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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

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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.

WRITTEN TESTIMONY

OF

STANLEY M. DIVER

DIVER CHEVROLET

WILMINGTON, DELAWARE

ON BEHALF OF THE

NATIONAL AUTOMOBILE DEALERS ASSOCIATION

BEFORE THE

SUBCOMMITTEE ON WATER RESOURCES & ENVIRONMENT

Hearing on H.R. 1300, the “Recycle America's Land Act of 1999”

COMMITTEE ON TRANSPORTATION & INFRASTRUCTURE

U.S. HOUSE OF REPRESENTATIVES

May 12, 1999

National Automobile Dealers Association
412 First Street, S.E.
Washington, D.C. 20003

(202) 547-5500

Mr. Chairman and Members of the Subcommittee:

My name is Stanley M. Diver and I am Vice President and Dealer Operator of Diver Chevrolet in Wilmington, Delaware. My grandfather started the dealership in 1915 and I began full-time employment there in 1984. Our business has remained in the Diver family since its inception and the third generation is now managing the dealership's operations. Currently, we have 92 employees. I am also a member of the National Automobile Dealers Association (NADA), a national trade association representing more than 19,500 franchised new car and truck dealers holding nearly 40,000 separate franchises, domestic and import. The primary business of NADA members is the retail sale of new and used motor vehicles, both foreign and domestically produced. Dealers are also engaged in automobile service, repair, and parts sales. On behalf of our entire membership, I would like to thank you for this opportunity to testify today on the impact of the EPA's flawed Superfund program on small businesses, particularly my dealership in Delaware.

At the present time, I am mired in litigation at the Berks Superfund Site in Douglassville, Pennsylvania. The Berks site operated as an oil and solvent recycling facility from the 1930s until 1985, when all operations at the facility ceased. The site was listed on EPA's National Priorities List in the early 1980s, and in 1991 the U.S. Government commenced a lawsuit against a number of major waste generators alleging violations of the Superfund law at the Berks site. In turn, these major waste generators sued several hundred smaller potentially responsible parties, asserting that they arranged for treatment of used oil at the Berks site. In 1993, I received

notification that I was one of several dealers in Delaware, Maryland, and Pennsylvania to be named as a PRP.

This recycling facility processed used oil from many large contributors, as well as small contributors. The only "evidence" connecting Diver Chevrolet as a contributor is the testimony of a former truck driver and waste hauler who had transported used oil to the Berks site. Based almost entirely on his personal recollection, he estimated the period of time during which he believed he had picked-up used oil from our dealership, as well as the amount he collected. Significantly, there are very few supporting receipts or other documentation to substantiate his claims. Yet, with no other fact-finding and no credible documentary records of evidence, the driver's recollections were used to determine, through extrapolation, the amount of oil collected from the dealership and transported to the Berks recycling facility for all years in question. Liability was then based on this extrapolation. The hauler's recollections also formed the basis of determining the alleged contribution amounts of all his customers, not just Diver Chevrolet.

My alleged contribution was initially estimated at 81,000 gallons during the period of 1965 to 1980. By thorough analysis of the historical operational records of Diver Chevrolet and the affidavits collected from three former employees and one current employee, we demonstrated conclusively that the amount of used oil allocated to the dealership was impossible, based on our knowledge of the storage methods used in earlier years and the amount of used oil generated by the dealership. However, despite our diligent, good-faith efforts, this detailed quantitative analysis was almost entirely overruled by the waste hauler's vague recollection and a few handwritten notes from only one of the years during which used oil was allegedly collected from the

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