TESTIMONY Statement of Tom Curtis Director, Natural Resources Group before the Committee on Transportation and Infrastructure on The Recycle America's Land Act of 1999 May 12, 1999 NATIONAL GOVERNORS' ASSOCIATION Hall of the States • 444 North Capitol Street • Washington, DC 20001-1512 • (202) 624-5300 Page 2 Good afternoon, Chairman Boehlert, Mr. Borski, and members of the committee. My name is Tom Curtis and I am the Director of Natural Resources Group at the National Governors' Association. As you know, Maryland Governor Parris Glendening serves as chair of the National Governors' Association (NGA) Committee on Natural Resources and was invited to testify here this morning. He sends his regrets that he was not able to testify, but I am pleased to be able to make a brief statement on behalf of NGA. As you know, the states have a strong interest in Superfund reform and believe that a few critical changes are needed to improve the Superfund program's ability to clean up the nation's worst hazardous waste sites quickly and efficiently. We commend you, Mr. Chairman, for making an excellent start at these changes. We know that there remain important differences between some of the key players in the Superfund debate, but we see the Recycle America's Land Act of 1999 (H.R. 1300) as a significant step toward resolving those differences. Clearly, important compromises have been made in the development of this legislation, and we hope the spirit of compromise will continue on a bipartisan basis. The Governors are committed to doing everything within their power to assist you in your efforts at developing a successful bill, and they hope to continue working cooperatively with both the majority and the minority to develop a final bill that enjoys broad bipartisan support and can be signed by the president. Because the states have not completed a comprehensive review of the bill, I will focus my remarks this morning on two key provisions of the legislation: brownfields revitalization and voluntary cleanup programs and the Governor's right of concurrence with new additions to the national priorities list (NPL). In both of these areas, the bill makes a good start, especially when compared to current law, but it should be strengthened to achieve the reform needed and justified. Brownfields Revitalization and Voluntary Cleanup Programs The Governors believe that brownfields revitalization is critical to the successful redevelopment of many contaminated former industrial properties, and we commend the committee for focusing the bill Page 3 In considering how to restore brownfields sites to productive use, please remember the importance of state voluntary cleanup programs in contributing to the nation's hazardous waste cleanup goals. States are responsible for cleanup at the tens of thousands of sites that are not on the National Priorities List. A survey completed by the Association of State and Territorial Solid Waste Management Officials reported that 33 responding states currently have 27,235 sites in a state cleanup programs. To address these sites, many states have developed highly successful voluntary cleanup programs that have enabled sites to be remediated quickly and with minimal governmental involvement. For each of the past five years, states have completed work on an average of 1,475 sites and have completed roughly 485 removals. It is important that legislation supports and encourages these successful programs by providing the clear incentives and flexibility states need to continue them. There is no question that voluntary cleanup programs and brownfields redevelopment are currently hindered by the pervasive fear of federal liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. Many potential developers of brownfields sites have been deterred because even if a state is completely satisfied that the site has been properly addressed, and even if the site is not on the NPL, there is the potential for EPA to take action against the cooperating party under the CERCLA liability scheme. The bill addresses this problem by precluding enforcement by anyone (other than by a state) at sites where cleanup has occurred or is being conducted under state programs and by providing needed liability protections for innocent owners and owners of property contiguous to contaminated sites. There are exceptions to this preclusion of enforcement in the event a state asks for subsequent federal enforcement and several other cases. While this language improves current law, these important provisions should be strengthened and clarified. The brownfields title of H.R. 1300 only precludes enforcement at a brownfield site where cleanup is being conducted or is completed. This language may leave innocent landowners who are not required to take action under many state laws vulnerable to federal enforcement. While the bill offers a defense against liability for innocent landowners, developers could still find themselves in court, incurring substantial legal fees, even if they complied with state law. In addition, the exceptions to enforcement may let EPA take an enforcement action in an inappropriate situation. For example, by merely asserting that an immediate risk exists, EPA can still step into the picture and begin enforcement action, even if any actual federal response to the immediate risk is unplanned and lies in the indefinite future. Remember that this could happen at a site that has already been satisfactorily addressed under the state's brownfields program. We believe that the state should Page 4 have an adequate opportunity to come into a site and take appropriate action before EPA begins an enforcement action. A better approach than the one included in the bill - and what the Governors' strongly recommend -would be to ensure that at non-NPL sites, a release of liability under state cleanup laws protective of human health and the environment constitutes, by operation of law, a release from federal liability. In addition, CERCLA should be amended to give credit, in the form of a legal release, to those who have cleaned a site to protection standards in accordance with a state voluntary cleanup law protective of human health and the environment. These changes would greatly encourage voluntary cleanup and thus increase the number of cleanups completed. I would also note that the Governors support elimination of liability for de minimis and de micromis parties and urge you to address the liability of municipalities. We commend you for your inclusion of these provisions. Governors Concurrence in New NPL Listings Another provision that we believe is very important, and not adequately addressed in the bill, concerns a provision to require the concurrence of the Governor of a state in which a site is located before a site may be added to the NPL. The nation's Governors believe such a provision is vital. There has been a great deal of discussion in recent years about the future of the Superfund program and whether Congress ought to legislate a “ramping down" of the program. We believe that with state programs having grown much more mature than was the case in the early days of the Superfund program, there will be a natural process of relying more and more on states to do most of the cleanups. Because of differences in capacities among states, the complexity and cost of some cleanups, the availability of responsible parties, enforcement considerations, and other factors, there needs to be a continuing federal commitment to clean up sites under some circumstances. However, because states are currently overseeing most cleanups, listing a site on the NPL when the state is prepared to apply its own programs and authorities is not only wasteful of federal resources, it is very often counterproductive, resulting in increased delays and greater costs. The Governors fear a case where there will be "two masters" of the cleanup process. This is confusing to the remediating party and to Page 5 To avoid this, Governors should be given the statutory right to concur with the listing of any new NPL sites in their states. In the event EPA discovers an imminent and substantial threat to human health and the environment, of course, it could continue to use its emergency removal authority, but any assignment of liability must then be consistent with liability assigned under state cleanup laws. It is currently EPA policy to seek the concurrence of a Governor before listing a site, and we ask that you codify this practice and mandate that EPA obtain the concurrence of the Governor. Conclusion Mr. Chairman, I would like to thank you for your hard work on this important reform legislation and for providing me with the opportunity to communicate the views of state government on Superfund reform. I have attached a copy of the NGA policy statement on Superfund reform and ask that it be included in the record of this hearing, along with my statement. Again, the nation's Governors appreciate your hard work in developing this proposal. We urge you to work with the National Governors' Association and your own Governors to make the changes we have recommended. We also hope members of both parties will roll up their sleeves to pass Superfund reform legislation this year. I will be happy to answer any questions you may have. |