like, we will take what we can get because the current status quo is simply unacceptable. It really places one heck of a burden on cities.

Mr. BOEHLERT. Thank you very much, Mayor Marshall.

Mr. BORSKI. Mr. Turner? May I, Mr. Chairman?

Mr. BOEHLERT. Do you want to respond to that?

Mayor TURNER. Certainly. I think that it really depends on what you mean by brownfields though. In the discussion that was occurring this morning, the identification of what is an innocent purchaser defense seemed to be part of the chasm that exists in what bill should go forward. Brownfields reform, for it to be effective, is going to have to have an innocent purchaser defense where if you didn't pollute it, you are not liable for it. And the definitions that we were hearing this morning did not follow that.

Mr. BORSKI. But if we had that, if we had prospective purchaser, you would be for a stand-alone bill if we couldn't get comprehensive through that took care of that

Mr. BOEHLERT. Well, obviously they would want to see the bill. But the fact of the matter is if I

Mr. BORSKI. I have a bill I would recommend to you, H.R. 1750. We will send you a copy.

glad

Mr. BOEHLERT. They will be glad to look at it. I would hope that you would share it with the U.S. Conference of Mayors as we have for all these years.

Mr. BORSKI. Good. By all means.

Mr. BOEHLERT. Let me point out that it is well beyond-it is not a choice of comprehensive reform or more targeted specific reform, we passed that debate long ago. We are not going forward with comprehensive Superfund reform. We are going forward with H.R. 1300, which has earned the support of Mayors from across the country and a whole wide range of organizations with narrowly, specifically targeted reforms. Čomprehensive is off the table. Í would prefer more comprehensive reform, but we are narrow, we are specific, we are addressing legitimate concerns, and we have done so in a bipartisan manner, which has earned the support of the organization you represent.

But I can tell Mr. Borski from my experience working with the Conference of Mayors, you are always receptive to any proposal that is advanced that addresses your legitimately identified problem. So thank you very much.

Mr. BORSKI. Mr. Chairman, my question to the Mayors was not if-obviously they support this bill of yours and they are free to do that and should be, my question is if that is not doable. They were here, they heard the Administrator today. There are more than small problems with the bill. The question really is can we do, if we can't do 1300, can we do a brownfields specific stand-alone bill and would that be helpful or not?

Mr. BORSKI. We could wait another couple Congresses before you get something else through.

Mayor TURNER. Right. I think Mayor Marshall was saying that our goal is that there be a bill that is successful and that passes and the bill that we came to testify for has bipartisan support. The possibility in the future of a limited brownfields bill is something that it sounds like the Administration from Administrator Browner

that they oppose also. And that really is the issue that we are here to support that is in Boehlert's bill.

Mr. BOEHLERT. Thank you very much. I appreciate that.

Mr. BORSKI. The Administrator has suggested she would sign 1750 into law, which would give the brownfields relief.

Mr. BOEHLERT. She would sign it to law?

[Laughter.]

Last time I checked, there was somebody at 1600 Pennsylvania that signs it.

Mr. Sherwood, it is a pleasure to recognize you?

Mr. SHERWOOD. Thank you, Mr. Chairman. And the testimony of the Mayors here today has been most interesting to me, and I thank you for coming because I think you have synthesized for us or brought together a big problem we are all grappling with and it is the relationship of development of greenfields or brownfields. And what you are telling us is if we can't get an innocent purchaser defense, the pressure will be to continue to develop greenfields. So we lose our farmland. We lose our timberland. We lose our view. And all the things that we don't want to lose.

And we can't bring the industrial development and the real estate prosperity back into our central cities where the infrastructure is already there. We don't have to rebuild it. We don't have to build it to start with. It is there. So I just want to bring that out. It seems so obvious to me. But do you feel that if we can do that and sort of get a clean bill of health after some remediation is being done for a purchaser that then you will have this activity back in your cities?

Mayor TURNER. Absolutely. We are approached daily and weekly from developers who have interests in properties in our city that have the financial wherewithal, the capital, and the businesses that will produce jobs only to have the deals and transactions fall through the cracks as a result of an inability to provide them the assurances that if they acquire land that is currently abandoned and develop it, that they would not be subject to liability for contamination that they did not create.

Mayor MARSHALL. Mr. Sherwood, I think it is a puzzle and this is one piece of the puzzle. There are a lot of factors in our society that push greenfield development over brownfields redevelopment and if you don't take each little step that you can in order to reverse that trend, simply because there exists all kinds of other steps that must be taken, it means you will take no steps and nothing will get done.

This is an opportunity to take a step in the right direction. Is it going to solve the entire problem for a city like Macon? Of course not. It is not going to do that. But it heads us in the right direction and it is a giant step, it is not a baby step.

Mr. SHERWOOD. But your testimony mirrors almost exactly the input that I get from Austin Burke, the head of the Stranton Chamber of Commerce, that if he tries to sell a brownfields as a opposed to a greenfield, it is no contest.

Mayor MARSHALL. That's true.

Mr. SHERWOOD. And, therefore, we have to remove the restrictions on the brownfields so that we can re-use that industrial property.

Mayor MARSHALL. Absolutely.

Mr. SHERWOOD. Thank you very much.

Mr. BOEHLERT. Thank you very much, Mayor Marshall, Mayor Turner. I want to thank you both very much. And we will do the best we can to try to help you and to try to help the President accept the challenge of redeveloping our cities and creating more job opportunities where they are needed most in your cities in Dayton and Macon and New Orleans. So we are partners for progress in this effort. Thank you once again.

Mayor TURNER. Thank you for having us.

Mayor MARSHALL. Thank you, Mr. Chairman.

Mr. BOEHLERT. Our next panel consists of Mr. Stanley Diver, Vice President, Diver Chevrolet of Wilmington, Delaware. He is the spokesperson for the National Automobile Dealers Association, which has endorsed H.R. 1300. Mr. Thomas Sullivan, regulatory policy counsel from the National Federation of Independent Business, with whom we have worked closely, and they strongly endorse this bill, H.R. 1300. Mr. Michael Steinberg, Morgan Lewis & Bockius, Superfund Settlements Project; and Mr. Bernard J. Reilly, Corporate Counsel for DuPont De Nemours, a Chemical Manufacturers Association representative; and finally Velma Smith, Executive Director of Friends of the Earth. And she is making her way to the table.

We will go in the order of introduction. First, Mr. Diver from the National Automobile Dealers Association. Mr. Diver?

And in each instance, we would ask that you try to hold your testimony to no more than five minutes. Your full statement will appear in its entirety in the record at this point, but as you can see, we are trying to get on with the proceedings.

And the other thing is—and I always do this and I see some veterans here at the table-you've been before these subcommittees and full committees before, I always have to apologize because it would appear that you have two Members, three Members of Congress here, and what is all the interest in this bill for? The fact of the matter is there are other hearings going on at this very minute. The House is considering very important legislation dealing with the Y2K problem. Members aren't sitting around someplace twiddling their thumbs. They are off and doing other things. But we are vitally interested in your testimony and that will be shared with all of our colleagues. And, quite honestly, if the truth be known, we have the most important ingredients in this overall formula right here, the professional staff on both sides of the aisle.

TESTIMONY OF STANLEY M. DIVER, VICE PRESIDENT AND DEALER OPERATOR, DIVER CHEVROLET, WILMINGTON, DELAWARE, ON BEHALF OF THE NATIONAL AUTOMOBILE DEALERS ASSOCIATION; THOMAS M. SULLIVAN, REGULATORY POLICY COUNSEL, NATIONAL FEDERATION OF INDEPENDENT BUSINESS, WASHINGTON, D.C.; MICHAEL W. STEINBERG, MORGAN LEWIS & BOCKIUS, WASHINGTON, D.C., ON BEHALF OF THE SUPERFUND SETTLEMENTS PROJECT; BERNARD J. REILLY, CORPORATE COUNSEL, DUPONT COMPANY, WILMINGTON, DELAWARE, ON BEHALF OF THE CHEMICAL MANUFACTURERS ASSOCIATION; AND VELMA SMITH, EXECUTIVE DIRECTOR, FRIENDS OF THE EARTH, WASHINGTON, D.C.

Mr. DIVER. Mr. Chairman and members of the subcommittee, my name is Stanley Diver and I am Vice President of Diver Chevrolet in Wilmington, Delaware. On behalf of the National Automobile Dealers Association, our dealership, and our employees, I would like to thank you for the opportunity to testify today on the negative impact of the flawed Superfund program on small contributors. At the present time, my dealership is mired in litigation at the Berks Superfund Site in Douglassville, Pennsylvania. In 1991, the Federal Government commenced a lawsuit against a number of major waste generators alleging violations of the Superfund law at the Berks site, which operated as an oil and solvent recycling facility from the 1930's until 1985. In turn, these major waste generators sued several hundred small or potentially responsible parties, and we were one of the many dealers named as a PRP.

Diver Chevrolet, like most dealerships, is identified as a contributor by the testimony of a former truck driver who transported used oil to the Berks site. Based almost entirely on his personal recollection, he estimated the time period which he believed he had picked up used oil, as well as the amount that he collected.

Our alleged contribution was initially set up at 81,000 gallons during the period of 1965 to 1980. After carefully analyzing our dealership's records and compiling affidavits of former employees, we demonstrated that the amount of used oil allocated to the dealership was impossible. Based on our storage capacity in earlier years and the fact that the allocated quantity far exceeded the amount of used oil generated by the dealership. Despite our diligent efforts, this detailed analysis was entirely outweighed in the process by the truck driver's vague recollection and a few handwritten notes from only one of the 15 years during which used oil was allegedly collected from the dealership.

Due to our analysis, the amount was later reduced to under 69,000 gallons, but this amount is still clearly excessive and impossible. The rules of evidence used in this process were anything but fair. Our contribution to the site was based on questionable evidence and extrapolation. Because of this process, we were left with having to prove a negative to reduce our liability and, of course, it is just about impossible to meet that burden of proof.

As a result, we have been assessed an astounding liability of more than $168,000 based on our alleged contribution. Since the dealership was in compliance with the law at the time the used oil was collected for recycling, I am utterly amazed at the guilt that

has been applied to my company's well-intended actions. It is especially galling given the fact that we sent the used oil to be recycled and relied on authorized used oil handlers.

Unfortunately, our case is not at all unique. In the vast majority of cases in which automobile dealers have been designated as parties to Superfund sites, liability has been based on efforts to recycle rather than dump used oil. What seemed to be an environmentally responsible act has turned out to be a costly nightmare. While it is my nature to stand and fight for what is right, I have had no choice but to recommend to my fellow family owners that we accept any settlement offer. What choice do we have, as the cost of litigation would be exorbitant and the disclosure of an open-ended, several liability of this magnitude would overwhelm our year-end financial statement? However, this settlement is a huge burden as the costs cannot be passed along in any way and so it comes out of the wallets of the Diver family.

The legislation you have sponsored is a major step toward providing liability relief for those who sent their used oil to be recycled. As I understand it, you bill includes two provisions that address the concerns of many small contributors regarding used oil recycling. First, it would eliminate liability prospectively for those persons who arrange for the recycling of used oil. More importantly, it expands the protections under current law for service station dealers to include used oil collected for recycling in earlier years from vehicle oil changes and from "do-it-yourselfers."

In closing, I would like to emphasize that like many dealers, we sent our used oil to a legitimate recycling facility. It was stored in compliance with all applicable regulations in effect at the time. It was not mixed with any hazardous substances, and it was transported by a legitimate waste hauler to a licensed facility established to recycle used oil into a reusable resource.

Quite frankly, I don't know what steps our dealership could have taken to be more environmentally responsible. That is why I strongly urge the subcommittee to support the bipartisan BoehlertRahall bill and thereby relieve the burden of liability that has been imposed on those persons who sent their used oil to recycling facilities. Doing so would not only restore equity to the Superfund program, but would also prevent innocent parties from being penalized for acting responsibly. Please don't allow the law to continue punishing people who weren't negligent in any way, and who made sincere efforts to act in an environmentally responsible manner. Thank you again for the opportunity to express my views.

Mr. SHERWOOD. [presiding] Thank you very much, Mr. Diver.
Mr. Sullivan?

Mr. SULLIVAN. Mr. Chairman and Members of the subcommittee, thank you for the opportunity to testify this afternoon on the urgent need for small business liability relief in Superfund reform legislation.

My name is Tom Sullivan. I am regulatory policy counsel for the National Federation of Independent Business. With the Chairman's permission, I would ask that my full statement be submitted into the record?

Mr. SHERWOOD. Without objection.