Testimony of the Environmental Defense Fund
on S. 8, the "Superfund Cleanup Acceleration Act of 1997"
before the
Senate Committee on Environment and Public Works
Subcommittee on Superfund, Waste Control, and Risk Management
Karen Florini, Senior Attorney
March 5, 1997

I. Introduction

On behalf of the Environmental Defense Fund and its 300,000 members, I want to thank Chairman Smith, Ranking Member Lautenberg, and the other members of the Committee for this opportunity to discuss S. 8, the "Superfund Cleanup Acceleration Act of 1997," amending Superfund. EDF has been actively involved in the Superfund reauthorization process, serving on EPA's NACEPT Committee on Superfund and on the National Commission on Superfund, and testifying repeatedly on Superfund during the last two Congresses.

While EDF supports an improved Superfund program, we believe that S. 8 would weaken rather than strengthen the program. In many instances, the bill's "cures" are far worse than the problems they purport to address. S. 8 fails to acknowledge that the Superfund program today is faster and more streamlined than was the case in earlier years. According to EPA, cleanups have been completed (except for ongoing groundwater treatment) at some 400 sites; at nearly another 500, construction is now underway. While many of these cleanups were too long in coming, S. 8 would either retard the pace of cleanups, or make them faster by cutting out essential safeguards.

The bill's most objectionable features include provisions putting polluters in charge of cleanups without effective government or public oversight, both at Superfund sites and at so-called "voluntary" cleanups sites (which may themselves be Superfund sites); letting costs to polluters trump community health and resource protection in choosing remedies; dumping cleanup problems on States, regardless of whether they can handle them; further retarding cleanups by reopening hundreds of existing decisions; and creating new kinds of corporate welfare by rolling back liability even for many large industrial polluters who dumped waste at certain sites, and by requiring expansive "polluter paybacks."

Accordingly, EDF strongly opposes S. 8. Some of our key concerns are detailed below.

II. S. 8's Remedy Selection Provisions: A Recipe for Crummy Cleanups

Among the most critical features of any Superfund bill are the provisions governing what standards actually apply to cleanups, and how specific cleanup decisions are made. S. 8 comes nowhere close to being acceptable on this count. Procedurally, it largely puts polluters in control; substantively, it sets inadequate cleanup standards that are further weakened by a variety of loopholes. Each flaw aggravates the other.

A. Putting Polluters in Control of Cleanups.

One of the most startling aspects of the bill is its sweeping use of default provisions, including those for default approval of polluter-written cleanup plans. Parties who are potentially liable under the statute (Potentially Responsible Parties, or PRPs) may prepare the Remedial Action Plan (RAP) if they want to do so; if EPA fails to take action within 180 days of the RAP's submission, "the plan shall be considered to be approved and its implementation fully authorized" [SCAA 404, adding CERCLA 133(b)(5)(F)(ii), p.121].

Because EPA will have extremely limited resources to review these highly technical RAPs, PRP-written RAPs will be implemented without receiving adequate oversight. PRPs naturally have an incentive to save themselves money; this bill creates no countervailing mechanism through which remedies will be selected that actually protect communities, not just polluters' pocketbooks. Such cleanups will lack public credibility, and deservedly so. To make matters worse, EPA is only allowed to review "the work plan, facility evaluation, proposed remedial action plan, and final remedial design" [133(a)(1)(C), p.107]. These limitations could preclude EPA from reviewing important underlying data, rendering effective oversight impossible.

It's as if taxpayers were invited to select their own tax bracket, with the IRS getting only 180 days to review the return. And if the IRS does reject a taxpayer's return, there are no penalties the taxpayer just has to prepare another return, which the IRS again only gets 180 days to review!

Simply put, default approvals of PRP-written plans are entirely unacceptable, particularly in a program as complex and controversial as Superfund. This "cure" is far worse than the delays sometimes occasioned by slow governmental review of cleanup proposals submitted by PRPs.

These concerns are especially acute because EPA must allow a PRP to take the lead if the PRP demonstrates financial resources and "expertise" [404, adding CERCLA 133(a)(1)(D)(i), p.108-109]. Under these provisions, a PRP that hires a consulting firm could take the lead even if the company is under criminal indictment for illegal dumping at the site, or has a history of recalcitrance at other sites. Absolutely no consideration is given to whether the community has any confidence in the PRP.

Moreover, even after a cleanup plan is adopted, PRPs can disregard it at will, since PRPs need not get prior approval of RAP modifications. Rather, the bill provides that if a PRP "has deviated significantly" from a RAP, EPA notifies the PRP, who at the PRP's option either complies with the RAP or submits a notice for modifying the plan [SCAA 404, adding CERCLA 133(c)(1), p.124].

In short, the PRP is at liberty to depart from the RAP: if it gets caught, it gets to choose whether to comply with the RAP or modify it. RAPs won't be worth the paper they're written on.

B. Inadequate Cleanup Standards

1. Overview

S. 8's substantive cleanup provisions are extremely weak. The basic cleanup goals are inadequate, and various loopholes undercut even those limited goals. The inadequacies in the goals are critical, because EPA can select only those cleanups that are "cost effective" in meeting the narrowly formulated goals [SCAA 402, amending CERCLA 121(a)(l)(A), p.84]. Particularly conspicuous is the absence of a goal of restoring land to productive use where doing so is practical.

2. The Overriding Role of Cost

Before turning to specific deficiencies in cleanup goals, it must be noted that the bill expressly provides that all goals even protection of community health can be overridden based on cost considerations. Specifically, the bill provides that cleanup goals need not be met if doing so is "technical infeasib[le]," i.e., if "there is no known reliable means of achieving at a reasonable cost" the specified goals [SCAA 402, amending CERCLA 121(a)(2), p. 94-95]. "Reasonable cost" is not defined.

This open-ended language is particularly outrageous given that the bill severely constrains EPA and public oversight of PRP cleanup decisions, leaving PRPs liberty to construe this term for themselves. In effect, PRP willingness to pay will become the determining factor in determining the stringency of remedies, including the level of health protection provided to communities. Such an approach is especially unacceptable with regard to health protection goals, as it is always possible to especially protect community health through relocation if by no other means.

3. Additional Factors that Undercut Strong Cleanups

Several additional factors further contribute to weak cleanups. First, the current preference for permanent treatment is wiped out, even for highly contaminated areas [SCAA 402, striking CERCLA 121(b), p.83]. Instead, the bill expressly provides that institutional and engineering controls "shall be considered to be on an equal basis with all other remedial action alternatives" [SCAA 402, amending CERCLA 121(a)(5), p.101]. Taken with the cost-effectiveness requirement, this means that put-up-a-fence remedies will prevail. Adding insult to injury, states may apply their own more-protective standards only by paying the incremental cost [SCAA 201, adding CERCLA 130(d)(3)(B)(ii), p.44-45].

4. Weaknesses in Specific Goals

a. Health: Unprotective Goals Are Exacerbated by Flawed Risk Assessment Provisions.

S. 8 fails to establish a national uniform cleanup goal that would assure communities around the country of a baseline level of protection. Instead, the bill sets an explicit cancer risk-range goal that spans two orders of magnitude (one in a million to one in ten thousand [SCAA 402, amending CERCLA 121(a)(1)(B)(i)(I), p.85]. The requirement to use a "cost-effective" remedy option, along with the fact that cleaning up more-stringently is inherently costlier than cleaning up less-stringently, means that as a practical matter the one-per-ten-thousand standard will always prevail.

In addition, the bill's risk-assessment provisions are written in a way that may undercut protection. For example, the bill requires use of "central estimates" of risk [SCAA 403, adding CERCLA 131(c)(3), p.104-105]. This tilts risk assessment toward considering the average risk to the average individual and fails to assure protection of those who are highly exposed or highly susceptible, such as children, those with chronic diseases, and others such as subsistence farmers and fishers. Any legislation must expressly require evaluation of risks to groups with higher exposure or susceptibility than average, so as to ensure that cleanup plans including those written by polluters cannot "overlook" them.

Concerns also arise from the bill's emphasis on evaluating exposures "considering the actual or planned or reasonably anticipated future use of the land or water resources" in facility-specific risk evaluations [SCAA 403, adding CERCLA 131(b)(1), p. 103]. While it may be appropriate to consider future land use, there are two major problems with the approach taken in S. 8. First, the bill apparently focuses solely on current and future use of the site itself, ignoring the uses of neighboring parcels even though many Superfund sites directly adjoin residential neighborhoods. Superfund must protect the health of site neighbors, not just individuals who will be present on the site itself, given the well-documented ability of contaminants to migrate off-site (e.g., as wind-blown contaminated dust or as vapors).

Second, the bill defines a "reasonably anticipated future use" as one that the local land use planning authority, in conjunction with the community response organization, determines has "a substantial probability of occurring based on recent (as of the time of the determination) development patterns in the area in which the is located and on population for the area" [SCAA 401, amending CERCLA 101(41)(B)(i)(II), p.82]. As discussed below in section II.B.4.d, this is an unworkable standard and one that may well lead to cleanups that turn out to be inadequate following land-use changes that were plausible but didn't rise to the "substantial probability" level.

More generally, the role of facility-specific risk assessments is also confusing at best and profoundly disturbing at worst. Under the bill, cleanups are to meet the specific cleanup goals and comply with other applicable laws "on the basis of a facility-specific risk assessment" [SCAA 402, amending CERCLA 121(a)(1)(A), p.84]. The bill is silent as to what happens if a PRP's risk assessment purports to find that complying with applicable standards is not necessary in order to meet the cleanup goals. Even apart from these substantive concerns, allowing the validity of applicable standards to be rehashed at every Superfund site is a guaranteed way of delaying cleanups, increasing transaction costs, and infuriating communities.

Moreover, the bill provides PRPs with ample opportunities to manipulate risk assessments in a direction that minimizes their cleanup costs. The bill calls for use of "the most scientifically supportable" assumptions [SCAA 403, adding CERCLA 131(c)(3), p.105], potentially allowing challenges to default assumptions that are, as a matter of sound public health policy, intentionally crafted to be protective in the face of scientific uncertainty. Likewise, the bill calls for using "chemical and facility-specific data ... in preference to default assumptions" [SCAA 403, adding CERCLA 131(b)(3), p.103]. Even a single data-point, or data of questionable reliability, could be used to replace protective defaults. As a result, risk assessments could seriously understate risks.

b. Environment: A Scientifically Unworkable Standard

The bill's stated environmental goal is protecting "ecosystems from significant threats to their sustainability" [SCAA 402, amending CERCLA 121(a)(1)(B)(ii), p.85], and sustainability is defined as "the ability of an ecosystem to continue to function within the normal range of its variability absent the effects of a release of a hazardous substance" [SCAA 401, adding CERCLA 101(42), p.83]. The bill thus puts on the government the burden of demonstrating that particular contaminants threaten ecosystem sustainability. That burden is likely to prove unmanageable in many instances, not only because of the scarcity of federal and state resources, but also because of current limits of scientific knowledge. As a result, resources will be written off during Superfund cleanups not because they truly lack value, but because there is not enough evidence to demonstrate their impact on sustainability.

c. Groundwater: An Illusory Goal of Resource Protection.

Although the bill nominally protects uncontaminated groundwater as a resource, this is illusory. Four provisions of the bill undercut the no-contamination provision:

--First, the "reasonable cost" loophole [SCAA 402, amending CERCLA 121(a)(2)(B)(i) , p.95], which will allow PRP-written cleanup plans to declare that avoiding contamination is too expensive;

--Second, the "natural attenuation" loophole, bill's provision that expressly allows natural attenuation where it won't interfere with anticipated future use [SCAA 121(a)(4)(C), p. 97], despite the inherent uncertainties of predicting when groundwater will be needed;

--Third, the bill's express proviso that engineering and institutional controls "to be considered on an equal basis with all other remedial action alternatives" [SCAA 121(a)(5), p.101]; and

--Fourth, the bill's express proviso allowing point-of-use treatment devices [SCAA 121(a)(4)(D)(iv)(II), p.99-100].

The upshot will be that PRPs will be able to claim that preventing contamination is too expensive compared to waiting until the water cleans itself up, forbidding its use, or sticking a filter on the tap. In short, the bill fails to protect groundwater as a resource for future generations.

In essence, under the natural attenuation loophole, clean groundwater is allowed to get dirty in the hope that it will clean itself back up before the water is needed. This approach implicitly assumes that it is possible to reliably project (i) long-term groundwater flows, (ii) long-term attenuation patterns, and (iii) future groundwater needs. In actuality, each of these is uncertain at best; taken together, they amount to Congressional endorsement of gambling with groundwater. Decision makers can only reliably predict future groundwater movement, and future groundwater needs, for a handful of years at a stretch. Absent the rare case where natural attenuation can confidently be predicted to restore groundwater within an equally short time frame, these "remediation" techniques should be used only if no others are available. These provisions are especially objectionable because they would apparently "trump" state groundwater laws that require protection of uncontaminated groundwater as a resource (i.e., without having to be specifically identified as a future source of drinking water within a particular time).

Finally, by weakening Superfund's groundwater cleanup provisions, the bill undercuts important incentives for currently managing wastes in a way that protects groundwater. Anyone familiar with the current hazardous-waste regulatory system is painfully aware that innumerable wastes, though hazardous in fact, are not now regulated as hazardous. Superfund's aggressive groundwater cleanup requirements help prompt responsible behavior today, and need to be maintained.

d. The Missing Goal: Restoring Land to Productive Use.

An especially notable weakness of the goals is the one that simply isn't there: restoring land to productive use when doing so is feasible. Moreover, the interplay of several provisions will operate to discourage returning land to productive use. As noted above, in the absence of a land-resource goal, the requirement to use a cost-effective remedy and the proviso that institutional and engineering controls "shall be considered to be on an equal basis with all other remedial action alternatives" [SCAA 402, amending CERCLA 121(a)(5), p.101] means that put-up-a-fence remedies are likely to prevail.

The fundamental problem is the bill's heavy emphasis on containment-based remedies remedies that inherently limit a site's potential availability for future redevelopment. Even assuming that such remedies effectively protect health if appropriately maintained, they restrict the community's flexibility to use that land over time: if a site is capped with contamination in place, that cap must then be maintained in perpetuity. Doing so generally rules out excavation and construction activities. While containment-based remedies may make sense in a limited set of circumstances, they should not be the remedy of first choice given that they deprive communities of future flexibility in using the site.

For instance, suppose a particular community wanted to be able to use a site that is now a Superfund site and, like most Superfund sites, not currently used -- for an industrial park following a cleanup. Surrounding properties are also industrial, but no developer has expressed a specific interest in redeveloping that particular site. The PRPs have proposed a cleanup under which the site would be capped, with the cap maintained for the indefinite future, thus (supposedly) avoiding human exposure. The PRPs argue that such a plan is consistent with the land uses allowed to be considered under 121: the actual use (here, no current use); the planned use (here, no current plans exist); or the "reasonably anticipated future use," defined as one that has a "substantial probability of occurring" (here, none specifically identified). Further, suppose that capping the site is substantially cheaper than to treating or removing the contaminated materials.

In such a scenario, the cap would apparently be selected as a cost-effective remedy that meets the bill's narrowly defined goals. At the end of the process, however, the community would be left with a permanent dead zone that cannot be put to productive use. The PRPs may be better off, but the community has not shared those benefits.

The scenario spelled out here may well prove to be the rule rather than the exception. Many Superfund sites are abandoned industrial properties. Only rarely will a developer have proceeded far enough that a potential redevelopment will be the "planned" use for a site following cleanup. Similarly impractical is the criterion that a particular use has "a substantial probability of occurring."

Rather than this convoluted and unworkable approach, the bill should establish an explicit objective of returning land to productive use where technologically and economically feasible. That approach will provide communities with the flexibility they need to grow and prosper through redevelopment for years and decades into the future.

Such redevelopment often occurs in ways that may not be easily "anticipated" and even a few years ago would not have been viewed as having "a substantial probability of occurring." For example:

--The New York Times recently described significant urban redevelopment that was not envisioned, and indeed was sometimes marginally legal, under the City's zoning regulations (but occurred nonetheless and reportedly has proven largely beneficial).

--Similarly, the Christian Science Monitor has reported on the growing phenomenon of "infill development." A recent article cites efforts underway in San Jose, California; Portland, Oregon; Boulder, Colorado; and Minneapolis-St. Paul, where "[t]he idea is to shift growth to the inner part of a city, using vacant or underdeveloped areas for new housing and businesses."

--More generally, significant portions of the U.S. experienced more than 25% population growth in their metropolitan areas in the single decade following Superfund's enactment in 1980.

In short, S.8's narrow approach to future land use invites, and even forces, communities to be short-sighted. This may save PRPs money, but the costs thus saved are shifted to our children.

5. The "Voluntary" Cleanups Loophole for Superfund Sites

Under S. 8, site-specific state remedial action plans (RAPs) override all CERCLA enforcement authorities [SCAA 103, adding CERCLA 129(a), p.18]. Apparently, such RAPs need not even be issued under a qualifying state voluntary response program [SCAA 102, adding CERCLA 128, p.15], but rather can be any document designated by any state as a RAP regardless of whether there has been any public participation whatsoever in development of that RAP, regardless of whether there have been any effective state review of a polluter-written RAP, regardless of whether RAP will be protective, regardless of whether the RAP is actually being complied with, and even regardless of whether the state has the legal or practical capacity to enforce the RAP. Once a state RAP exists, EPA is barred from acting even where a site presents an imminent and substantial endangerment to health or the environment (save by using the Fund, without cost-recovery). This approach is indefensible. Apparently, even current Superfund sites (i.e., those already listed on the National Priorities List), as well as sites proposed for NPL listing, can be thus removed from Superfund's ambit.

There are no substantive standards whatsoever for state RAPs. Unless a state opts to establish regulations, each site's plan will be issued an ad hoc basis with no baseline standards to assure the safety or adequacy of cleanups, meaningful public participation, judicial review, or any other safeguard. Tens or hundreds of thousands of sites may be dealt with on an ad-hoc basis, making effective public oversight completely impossible even apart from the fact that the bill makes no provisions for community technical assistance. And meanwhile, Superfund's authorities are banished.

We strongly oppose these sweeping and unjustifiable limits on Superfund authority. While carefully crafted liability relief for prospective purchasers may well be desirable (assuming community participation rights are assured), wholesale roll-backs of Superfund authorities for a large but amorphous range of sites are indefensible. They are also unnecessary: the private market is increasingly providing mechanisms for moving forward brownfield redevelopment today, with Superfund in place.

II. Shutting the Public Out: Weaknesses in S. 8's Public Participation Provisions

Numerous provisions of S. 8 undercut meaningful and effective public participation in cleanup programs, such as the state delegation provisions of Title II (and, as discussed in section II.B.5 above, the "voluntary cleanup" provisions of Title I). Moreover, the explicit public participation provisions in Title III have a number of weaknesses. And ultimately, of course, public participation is meaningless if the bill's key provisions on the quality of cleanups are inadequate.

In addition to the problems noted below, S. 8 fails to strengthen public participation adequately. Specifically, it fails to require EPA to provide reasonable public notice and a public hearing (if requested) before critical steps in the cleanup process, including undertaking the health assessment, preliminary assessment and site investigation; and completing the facility work plan. S. 8 also fails to provide for the creation of state-wide organizations to ensure wide dissemination of information about toxic sites in a community-friendly manner. Creating citizen-run state-wide organizations would be an important step toward ensuring that those living next to or on toxic dump sites have the necessary tools at their disposal to make sound judgments about the future of their communities.

A. Shutting the Public Out of State Delegation Decisions

Under S. 8, states can obtain delegation of one or more of 5 categories of authorities [SCAA 201(a), adding CERCLA 130(a)(2), p.32-34]. EPA has 60 days to approve or disapprove a petition for delegation (120 days for 8 states without RCRA corrective action authority) [SCAA 201(a), adding CERCLA 130(c)(3)(A), p.39]. If EPA doesn't act in that time, the delegation petition is approved by default [130(c)(3)(B), p.40].

Conspicuous by its absence is any provision for public participation in EPA review of state program adequacy, and the ridiculously short time limits preclude meaningful participation in any event. To make matters worse, once a state obtains delegated authority, EPA's hands are largely tied absent state concurrence even if the state is failing to act and thus delaying cleanup at the site, or if state actions are not protective [SCAA 201(a), adding 130(e)(5), p. 54]. S. 8's delegation provisions are thus doubly deficient.

B. Shutting the Public Out through Inadequate Technical Assistance Provisions.

Under S. 8, Technical Assistance Grants (TAGs) are limited to a $100,000 cap, with no exceptions [SCAA 301(a), adding CERCLA 117(f)(7)(B), p.72] even though many of the remedies likely to be selected under the bill will be institutional controls or natural attenuation remedies for which long-term community oversight would be needed. In addition, TAGs are limited to sites listed on or proposed for the NPL, or on a State Registry [117(f)(5), p.70] . TAGs cannot be used for collecting field samples [117(f)(8)(B), p.73], so if PRPs take inadequate samples, the community will lack resources to collect appropriate samples.

Moreover, the "preferred" recipient of a technical assistance grant is the "Community Response Organization," if any [117(e)(5)(A), p.66]. This restriction may exclude local environmental or community groups with a greater need for, or ability to use, a TAG.

Finally, it appears that the funds made available for TAGs may be grossly inadequate. The authorization for Technical Assistance Grants is only $15 million through 2002 [SCAA  906, adding CERCLA 111(t), p.258]. On average, that's $11,500 per site an amount clearly insufficient, particularly given the widespread availability of re-openers for many sites with already-decided cleanups. ( This provision appears to be inconsistent with another under which 2% of annual appropriations, or roughly $28 million annually, may be used for TAGs [SCAA 301, adding CERCLA 117(f)(6), p.70].)

C. Shutting the Public Out of Cleanup Decision Revisions

As discussed in section IV.B below, provisions for widespread reopening of existing cleanup decisions essentially eliminate opportunities for meaningful public participation. Given that review boards are to complete their review within 180 days [SCAA 406, adding CERCLA 135(b)(2)(A), p. 134], communities will not be able to participate meaningfully. This is particularly true at sites where no Technical Assistance Grant is currently in effect. Even where TAGs are already in place, the flood of simultaneous petitions will make it impossible for the limited number of community-oriented technical experts to provide effective support at the large number of sites where reopener petitions are likely to be filed.

Similarly, as discussed in section II.A above, PRPs are at liberty to ignore RAPs until EPA catches them at it and then have the option of changing the remedy or of conforming to the original one. Such provisions for after-the-fact changes to cleanup decisions render community participation little more than a mirage.

D. Shutting the Public Out through Silent Vetoes.

Yet another way the public is shut out of meaningful participation arises from provisions under which new sites can be added to the Superfund list "only with the concurrence of the Governor of the State" in which the sites is located. [SCAA 802, adding CERCLA 105(i)(3), p.253]. Similarly, State can block any administrative cleanup order under 106 by failing to concur within 90 days (orders automatically expire after 90 days without state concurrence) [SCAA 103, adding CERCLA 129(a), p.18].

While it may be appropriate to give states "first dibs" on cleanups at sites that will be appropriately addressed through state action, this provision goes much too far. A state could, through simple inaction, bar an NPL listing or a 106 order even though the site will not otherwise be cleaned up. The State need not even give any reasons for failure to concur, inviting potential abuses (if, for example, a major PRP at the site also happened to be a campaign contributor to a high-ranking State official). Moreover, these provisions invite creation of "pollution havens" by Governors seeking to lure business from other states by declaring an indefinite moratorium on NPL listings. EPA should defer to a state only upon affirmatively determining that the State will conduct an adequate, timely cleanup absent the listing or 106 order.

IV. Superfund Slowdown

A. Slowdowns Through Weak and Ambiguous Cleanup Provisions

Though styled the "Superfund Cleanup Acceleration Act," S. 8 ironically contains a host of provisions that will delay cleanups by introducing confusing (and weak) new standards for cleanups, as discussed in section II.B above. For example, the bill is replete with new terms that invite lengthy argument, e.g., whether assumptions used in the risk assessment are "the most scientifically supportable;" whether a particular projected land use has "a substantial probability of occurring based on recent development patterns"; whether particular substances pose "significant threats to [ecosystems'] sustainability." Cleanups will be delayed while these and other new terms are endlessly debated.

B. Slowdowns from "Re-opener" Petitions

S. 8 also expressly invites the filing of petitions to reopen (and weaken) existing cleanup decisions, potentially several hundred of them, with attendant diversion of resources from ongoing cleanup efforts. These reopener provisions are as unnecessary as they are poorly constructed. EPA already has ample discretionary authority to consider requests to modify existing cleanups decisions where particular circumstances warrant.

The bill's reopener provisions are unwieldy and unworkable. Within 90 days of the bill's enactment, the implementor of a current cleanup decision may petition to substitute an alternate remedial action. The petition must be granted if the proposal satisfies 121 and meets certain cost thresholds [SCAA 406, adding CERCLA 135(b)(3) & (4), pp.137-141]. For pre-construction sites, the cost threshold is $1.25-$2.5 million, depending on cost and type of cleanup [135(b)(3)(B) &(4)(B), pp.137 & 140], but no threshold applies "if the petitioner demonstrates that technical data generated subsequent to the issuance of the [ROD] indicates that the decision was based on faulty or incorrect information" [135(B)(3)(D), p.139].

Hundreds of existing cleanup decisions may be eligible for reopening; at the least, PRPs will be able to flood EPA with petitions that will have to be reviewed to see if they in fact cross the cost thresholds, much less meet the other criteria. The associated resource drain will slow cleanups across the board; make it all the more likely that EPA won't be able to meet the 180-day turnaround for new RAPs thus triggering default approvals; and encourage PRPs to drag their heels in carrying out an existing cleanup at a particular site in hopes of getting it revamped.

Moreover, the generous opportunities given to PRPs to force EPA to reopen decisions and apply this bill's weaker standards forms a dramatic contrast with the lack of analogous reopeners when Superfund's standards were strengthened in the 1986 amendments. There, the bill as enacted expressly provided that the new standards "shall not apply to any remedial action for which the Record of Decision was signed, or the consent decree was lodged, before date of enactment," while RODs signed within 30 days of enactment were required to meet the new standards "to the maximum extent practicable."

Simply put, S.8's re-opener provisions should be dropped.

V. The NPL Cap: Dumping Cleanups on Communities and States

Another highly objectionable feature of the bill is its inclusion of an arbitrary cap on the number of additional sites that can be added to the National Priorities List. Under S. 8, EPA cannot add more than 100 sites to the Superfund National Priorities List until 2001, and then 10 sites/year thereafter [SCAA 802, adding CERCLA 105(i)(1)(A), p.251-252]. A cap has profound consequences because, unless a site is listed, EPA cannot undertake cleanup activities (other than a short-term, low-cost emergency removal). In effect, this provision dumps the problem of Superfund site cleanups into the laps of the States -- regardless of whether they have the resources or capacity to conduct those cleanups.

The General Accounting Office recently estimated that the cap could force States to accept responsibility for 1,400 to 2,300 sites (1,100 already identified by EPA, along with an estimated 300 - 1,200 yet-undiscovered sites). The estimated cleanup costs range from $8.4 to $19.9 billion.

The GAO report makes painfully clear that the States are in no position to take on this added burden. Indeed, States are having difficulty securing resources for their current cleanup efforts. Of the states surveyed by GAO,

"three of the seven states with active programs said that taking on these additional cleanups would exacerbate an already difficult financial situation. Two other states said that they expect to face funding shortfalls beginning in fiscal year 1997 that will make it difficult to absorb the additional cleanup responsibilities, at least for a few years subsequent to that time. Another two states said that while they had sufficient funds to manage their own inventories, funding the additional cleanups would be difficult."

This provision also undercuts two of the valuable incentives created by Superfund: that which prompts voluntary cleanup of non-NPL sites in order to avoid a potential future NPL listing, and that which prompts careful management of wastes generated now.

An example of Superfund's effectiveness in the former arena emerges from a recent story in the Cleveland Plain Dealer about the Ashtabula River Partnership, a group that is working to avoid a potential Superfund listing by creating "a better-than-Superfund cleanup plan" for the river's heavy-metal and PCB contamination problems. The paper quoted Rep. Steve LaTourette (R-OH) as remarking that "[t]he prospect of a Superfund designation has proven to be a more effective tool than the Superfund itself. Without Superfund, however, most parties wouldn't even be at the table."

Similarly, GAO noted that State program managers "pointed out that a major incentive for private parties to clean up sites is to avoid having their properties added to the list of the most contaminated sites in the country." In short, a cap on the number of Superfund sites may have the perverse effect of creating a greater need for more Superfund listings, by reducing incentives for non-Superfund voluntary cleanups.

The NPL cap will also undercut incentives for sound prospective waste management. Facilities will be able to gamble that states will lack, or forego use of, cleanup enforcement authorities for tackling sites created after the NPL list is effectively closed. The continuing nominal availability of litigation authorities under 107 is far from an adequate substitute, given that 107 suits can only be brought to recoup expenditures thus requiring cash-strapped States to front all the cleanup money. Where they are unable to do so, today's polluters will evade cleanup responsibilities, and sites will remain unaddressed.

In short, the cap should be eliminated.

VI. Overly Broad Liability "Reforms": Corporate Welfare By Another Name

There is no dispute that Superfund's existing liability system has often been abused by some PRPs who have filed massive contribution actions against entities with minimal or no connection to the site. Curbing these abuses is necessary, but does not necessarily require legislation, since EPA clearly has ample authority to provide contribution protection to settling parties.

Even if legislation on this point were viewed as desirable, S. 8 goes far beyond the boundaries of common sense. The bill inappropriately rolls back liability for vast numbers of companies that are well able to help pay for cleaning up their own messes, and who should remain responsible for doing so. In several instances, these overly broad carve-outs apply to future as well as past conduct, undercutting Superfund's vitally important incentives for safely managing today's wastes.

A. Overly Broad Exemption for "Co-disposal" Sites: Letting Large Industrial Polluters and Dump Owners Off the Hook.

S. 8 repeals polluter-pays liability for generators and transporters of wastes at hundreds of "co-disposal" sites at which industrial wastes were dumped along with municipal trash [SCAA 501(b), adding CERCLA 107(q), p.148]. Even giant chemical companies will get entirely off the hook for wastes they sent to those sites. And even private dump-owners those in business to make a profit get their liability capped at 30% of cleanup costs (or the cost of closure) [501(b), adding CERCLA 107(t), p.150].

B. Overly Broad Exemption for "Small" Businesses.

While EDF does not necessarily oppose curtailing liability for truly small businesses with a limited connection to a site who have limited ability-to-pay in any event, the current exemption is ill-crafted. First, the $3 million annual-revenue threshold is simply too high [SCAA 501(b), adding CERCLA 107(s), p.150]. Moreover, the exemption applies to companies with either fewer than 30 employees, or less than $3 million gross revenues. This potentially exempts wealthy corporations that happen to have few employees.

In addition, the exemption applies to conduct in the future, thus eliminating incentives for small businesses to manage hazardous substances carefully in the future: an unjustifiable "pollute with impunity" clause for small businesses. In addition, any liability exemption for small businesses should be conditioned on cooperating with appropriate information-gathering and cleanup activities. Similarly, the exclusion should be inapplicable where the Administrator determines that the material has or may significantly contribute to the response costs at the site (cf. SCAA  501(b), adding CERCLA  107(r)(2), p.149 (exception to exemption for de minimus contributors)).

C. Overly Broad Exemption for "Recyclers" Including Mineral Wastes.

In another unfortunate example of "corporate welfare," the partial exemption for certain recyclers inappropriately includes "metal byproduct[s] (such as slag, skimming or dross)" in the definition of scrap metal [SCAA 510(a), adding CERCLA 101(48)(A)(ii), p.214, and SCAA 510(b), adding CERCLA 107(w), p.215]. While it may be appropriate to craft a narrow liability exemption to encourage the collection of post-consumer recyclables i.e., materials that otherwise become part of the municipal waste stream slags and drosses are industrial by-products that come nowhere close to fitting within that rationale.

D. "Polluter Paybacks" That Compete Directly with Cleanup Dollars.

Although parties who have already received cleanup orders must carry out the cleanup, they get repaid for all costs attributable to a party whose liability is limited [SCAA 502, adding CERCLA 112(g)(1) & (2), p.157]. These paybacks apparently apply even for all future costs incurred under existing settlements. Payback payments "shall be made upon receipt" of an application [112(g)(3), p.157-158], and must be made within a year [112(g)(6), p.158-159]. In addition, parties to an allocation are entitled to be promptly reimbursed for any costs they incur attributed to an orphan share [SCAA 503, adding CERCLA 136(o), p.192-193].

This language creates a legal entitlement, as contrasted with discretionary authorization to use the Fund for cleanups and other purposes, so paybacks will have first claim on the funds. Because there is no "firewall" between funds for paybacks and funds for cleanups, all of the moneys in the Superfund could be exhausted providing polluter paybacks, leaving none for actual cleanups, oversight, and enforcement by EPA, as well as vitiating programs for Technical Assistance Grants. If moneys remaining in the Superfund are inadequate, one of three unacceptable outcomes will occur: taxes will have to be raised, cleanup standards will have to be further weakened, or cleanups will again slow to a snail's pace.

III. Conclusion

Thank you for this opportunity to present our views. We would welcome an opportunity to work with you in crafting a Superfund reform bill that protects public health, particularly children and other vulnerable groups; preserve community land and water resources; holds polluters, rather than taxpayers, responsible for clean-up costs; assures meaningful community participation in Superfund decisions, while making the program more efficient and streamlined, and reinstating the Superfund Trust Fund taxes. (end)