CRS REPORT

Superfund: Summary of the Draft Chairman's Mark of S. 8, The Superfund Cleanup Acceleration Act of 1997 Prepared at the request of the Senate Committee on Environment and Public Works

September 2, 1997

By Mark Reisch, Mark Holt, James E. McCarthy, Linda Schierow, Mary Tiemann
Environment and Natural Resources Policy Division

Summary

The Superfund Cleanup Acceleration Act, S. 8, was introduced on January 21, 1997, by Senator Bob Smith. It proposes extensive changes to the Superfund law, and would reauthorize it for 5 years at a level of $8.5 billion.

Title I (Brownfields Revitalization) authorizes $65 million per year for programs to characterize brownfields, to capitalize revolving loan funds for their cleanup, and to promote state voluntary cleanups. The federal government may not intervene at a site subject to a state remedial action plan unless there are certain specified risks present. Liability protection is given to neighbors of a Superfund site, and to innocent purchasers of contaminated property.

Title II (State Role) allows a state to receive authorization, or full or partial delegation of Superfund authorities at sites in the state. The state may ask EPA to remove cleaned sites from the National Priorities List (NPL). The 50% state cost- share requirement is reduced to 10%, or a percentage determined by the Office of Management and Budget.

Title III (Local Community Participation) authorizes the establishment of Community Action Groups to be conduits of information, and to represent the people during cleanup planning and implementation. The funds-matching requirement for Technical Assistance Grants to communities would be eliminated; early disbursements would be allowed.

Title IV (Selection of Remedial Actions) requires cleanups to be cost-effective and protective of human health and the environment. Remedies must be based on site-specific conditions and future use. It generally replaces the law's preference for permanent treatment remedies with specified factors, and establishes remedy review boards to reexamine remedy decisions.

Title V (Liability) exempts waste generators and transporters at co-disposal landfills for their liability for activities prior to January 1, 1997. Co-disposal landfills are those that mostly received municipal solid waste and sewage sludge. The liability of owners and operators (O/O) is capped at varying amounts depending on whether the O/O is private or a municipality, and how large the municipality is. Small businesses and other small waste contributors are exempt from liability. The bill establishes an allocation process for dividing liability at multi-party sites.

Title VI (Federal Facilities) allows the cleanup of federal facilities to be delegated to a state provided it uses the federal remedy selection process and standards. Federal facilities may be used to test innovative technologies.

Title VII (Natural Resource Damages) eliminates non-use damages, and claims for lost-use activities for pre-1980 activities. Title VIII limits the number of sites that can be added to the NPL, and doubles the emergency response authority to $4 million and 2 years. Title IX authorizes $8.5 billion for 5 years.


Superfund: Summary of the Draft Chairman's Mark of S. 8, The Superfund Cleanup Acceleration Act of 1997

The Superfund Cleanup Acceleration Act of 1997, S. 8, was introduced on January 21, 1997, by Senator Bob Smith, Chairman of the Environment and Public Works Subcommittee on Superfund, Waste Control, and Risk Assessment. The bill reauthorizes the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or Superfund) for 5 years at a level of $8.5 billion total, and makes extensive amendments in its nine titles. The subcommittee has received comments on the bill since its introduction, and has negotiated changes with senators and the administration. The draft chairman's mark circulated by the subcommittee in late August is the result of those discussions and is summarized in this report. A hearing on the revised bill is scheduled for September 4, 1997, and markup is planned for September 11.

Title I Brownfields Revitalization

There is no specific brownfields authority in CERCLA; the current program was initiated administratively by EPA. It provides 2-year grants of up to $100,000 annually ($200,000 total) to help communities address brownfields, which are abandoned, idle, or underused industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. The grants are for site assessment and related activities not cleanups. The Taxpayer Relief Act of 1997 (P.L. 105-34) allows brownfield cleanup costs to be deducted in the current year, a tax break estimated at $417 million by the Joint Committee on Taxation, that ends December 31, 2000.

S. 8 directs EPA to establish two programs. The first, the Brownfield Characterization Grant Program, would provide grants of up to $100,000 per year for 2 years to characterize and assess brownfield sites; $15 million annually is authorized for the program for 5 years. "Eligible entities" to receive the grants are local governments, regional councils, state-chartered redevelopment agencies, and Indian tribes.

The second program, the Brownfield Remediation Grant Program, would provide grants to states or eligible entities to capitalize revolving loan funds (RLF) for brownfield cleanups. A state receiving a grant must pay a matching share of at least 50% of the costs of the response action for which the grant is made, from other sources of state funding. The maximum amount of a grant with respect to any facility may not exceed $150,000 annually for 2 years. Twenty-five million dollars annually is authorized for the program for 5 years. An eligible entity receiving a grant for either program may leverage the funds by using them at a brownfield project for which funding is received from other sources, but the grant may only be used for the purpose specified (site characterization or capitalizing the RLF).

Requirements for grant applications are set out, as are criteria for EPA to use in ranking the applications. Facilities being cleaned up under other authorities are excluded from the program, namely:

-- facilities subject to emergency removal actions under CERCLA,

-- facilities on the National Priorities List (NPL),

-- facilities subject to corrective action under RCRA,

-- facilities being closed under RCRA,

-- facilities subject to administrative orders or consent decrees,

-- federal facilities, and

-- facilities for which cleanup assistance has been provided under the Leaking Underground Storage Tank (LUST) Trust Fund.

The bill also authorizes technical and financial assistance to states to maintain, establish, and administer voluntary response programs. Elements of a qualifying state program include public participation in remedy selection, streamlined procedures, oversight and enforcement authorities to ensure that response activities are completed, and a requirement for state certification that the response is complete. A voluntary cleanup at an NPL site must protect human health and the environment to the same extent as a remedial action selected by EPA. The bill authorizes $25 million per year for 5 years for assistance to states. Each qualifying state program is guaranteed at least $250,000 per year.

EPA must notify a state prior to undertaking an administrative or judicial enforcement action at a facility where there is a release or threatened release of a hazardous substance. The state must notify EPA within 48 hours whether the facility is currently, or has been, subject to state remedial action. The federal government is forbidden from taking an administrative or judicial enforcement action, or bringing a private civil action against anyone at a facility subject to a state remedial action plan. There are several exceptions to this prohibition. EPA may bring an administrative or judicial enforcement action if:

-- the state requests assistance; or

-- EPA makes a written determination that the state is unwilling or unable to take appropriate action, after giving the governor notice and an opportunity to cure; and (1) the Agency for Toxic Substance and Disease Registry issues a human health advisory, or (2) EPA determines there is an imminent threat; or

-- EPA determines the contamination has migrated across a state line; or

-- EPA obtains a declaratory judgment in U.S. district court based on: newly discovered information about the contamination; the discovery of fraud; a failure of the remedy; or a change in land use that presents a clear threat of exposure to hazardous substances.

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. The order shall cease to have effect 90 days after issuance unless the state concurs in the continuation of the order.

The bill protects from liability landholders whose property may be contaminated by a contiguous NPL site, if they did not contribute to the contamination; such landholders shall provide cooperation and facility access to those cleaning up the property. Also relieved from liability are purchasers of contaminated property, if they did not contribute to the contamination, and conducted appropriate inquiries prior to the purchase. "Appropriate inquiries" is clarified.

Title II State Role

At present, states are involved in the selection of remedies and may enter into cooperative agreements with EPA to carry out most cleanup activities on a site-by- site basis. However, final remedy selection must be done by EPA.

The bill defines several terms for use in this title, including:

-- "Authorized state" means a state that is authorized to apply its own cleanup program requirements, in lieu of the requirements of CERCLA, to the cleanup of a non-federal listed facility.

-- "Delegable authority" means the authority to perform all the elements in one or more of the following categories of authority:

- site investigations, evaluations, and risk analyses;

- development of alternative remedies, and remedy selection;

- remedial design and remedial action;

- operation and maintenance; and

- information collection, and allocation of liability.

-- "Delegated state" means a state that has received delegable authority. Delegation allows a state to implement the federal CERCLA program.

-- "Delegated facility" means a non-federal listed facility with respect to which a delegable authority has been delegated to a state.

-- "Non-federal listed facility" means a facility not owned by any entity of the U.S. Government, and that is on the National Priorities List (NPL).

-- "Enforcement authority" means all authorities necessary to recover response costs, to require Potentially Responsible Parties (PRPs) to perform response actions, and otherwise to compel implementation of a response action, including: issuance of a section 106(a) administrative order, a response action cost recovery, imposition of a civil penalty or award, settlement, and information gathering.

-- "Non-delegable authority" means authority: (1) to make grants to Community Advisory Groups; and (2) to conduct research and development under CERCLA's provisions.

The bill directs EPA "to seek ... to transfer" to states the responsibility to perform response actions (cleanups) at non-federal listed facilities. There are four ways to accomplish the transfer of responsibility: by authorization, expedited authorization, delegation, and limited delegation. Authorization allows a state to implement its own program within its borders. Delegation allows a state to implement the federal program.

-- Authorization. EPA may authorize a state to apply any or all of the requirements of the state's cleanup program in lieu of CERCLA to any non- federal listed facility if the state: (1) has adequate legal authority, financial and personnel resources, organization, and expertise; (2) will implement its cleanup program in a manner protective of health and the environment; (3) has procedures for public notice and an opportunity to comment; and (4) agrees to use its enforcement authority to require potentially responsible parties (PRPs) to perform and pay for the response actions. EPA must determine within 180 days whether the state meets the requirements, or the transfer of responsibility to the state is deemed to have been granted.

-- Expedited Authorization. A state that meets any three of the following five criteria may receive expedited authorization to operate its program in lieu of the federal program: (1) the state's program has been in effect for at least 10 years; (2) the state has spent at least $10 million from its state cleanup fund or other state source of cleanup funding; (3) the cleanup program has at least 100 employees; (4) at least 200 response actions have been performed at non-NPL sites under the program; and (5) there are at least 100 non-federal listed facilities in the state, or 6 non-federal listed facilities per million state residents. EPA has 90 days to review the state's certification, after which the transfer of responsibility to the state is deemed to have been granted.

-- Delegation. A state may apply to receive one or more delegable authorities for one or more non-federal listed facilities. The state must demonstrate that its enforcement authorities are equivalent to those under CERCLA. Its application must identify each delegable authority it requests for each non- federal listed facility for which it requests delegation. The application must also enable EPA to determine whether and to what extent: (1) the state has adequate financial and personnel resources, organization, and expertise; (2) the state will implement the delegated authorities in a manner protective of health and the environment; and (3) the state agrees to require PRPs to perform and pay for the response actions. EPA must approve or disapprove the application within 120 days or the application is deemed to have been granted.

-- Limited Delegation. EPA may delegate to a state limited authority to perform, ensure the performance of, supervise, or otherwise participate in the performance of one or more delegable authorities, as appropriate.

A state shall have sole authority to perform the transferred responsibility. A delegated state shall implement the applicable provisions of CERCLA (including regulations and guidance issued by EPA) in the same manner as EPA at facilities that are not delegated.

EPA may withdraw the transfer of responsibility if it finds that a state does not meet the requirements that it has certified or agreed to.

Before EPA performs an emergency removal at a non-federal listed facility under section 104 it must notify the state. If the state notifies EPA within 48 hours that it intends to take action, EPA shall not proceed unless the state fails to act within a reasonable period of time. In case of a public health or environmental emergency, EPA need not provide notice prior to acting.

If there is a hazardous substance release at a non-federal listed facility where responsibility has been transferred to the state, the federal government may not take an administrative or judicial enforcement action, or bring a private civil action, unless the state requests assistance, or EPA obtains a declaratory judgment in U.S. district court that the state has failed to make reasonable progress and there is an imminent threat of exposure to hazardous substances.

Of the amount of any response costs recovered from a responsible party by a state that has received transferred responsibility for a non-federal listed facility, the state may retain: (1) 25% of any federal response costs incurred there, plus (2) any response costs incurred by the state at the facility; the remainder shall be deposited in the Superfund trust fund. EPA may recover response costs from a PRP if the state says it does not intend to, or the state fails to take timely action in light of applicable statutes of limitation. If EPA takes a cost recovery action against a PRP, the state may not take any other action for recovery of response costs relating to that release.

A state may request EPA to remove all or part of a transferred facility from the NPL, and EPA shall do so if the delisting is not inconsistent with a requirement of CERCLA. The agency shall report annually to Congress describing actions taken under this provision. Facility-specific and non-facility-specific grants to delegated states are provided for. Grant money may not be used to pay the state share of response costs. The 50% state cost-share requirement at state-operated facilities would be repealed. The state cost share would be the lower of 10%, or a percentage determined by the Office of Management and Budget.

Title III Local Community Participation

Currently, CERCLA requires only that there be a public notice and comment period before the adoption of many emergency removal actions and all remedial (cleanup) actions. Technical assistance grants (TAGs) of $50,000 are available to the public.

Title III would facilitate participation in decision making by the people affected by sites that are on or proposed for the National Priorities List (NPL), or where there is a removal action expected to last more than a year or that will cost more than the amount specified in section 104(c)(1). EPA would be required to inform and consult with the affected community and to consider their views in developing and implementing the remedial action plan. The affected community would have access to documents regarding response actions, but not to those relating to liability nor confidential documents.

S. 8 directs EPA to assist in establishing Community Advisory Groups (CAGs). A CAG shall contain 20 or fewer EPA-approved voting members representing the affected community, including residents or property owners; other affected citizens; the local medical community; local Indian communities; citizen, civic, environmental, or public interest groups; local businesses; and employees at the facility. When appropriate, CAGs will include as non-voting members representatives of EPA, other federal agencies, states, Indian tribes, local governments, facility owners, and potentially responsible parties.

CAGs would serve as conduits of information to and from the community, and represent it during the remedial action planning and implementation process. CAGs may be recipients of technical assistance grants (TAGs) to obtain expert assistance in interpreting information or for training in community involvement. No more than 10% of a grant could be used to train citizens. As in current law, TAGs are for $50,000, but the bill allows a waiver of that limit. The bill eliminates the current law fund-matching requirement, and authorizes early disbursement to the TAG recipient in advance of the recipient's making expenditures to be covered by the grant; up to $5,000 may be advanced at a time.

Title IV Selection of Remedial Actions

Under CERCLA, cleanup standards are set by looking at applicable or relevant and appropriate requirements (ARARs) of federal and state laws. Where no ARARs exist, cleanup levels are determined using site-specific risk assessments. The law states a preference for remedies using treatment (of soil and groundwater) that permanently reduces or eliminates volume, toxicity, and mobility of contaminants.

Section 401 adds two definitions to CERCLA section 101. The first new definition, "technically impracticable," means impracticable due to engineering infeasibility or unreliability or inordinate costs. The second added definition, '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.

Mandate to Protect Human Health and the Environment. Section 402 requires the President to select a cost-effective remedial action that achieves the mandate to protect human health and the environment, and that complies with other applicable federal and state laws. The bill states that, notwithstanding any other provision of this Act, a remedial action shall protect human health. The remedial action is deemed to protect human health if, considering the expected exposures associated with the current or reasonable anticipated future land and water use, and on the basis of a facility-specific risk evaluation, the remedial action: (1) achieves 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 (one in 10,000 to one in 1,000,000) for the affected population; (2) achieves a residual risk from exposure from nonthreshold carcinogenic and noncarcinogenic hazardous substances that does not exceed a hazard index of 1; and (3) prevents or eliminates 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, at levels that meet the goals for protecting human health.

Stated another way, the remedial action will "protect human health" if the remaining chemicals at the site are: (1) at levels unlikely to cause more than one case of cancer in a population of between 10,000 and 1,000,000 people who are exposed all their lives; and (2) below levels expected to cause any other adverse health effects in any people exposed.

The remedial action for a facility is deemed to protect the environment if it protects plants and animals from significant impacts resulting from releases of hazardous substances at the facility. The determination of what is protective would not be based on individual plants and animals unless the species is listed as threatened or endangered under the Endangered Species Act.

A remedy must 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 at NPL sites if the state demonstrates that they are generally applicable and consistently applied to remedial actions, and the state publishes and identifies the applicable requirements to the President. Federal hazardous waste management provisions of the Solid Waste Disposal Act (Section 3004) do not apply to the return of "contaminated media into the same media in ... then-existing areas of contamination at the facility." Federal and state procedural requirements, including permitting requirements, shall not apply to response actions conducted on site at the facility. Waivers from the substantive requirements of federal and state environmental and facility siting laws are authorized for specified reasons; however, the President must publish findings including documentation and an explanation of how the remedial action meets the cleanup requirements of Section 121.

If no applicable federal or state standard exists for a contaminant, a remedial action must meet a standard that the President determines to be protective.

Remedy Selection Methodology. The President shall select a remedial action from among a range of alternatives by following remedy selection rules and balancing adequately the following factors:

-- effectiveness of the remedy in protecting health and the environment;

-- reliability in achieving the protectiveness standard over the long term (replacing the current law's preference for permanence); -- short-term risk posed by implementing the remedial action;

-- acceptability to the community;

-- implementability; and

-- reasonableness of the cost.

A remedial action that implements a presumptive remedial action is considered to achieve the goals to protect human health and the environment, balance the above factors, and account for remedy selection rules.

Remedy Selection Rules.

In selecting a remedy for a facility, the President shall take into account the reasonably anticipated future use of land and water potentially affected by the release. In developing assumptions regarding reasonably anticipated future land uses, the President must consider the views of local officials and community members and consider specified factors. In developing assumptions regarding reasonably anticipated future ground water and surface water uses, the President must give substantial deference to classifications in a state comprehensive ground water protection program and consider other designations or plans adopted by the governmental unit that regulates surface or ground water use planning in the area. The information on which the President bases the development of these assumptions must be included in the administrative record.

If appropriate, a remedial action for contaminated ground water may proceed in phases, allowing collection of sufficient data to evaluate other actions at the site, and to determine the appropriate scope of the remedial action. Ground water decisions must take into consideration current or reasonably anticipated future use of the groundwater, any natural attenuation that would occur without action, and the effect of any other response actions. A remedial action shall seek to protect uncontaminated groundwater that is suitable for use as drinking water for such beneficial use unless it is technically impracticably to do so. For contaminated ground water that is, or is planned to be, used for drinking, if it is technically practicable, the President shall try to restore it to a condition suitable for beneficial use. In determining technical practicability and timeframe for restoring ground water, the President may distinguish among ground water contamination zones at a site.

For contaminated ground water that is suitable for drinking water, a remedial action must, if technically practicable, attain in the contaminated ground water plume and extending to the edge of any contaminant that will be managed in place, either federal drinking water standards or state water quality standards for water designated for drinking water use, whichever is more stringent. If no standard exists, then the remedy must attain a level that is protective of human health and the environment. If restoration is technically impracticable, the selected remedy may rely on point-of- use treatment or other measures to ensure there is no ingestion of contaminated drinking water; point-of-use treatment shall be considered as part of the remedy's operation and maintenance.

For ground water not suitable for drinking water, a remedy must, if technically practicable, attain a standard that is protective of the current or future uses of the water and any connected surface water.

Groundwater shall not be considered suitable for drinking water if naturally occurring conditions prevent it, or it is so contaminated by broad-scale human activity (unrelated to a facility release) that restoration is technically impracticable, or if it is physically incapable of yielding 150 gallons a day to a well or spring (unless it is currently used as drinking water).

For discrete areas containing highly toxic contaminants that cannot be reliably contained or are highly mobile, and present a substantial risk to human health and the environment, the remedy selection process shall include a preference for a remedy that includes treatment. For such areas, the President may select a final containment remedy at a landfill or mining site in specified circumstances.

The Administrator may not select a remedy that allows a contaminant to remain at a facility above a protective level unless institutional and engineering controls are incorporated into the remedial action that ensure protection of human health and the environment. Institutional controls are defined to mean restrictions of the permissible use of land, ground water or surface water included in any enforceable decision document for a NPL facility to comply with the requirements to protect human health and the environment. A remedial action that uses institutional and engineering controls shall be considered to be on an equal basis with all other remedial action alternatives. EPA is required to maintain a registry of institutional controls that place restrictions on land, water, or other resources uses; and that are included in an enforceable decision document.

If, after reviewing a remedy, the President finds that attaining a standard is technically impracticable, the President shall select a technically practicable remedy that protects public health and most closely achieves the cleanup goals through cost- effective means.

Facility-Specific Risk Evaluations.

Section 403 states that the goal of a facility-specific risk 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 shall: (1) use chemical and facility-specific data in preference to default assumptions whenever practicable or, if this is not practicable, use a range and distribution of realistic and scientifically supportable default assumptions; (2) ensure that the exposed populations and all pathways are accurately evaluated; (3) consider current and anticipated future use of land and water resources in estimating exposure; and (4) consider the use of institutional controls. The President may consider only institutional controls that are in place at the facility when the risk assessment is conducted.

This section directs that facility-specific risk evaluations be used to: determine the need for remedial action evaluate the current and potential exposures and risks at the facility; screen out contaminants, areas or exposure pathways from further study; evaluate the protectiveness of alternative proposed remedies; demonstrate that the selected remedial action can achieve the goals of protecting health and the environment and land and water resource uses; and establish protective concentration levels if no applicable requirement exists or if an applicable requirement is not sufficiently protective.

The President must ensure that the presentation of health effects information is informative, comprehensive and understandable. The document reporting the results of the risk evaluation must specify each population addressed by the risk estimates, present the central estimate of risk for specific populations and the upper- and lower- bound risk estimate, identify uncertainties is the assessment process, and known peer- reviewed studies that do or do not support the health effects estimates and the methodology used to reconcile inconsistencies in the data. In preparing facility- specific risk evaluations, the President must use the best available peer-reviewed science and studies, and data collected by accepted methods. Within 18 months of enactment, the President must promulgate a regulation implementing this section.

Presumptive Remedial Actions.

For the purpose of streamlining the remedial action selection process, Section 404 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. Such presumptive remedies may include institutional and engineering controls. They must be practicable, cost-effective, and protective of human health and the environment. Within one year, EPA must issue a list of presumptive reme dial actions that are available for specific categories of facilities. At least once every three years, EPA must solicit information for updating the presumptive remedial actions to incorporate new technologies or to designate additional categories of facilities.

Section 404 directs the President to expedite implementation of response actions and reduce transaction costs. This is to be achieved by implementing 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. The President must attempt to expedite completion of response actions through appropriate phasing of investigative and response activities. The results of initial investigations shall be used, as appropriate, to focus subsequent data collection or to develop multiple phases of a response action.

The bill authorizes the President to allow a potentially responsible party (PRP) or group of PRPs to perform a response action where the President determines that the party(ies) will perform the action properly and promptly and the PRPs agree to reimburse the Fund for oversight costs. The President may tailor the level of oversight of PRP-led response actions taking into consideration specified factors.

The bill requires EPA to issue guidelines identifying the contents of a draft proposed remedial action plan which must include a discussion of alternative remedies and their costs, a recommended remedy, and a summary of information used to make the recommendation including a brief description of site risks.

Remedy Review Boards.

EPA must establish at least one remedy review board comprised of technical and policy experts from federal and state agencies. Within 180 days of enactment, EPA must promulgate a regulation establishing procedures for the operation of the review board including cost-based or other criteria for determining which draft proposed remedial action plan will be eligible for review. EPA may develop different criteria for different categories of facilities. The criteria shall, to the extent practical, allow for the review of not less than an annual average of one-third of the draft proposed remedial action plans. A proposed remedial action plan that meets the criteria shall be submitted to the board unless EPA determines that review by the board would unacceptably delay measures to protect human health and the environment. The Administrator shall give substantial weight to the board's recommendations in determining whether to modify a remedial action plan. The President may approve a draft proposed remedial action plan prepared by a PRP.

Delisting NPL Sites.

Section 405 sets procedures and time frames for EPA to provide notice of completion of a remedial action and delisting of a facility from the NPL. Delisting does not affect liability allocations, cost-recovery provisions, or operation and maintenance obligations. A PRP is released from liability if the facility is available for unrestricted use, and operation and maintenance are not needed. If the facility is not available for unrestricted use, or operation and mainte nance are required, EPA must review the status of the facility every 5 years and require additional remedial action, as needed. A facility or portion of a facility may be made available for restricted use.

Transition rules for remedy review.

Section 406 establishes transition rules for facilities currently involved in remedy selection. EPA is directed to use the remedy review boards to determine, on petition by the implementor of a record of decision (ROD), whether an alternative remedy should apply to a facility, rather than the one specified in the ROD.

For facilities for which a record of decision (ROD) was signed before the date of enactment and that meet specified criteria, the implementor of the ROD has one year to submit to the remedy review board a petition to update the ROD to incorporate alternative technologies or approaches in the remedial action. To be eligible for review, the implementor must demonstrate that the alternative proposed remedial action meets the cleanup requirements of Section 121, the Governor does not object to consideration of the petition, the ROD was issued before certain dates, and the ROD has implementation costs in excess of $30 million (or the cost is between $5 million and $30 million, and the alternative remedy achieves at least a 50% cost savings). The review board must prioritize decisions to accept petitions for remedy update based on the above criteria and the potential for cost savings. In forming recommendations for remedy updates, the review board must consider the continued relevance of the exposure and risk assumptions in the original remedy, the effectiveness of the original cleanup strategy, cleanup goals, new technologies and approaches, the level of community and PRP involvement and consensus in selecting the original strategy, and other factors. The board must submit its recommendations to EPA within 180 days of receiving a petition. In deciding whether to approve a proposed remedy update, EPA is to give substantial weight to the board's recommendations. EPA must submit an annual report to Congress on the Agency's activity in reviewing and modifying RODs signed before the date of enactment of this section. In conducting remedial action reviews, EPA should give priority consideration to RODs that were issued before October 1, 1993, and that involve primarily ground water treatment for dense, nonaquaeous phase liquids.

National Priorities List. When listing a site on the NPL, EPA should not include, to the extent practicable, any parcel of real property at which no release has occurred, but to which a released contaminant has migrated in ground water unless the ground water is (or was) in use as a public drinking water supply, and the facility owner or operator is liable for any response costs.

Title V Liability

Current law imposes joint and several liability on a strict and retroactive basis, covering owners and operators of sites, generators and transporters of hazardous substances released at Superfund sites, and those who arranged for disposal at those sites. It authorizes EPA to settle with PRPs, provides authority for EPA to prepare non-binding allocations of responsibility, and has special settlement provisions for de minimis parties. EPA may use mixed funding, and may provide settling parties protection from third party lawsuits and covenants not to sue.

The bill defines "codisposal landfills", "municipal solid waste", "municipality", and "sewage sludge". A codisposal landfill is one that was listed on the NPL as of January 1, 1997; received municipal solid waste or sewage sludge (MSW or SS); and also may have received, before the effective date of RCRA subtitle C requirements, hazardous waste, if the landfill contains predominantly MSW or SS that was transported to the landfill from outside the facility.

Title V would exempt from liability for any response costs incurred after the date of enactment the generator, arranger, and transporter of MSW and SS. De micromis contributors are exempt from liability for response costs incurred after enactment unless the material contributed or may contribute significantly to the amount of response costs; a de micromis contribution is less than 200 pounds or 110 gallons of material containing a hazardous substance prior to January 1, 1997. Also exempt from liability is any small business with fewer than 30 employees, or less than $3 million in annual gross revenues.

For generators, transporters, and arrangers there is no liability for response costs incurred after enactment for codisposal landfills. For the owners and operators of codisposal landfills, the situation is different, and depends on whether the owner or operator is private or a municipality, and if the latter, on its size.

Large and small municipalities are defined as those with populations above and below 100,000 respectively. For a codisposal landfill that is owned or operated only by small municipalities, and is not subject to RCRA subtitle D criteria, the aggregate liability of the municipalities for response costs incurred after enactment shall be the lesser of (a) 10% of the total response costs, or (b) the cost of complying with RCRA subtitle D (as if the facility had continued to accept MSW through January 1, 1997). For large municipalities, their aggregate liability would be the lesser of 20% of the total response costs, or the RCRA subtitle D compliance costs.

For codisposal landfills owned or operated by non-municipalities, and that are not subject to RCRA subtitle D, the liability would be the lesser of 40% of the total amount of response costs, or the costs of complying with RCRA subtitle D. For codisposal landfills owned or operated by a combination of small and large municipalities, or persons other than municipalities, and are subject to RCRA subtitle D, the allocator shall determine the proportion of the use of the landfill that was made by small and large municipalities and persons other than municipalities, and shall allocate among them an appropriate percentage of total liability not exceeding the aggregate liability percentages stated. For a codisposal landfill that is subject to RCRA subtitle D, regardless of the status of the owners and operators, the aggregate liability is no more than the costs of complying with RCRA subtitle D.

The codisposal landfill exemption does not apply to one who 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.

A responsible party who currently is subject to a section 106 administrative order or has entered into a settlement decree is required to fulfill his obligations, even if the responsible party is not liable by reason of a liability exemption or limitation. The party may apply to the Fund for contribution, and shall be reimbursed expeditiously.

The bill replaces the de minimis settlement provisions of section 122 with a provision establishing expedited settlement procedures for parties that contributed less than 1% of the volume of material containing a hazardous substance at an NPL site. It provides that any such settlement will be final if the settling party pays a premium of not to exceed 10% of the amount of the settlement.

The bill would establish a mandatory, non-binding allocation process for multi-party sites where response costs are incurred after enactment. Excluded from the allocation process are facilities where cost shares are already determined. The bill excludes from liability relief any party found guilty of violating federal or state law resulting in the release of a hazardous substance which caused the incurring of response costs at the facility.

The bill sets a moratorium on litigation until 120 days after the allocator's report is issued.

The bill would require that each allocation be performed by a neutral third-party allocator in a fair, efficient, and impartial manner. The allocator is to make every effort to streamline the process and minimize costs. Prior to issuing a final allocation report, the allocator shall give each party opportunity to comment on a draft. The actions of the allocator would not be subject to judicial review.

Within 90 days of enactment, the bill requires EPA to establish a process for the expedited selection and retention of a neutral allocator. The EPA Administrator or the Attorney General shall participate in the allocation process as the representative of the Fund from which any orphan share shall be paid. Allocators are authorized to acquire reasonable support services, and the Administrator may not limit the discretion of the allocator in the conduct of the allocation.

The Administrator begins the allocation process for a facility by performing a comprehensive search for all potentially responsible parties. The allocator is required to allow each of these parties at least 30 days to name additional potentially responsible parties and provide supporting information. These parties will be included on the list of allocation parties unless there is no basis to believe they are liable. Any party assigned a zero share in the allocator's final report, however, will be entitled to recover its costs of participating in the process, including attorney's fees, from the person who submitted its name.

The allocator is required to provide a written final allocation report to the Administrator and each allocation party specifying the percentage share of each party and any orphan shares. The allocator shall allow the parties 60 days to reach a voluntary settlement, and shall adopt any such settlement in lieu of issuing an allocation report if it allocates at least 95% of the recoverable costs of response action and contains the terms and conditions generally applicable to allocation settlements.

The allocator shall prepare a nonbinding allocation report that specifies the percentage share of each party, and any orphan share. The factors for allocation are:

-- the amount, degree of toxicity, and mobility of hazardous substances contributed by each party;

-- the degree of involvement of each party;

-- the degree of care exercised with respect to hazardous substances;

-- the cooperation of each party in contributing to any response action, and in providing complete and timely information to the allocator; and

-- such other equitable factors as the allocator determines are appropriate.

The orphan share consists of: (1) the shares of insolvent or defunct parties; (2) the remainder of any share not paid by a party where: (i) it was an expedited settlement with a person with limited ability to pay; (ii) the party's share is eliminated, limited, or reduced by any provision of this Act; or (iii) the person settled with the U.S. before the allocation was completed. Unattributable shares will be distributed among the allocation parties and the orphan share in accordance with the allocated share assigned to each.

The allocator has information-gathering authorities, including the authority of the President under section 104(c) and authority to issue subpoenas. Information submitted to the allocator is 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 does not constitute a waiver of any privilege under any federal or state law.

The Administrator and the Attorney General may jointly reject a report by an allocator if they determine, not later than 180 days after the Administrator receives the report, that no rational interpretation of the facts would form a reasonable basis for the shares assigned to the parties, in light of the factors required to be considered, or that the allocation process was directly and substantially affected by bias, procedural error, fraud, or unlawful conduct. If a report is rejected, the allocation parties shall select an allocator to perform a new allocation based, to the extent appropriate, on the record available to the previous allocator.

Unless a report is rejected, any party at a mandatory allocation facility shall be entitled to resolve its liability to the United States if it offers to settle on the share specified by the allocator within 90 days of issuance of the allocator's report. The terms of such settlements shall provide authority for the Administrator to require any allocation party or group of parties to perform the response action, and shall include i) a waiver of contribution rights against all potentially responsible parties; ii) a covenant not to sue and provisions regarding performance or adequate assurance of performance of the response action; iii) a premium not to exceed 10% to cover the risk of the United States not collecting unrecovered response costs; iv) complete protection from all claims for contribution; and v) provisions for prompt contribution from the Fund for any response costs incurred in excess of the party's allocated share.

The bill provides that an allocation party that incurs response costs after the date of enactment to an extent that exceeds its allocated share shall be entitled to prompt payment of the excess amount from the Fund, reduced by an amount not exceeding the litigation risk premium. The bill includes specific provisions concerning the timing of any such payment, failure to perform work, auditing of claims, and waiver of contribution rights from other responsible parties.

If funds are unavailable in any fiscal year to provide contribution to all eligible allocation parties, the Administrator may delay payment until funds are available. The priority for payment shall be based on the length of time that has passed since settlement. Delayed payments shall include interest on the unpaid balance at a rate equal to that of the current average market yield on outstanding marketable obligations of the United States with a maturity of 1 year.

If a party does not pay its allocation share within 120 days of the allocator's report, EPA may commence an action to recover response costs not recovered through settlements with other parties. Parties that do not pay their allocation share are subject to the joint, several, strict, and retroactive liability of section 107.

The cost of implementing the allocation process and the funding of orphan shares shall be considered necessary response costs under Superfund.

Response action contractors (RACs) would receive additional liability protection by being excluded from the definition of owners and operators, and by extending their existing exemption from federal law to state law. RAC negligence would be evaluated based on the standards and practices in effect at the particular time and place. Subcontractors are also covered.

The liability of "501(c)(3) organizations" (religious, charitable, scientific and educational organizations) that receive a facility as a gift, would be limited to the fair market value of the facility. The bill relieves the liability of a railroad owner or operator of a spur track if he is not responsible for a release.

The bill provides an exemption from liability for those who arrange for the recycling of seven specified materials if they can meet certain threshold demonstrations. The seven materials are paper, plastic, glass, textiles, rubber (other than whole tires), metal, and batteries.

Title VI Federal Facilities

Current law makes federal agencies subject to CERCLA in the same way as other parties. The agencies must pay for cleanup of their facilities out of their appropriations; they are not eligible to use any Superfund monies. Cleanups of federally owned sites on the NPL are under the sole jurisdiction of federal environmental laws; federally owned sites not on the NPL are subject to state law concerning removal, remedial action, and enforcement.

Title VI authorizes EPA to transfer responsibilities over federally owned NPL sites to qualified states. To receive authority over a site, a state must have an adequate environmental enforcement program, utilize CERCLA's remedy selection process and standards, and abide by the terms of any existing interagency agreement between EPA and the federal agency that owns the site. The President may take enforcement action at such a transferred site if the state requests it, or if EPA obtains a declaratory judgment in U.S. district court that the state has failed to make reasonable progress and there is an imminent threat of exposure to hazardous substances.

A federal officer, employee, or agent may not be held criminally liable for failing to comply with a state order to take a response action at a federally owned or operated site, unless: (1) he has not fully performed his duties to ensure that a sufficient request for funds to undertake the response action was included in the President's budget, or (2) appropriated funds were available to pay for the response action.

The President may designate federal facilities on the NPL for research, development, and application of innovative technologies by federal and state agencies, and public and private entities. EPA may approve or deny the use of any innovative technology at a federal site.

Title VII Natural Resource Damages

CERCLA makes the federal and state governments trustees for natural resources; claims against responsible parties must be made within 3 years after the later of (1) discovery of the loss, or (2) the date on which regulations are promulgated.

The bill would limit the measure of damages for injury or loss of natural resources to the costs of restoration, replacement, or acquisition of equivalent natural resources, and the costs of assessing damages. The bill eliminates non-use damages, and claims for lost-use activities that occurred prior to December 11, 1980; there can be no double recovery under both CERCLA and other law. Nor can there be recovery if the natural resource has returned to its baseline condition before the filing of a claim for natural resource damages, or the incurrence of assessment or restoration costs by a trustee.

The bill strikes the provision which gives a trustee's determination of damages the force and effect of a rebuttable presumption. New natural resource injury and restoration assessment regulations must be written that identify procedures for determining the reasonable cost of restoration, and that require consideration of natural recovery as a restoration method, and the availability of replacement or alternative resources. The regulation shall be issued within 2 years of enactment, and be reviewed every 5 years.

Under the bill, the goal of any restoration shall be to restore the injured natural resource to the condition it would have been in had the hazardous substance release not occurred. A trustee shall select a restoration alternative that is technically feasible, in compliance with applicable law, consistent with CERCLA and the National Contingency Plan, cost-effective, and timely. The range of alternatives considered by the trustee shall consider an alternative that relies on natural recovery. In selecting a restoration alternative, the trustee shall take into account what any removal or remedial action carried out or planned has accomplished or will accomplish. A restoration alternative may include temporary replacement of the lost services provided by the natural resource.

A responsible party may seek contribution from other liable persons for natural resource damages.

The bill proposes that where the trustees and PRPs have entered into a cooperative agreement, the period in which an action for damages may be brought would be the earlier of 6 years after the signing of the cooperative agreement, or 3 years after the completion of the damage assessment.

A trustee seeking damages for injury to a natural resource shall initiate mediation of the claim with any PRPs within 120 days after commencing the action for damages.

The amendments made by this title shall not apply to an action to recover natural resource damages under section 107(f) in which trial has begun before July 1, 1997, or in which a judgment has become final before that date.

Title VIII Miscellaneous

Section 801 amends section 105(a) of CERCLA to require the President to revise the National Hazardous Substance Response Plan (a part of the National Contingency Plan) to establish results-oriented procedures for remedial actions that minimize the time required and reduce the potential for exposure to hazardous substances in a cost-effective manner.

Section 802 amends section 105 of CERCLA to limit additions to the National Priorities List to 30 vessels and facilities in 1997, 25 in 1998, 20 in 1999, 15 in 2000, and 10 in any year after 2000. EPA shall prioritize the vessels and facilities on a national basis in accordance with the threat they pose to health and the environment. Additions to the list may be made only with the concurrence of the Governor of the state in which the vessel or facility is located.

Section 803 increases the authority for emergency response actions from $2 million to $4 million, and the time limit from 1 year to 2.

Title IX Funding

Section 901 amends CERCLA section 111 to authorize appropriations from the Fund of $8.5 billion for the 5-year period, FYs 1998 to 2002.

Section 902 amends CERCLA section 111 to allow payment of orphan shares as a use of the Fund.

Section 903 amends CERCLA section 111 to authorize appropriations from the Fund for the activities of the Agency for Toxic Substances and Disease Registry of $50 million for each of FYs 1998-2002.

Section 904 sets limits for FY1998-2002 of $30 million per year for alternative or innovative technologies research, development, and demonstration programs; for hazardous substance research, demonstration and training, $37 million for FY1998, $39 million for FY1999, $41 million for FY2000, and $43 million each year for FY2001 and FY2002, with no more than 15% of those amounts to be used for training; and $5 million annually for university research centers.

Section 905 authorizes appropriations from General Revenues of $250 million annually for FYs 1998-2002.

Section 906 limits funding for Community Action Groups to $15 million for the period from January 1, 1997, to September 30, 2002. The section also specifies that any response cost recoveries will be credited as offsetting collections to the Superfund appropriations account.

Section 907 amends CERCLA section 111(a) to allow the Fund to be used to reimburse PRPs if a PRP and EPA have entered into a settlement under which the Administrator is reimbursed for response costs, and the Administrator determines (through a federal audit) that the costs are unallowable due to contractor fraud or the Federal Acquisition Regulation, or should be adjusted due to audit procedures.