redeveloped because potential developers fear incurring Superfund liability.

I have joined Senator Smith in cosponsoring S.8. The bill is not a "dream package" for any particular interest. Rather, S.8 is a comprehensive reform effort which, when enacted, will be a tremendous improvement over the status quo.

As we discussed at yesterday's hearing, a central focus of the Superfund Cleanup Acceleration Act of 1997 is brownfields revitalization. It is our position that comprehensive reform of Superfund is necessary to spur redevelopment at low-risk sites, and the higher-risk sites that might score high enough to be on the Superfund National Priority List. In all likelihood most of these "NPL-caliber" sites never will be added to the list. There are 200 such sites in Rhode Island alone, many with redevelopment potential.

Our new liability proposal moves a considerable distance towards the Administration and Minority proposals of years past. It attempts to target relief toward three central problems in Superfund liability: first, the unfairness of imposing joint and several liability on parties whose liability is in fact capable of proportional allocation; second, the unfairness of a liability net that is cast so wide that it sweeps in parties no one ever foresaw as potentially responsible parties, like small businesses; and third, a liability system that encourages claims and counterclaims at sites with hundreds or thousands of small-volume waste contributors. S.8 does not create a blanket exclusion for any class of site. Instead it focuses on the parties and their conduct.

So who will pay for cleanup under this new proposal? If you polluted a site, you will have to pay your proportional share of the costs of cleanup. If your liability is excused in some way by the public policy-based liability protections in this proposal, your share is paid by the taxes we are reimposing upon industry. What could possibly be fairer?

There are significant changes to other provisions of the bill that reflect our hundreds of hours of negotiations last year. We have clarified groundwater provisions to ensure protection of uncontaminated groundwater and where, technically practicable, restore contaminated groundwater. We have limited more narrowly the circumstances under which an old remedy can be reopened and strengthened the roles of governors in that process. We have loosened the cap on additions to the NPL. We have streamlined the natural resource damages provision to focus on restoration and not speculative damage measures. We have added money for Brownfields remediation. We feel we have moved a great distance in a short time.

The effort to reform Superfund should be a bi-partisan one. In the last Congress, Senator Smith and I enjoyed a positive working relationship with the our Minority counterparts, Senators Baucus and Smith. I know that the Minority and Administration have concerns over the process for moving forward, and I appreciated Senator Baucus' comments on this issue before yesterday's hearing. I know we can work out a process that is acceptable to all sides.

President Clinton and others in his Administration, including Administrator Browner, have long-since recognized the need to reform Superfund. In fact, EPA has undertaken three rounds of Administrative reforms of Superfund. While these reforms do address some of the problems inherent in Superfund, they are no substitute for a thorough legislative overhaul. I know the Administrator agrees with me on this.

There is merit in many of the EPA reforms. Indeed, many of policies contained in these reforms have long been advocated by Republicans. Two examples are cleanups based on future use of the site, and an expanded use of federal money for orphan shares. However, these administrative changes are mere exercises of EPA or Justice Department discretion. Because these reforms are discretionary, there is no long-term certainty in EPA-issued guidance. Guidance can be changed at the whim of the issuing official. For these reasons, any significant changes to the Superfund statute must be achieved through the legislative process.

It is long-past time that we reform the Superfund statute. With a concerted bi-partisan effort, we can achieve Superfund reform this year. We cannot put off Superfund reform any longer; the cost is simply too great.