Superfund and Brownfields in the 107th Congress

Order Code IB10078

Issue Brief for Congress

Received through the CRS Web

Superfund and Brownfields in the 107th Congress

Updated January 16, 2003

Mark Reisch

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

CONTENTS

SUMMARY

MOST RECENT DEVELOPMENTS

BACKGROUND AND ANALYSIS

Brownfields

A Brief Summary of the Cleanup Program

Superfund Issues

Revenue Issues: Appropriations and the Superfund Taxes

Appropriations

Reinstating the Superfund Taxes

Retroactive Liability

Cleanup Standards and Remedy Selection — Concerns Over Expense and Delay

Should Natural Resource Damages Be Narrowed?

Giving States More Control of the Program

Accompanying Issues Related to Lower Priority Sites

Expanding the Brownfields Program

Aiding Voluntary Cleanup Programs for Lower Risk Sites

Action in the 107th Congress

LEGISLATION

FOR ADDITIONAL READING

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Superfund and Brownfields in the 107th Congress

SUMMARY

On January 11, 2002, the President

signed H.R. 2869 (P.L. 107-118), which

formally established EPA’s brownfields program, and provided relief from Superfund

liability for small businesses. The Act creates

a $200 million per year brownfield cleanup

program (including $50 million for cleanup of

petroleum-contaminated sites); provides $50

million for state programs; and relieves liability for contiguous property owners, prospective purchasers, and innocent landowners. It

also provides liability relief for small businesses and others who disposed of small

amounts of hazardous waste, and allows

businesses to make a financial settlement for

a lesser amount in cases of financial hardship.

The Senate passed S. 606 on November 20,

2002 to establish an Ombudsman. The House

passed H.R. 2941 under suspension on June 4,

2002, a bill to make HUD brownfield grants

more accessible, especially to smaller communities. The Senate Environment and Public

Works Committee reported S. 1079 on April

25, providing funds for the Economic Development Administration’s brownfield program.

The Superfund Act’s formal name is the

Comprehensive Environmental Response,

Compensation, and Liability Act, or CERCLA

(P.L. 96-510, as amended). It is the principal

federal program for cleaning up hazardous

waste sites. As of December 2002, 809 nonfederal sites (61%) placed on the Superfund’s

National Priorities List (NPL) had been removed to the Construction Completed List.

Program critics say it is slow, ineffective, and

expensive. Program supporters acknowledge

that the statute needs to be updated, but argue

that Superfund cleanups have prevented widespread health and environmental exposures

and have created strong incentives for more

careful hazardous waste management.

Congressional Research Service

Future funding of the program is a basic

issue, as the taxing authority that supported

the Superfund trust fund ended in 1995. Congress has appropriated larger amounts from

the Treasury since FY1999 as the trust fund

balance has declined. The FY2002 appropriation for the Superfund program is $1.27 billion, (P.L. 106-377).

CERCLA’s broad liability scheme has

been one of the most difficult issues. The

average cost of cleaning up a site is about $20

million, a large enough amount to often make

it worthwhile for parties to pursue legal means

to spread the costs rather than to settle. So at

large sites, where it is not unusual for there to

be over a hundred potentially responsible

parties, there can be a commensurate amount

of expensive negotiation and litigation. Such

situations can be especially burdensome for

small businesses and other minor parties.

The law’s cleanup standards and remedy

selection procedures are also controversial.

Requirements for treatment, permanence, and

the application of both federal and state regulations have led to what some critics characterize as overly strict risk assessment, and

increased costs and delay at many sites.

Environmental groups, on the other hand,

strongly support cleanup remedies that minimize remaining on-site pollution rather than

remedies that, while designed to limit human

and environmental exposure, leave wastes on

site. Business interests also want to cap the

amount of natural resource damages that can

be assessed against them.

A number of states are seeking a full

delegation to them of the authorities in CERCLA, including remedy selection, control over

CERCLA’s monies, and the determination of

what sites go on and off the NPL.

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MOST RECENT DEVELOPMENTS

The Senate passed S. 606 (S.Rept. 107-320), amended, on November 20, 2002. The bill

would have reauthorized the Office of the Ombudsman.

The House passed H.R. 2941, as reported (H.Rept. 107-448), on June 4, 2002. The bill

makes the Department of Housing and Urban Development’s brownfield grants more

accessible to a larger number of communities.

The Senate Environment and Public Works Committee on April 25, 2002, ordered S.

1079 reported (S.Rept. 107-244), providing $60 million per year for the Economic

Development Administration’s brownfields program.

On January 11, 2002, the President signed H.R. 2869 (P.L. 107-118), which formally

established EPA’s brownfields program, and provided relief from Superfund liability for

small businesses and others. The bill combined the provisions of the Senate-passed S. 350

with the language of the House-passed H.R. 1831.

BACKGROUND AND ANALYSIS

Superfund is the principal federal program for cleaning up hazardous waste sites to

protect public health and the environment from releases of hazardous substances. It was

enacted in 1980 in the wake of discoveries of abandoned hazardous waste sites around the

country. The situation was brought to public attention by the 1978 declaration of a health

emergency at the Love Canal neighborhood of Niagara Falls, N.Y., where a residential

subdivision and a school had been built atop a former chemical dump, and chemicals were

seeping into residents’ basements and surfacing in their yards. In the following weeks news

stories told of greater than normal occurrences of miscarriages, birth defects, and cancer

among the residents.1 Discoveries of other toxic sites in other parts of the United States

were leading news items in the months that followed, and congressional committees, the

Environmental Protection Agency (EPA), and the Surgeon General among others, launched

investigations to determine the number of hazardous sites, and related risks to human health.

President Jimmy Carter declared a federal emergency at Love Canal, the first (and only)

time a pollution incident was made eligible for disaster assistance. He did so because

existing federal authority was limited to two small programs under the Clean Water Act, and

to the imminent hazard provision of the Resource Conservation and Recovery Act (RCRA),2

which lacked the full range of authorities necessary to allow comprehensive emergency

action. Among other issues RCRA provided no funds for cleanup. At the state level,

response capability was either very limited or non-existent.

1

Subsequent studies cast doubts that the wastes were causally related to these purported effects,

however.

2

RCRA established the federal program regulating solid and hazardous waste management.

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The legislative track for what became Superfund combined hazardous waste cleanup

with oil spill and chemical spill provisions, amending the Clean Water Act which had passed

the House and Senate in different versions in the 95th Congress. But during the 96th Congress

(1979-1980), one news report after another kept attention focused on the cleanup of dumps

containing hazardous wastes, and this issue was the driving force that ultimately brought

forth the Comprehensive Environmental, Response, Compensation, and Liability Act of

1980, or CERCLA (P.L. 96-510) known by its short title as “Superfund.” The law was

amended and enlarged in 1986 by the Superfund Amendments and Reauthorization Act

(SARA, P.L. 99-499).

CERCLA makes potentially responsible parties3 (PRPs) liable for the costs of response

(primarily cleanup) associated with releases4 of hazardous substances, and for damages

(monetary compensation) for injuries to publicly owned natural resources. The law’s liability

standard is strict, joint and several, and retroactive. Generators of hazardous substances,

transporters who selected the disposal site, and past and present owners and operators of the

site can all be held liable. CERCLA also allows PRPs to sue other parties (usually waste

generators) to contribute to the cost of cleanup, sometimes leading to hundreds of others –

including small businesses – being brought into Superfund’s liability net. This stringent

liability regime and its consequent expenses have contributed to the law’s unpopularity in

some quarters, and is a major sticking point in reauthorization. (See “Retroactive Liability”

below.5) The most common sources of waste are manufacturing operations (38.9% of total

waste at Superfund sites) and municipal landfills (16.5%), followed by recycling operations

(8.5%) and industrial landfills (6.5%).

CERCLA also established the Superfund Trust Fund, which was created primarily from

a corporate environmental income tax, and excise taxes on petroleum and specified

chemicals. It received about $1.5 billion per year before the legislative authority to collect

the taxes expired on December 31, 1995. Congress annually appropriates monies from the

trust fund to EPA, and in most years has added a contribution from the general fund of the

Treasury, usually $250 million, the maximum authorized in CERCLA through FY1995. For

FY1999, however, as the trust fund balance declined in the absence of tax receipts, the

Treasury contribution was increased to $325 million, and since then, about half of the

appropriation has come from the Treasury ($635 million in each of FY2000 - FY2002).

Monies from the fund are used where a financially viable party cannot be found to pay

for cleanups, as well as to support the EPA’s Superfund-related enforcement, management,

and research and development activities. The lack of income-producing taxes has created

3

EPA uses the term “potentially responsible party” because the party who may ultimately bear the

burden of paying for the cleanup and related costs may not be directly responsible for the activities

that caused contamination at the site. Examples are insurers, and banks that have made loans to the

owner or operator of the site.

4

The term “release” is broadly defined to include not only such things as spilling and leaking, but

also the “abandonment or discarding of barrels” and other closed receptacles (CERCLA Section

101(22)). Also, courts have held that a release need not be a discrete event, but can include seepage

over a long period of time.

5

See also CRS Report 98-136, Superfund Act Reauthorization: Liability Provisions of Leading

Congressional Proposals.

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some pressure to reauthorize the law. The Ways and Means Committee Chairman in the

104th -106th Congresses, Bill Archer, said that the taxes would not be restored until there

were fundamental changes in the act, particularly its liability provisions. His position

prevented further action in the 106th Congress on H.R. 1300 and H.R. 2580, both of which

were reported (by the Transportation and Infrastructure, and Commerce Committees,

respectively).

Since 1980, EPA has placed 1,499 sites on the Superfund National Priorities List

(NPL): 1,328 non-federal sites, and 171 federal facilities. Over half of the non-federal sites,

809 or 61%, have been moved to the Construction Completion List (CCL), indicating that

all physical work has been completed. At most CCL sites groundwater cleanup is ongoing,

a process that takes many years. According to EPA, by the end of FY2000, 92% of all sites

that have been listed on the NPL since its beginning were either undergoing cleanup

construction (remedial or removal), were completed and on the CCL, or had been deleted

from the NPL because cleanup goals were met. At the other 8% of sites work had not begun,

or studies or design activities were underway.

Serious efforts have been made in the last four Congresses (1993-2000) to make

changes in the law to address the criticisms of slow cleanups, overly stringent cleanup

requirements, and unfair liability rules. Reauthorization bills were reported in the 103rd,

105th, and 106th Congresses, but none reached the floor in either chamber.

In 1993 EPA moved to address the criticisms on its own and started what became three

rounds of 49 administrative reforms to make the agency’s operation of the program “faster,

fairer, and more efficient.” Industry groups give the agency credit for improving the

program, but say additional changes that require legislation are still needed. From their

perspective, these should include replacing CERCLA’s liability regime, reforming remedy

selection, changing the law’s provisions on natural resource damages, and instituting a

different means of funding the program. (See CRS Report RS20772, Superfund and Natural

Resource Damages.)

Brownfields. Brownfields are less seriously contaminated sites where redevelopment

is complicated by potential environmental contamination. (See “Expanding the Brownfields

Program,” below, and CRS Report RL30972, The Brownfields Program Authorization:

Cleanup of Contaminated Sites.) EPA initiated the program under Superfund authority,

although it was not explicitly authorized in CERCLA. To help communities address these

sites the agency awarded the first brownfield assessment grant in 1993, and by the end of

FY2000 had made grants to 362 communities. For several years, Congress has recognized

the program with its own line item in the Superfund appropriation, but supporters have

wanted to give it its own specific legislative authority, as well as spell out appropriate

activities for the program.

The growth of the brownfields effort has coincided with sentiment by some in Congress

(and elsewhere) that Superfund has largely accomplished its original purpose of cleaning up

the worst hazardous waste sites in the nation, and it is time to begin winding the program

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down. A 1998 General Accounting Office report6 stated that of approximately 3,000 sites

identified as possible NPL sites, only 232 were named by either EPA, a state, or both, as

likely to be placed on the National Priorities List. The Smith bills of the 105th and 106th

Congresses and the Boehlert and Oxley bills of the 106th Congress reflected this outlook (all

three were Superfund subcommittee chairmen at the time). The bills enlarged the

brownfields program on the one hand, and on the other hand looked to the end of Superfund

by limiting the number of sites that could be added to the NPL or by authorizing declining

appropriations to carry out the program.7

Another point of view was presented in July 2001, however, with the publication of a

congressionally commissioned report by Resources for the Future, which found that the costs

of cleaning up sites and administering the program are not likely to fall below current levels

until FY2008.8

The Superfund reauthorization bills that were reported in the 105th and 106th Congresses

were not brought to the floor because of opposition by key members. While some suggested

that a stand-alone brownfields bill might have had a better chance, the Republican leadership

wanted to keep the popular brownfields program within a Superfund reauthorization bill to

help build support for a comprehensive CERCLA rewrite.

The efforts of the last four Congresses demonstrate the need for consensus to achieve

significant changes in the law. The successful amendments to CERCLA during that time

period have had general agreement and targeted a fairly narrow area: limiting the liability

of financial institutions that had made loans to PRPs, easing the transfer of military bases to

local entities (related to the Base Realignment and Closure laws), limiting the liability of

recyclers, and providing a tax incentive to encourage the cleanup of brownfields.

Now, however, after four Congresses without success in achieving reauthorization, there

proved to be sufficient sentiment in both chambers and both parties to enact a brownfields

bill, and the President signed H.R. 2869 (P.L. 107-118) on January 11, 2002.

A Brief Summary of the Cleanup Program

When a hazardous waste site or an incident such as a spill is reported to EPA, the

hazardous substance release is entered into CERCLIS (Comprehensive Environmental

Response, Compensation, and Liability Information System), the agency’s site tracking

database. There were 11,591 active sites in CERCLIS as of July 8, 2002, and 32,918 in the

CERCLIS archives; archive status indicates that EPA has completed its assessment of a site

and has determined that no further steps will be taken to list it on the National Priorities List

6

Hazardous Waste: Information on Potential Superfund Sites.

GAO/RCED-99-22.

November 30, 1998,

7

In the 105th Congress: S. 8. In the 106th Congress: S. 1090, H.R. 1300, and H.R. 2580. Senator

Smith was a co-sponsor of S. 1090; full Environment and Public Works Committee Chairman John

Chafee introduced the bill.

8

Katherine N. Probst and David M. Konisky, Superfund’s Future: What Will It Cost?

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(NPL). A preliminary assessment is conducted at all CERCLIS sites to quickly determine

if the site poses a sufficient threat to health and the environment to warrant further

investigation, and if it might require an emergency removal. An “emergency removal” is a

short-term, fast-track response to mitigate a dangerous situation that can be ordered at any

time if conditions warrant.

If recommended by the preliminary assessment, a site inspection is conducted, during

which environmental and waste samples are taken for laboratory analysis to determine if

hazardous substances are present and the extent of their migration. Information from the site

assessment is used in the Hazard Ranking System, and sites receiving a sufficiently high

score are placed on the National Priorities List (NPL). The term “Superfund site” generally

means a site on the NPL, and the long-term cleanup activities at an NPL site are referred to

as “remedial actions.”

As of December 24, 2002, there were 1,232 sites on the NPL, of which 158 are federal

facility sites; another 61 were proposed for listing, of which 6 were federal facility sites.

Proposed and final NPL sites total 1,293. Through FY2000, EPA and the Coast Guard had

also conducted more than 6,400 emergency removal actions. (The Coast Guard is the lead

agency in coastal areas.) There are or have been Superfund sites in all 50 states, as well as

in American Samoa, Guam, the Northern Marianas, Puerto Rico, the Trust Territories of the

Pacific, and the Virgin Islands.

After listing on the NPL, the next step is the remedial investigation, a detailed

examination of the site and the wastes present, which is followed by (or conducted

concurrently with) a feasibility study that examines alternative cleanup approaches. (These

two steps are frequently referred to together as the “RI/FS.”) In the Record of Decision

(ROD) EPA decides which alternative to pursue, and the Agency or its designee —

frequently the U.S. Army Corps of Engineers — prepares specifications and plans for the

selected remedy. Cleanup construction may be followed by a requirement to operate,

maintain, or monitor the site for a period of years (which is almost always the case if

groundwater cleanup is involved). As of December 24, 2002, 809 non-federal sites (61% of

the 1,328 total non-federal sites listed since inception) had been placed on the Construction

Completion List; and 254 (19% of the 1,328) of those sites and portions of 31 others have

also been deleted from the NPL.

The National Contingency Plan (NCP, codified at 40 CFR 300) provides a blueprint of

how EPA is to respond to hazardous substance releases. It covers methods for discovering

and investigating hazardous waste sites, the roles of federal and state agencies, the

appropriate level of response activities, and other subjects. The Hazard Ranking System and

the National Priorities List are appendices to the NCP. (For details on this and other

Superfund topics, see CRS Report 97-312, Superfund Fact Book. See also EPA’s Superfund

web site: [http://www.epa.gov/superfund/index.htm]).

Superfund Issues

A number of issues have proved challenging in the quest to reauthorize CERCLA. The

ones most debated are discussed below: the Superfund taxes, liability issues, cleanup

standards, natural resource damages, transferring authority to the states, and brownfields.

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Revenue Issues: Appropriations and the Superfund Taxes

Appropriations. The House and Senate adopted the conference report for the FY2002

Superfund appropriation on November 8, 2001 (H.R. 2620, H.Rept. 107-272), and the

President signed it on November 26 (P.L. 107-73). The Superfund program received $1.270

billion, including $97,651,600 for the brownfields program. Half of the appropriation came

from the Superfund trust fund, and half from the U.S. Treasury.

In January 2002, the program also received $41,292,000 under P.L. 107-117, the

FY2002 DOD Appropriations Act, for emergency expenses to respond to the September 11,

2001, terrorist attacks and to support activities related to countering terrorism.

For FY2003, the President’s budget proposes $1.273 billion for Superfund, essentially

the same amount as appropriated for FY2002 (not including September 11 response funds).

The budget also requests $199,769,000, a doubling of resources, for the brownfields

program. Of the total requested, $700 million would come from the Treasury, with the

remainder coming from the Superfund trust fund. The appropriations bills did not progress

beyond the reported stage (H.R. 5605, H.Rept. 107-740; S. 2797, S.Rept. 107-222), and EPA

and the Superfund and brownfield programs are operating under a continuing resolution.

Reinstating the Superfund Taxes. Until the legislative taxing authority expired

on December 31, 1995, the Superfund Trust Fund’s principal sources of revenue were excise

taxes on petroleum and designated chemical feedstocks, and a corporate environmental

income tax. The trust fund historically supplied most of the monies appropriated (about

83%) for the Superfund program, with general revenues from the Treasury providing the rest

(about 17%). (For proposals to renew the taxes, see “Action in the 107th Congress,” below.)

Congress, if it chooses, could fund the program entirely through general revenues, and

some Republican leaders have said they would not allow the program to go unfunded. GAO

has said that there is nothing in CERCLA or the congressional budget resolution to prevent

the appropriation from being funded completely from general revenues. The last four

appropriations have helped extend the life of the fund by increasing the Treasury contribution

from the usual $250 million in most previous years, and reducing the amount taken from the

fund. The FY1999 $1.5 billion appropriation included $1.175 billion from the fund (78%)

and $325 million from general revenues (22%) for a total appropriation of $1.5 billion. For

the FY2000, FY2001, and FY2002 appropriations, 50% came from the trust fund and an

equal amount came from general revenues. Former EPA Administrator Carol Browner and

others have opposed this approach saying it amounts to taxpayers paying for cleanups instead

of the polluters.

The Natural Resources Defense Council and the Environmental Defense Fund have

expressed their “strong concern” that the taxes be reauthorized in order to keep cleanups

moving forward. Business interests, including the Business Roundtable, the American

Petroleum Institute (API), and the Chemical Manufacturers Association, have testified

against authorizing any taxes unless there is comprehensive reform of the law, and API in

particular wants Congress to change the overall tax structure.

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Retroactive Liability

The most controversial element of CERCLA is its broad liability scheme. The

generators of the hazardous substances, the transporters who selected the site, and the owners

and operators (both past and present) of the facility or property where the substance was

released are all liable under current law. Liability is strict, joint and several, and retroactive,

and defenses allowed by the Act are few. While pervasive policy reasons support this

approach (e.g., polluters should pay rather than the taxpayers), the program has run into

implementation problems with certain groups of potentially responsible parties (PRPs).

Given that it is common for a waste disposal facility to have received wastes from

throughout the region in which it operates, it is not unusual for there to be several hundred

PRPs liable for cleanup costs at some Superfund sites. That, coupled with the high cost of

cleanup — the average cost is currently around $20 million per site — has led PRPs to try

to spread the costs as much as possible. The result has been a large amount of litigation, not

only among waste generators, but also between them and their insurance companies, which

frequently claim that the policies they wrote were not intended to cover the kind of pollution,

or the kind of liability, encountered at Superfund sites.

The litigation (and related transactions) are both costly and time-consuming, and for

years business and industry groups, especially the insurance industry, have called for the

repeal of CERCLA’s existing liability regime. The jurisdictional committees examined the

issue during the 104th Congress and considered repealing retroactive liability for actions

prior to CERCLA’s December 1980 passage, or alternatively prior to 1987. The January 1,

1987 cutoff date coincides with the use of new insurance policy language, as well as the

institution of stricter solid waste record-keeping requirements.

The Congressional Budget Office (CBO) said that repealing prior liability would reduce

transaction costs and increase efficiency for the nation as a whole. CBO’s Jan Acton testified

that, “The main trade-off inherent in a liability cutoff [of 1980 or 1987] is that it would shift

responsibility [for cleanup] from the PRPs to the federal government, thus requiring some

mix of cost savings, increased federal spending, and reduction in the pace of cleanup,” or

alternatively, a change in standards to lower the cost of cleanup.9 Under two different sets

of assumptions, CBO estimated that repealing liability for pre-1987 actions would save the

nation as much as $1.0-1.1 billion annually in transaction costs, mainly from the private

sector, according to CBO. The federal government would have an estimated net increase in

cleanup costs of $1.4-1.6 billion per year, plus a one-time cost of as much as $6.5-7.5 billion

to reimburse PRPs for ongoing expenses under existing cleanup commitments, plus $5.3-6.0

billion for past costs.

If a cutoff date of December 31, 1980, were used, CBO said, private and federal

transaction costs would fall about 50% and 30% respectively, compared with 90% under the

1987 cutoff. The shift in cleanup costs to the federal government would come to $1.3 billion

per year, and reimbursing PRPs would total about $5.5 billion for ongoing work, and $4.4

billion for past work. These high cost estimates prompted the committees to look for ways

9

Superfund Reauthorization, Hearings before the Subcommittee on Water Resources and

Environment, Committee on Transportation and Infrastructure, June 22, 1995. p. 658.

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other than full repeal of retroactive liability to reduce the liability burden, particularly for

small businesses, lenders, and municipalities. Environmental groups have opposed liability

cut-off dates, arguing that reimbursement of PRPs would contradict the “polluter pays

principle” and leave less money to address pending site cleanups.

CERCLA was amended in 1996 to protect lenders and fiduciaries from liability so long

as they do not participate in the management of a facility contaminated with hazardous

substances (Conservation, Lender Liability, and Deposit Protection Act, P.L. 104-208).

Lenders at times have incurred liability after foreclosing on a contaminated property, and this

law details what actions a lender may take without triggering liability. It also limits a

fiduciary’s liability to the value of the assets held in trust. Protection from CERCLA liability

was also extended to recyclers of paper, plastic glass, textiles, rubber, metal and batteries

under certain conditions by the Superfund Recycling Equity Act, P.L. 106-113. In the 107th

Congress, protection from liability has been extended to contributors of “de micromis”

quantities of hazardous waste and to households and small businesses that contributed only

municipal solid waste at Superfund sites. (See “Action in the 107th Congress,” below, for

additional details.)

There have been two common elements in the major liability reform proposals. First,

they have provided exemptions or limits to liability for certain groups and certain categories

of waste. In general, the groups that would be protected from liability have included

innocent parties (e.g., owners who inherited contaminated land, but did not cause or

contribute to the release of hazardous substances); small contributors at multi-party sites

(such as municipal landfills); and small businesses. Relief from liability has also been

proposed for municipal solid waste, municipal sewage sludge, and small amounts of

hazardous materials provided the material did not contribute significantly to response costs.

Which groups and waste categories to relieve has been one of the contentious issues.

The second common element is establishment of a fast-track allocation process to

apportion liability shares at a site among the responsible parties, performed by a neutral

allocator. Any responsible party that did not accept the allocation and settle would be subject

to CERCLA’s joint and several liability, under which EPA could seek recovery of all

outstanding response costs. Environmental and business groups have approved of the

allocation process, but have reservations about some of the liability exemptions. (See also

CRS Report 98-136, Superfund Act Reauthorization: Liability Issues.)

Cleanup Standards and Remedy Selection — Concerns Over

Expense and Delay

Cleanup standards have also been controversial. CERCLA Section 121 states a

preference for “treatment which permanently and significantly reduces the volume, toxicity

or mobility of the hazardous substances, pollutants, and contaminants ...” (emphasis added).

The Section also cites cost effectiveness as a factor to be considered in selecting remedies.

Section 121 requires Superfund cleanups to meet “ARARs”: any “legally Applicable

or Relevant and Appropriate standard, Requirement, criteria or limitation” that has been

promulgated under federal or state environmental laws. The ARARs include such things as

the Clean Water Act’s water quality criteria, the Solid Waste Disposal Act’s land disposal

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restrictions, and some states’ ground water anti-degradation provisions that require cleanup

to background levels. EPA can waive the ARARs in some situations.

While these requirements (the preference for permanence and treatment, and the

mandate to meet ARARs) have made Superfund a technology-forcing law, promoting

research into new means of permanently eliminating contamination, they have also created

at least three areas of concern. First, critics say that EPA’s risk assessment process during

the remedial investigation phase of response overstates the true risk posed to the vast

majority of people. This phase is important because the assessment determines in large part

what remedial actions might be appropriate for the site and how much they will cost.

Second, critics say Section 121 has led to increased expense and delay. Despite the

“cost effective” language in the statute, many PRPs have complained that EPA has little

regard for cost when selecting the remedies they must implement.

Third, experience with the Superfund program has shown that some cleanups are too

difficult to achieve. The 1980 enactment did not foresee that some types of wastes and some

kinds of sites were not amenable to solution with current levels of technology. While EPA

can waive ARARs due to “technical impracticability,” the waiver has not been greatly used,

in part because of concern over public reaction. To address these issues, critics suggest

giving cost greater weight, eliminating ARARs or the preference for permanence and

treatment, and taking future land use into consideration when selecting a remedy.

Considerable debate has surrounded the proposed elimination of the preference for

“permanence” and “treatment” in selection of Superfund remedies. Health and

environmental groups have maintained that remedies that rely on the containment or isolation

of pollutants may be ineffective and that a preference needs to be retained for cleanup plans

which actually detoxify or remove contaminants. There appears to be consensus that future

land and water use need to be taken into account in selecting remedies. Business interests

strongly favor changes in EPA’s risk assessments, wanting them to reflect actual site-specific

conditions; environmental organizations would like to see a single national standard to

provide all communities the same level of protection. Most interested parties favor the

elimination of the “relevant and appropriate” part of ARARs language (but keeping the

“applicable”) because at times it has led to delays and disagreements between federal and

state regulators as well as with PRPs. (See also CRS Report 97-914, Superfund Cleanup

Standards Reconsidered.)

Should Natural Resource Damages Be Narrowed?

CERCLA requires parties responsible for a release of hazardous substances that causes

“an injury to, destruction of, or loss of natural resources” to reimburse the U.S. government

and/or the appropriate state or tribal government for the costs of restoring the resources, or

acquiring the equivalent of the natural resources injured by the release. But the law is not

clear on two other costs that regulations and some court decisions have recognized. One is

damages associated with lost use of the resource, such as the costs of providing alternative

fishing opportunities where a fishing stream is contaminated. The other is damages

associated with non-use (or passive use) values, values unrelated to the person’s actual use

of the resource to date. Examples of non-use values are the “option value” of hiking or

fishing in a place one hasn’t been to, the “existence value” of whooping cranes one hasn’t

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seen and doesn’t intend to, and the “bequest value” of passing a resource on to future

generations.

These non-use values are the most controversial as responsible parties fear that they will

be used to seek substantial and potentially arbitrary monetary damages. An increasing

number of NRD claims has been filed in recent years, some with claims in the multi-hundred

million dollar range. One of the largest cases involved the Clark Fork River basin in

Montana, where the state and U.S. governments sought $765 million for environmental

injuries from mining activities. The suits were settled in 1998 for a total of $260 million

(Montana v. ARCO, D. Mont., No. CV-83-317-HLN-PGH, 6/19/98; and U.S. v ARCO, D.

Mont., No. CV-89-39-BU-PGH, 11/16/98). (See also CRS Report RS20772, Superfund and

Natural Resource Damages; and CRS Report RL30242, Natural Resources: Assessing

Nonmarket Values through Contingent Valuation.)

Giving States More Control of the Program

States have been lobbying for greater control over the Superfund program. States have

gained substantial experience in managing cleanups, and many now have the resources and

technical expertise necessary to conduct and oversee remedial actions. At present, EPA and

states enter into cooperative agreements on a site-by-site basis that authorize the states to

undertake most of the cleanup activities the Agency would perform. This does not, however,

include remedy selection. While EPA must consult with the affected state before

undertaking a remedial action, the state’s concurrence is not required. Disagreements

between federal and state regulators regarding the application of ARARs or the ultimate

selection of a remedy can significantly delay a cleanup and increase its costs.

Proponents of change suggest that the law be amended to authorize EPA to either

delegate responsibility for the Superfund program to a requesting state, or alternatively, to

authorize the state program to be operated in lieu of the federal Superfund program.

Business groups are generally in favor of more state involvement in the Superfund program,

but are especially concerned that PRPs only have to respond to one regulator/decision-maker

at a site, whether federal or state. Environmental groups have pointed out that resources and

capabilities vary widely among the states, and legislation redefining the state role should be

flexible enough to accommodate different situations.

States would also like the power to veto EPA-proposed listings on the National

Priorities List (NPL). The NPL-veto authority was law for a brief period of time. EPA’s

FY1996 appropriation act (P.L. 104-134) contained a provision, valid only until the end of

the fiscal year, requiring the concurrence of a state’s Governor before a site in that state could

be placed on the NPL. After the provision expired, the National Governors Association and

several Senators expressed concern to EPA, and the agency directed its regional offices to

determine the position of the Governor on sites being considered for placement on the list.

Legally, EPA has final authority on listings. The Agency has threatened to list only one site

over a state’s objections, the Fox River site in Wisconsin; it was proposed on July 27, 1998,

but has not been formally listed. (See also CRS Report 97-953, Superfund and the States.)

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Accompanying Issues Related to Lower Priority Sites

Because Superfund emphasizes the “worst first” in prioritizing cleanup, some lower risk

sites not on the NPL receive little attention. Connected to reauthorization efforts are two

popular programs which seek to expand cleanup of such sites. Business and industry groups

have favored these efforts, but oppose using Superfund money for non-NPL sites.

Expanding the Brownfields Program

The brownfields program for cleaning up less serious industrial and commercial

hazardous waste sites targets idle or underused facilities where redevelopment is complicated

by potential environmental contamination. It is an EPA initiative, done under Superfund’s

authority, but, until enactment of P.L. 107-118 in January 2002, was not explicitly authorized

in CERCLA. EPA’s program now includes financial awards to states, political subdivisions,

and Indian tribes: grants up to $200,000 for assessment and other pre-remedial activities;

grants up to $200,000 for cleanup; grants up to $ 1 million to establish revolving loan funds

(RLFs) for cleanups; grants up to $200,000 for job training; and other activities. As part of

the effort, EPA changed certain policies that impeded brownfield redevelopment, such as

clarifying the circumstances in which the agency would not enforce Superfund liability

against brownfield owners.

The Senate passed S. 350 (S.Rept. 107-2), the Brownfields Revitalization and

Environmental Restoration Act, by 99-0 on April 25, 2001. The bill authorizes $150 million

per year in FY2002-2006 for brownfield assessment grants and cleanup grants, plus $50

million per year to clean up “relatively low-risk” brownfield sites contaminated by

petroleum, which was not previously allowed by CERCLA. The bill sets out ten ranking

criteria to be used in awarding the assessment grants and cleanup grants. It also provides $50

million annually to enhance state and tribal voluntary cleanup programs, and prohibits EPA

enforcement at sites being cleaned up under a state program unless the state requests it,

contamination migrates across state lines or onto federal property, there is imminent danger,

or new information not known by the state at the time of cleanup is discovered. In the last

case (discovery of new information) EPA must consult with the state before taking

enforcement action. S. 350 relieves liability from contiguous property owners, prospective

purchasers, and innocent landowners. In addition, the bill requires EPA to defer listing a site

on the National Priorities List if the site is being cleaned up under a state program, or

negotiations are underway to do so.

The House Energy and Commerce environment subcommittee held a hearing June 28,

2001, on S. 350 and two discussion draft bills offered by Chairman Paul Gillmor and

Ranking Democrat Frank Pallone. Much of the discussion dealt with “finality,” or what

limits should be placed on EPA’s authority to take enforcement action if brownfield cleanups

under state programs presented problems that endangered public health or the environment.

See “Action in the 107th Congress,” below, for the insertion of S. 350 in H.R. 2869.

On June 5, 2002, the House passed H.R. 2941, as reported (H.Rept. 107-448). The bill

removes the connection between HUD’s Brownfield Economic Development Initiative

(BEDI) program and the department’s Section 108 loan guarantees. The effect is to make

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the BEDI grants more obtainable by a larger number of cities, particularly smaller

communities. The bill also authorized funds as needed for 5 years, through FY2007. H.R.

2941 was before the Senate Banking, Housing, and Urban Affairs Committee when the 107th

Congress ended.

On April 25, 2002, the Senate Environment and Public Works Committee ordered S.

1079 reported (S.Rept. 107-244), with an amendment, but the bill progressed no further. The

bill would have provided $60 million annually for FY2002-FY2006 to the Economic

Development Administration (EDA) for grants to state, local governments, Indian tribes, and

non-profit organizations to help restore brownfield sites.

Other brownfields bills introduced in the 107th Congress would have made the

brownfields tax incentive permanent, and/or provided other encouragement via the tax code

(H.R. 1439, H.R. 2064, H.R. 2264, and S. 1082). In addition, H.R. 2064 would have

established or broadened brownfields programs at HUD (also S. 1078), EDA, and the Small

Business Administration. (See also CRS Report RL30972, The Brownfields Program

Authorization: Cleanup of Contaminated Sites.)

Aiding Voluntary Cleanup Programs for Lower Risk Sites

The Superfund program and state hazardous waste cleanup programs have focused on

sites posing the greatest threat to human health and the environment. However, many lowand medium-risk sites remain. For them, at least 44 states have initiated voluntary cleanup

(or response) programs in which the owner or developer works cooperatively with the state,

as opposed to an often adversarial enforcement-driven program. Cleanups can take less time,

and many states offer such additional benefits as technical assistance, financial support, and

importantly, liability assurances. Many feel these programs should be encouraged and

expanded, although environmental groups have expressed concern that cleanup standards

might be relaxed when cleanups are performed under a state voluntary program. As noted

above, S. 350 (P.L. 107-118) authorizes $50 million per year to states and Indian tribes to

establish or enhance their response programs. Part or all of these grants may also be used to

capitalize a revolving loan fund for brownfield remediation, or to purchase insurance or

develop another means of financing response actions. To qualify for a grant a state or tribe

must show that its program includes elements listed in the bill or that it is working to include

them. A state or tribe is automatically eligible for funding if it has a memorandum of

agreement with EPA for voluntary response programs. (See also CRS Report 97-731,

Superfund and the Brownfields Issue.)

Action in the 107th Congress

In addition to the enactment of brownfields provisions in P.L. 107-118 and the House

passage of the HUD brownfields bill (H.R. 2941, H.Rept. 107-448) described above in

“Expanding the Brownfields Program,” the 107th Congress addressed liability relief for small

businesses and other generators of small amounts of hazardous wastes, provided funds for

EPA’s counter-terrorism efforts, and considered renewing the Superfund taxes.

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On May 22, 2001, the House passed H.R. 1831, the Small Business Liability Protection

Act, under suspension of the rules. The bill moved swiftly after its introduction on May 15.

The Transportation and Infrastructure Committee ordered H.R. 1831 reported on May 16,

2001, and the Energy and Commerce Committee followed suit the following day. Neither

committee amended the bill. The bill exempts from Superfund liability contributors of “de

micromis” quantities of material containing hazardous substances (less than 110 gallons of

liquid or less than 200 pounds of solid material) at sites on the National Priorities List prior

to April 1, 2001. It also protects from liability households and small businesses with fewer

than 100 employees that disposed only municipal solid waste at Superfund sites. If the

parties protected from liability are sued for contribution to the cleanup costs at NPL sites, the

burden of proof would be on the suing party, except in the case of a government suing a

small business, where the burden of proof would be on the business. In addition, H.R. 1831

allows expedited settlements for businesses based on their limited ability to pay. A

companion bill, S. 1064, was introduced June 19, 2001, by Senator Christopher Bond.

Chairman Paul Gillmor and Ranking Member Frank Pallone took a major step toward

final enactment of H.R. 1831 when they merged it with the Senate-passed S. 350 and

introduced it on September 10, 2001, as H.R. 2869. Disagreement between Republican and

Democratic members of the subcommittee over state finality language had held up the

introduction of a brownfields bill in the House. The chairman and other Republicans wanted

to give the states more authority in deciding whether a site is clean than S. 350 provided, but

ultimately went forward with H.R. 2869 in the hope of getting it through both chambers and

sending it to the President before the first session adjourned. The House leadership had

scheduled a vote under suspension of the rules for September 11, 2001, but postponed it

when the Capitol was cleared following the terrorist attack in New York and at the Pentagon.

A rescheduled vote under suspension for September 24 was also put off when Democrats

withdrew their support, requesting assurances from EPA that the Davis-Bacon Act would

continue to apply to brownfield sites. That law requires that prevailing wages be paid to

workers on federally financed or assisted construction. A technical change to the bill

satisfied their concerns, and it was passed under suspension on December 20, 2001. The

President signed it on January 11, 2002 (P.L. 107-118).

CERCLA authority and the expertise of Superfund program personnel were employed

in the response to the September 11 terrorist attacks, and the cases of anthrax-contaminated

mail. On December 4 EPA Administrator Whitman said that EPA had spent $7.5 million

so far for its testing and cleanup activities at both the World Trade Center and in anthraxcontaminated buildings, including postal facilities and on Capitol Hill; the total could reach

$20 million, she said. Whitman also said she would ask Congress in the future for legislative

authority to recover some of the costs of anthrax-related cleanups, and to indemnify

contractors against liability while performing those cleanups. The FY2002 DOD

Appropriations Act (P.L. 107-117) signed by the President January 10, 2002, provided an

additional $41,292,000 for Superfund, to remain available until expended, for emergency

expenses to respond to the September 11, 2001, terrorist attacks and to support activities

related to countering terrorism. Also, the FY2002 Supplemental Appropriations bill, H.R.

4775 (P.L. 107-206), included $12.5 million to reimburse EPA for anthrax investigations and

cleanup of the Capitol Complex; the bill was signed by the President on August 2, 2002.

There were also efforts to renew the taxes that feed the Superfund Trust Fund.

Representative Pallone’s H.R. 4060, introduced March 20, 2002, would have reinstated the

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Superfund taxes and also would have renewed the tax for the Oil Spill Liability Trust Fund,

and extended the tax for the Leaking Underground Storage Tank Trust Fund, both until

September 30, 2007. Senator Baucus’s S. 2944 would have done the same through 2012.

Senator Boxer’s S. 2596 would have renewed the Superfund taxes only, also through 2012.

A letter from the EPA Inspector General to Representative John Dingell, released July

1, 2002, indicated that cleanups at 33 NPL sites would halt because they did not receive

funds in FY2002. The agency disputed the information, saying there were not more than 18

such sites; the discrepancy was due to some sites not receiving funds until the second half

of the fiscal year, and others not yet being in the construction phase, according to EPA.

LEGISLATION

P.L. 107-118, H.R. 2869

Title I of this bill is identical to the House-passed H.R. 1831 (H.Rept. 107-70, Parts 1

and 2), and Title II is identical to the Senate-passed S. 350 (S.Rept. 107-2). See Text.

Introduced September 10, 2001; referred to Committees on Energy and Commerce, and

Transportation and Infrastructure; passed both chambers under suspension December 20,

2001. Signed into law January 11, 2002.

H.R. 324 (Boehlert)

Promotes brownfields development, and amends and reauthorizes Superfund. This is

the same bill that was reported in the 106th Congress from the Transportation and

Infrastructure Committee, H.R. 1300. Introduced January 31, 2001; referred to Committees

on Energy and Commerce, Transportation and Infrastructure, and Ways and Means.

H.R. 1439 (Coyne)

Makes the brownfields tax incentive permanent. Introduced April 4, 2001; referred to

the Committee on Ways and Means.

H.R. 2016 (DeGette)

Makes all federal agencies subject to CERCLA requirements and related federal, state,

interstate, and local requirements. Introduced May 25, 2001; referred to Committees on

Energy and Commerce, and Transportation and Infrastructure.

H.R. 2064 (Quinn)

Authorizes brownfield programs and activities in Department of Housing and Urban

Development, Economic Development Administration (EDA), and Small Business

Administration, and authorizes $60 million per year for 5 years for the EDA program; and

provides various tax incentives. Introduced June 5, 2001; referred to Committees on

Financial Services, Small Business, Transportation and Infrastructure, and Ways and Means.

H.R. 2941 (Gary Miller)

Facilitates HUD assistance for redeveloping brownfields. Introduced September 21,

2001; referred to Committee on Financial Services. Hearing held March 6, 2002; forwarded

by subcommittee to full committee, amended, March 14; reported, amended (H.Rept. 107448), May 8; passed House under suspension June 5; referred to Senate Committee on

Banking, Housing, and Urban Affairs, June 5, 2002.

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H.R. 4060 (Pallone)

Reinstates the taxes funding the Hazardous Substance Superfund and the Oil Spill

Liability Trust Fund, and extends the taxes funding the Leaking Underground Storage Tank

Trust Fund. Introduced March 20, 2002; referred to Committee on Ways and Means.

S. 23 (Specter)

Title IV of the bill authorizes funds for EPA’s brownfields program, and releases from

liability persons who fulfill cleanup requirements of State and local law. Introduced January

22, 2001; referred to the Committee on Finance.

S. 606 (Crapo)

Ombudsman Reauthorization Act of 2001. Reauthorizes the Office of the Ombudsman

for 10 years and authorizes associate ombudsmen in each EPA region. Provides investigative

powers, and authorizes ombudsman to request Inspector General to subpoena persons and

evidence. Introduced March 23, 2001; reported, amended, from Committee on Environment

and Public Works (S.Rept. 107-320) October 17, 2002; passed Senate, amended, November

20, 2002; referred to House Committee on Energy and Commerce, November 22, 2002.

S. 1078 (Levin)

Allows Department of Housing and Urban Development to make brownfield grants

independent of economic development loan guarantees. Introduced June 21, 2001; referred

to Committee on Banking, Housing, and Urban Affairs.

S. 1079 (Levin)/H.R. 4894 (Quinn)

Creates a brownfield program in the Economic Development Administration, and

authorizes $60 million per year for 5 years. S. 1079 introduced June 21, 2001; ordered

reported, amended, from Committee on Environment and Public Works (S.Rept. 107-244),

April 25, 2002. H.R. 4894 introduced June 6, 2002; referred to Committees on

Transportation and Infrastructure, and on Financial Services.

S. 2596 (Boxer)

Reinstates the Superfund taxes. Introduced June 6, 2002; referred to Committee on

Finance.

S. 2944 (Baucus)

Reinstates the Superfund, Oil Spill Liability, and Leaking Underground Storage Tank

taxes through 2012. Introduced September 17, 2002; referred to the Committee on Finance.

S.Amdt. 3037 (Torricelli)

Reinstates the Superfund, Oil Spill Liability, and Leaking Underground Storage Tank

taxes; to amend the energy bill (S.Amdt. 2917 to S. 517). Submitted March 19, 2002.

(Cong. Rec. p. S2091)

FOR ADDITIONAL READING

Klee, Ann R. and Ernie Rosenberg. “The Moribund State of CERCLA Reauthorization,”

Natural Resources & Environment, Winter 1999, p. 451 ff.

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Probst, Katherine N. and David M. Konisky. Superfund’s Future: What Will It Cost?

Washington: Resources for the Future, 2001. 294 p.

U.S. Congressional Budget Office. The Total Costs of Cleaning Up Nonfederal Superfund

Sites. January 1994. 46 p.

U.S. General Accounting Office. Environmental Protection: Agencies Have Made Progress

in Implementing the Federal Brownfield Partnership Initiative. April 1999. 20 p.

____. Superfund: Analysis of Costs at Five Superfund Sites. January 28, 2000.

____. Superfund: EPA Can Improve Its Monitoring of Superfund Expenditures. June 1999.

____. Superfund: EPA’s Use of Funds for Brownfield Revitalization. March 1998. 28 p.

____. Superfund: Information on the Program’s Funding and Status. October 1999. 30 p.

____. Superfund: Status of the Trust Fund. April 16, 1998. 5 p.

____. Superfund Program: Activities of the Agency for Toxic Substances and Disease

Registry and the Department of Justice. March 18, 1999. 22 p.

U.S. Conference of Mayors. Recycling America’s Land: A National Report on Brownfields

Redevelopment, Volume III. February 2000. 107 p.

The Urban Institute, et al. The Effects of Environmental Hazards and Regulation on Urban

Redevelopment. (Prepared for U.S. Dept. of Housing and Urban Development, and

U.S. EPA) February 1998. 86 p.

CRS Reports

CRS Report RL31410. Superfund Taxes or General Revenues: Future Funding Options for

the Superfund Program (May 9, 2002). 7 p.

CRS Report 97-312. Superfund Fact Book (Updated January 27, 1999). 46 p.

CRS Report 97-731. Superfund and the Brownfields Issue. (Updated January 16, 2001). 18p.

CRS Report RS20869. The Liability Exemptions in the Senate Brownfields Bill (S. 350). 6p.

CRS Report RL30242. Natural Resources:

Contingent Valuation. 21 p.

Assessing Nonmarket Values through

CRS Report RS20772. Superfund and Natural Resource Damages. 6 p.

CRS Report RL30972. The Brownfields Program Authorization: Cleanup of Contaminated

Sites. 15 p.

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