H.R. 1300 LIMITS FEDERAL SAFETY NET The voluntary cleanup provisions in Title 1 of H.R. 1300 do not meet the basic principle Congress relied upon to protect public health and the environment in the Superfund program: to ensure protection for all Americans wherever they live. The bill fails to set even minimal standards for the protection of public health and the environment that state cleanups must meet, while providing liability relief to anyone who is conducting or has completed a cleanup action under a state program. Since state cleanup requirements vary widely, the Administration believes it is unwise to relieve parties from federal liability without sufficient safeguards. The Administration recognizes and supports the continued growth of State and Tribal regulatory and voluntary cleanup programs that are cleaning up hazardous waste sites. We fully support better coordination between federal agencies and the States and Tribes. EPA/State relationships in the Superfund program have evolved into flexible working partnerships that assign sites responsibilities in a mutually supportive way. Total funding provided to States by EPA typically exceeds $150 million per year. A recent GAO study report supports the position that CERCLA and a strong Federal cleanup program are important to the States - "...a number of stakeholders, including state officials, said that a lessening of the Superfund program's more rigorous cleanup requirements or liability standards could negatively affect the State programs." -- "State Cleanup Practices” report 99-39, December 1998 Strong cleanup standards and enforcement authorities at the Federal level strengthens State programs and State activities by leveraging governmental cleanup resources. In addition, it provides concerned citizens the assurance that public health and the environment is protected by a Federal safety net- that the polluter who helped cause the toxic waste site, is responsible for contributing to the cleanup. EPA Memoranda of Agreement (MOA) with State voluntary cleanup programs (VCP) provide sufficient assurances to parties that, except in limited circumstances, where they are performing a cleanup under a State VCP that has a MOA with EPA, the Agency will not perform a removal or remedial action at the site. The limited circumstances where EPA may respond are clearly articulated within the MOA and are generally limited to the instance of an “imminent and substantial endangerment,” where the response action under a VCP is inadequate, or when a state requests EPA's intervention. EPA's ABILITY TO RECOVER IT'S COSTS IS RESTRICTED H.R. 1300 inserts a new "not unnecessary" standard for cost recovery which will make it difficult, and much more costly, for EPA to recover all of its response costs at sites. This new standard will increase litigation in what is essentially, a settled area, and will, at a minimum, be extremely burdensome to the government, as well as to the courts. The new standard changes the current standard that allows EPA to recover all costs not inconsistent with the NCP to one of any costs not unnecessary and not inconsistent with the NCP. This change would allow courts to second-guess EPA's judgment as to each individual cost flowing from the implementation of a properly selected remedy. Finally, the Administration is concerned with additional provisions of the liability title in H.R. 1300, including, but not limited to, the inclusion of special interest exemptions for “dipping vats," the unitary executive provisions, and the unreasonable time limits in the expedited settlement process. CONCLUSION The Superfund program has been fundamentally improved through administrative reforms and is faster, fairer, and more efficient. The significant progress the Clinton Administration has achieved in protecting public health and the environment through the clean up of toxic waste sites must not be undermined by the passage of Superfund legislation based upon outdated information and ideas. EPA's administrative reforms, and the resulting Superfund cleanup progress, have eliminated the need for comprehensive Superfund legislation. We look forward to working with Congress to reinstate the Superfund taxes and enact the narrowly targeted Superfund legislation that I described in my testimony that builds upon the success of administrative reforms. TESTIMONY Statement of Tom Curtis Director, Natural Resources Group before the Committee on Transportation and Infrastructure 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 on the brownfields issue. 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 |