Statement by Mayor James P. Perron, Elkhart, IN
on behalf of The U.S. Conference of Mayors
before the Senate Environment and Public Works Committee
September 4, 1997

Good morning, Mr. Chairman and Members of the Committee. I am James Perron, Mayor of Elkhart, IN. I am pleased to be here this morning and thank you for your leadership in development of S. 8 and in moving the legislative process forward with this hearing. Today I am testifying on behalf of the United States Conference of Mayors, which represents over 1100 cities with populations of 30,000 or more.

As Mayor of Elkhart for almost 15 years, I have dealt head-on with virtually every environmental problem and opportunity available to a modern city today, including: Superfund, groundwater contamination, recycling, closing a polluted landfill, riverfront redemption and many others. Our Environmental Center -- built on the site of the old city dump -- and our EnviroCorps program, funded by AmeriCorps -- are award winning. We have an ongoing relationship with Notre Dame University aimed at environmental management innovations. I know that working together we can bring new success to Superfund and Brownfield initiatives.

Mr. Chairman, I should note for the record that my experience with the Superfund program goes back almost to its beginning as well as the start of my mayoralty. Soon after taking office in 1984, we learned that our municipal drinking water supply was essentially a Superfund site. In the years that followed, working closely with EPA, our community worked its way out of this dilemma. Our water supply is now clean, and we have a Sole Source Aquifer Designation.

Our experience with brownfields is very real and hands-on. Elkhart is one of the most densely industrialized cities in the country. We are among the nation's leaders in per capita manufacturing jobs. Many projects have been slowed and others even brought to a halt by problems associated with brownfields. The framework provided by S. 8, along with a willingness on the part of a city to work creatively with the private sector, will go a long way towards accelerated brownfield recycling.

The nation's mayors are uniquely interested in Superfund reform, because we have been directly affected by the best and the worst of Superfund. We believe that the Superfund program has been successful in meeting three national policy objectives: 1) the dramatic reduction in use of hazardous materials by industry and commerce, 2) the ability for our nation to respond to emergency spills and contamination that pose an immediate health and environmental threat, and 3) - creation of a much safer, national hazardous waste management and disposal system.

No one doubts that industry and businesses have significantly reduced their use of hazardous substances because of the threat of CERCLA liability. When CERCLA was passed in 1980, many companies entered the hazardous materials business in expectation that the need for hazardous materials management would result in handsome profits. But many of their projections did not materialize. - Instead, industry changed how it did business and used less hazardous materials.

The emergency response program within CERCLA is a similar success story. EPA has been able to immediately respond to hundreds of emergencies across the nation that represented immediate endangerment to the public's health. The program gets high marks for its efficiency and should continue. Similarly, we are disposing today of our hazardous waste in a dramatically safer manner than we did prior to CERCLA's enactment.

That's the best of Superfund. But along side these tremendous public benefits is a horrible, unintended consequence of the Superfund program -- the fact that the private sector will not invest in hundreds of thousands of non-NPL, contaminated properties because of the fear of being caught in the Superfund liability web. The liability structure of Superfund has had a chilling effect on developers and local governments who want to redevelop these so-called "brownfields"-- sites that have been contaminated or "might be" contaminated because of their past industrial or commercial use.

Furthermore, the Superfund program has made the clean up of National Priority List sites expensive, bureaucratic, time-consuming and litigious. Everyone agrees that the Superfund program as it relates to NPL sites needs reforming. Local governments, non-profits and small businesses are acutely aware of this because liability associated with the normal disposal of municipal solid waste has resulted in endless litigation. While allocating costs to the polluter of an industrial facility that has undergone few changes in ownership makes sense, sorting out through the courts who disposed of municipal solid waste over an extended period in a co- disposal site is a nightmare and has accounted for some of Superfund's most egregious horror stories. Your decision to move forward with a mark up of 5.8 to reform and expedite how we deal with Superfund site cleanups is extremely important and the nation's mayors want to support your efforts. We hope that this process will coalesce in bi-partisan support for a Superfund reform bill in this Congress.

Brownfields

Mr. Chairman, the contamination of now abandoned industrial and commercial property, which today we call brownfields, was not caused by local governments or the citizens who now must live with the consequences of lost jobs, an eroded tax base and abandoned or underutilized properties that denigrate communities. The unintended, negative consequence of our federal Superfund policies has been the price for achieving the Superfund program's national benefits. This unfortunate situation simply must be addressed in an aggressive way as you begin the reauthorization process. We must undo the unintended harm that Superfund has imposed upon our communities.

Last year The U.S. Conference of Mayors released at its Winter Meeting a 39- City Survey on the Impact of Brownfields on U.S. Cities. Of the cities surveyed, 33 cities with brownfield sites said that more than $ 121 million is lost each year in local tax revenues -- using conservative estimates. More than $386 million is lost each year, using more optimistic estimates, suggesting that the more than 20,000 cities and other municipalities nationwide could be losing billions of dollars each year in local tax receipts due to the existence of brownfields. I am pleased to provide a copy of the survey to the Committee for the record.

Mr. Chairman, we also believe that the existence of brownfields and the inability to "recycle" our previously contaminated land has additional negative environmental effects. Urban sprawl has a direct negative impact on air and water quality, in addition to destroying farmland, forests, and open spaces. We believe that between 1982 and 1992, prime farmland equivalent in area to the States of Rhode Island and Connecticut was lost to urban sprawl. If we do not develop an aggressive farmland and forest preservation program that allows us to turn our development energies to brownfields, this alarming trend will only continue.

The President of the U.S. Conference of Mayors, Fort Wayne Mayor Paul Helmke, has made brownfields redevelopment the top priority for the nation's mayors in the coming year, as did Mayor Richard Daley of Chicago during his presidency of the Conference. Your willingness to place brownfields as Title I of the Superfund reform bill is, itself, an indication that this Committee understands the importance of addressing the Brownfields issue. As we speak, Mayor Helmke is meeting with the Co-chairs of our Brownfields Task force in Rhode Island to further evaluate S. 8 and its brownfield proposals. We would be pleased to forward our more detailed comments on S. 8 and the results of our deliberations to the Committee in the coming days. We would also like to submit for the record the Conference of Mayors brownfields and Superfund reform policies unanimously adopted in San Francisco at our annual meeting in June of this year.

Turning specifically to the proposals that we were asked to address for today's hearing, I would like to start by saying that it is important for Title I on Brownfields to provide local governments the greatest flexibility possible in the use of brownfields site assessment, characterization, and clean up funds.

The definition of brownfields should not require the site to currently have an "abandoned, idled, or underused facility." Many former industrial and commercial sites have been razed, but still contain contamination that should qualify the site as a brownfield.

Likewise, the list of exclusions in the definition of brownfields should be significantly narrowed or eliminated, so that local governments have the flexibility to submit brownfield sites that are local priorities. For example, the current list of exclusions within the brownfields definition would disqualify sites that should be addressed as brownfields, such as those that have been subject to emergency response actions. Many emergency response actions remove the immediate "emergency" but do not leave the property in a condition that would allow the private sector to invest in it. These abandoned industrial sites may have both removal and remediation needs which require action to address immediate threats and a less urgent remedial process to restore the property to a useful purpose. The current language would not provide the flexibility needed to include these sites as a part of a local government brownfields program, the principal purpose of which is to clean these sites and return them to tax generating properties.

Similarly, under the current language, a facility that was subject to corrective action would be disqualified as a brownfield. But the corrective action may apply only to the "waste disposal unit" on the site. In these instances, the entire site should not be disqualified from the brownfield program.

Furthermore, many sites have multiple contaminants that may be subject to various statutory authorities. Local governments need the equivalent of a "one-stop" shop at EPA where the sole objective should be to clean up the site as soon as possible and to return it to productive reuse in the community. The presence of a particular type of contaminant should not disqualify the site, particularly if the local government has determined that it is in the best interest of the community to qualify the site as a brownfield. The brownfields program offers us a unique opportunity to create that "one-stop shopping" approach.

The bottom line is that local governments want to serve as a catalyst to attract the private sector to invest in these sites. Our goal should be results oriented: clean them up and return them to productive economic reuse, as opposed to disqualifying them.

On the issue of funding, we believe that the Superfund program, which helped to create hundreds of thousands of brownfields, should devote at least ten percent of its funding annually to the brownfield cleanup program. We are extremely pleased that both House and Senate Appropriations Committees have provided $85 and $88 million respectively in FY 98 for the EPA brownfields program. We want to thank Senator Bond for his leadership in that arena.

We believe this funding can be justified on the grounds that the Superfund program has served as a tremendous disincentive for the cleanup and reinvestment of these properties. But it can also be justified on public health grounds. While brownfield sites may be less contaminated than NPL sites, in many instances they are more accessible to the public. An abandoned industrial facility is an invitation to the public, particularly children. Anyone who says that such facilities can be adequately secured over long periods of time in an urban or rural environment is not realistic. Furthermore, the inability to redevelop these sites has resulted in the denigration of many communities, loss of jobs and therefore a general decline in the health of a community. We believe these reasons are more than adequate to justify significant funding for brownfields cleanup and redevelopment.

We believe that the limitations on funding per site in the current draft are overly restrictive. Certain large brownfield sites may well need more assessment and cleanup funds than are allowed for in the current draft.- Similarly, the limitations on the size of capitalization grants for local revolving loan funds are also overly restrictive, especially when one considers communities that have been, or are, heavily industrial, or smaller communities that may have a single, but very large brownfield site. In addition to capitalization grants, language should clarify that grant funds can also be used directly to cleanup sites, particularly those sites held by local governments or those located in distressed communities.

We want to commend the Committee for providing liability provisions which protect certain third party purchasers of brownfield properties. We want to make sure that local governments are afforded equal liability protections if they acquire property for brownfield redevelopment or have acquired the property as a result of tax foreclosure. It is also extremely important that the legislation include strong provisions for "finality" of sites cleaned up through state voluntary cleanup programs, with well defined, limited parameters as to when EPA may reintervene. Additional comments on these provisions, which we consider of critical importance, will be submitted for the record in the coming days.

Mr. Chairman, we consider Title I of the revised draft of S. 8 to be an excellent starting point for further consideration and we look forward to working with you to further improve it.

Superfund Provisions

Mr. Chairman, the policy which mayors adopted in San Francisco calls for Superfund reauthorization to include provisions that expedite the cleanup of co- disposal landfill sites by providing liability protections for generators, transporters, and arrangers of municipal solid waste and capping liability for local government owners and operators of such landfills. The provisions of S. 8 clearly begin that process and go a long way toward that end. We are concerned, however, that the bill does not provide generators and transporters of MSW protection from third party contribution lawsuits for cleanup costs incurred prior to date of enactment at codisposal sites. Because we believe Congress never intended municipal solid waste and sewage sludge to be considered hazardous under CERCLA, we believe that some form of liability relief should also be extended to pre-enactment costs for generators and transporter of MSW, particularly those related to third party contribution suits that have not yet been settled. Numerous studies have indicated that MSW contains less than one-half of one percent (.5%) toxic materials. In almost every instance, NPL landfill sites are co-disposal sites contaminated principally by hazardous waste, not municipal solid waste. We also encourage the Committee to include local government "ability-to-pay" provisions in the bill.

Our policy also calls for the EPA to adopt administrative reforms to provide liability relief to generators, transporters, and arrangers of municipal solid waste at co-disposal sites. We are pleased that the Agency has responded with its recent proposal, which should apply to all pending third party suits. One concern, however, is how will EPA adjust the per ton fee as more cost efficient remedies are performed on co-disposal sites, and how can local governments be assured that they do not pay an unreasonable percentage of cleanup costs at co-disposal sites under this proposal. The most important principle set forth in EPA's policy is that municipal solid waste has virtually never been the cause for listing co-disposal landfills on the NPL. This principle should guide the policies for both legislative and administrative reform. Various legislative proposals in the past have relied on the principle that in no case should generators and transporters of municipal waste pay more than 10 percent of total response costs -- a threshold that the EPA administrative reforms must meet in order to be viable. We are currently evaluating the EPA proposal to determine if it meets this test. However, we agree with the Chairman's mark which reflects the view that the toxicity of MSW is so low that the transaction costs of collecting funds for response costs incurred after date of enactment warrant a transfer of liability from individual parties to the orphan share.

Mr. Chairman, we look forward to working with the Committee to determine if there is a way to marry the benefits of both these approaches.

On the issue of remediation, many of our public water systems want to make sure that Superfund reforms adequately protect public health and preserve our drinking water supplies for future generations. Water supplies that are or may be used as drinking water sources must be remediated, if feasible, by methods that offer permanent solutions. Remedies that serve to protect currently uncontaminated water supplies which are or may be used as drinking water sources from becoming contaminated must take precedence over other remedies. The legislation should recognize that users of the drinking water may be in separate jurisdictions and provide for involvement of both jurisdictions in remedial action plans. Mr. Chairman, I serve as the Conference of Mayors designee to the American Water Works Association Public Affairs Committee, and in that capacity I have developed an even greater appreciation for the need to protect our long term drinking water sources from further contamination.

Finally, we believe that local governments have not been adequately tapped as local management resources to help expedite the cleanup of NPL and non-NPL sites. In every aspect of the legislation, local governments should be viewed as valuable partners who are responsible for protecting human health and the environment at the local level. Therefore, we urge a stronger role for local governments in organizing the local advisory groups, in evaluating state proposals to receive delegated authority, in evaluating remedy selections, particularly as they pertain to long-term drinking water supplies, and in serving as catalysts for expediting cleanups.

Mr. Chairman, we thank you for the opportunity to appear today before the Committee. We will be submitting additional comments on other aspects of the bill which we did not have time to address today. We encourage the Senate to move forward on Superfund reform and to reach a bi-partisan agreement on a bill. We believe S. 8 is a good starting point for those deliberations. I would be pleased to answer any questions the Committee may have.