CRS Report for Congress
Received through the CRS Web
Superfund: A Brief Comparison of the
Updated May 28, 1998
Claudia Copeland, Specialist in Environmental Policy
James E. McCarthy, Specialist in Environmental Policy
Mark Reisch, Analyst in Environmental Policy
Mary Tiemann, Specialist in Environmental Policy
Environment and Natural Resources Policy Division
Congressional Research Service ˜ The Library of Congress
This report compares three bills intended to amend and reauthorize the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA, or "Superfund"), the
federal program to clean up hazardous waste sites. There are numerous Superfund bills
introduced in the current Congress. The three bills chosen for comparison (S. 8, as reported
by the Committee on Environment and Public Works ( S. Rept. 105-192); the subcommitteeapproved version of H.R. 2727; and H.R. 3000) are those introduced by the chairmen of the
subcommittees with jurisdiction over the program. The report focuses on the four most
contentious issues in the reauthorization debate: the law's retroactive, strict, joint, and
several liability scheme; remedy selection and cleanup standards, including the law's
preference for permanence and treatment; the role of the states in cleanup; and efforts to
limit natural resource damages. CRS Issue Brief 97025, Superfund Reauthorization Issues
in the 105th Congress, treats the topic more broadly. References to other pertinent CRS
products are included. The report assumes basic knowledge by the reader of CERCLA and
the Superfund program. It will be updated as legislative actions occur.
Superfund: A Brief Comparison of the Chairmen's Bills
The chairmen of three subcommittees with jurisdiction over Superfund have
introduced comprehensive reauthorization bills: Senator Bob Smith introduced S. 8
(the May 19, 1998 reported version is used here), Representative Sherwood Boehlert
introduced H.R. 2727 (the subcommittee-approved version of March 11, 1998, is
used here) and Representative Michael Oxley introduced H.R. 3000. This report
compares the three bills, focusing on four disputed issues: liability, remedy selection,
the role of the states, and natural resource damages.
All three bills would provide protection from liability for small businesses and
parties who contributed small amounts of waste to sites on the National Priorities
List, though the precise categories of exemption vary substantially. They all also
would establish an allocation process, conducted by a neutral person, to divide
cleanup costs among responsible parties, while limiting litigation. Those not
accepting the allocation would be subject to CERCLA's joint and several liability.
The remedy selection titles of the bills all require that human health and the
environment be protected while adding flexibility to increase the pace and reduce the
costs of cleanup. They delete the present law's preference for treatment, permitting
hazardous substances to remain onsite provided that institutional controls are used
that ensure protection; H.R. 2727 and S. 8 retain a preference for treatment of high
risk source materials or areas. All three require remedy selection to consider current
and reasonably anticipated uses of land and water resources, state and local
viewpoints, and reasonableness of cost. Regarding the current law's applicable or
relevant and appropriate requirements (ARARs), the bills delete the "relevant and
appropriate" language to help clarify which federal and state requirements do apply
to cleanups. Groundwater remediation requirements and details differ among the
bills. The bills all require EPA to conduct facility-specific risk assessments or
evaluations, and to communicate the results in easily understood language.
All of the bills would authorize EPA either to delegate or authorize program
responsibility over all or some NPL facilities in a state, and for all or some aspects
of cleanup activity, giving states the flexibility to choose; federal funding would be
provided. EPA could withdraw the authority under certain circumstances. The bills
would reduce states' share of operation and maintenance costs from 100% to no more
than 10%. The House bills would give Governors a veto over the addition of new
sites to the National Priorities List. They would also give states with program
authorization the power to use state law for cleanup of federal facilities; S. 8
expressly bars the use of state standards at federally owned sites.
Regarding natural resource damages, the three bills would bar recovery for
"non-use" values (values that are unrelated to actual use of the resource), and would
base damage assessments on site-specific conditions and restoration requirements.
S. 8 would also require the Interior Department to rewrite its assessment rules. H.R.
3000 forbids the use of contingent valuation methodology; S. 8 allows it, but bars
recovery of its costs. The restoration alternative must be feasible and cost-effective;
S. 8 would require considering natural recovery as an option.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Proposed Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Remedy Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Current law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Proposed Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Proposed Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Natural Resource Damages (NRD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Proposed Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Superfund: A Brief Comparison of the
Reauthorizing the Superfund law is said to be a major environmental goal of the
105th Congress. Formally known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA, P.L. 96-510), it was last
amended comprehensively by the Superfund Amendments and Reauthorization Act
of 1986 (SARA, P.L. 99-499).
Three committees have jurisdiction over CERCLA's programmatic provisions,1
and the chairmen of the pertinent subcommittees have each introduced a
comprehensive reauthorization bill, namely:
! S. 8, introduced by Senator Bob Smith, chairman of the Senate Environment
and Public Works Subcommittee on Superfund, Waste Control, and Risk
Assessment, on January 21, 1997 (the bill ordered reported on May 19, 1998,
is used here; S. Rept. 105-192);
! H.R. 2727, introduced by Representative Sherwood Boehlert, chairman of the
House Transportation and Infrastructure Subcommittee on Water Resources
and Environment, on October 23, 1997 (this report uses the subcommitteeapproved version of March 11, 1998); and
! H.R. 3000, introduced by Representative Michael Oxley, chairman of the
House Commerce Subcommittee on Finance and Hazardous Materials, on
November 9, 1997.
Hearings have been held on all of them. Democratic House Members have
offered three comprehensive bills. Representatives James Barcia and Calvin Dooley
introduced H.R. 2750 on October 28, 1997, Representative Frank Pallone introduced
H.R. 3262 on February 25, 1998, and Representative Thomas Manton introduced
H.R. 3595 on March 30, 1998.
This report summarizes the three chairmen's bills, and focuses on the four most
controversial areas: liability, remedy selection, the role of the states, and natural
resource damages. The report will be updated as legislative actions occur. (See also
CRS Issue Brief 97025, Superfund Reauthorization Issues in the 105th Congress.)
In addition, the House Ways and Means and Senate Finance Committees have exercised
authority over the law's tax provisions which supply the Superfund Trust Fund. For further
information, see CRS Report 96-774 E, Taxes to Finance Superfund. September 13, 1996.
Current law imposes "joint and several liability" on a strict and retroactive
basis.2 "Joint and several" means that, in theory, any responsible party can be held
liable for the full cost of cleanup, not just for the share attributable to his individual
actions.3 "Strict" means that meeting the appropriate standard of care (including
compliance with applicable laws) is no defense: release of a hazardous substance
results in liability, regardless of whether the person responsible fell short of the
appropriate standard of care. And "retroactive" means that the liabilities imposed by
the Act extend to conduct prior to its enactment.
Superfund liability can affect both current and past owners and operators of
sites, transporters of the hazardous substances who selected the sites, and those who
arranged for disposal (often called "generators"). It also permits third party suits, in
which the parties identified and held responsible by EPA (generally the largest
generators of waste and the owners and operators of the site) may sue others for
contribution. This has resulted, at times, in hundreds of parties, many of them small
businesses or entities that may have sent waste containing only minute quantities of
hazardous substances to the site, being sued.
CERCLA does provide some mechanisms to facilitate settlements and minimize
litigation costs. It authorizes EPA to settle with potentially responsible parties
(PRPs), provides authority for EPA to prepare non-binding allocations of
responsibility, and has expedited settlement provisions for de minimis parties. EPA
may use mixed funding (in which the fund pays the cost share of non-settling PRPs),
and "orphan share" funding (in which the fund pays for insolvent or defunct parties).
The Agency may also provide settling parties protection from third-party lawsuits and
covenants not to sue.
Despite these provisions, there is a sense that Superfund's liability scheme is too
broad, and that small and innocent parties, in particular, need protection from
All three of the bills would provide protections to small businesses and parties
who contributed small amounts of waste to sites on the National Priorities List
(NPL). The precise categories of exemption vary substantially from bill to bill,
however, making it difficult to compare the scope of the offered exemptions. H.R.
For additional discussion, see CRS Report 98-136 ENR, Superfund Act Reauthorization:
Liability Issues. February 12, 1998. 20 p.
In reality, contribution actions, de minimis settlements, mixed funding, and orphan share
coverage by the Superfund, non-binding allocations of responsibility, and, of course,
Department of Justice and judicial restraint all serve to soften the theoretical harshness of
3000 can probably lay claim to the broadest exemption: it would exempt generators
and transporters of any size for all activities at a listed site that occurred on or before
January 1, 1987, provided that they do not impede performance of the response
action or natural resource damage restoration and that they comply with all requests
for information gathering and access. Neither of the other bills contains such a broad
The broadest exemption in the other two bills is for small businesses. Both
exempt small businesses from liability for their actions at NPL sites prior to the date
of enactment (S. 8) or the date the bill was introduced (H.R. 2727). The bills define
small business in similar, though not identical, terms -- generally, 75 or fewer fulltime employees, or $3 million or less in annual gross revenues. They would not
provide the exemption if the business contributed significantly to the cost of response
(S. 8), or if the business controlled disposal at the site or had actual knowledge that
disposal or treatment at the site presented a significant risk to public health or the
environment (H.R. 2727).
Exemptions or special settlement provisions are provided in all three bills for
parties that contributed small amounts of waste (the so-called de minimis or de
micromis parties). As noted, CERCLA already contains special settlement provisions
for de minimis parties, but de minimis is not defined and there is only a vague
deadline for Agency action ("as promptly as possible"). The Boehlert bill modifies
these by requiring EPA to offer a settlement to generators and transporters of de
minimis wastes within 180 days of determining that they are eligible. A contribution
is presumed to be de minimis if it is not more than 1% of the total volume of
materials containing hazardous substances and the hazardous substances are not
significantly more hazardous or toxic than other such substances at the site. Owners
and operators of sites would also be covered by this provision if the materials
disposed during their ownership or operation qualified as de minimis. S. 8 provides
a similar definition of de minimis and provides for a reduction in settlement amounts
for natural persons, small businesses, or municipalities that have a limited ability to
S. 8 and H.R. 3000, however, focus on de micromis parties, exempting
generators and transporters who contributed up to 110 gallons or 200 pounds of
hazardous substances, provided that the material did not contribute significantly to
response costs. All three bills also exempt waste generators and transporters or limit
their liability if they only shipped municipal solid waste or municipal sewage sludge
to an NPL site, although the specific provisions vary.
Other groups that would be given new protection against liability include
recyclers (all three bills); railroad spur lines (all three bills); response action
contractors (all three bills, with varying provisions); innocent recipients of property
through inheritance (all but S. 8); innocent owners and operators who acquired a
facility after the disposal or placement of hazardous substances took place (H.R.
2727); governments acquiring property through eminent domain (H.R. 2727) or tax
forfeiture, abandonment, bankruptcy, or foreclosure (S. 8); owners of property
contiguous to NPL sites (H.R. 2727); holders of pipeline rights of way / easements,
or oil or gas leases (H.R. 3000); owners or operators of roads, streets, or other rights
of way over which hazardous substances are transported, except railroads (H.R.
2727); innocent construction contractors (H.R. 2727 and H.R. 3000); "501(c)(3)"
religious, charitable, educational, and scientific organizations (S. 8 and H.R. 2727);
innocent owners and operators of sewage treatment works (H.R. 2727); states, tribes,
and local governments who take action to improve water quality at abandoned mine
sites (H.R. 2727); and municipal owners and operators of codisposal landfills (H.R.
2727 and S. 8).
In addition to exemptions from liability, a second feature common to all the bills
is a nonbinding allocation process for dividing liability at multi-party sites. All three
of the bills establish allocation schemes in an attempt to fairly divide response costs
among responsible parties, while limiting litigation. The bills list the same allocation
factors, which do not include joint and several liability. This is a departure from
current law, under which the primary objective is to get on with the business of
cleaning up, leaving it to the PRPs to allocate liability among themselves.
In general, under the three bills, allocations would be performed by neutral third
parties picked by the PRPs from a list provided by EPA. Using informationgathering and subpoena authority, the allocator would determine the share of
response costs for each PRP and the Fund, and would issue a report. EPA and the
Department of Justice may reject an allocation report, in which case a second
allocation would be performed. If the government does not reject the allocation,
parties may settle based on the report. Settlements may include protection from
contribution law suits and covenants not to sue. EPA would remain free to seek
recovery of outstanding response costs from any party that does not settle, under joint
and several liability.
Within the general allocation framework, there are numerous, but generally
minor differences among the three bills, most regarding deadlines, authorities of the
allocator, procedures for mixed funding, and post-settlement litigation.
Another key issue in the Superfund debate concerns the selection of remedies
and cleanup standards.4 The law currently states a preference for "treatment which
permanently and significantly reduces the volume, toxicity or mobility of the
hazardous substances, pollutants, and contaminants . . . ." The law also directs EPA
to select a cost-effective response; however, it does not authorize EPA, when
selecting a remedy, to consider whether the benefits of a proposed remedy are
"reasonable" given the remedy's costs.
In general, CERCLA requires that remedial actions must attain a degree of
cleanup that complies with any legally applicable or relevant and appropriate
requirements (ARARs) under state and federal environmental laws and state facility
For a background discussion of Superfund cleanup issues, see CRS Report 97-914 ENR,
Superfund Cleanup Standards Reconsidered, October 2, 1997.
siting laws. Each site has unique conditions, and the "relevant and appropriate
requirements" language has caused contention about which cleanup standards and
levels would apply at each site. Although EPA may waive ARARs due to technical
impracticability, the Agency has seldom done so.
The chairmen's Superfund bills all aim to increase the flexibility in the Act to
increase the pace and reduce the costs of cleaning up Superfund sites while protecting
human health and the environment. The bills share similarities but also contain
notable differences in their details, many of which are not addressed in this overview.
All of the bills would add flexibility to the cleanup process by modifying the
law's general preference for treatment in exchange for an emphasis on protecting
human health and the environment over the long term. They each would authorize
EPA to select a remedy that allows hazardous substances to remain onsite above
protective levels (or a required standard), provided that institutional controls are
incorporated into the remedy and that the controls ensure protection of human health
and the environment. The bills would require EPA, in such cases, to include
restrictions on the use of land, water or other resources to provide long-term
protection. S. 8 provides that remedies relying on institutional controls would be
considered equal to any other remedies. H.R. 2727 would authorize the use of
enforceable institutional controls as a supplement to, but not as a substitute for, other
response measures except in extraordinary circumstances. The House bills would
authorize the President to acquire easements that include land-use restrictions where
institutional controls are part of a remedy. S. 8 simply states that institutional
controls may include easements.
H.R. 2727 and S. 8 would retain the preference for treatment in certain cases.
Under H.R. 2727, this preference would apply to "source materials that constitute a
principal threat." Under S. 8, this preference would apply to discrete areas that
cannot be reliably contained or that present a substantial risk to human health and the
environment. H.R. 2727 provides that if the President selects a remedy that does not
include treatment for such source materials, he must publish an explanation. H.R.
3000 would offer more flexibility by emphasizing source control which could include
management or treatment of discrete, highly contaminated areas (called "hot spots").
S. 8 would allow the President to select a final containment remedy for such areas at
landfills and mining sites under certain circumstances. Under H.R. 3000, hot spots
would not include areas at mining and landfill sites.
Each bill would require remedy selection to take into account the current and
reasonably anticipated uses of land and water resources, and to rely to various
degrees on state and local input in making such determinations. H.R. 2727 would
add that the Act's remedy objectives must be to restore property and water for
beneficial use and to protect uncontaminated water.
H.R. 2727 and H.R. 3000 would add a general rule that remedies must protect
human health and the environment and provide long-term reliability (with H.R. 3000
further adding "at reasonable cost"). S. 8 would add a general rule requiring the
President to select a cost-effective remedy that achieves the mandate to protect
human health and the environment and meets applicable federal and state laws. All
three bills would add reasonableness of cost to the list of factors that must be
balanced in selecting a remedy. Under S. 8, no single factor would predominate in
remedy selection, while H.R. 3000 includes an overarching requirement for the
President to select a cost-effective, cost-reasonable remedy.
Among other remedy objectives, H.R. 3000 and S. 8 both specify a residual risk
range that remedies would be required to achieve (i.e., one in 10,000 to one in
1,000,000 cumulative lifetime additional cancer risk). EPA has testified that
prescribing numeric risk goals would lock the Agency into current methods of
expressing and measuring risk, which are in transition under the Agency's new cancer
guidelines.5 H.R. 2727 does not include numeric goals. H.R. 3000 adds that
remedies should not seek to address unrealistic or insignificant risks.
Regarding ARARs, the bills all would delete the "relevant and appropriate"
language to help clarify which federal and state requirements would apply to
cleanups. They each would place conditions on the applicability of state requirements
and would require states to identify applicable state laws or standards to EPA.
Groundwater remediation requirements and details differ among the bills. H.R.
2727 would add to the Act that the objectives of remedies must be to return
groundwater to beneficial uses and to prevent migration of contaminated
groundwater. For groundwater not suitable for drinking water, S. 8 would require
that remedies seek to restore groundwater to current or reasonably anticipated
beneficial uses. Each bill would require that, if the beneficial use of groundwater is
drinking water, remedies generally must meet Safe Drinking Water Act standards at
reasonable points of compliance. H.R. 2727 and H.R. 3000 add that remedies, at a
minimum, must prevent ingestion of contaminated water and may include the
provision of alternative water supplies. Under S. 8, if restoration to drinking water
standards is technically impracticable, a remedy must include provision of an
alternative water supply, point-of-use, or point-of-entry treatment or other treatment
methods to ensure no ingestion of contaminated water.
Groundwater protection requirements also differ. H.R. 2727 would generally
require remedies to protect uncontaminated groundwater to the extent technically
feasible. S. 8 would require remedies to protect uncontaminated groundwater that is
suitable for drinking water, unless technically impracticable, and to protect other
groundwater and related surface water for other current or future beneficial uses, if
technically practicable. H.R. 3000 would require protection of groundwater for
which the current or anticipated use is drinking water, to the extent practicable and
consistent with balancing factors (including cost).
Each bill would require EPA to conduct site-specific risk assessments or
evaluations. The assessments would variously be used to determine what is
protective of human health and the environment, to assist in setting remedial
objectives and identifying exposure pathways, and to evaluate alternative remedies.
Testimony of EPA Administrator Carol Browner before the Senate Environment and Public
Works Committee. September 4, 1997.
S. 8 further would require that facility-specific risk evaluations use chemical-specific
and facility-specific data in preference to default assumptions, when practicable.
The three bills would require risk assessments to be objective and neither
minimize nor exaggerate the risks posed by a site, and exposure assessments to be
based on reasonably anticipated uses of land and water resources. The bills would
require risk assessments to be based on the best available scientific information, with
H.R. 2727 and H.R. 3000 including epidemiological and bioavailability data. These
two bills would also require risk assessments to be based on an analysis of the weight
of scientific evidence, with H.R. 3000 further requiring EPA to base risk estimates
on reasonable high-end estimates of exposure distributions. Each bill outlines risk
All three bills would establish at least one remedy review board to review
proposed remedy options that meet certain criteria (particularly cost) and to make
recommendations to EPA. Also, the bills generally would require EPA to review,
upon request, existing cleanup decisions, and, if appropriate, modify decisions to
allow remedies to reflect current scientific and technological knowledge.
Among other provisions, each bill would direct the President to revise and
streamline procedures for conducting remedial investigations and feasibility studies
and to adopt a phased approach to site characterization and cleanup. Similarly, S. 8
and H.R. 2727 authorize the use of generic (or presumptive) remedies in order to
expedite the remedy selection process.
CERCLA gives the federal government the lead role in cleaning up hazardous
waste sites.6 Unlike most other environmental laws, CERCLA did not envision that
states would assume responsibility to run the program. State authorities concerning
the federal program are concentrated in three areas. EPA is required to confer with
states concerning the choice of remedial actions. States may impose requirements
more stringent than federal standards, if the state pays incremental costs. States may
undertake cleanups at NPL sites, under contracts and cooperative agreements with
EPA. However, states have come to play an important role in waste site cleanup
(through cooperative arrangements for about 10% of federal Superfund sites and,
more significantly, through state cleanup programs addressing non-federal sites).
Despite their limited substantive role, states must make significant financial
contributions to remedial actions that are funded through the Superfund. States now
seek more responsibility for the federal program, in recognition of their growing
capabilities and to reduce duplication and delay in current federal-state roles. Most
interested parties, including EPA, support such a change. At issue is how to balance
For additional information, see CRS Report 97-953, Superfund and States: The State Role
and Other Issues. Updated March 18, 1998.
giving states enhanced responsibility and flexibility while including adequate criteria
to ensure state capability for a larger role in the federal Superfund program.
All three bills establish procedures to give states more substantive responsibility
for the federal program; this would complement the existing state-EPA cooperative
agreement structure of the law that gives states limited responsibility over NPL sites.
All of the bills would authorize EPA either to delegate or authorize program
responsibility over all or some NPL facilities in a state, and for all or some aspects
of cleanup activity, giving states the flexibility to choose. Under delegation, states
would operate the program using federal authorities. Under authorization, states
would utilize state cleanup laws and liability standards in lieu of CERCLA. H.R.
2727 and H.R. 3000 permit delegation or authorization for federal and non-federal
sites on the NPL; S. 8 limits delegation or authorization to non-federal NPL sites, but
allows states to apply for a transfer of authorities at federal facility sites.
The three bills contain essentially similar procedures and criteria for states to
apply for delegation or authorization, EPA review and approval, and withdrawal by
EPA under certain circumstances. S. 8 alone contains procedures for a court to
require EPA to act, if it fails to meet deadlines for approving or disapproving a state's
application. H.R. 2727 and S. 8 establish a pilot program for expedited approvals
of an application for authorization, while H.R. 3000 provides for presumptive
approval of authorization if a state meets 3 of 5 specified criteria. H.R. 2727 includes
provisions intended to achieve orderly transfer of authority over ongoing cleanup
projects. Under all of the bills, following delegation or authorization, EPA is barred
from taking action at a covered site, with limited exceptions. A state would use its
own enforcement authority, but not take over federal enforcement authority, which
is consistent with procedures under other federal environmental laws.
All three bills authorize federal grant funding for delegated or authorized states.
H.R. 2727 and S. 8 include similar provisions that direct EPA to fund administrative,
preconstruction, and remedial activities through contracts or agreements. H.R. 3000
authorizes grants to states for facility-specific costs, as well as general grants, based
on listed factors, for administrative or nonfacility-specific costs.
Under current law, states pay 10% of cleanup costs at sites where the Trust Fund
is paying for cleanup and 100% of operation and maintenance costs. All three bills
reduce the state share of operation and maintenance to 10%, as well. Concerning
addition of new sites to the National Priorities List, H.R. 2727 and H.R. 3000 require
concurrence by a Governor, which is not required by CERCLA but was required by
Congress for a limited time through an appropriations bill. H.R. 2727 waives
concurrence if a Governor does not ensure within 24 months that cleanup will take
place at the facility, either through an enforceable agreement with PRPs or a
commitment of state funds. S. 8 has no similar provision.
Concerning state authority over federal facility sites on the NPL, current law
bars states from applying their own cleanup standards at federal facilities, if they are
more stringent than federal. Under H.R. 2727 and H.R. 3000, states with program
authorization could utilize provisions of state law for cleanup of federally owned
NPL sites. S. 8 (which permits transfer of authority for federal facilities to states, but
not delegation or authorization) expressly bars a state from applying its own
standards at federal facilities. All three bills contain procedures for resolving
disputes between the state and a federal agency over remedy selection (under H.R.
2727 and H.R. 3000, these would apply to delegated states). S. 8 amends CERCLA
concerning compliance by federal facilities. It waives sovereign immunity (allowing
states to sue federal agencies and impose penalties) and clarifies application of state,
local, and other federal requirements to such facilities with respect to response
actions or hazardous waste management.
Natural Resource Damages (NRD)
CERCLA currently requires liable parties to make good the environmental harm
they caused by restoring or replacing publicly owned natural resources they have
injured or destroyed, and by paying damages for the lost use of the resources.7 The
costs of the natural resource damage assessment to determine the amount owed is
also a recoverable cost. The law names federal and state governments and Indian
tribes as trustees for the natural resources they manage or control, and they are the
only ones who can bring an NRD action. Several large suits in recent years, and the
prospect of a number more have concerned industrial interests, and led them to seek
limits to the amounts of natural resource damages they are required to pay.
Pursuant to the law, in 1986 the Department of the Interior (DOI) promulgated
standardized procedures for all trustees to consider when assessing and valuing
natural resource injuries.8 Trustees are not required to use the rules, but have a
rebuttable presumption of correctness if the case goes to court. The rules permit the
use of a contingent valuation methodology for placing a monetary value on the
injured or lost resources. Contingent valuation, a survey technique that attempts to
replicate actual markets, typically by asking respondents how much they would be
willing to pay in higher prices or taxes for a particular environmental improvement,
has been controversial.
All three bills allow damages to be recovered for the cost of restoration or
replacement of the natural resources and the costs of the natural resource damage
assessment, although S. 8 excludes the cost of conducting a study that relies on
contingent valuation methodology (CVM). The Oxley bill forbids the use of CVM
and other economic polling techniques to place a value on lost resources or on a
restoration alternative. The Boehlert and Smith bills also make compensable the
Liability for lost use has resulted from judicial interpretation of CERCLA.
The regulations also apply to a discharge of oil under the Clean Water Act. The National
Oceanic and Atmospheric Administration published rules in 1996 under authority of the Oil
Pollution Act for assessing damages resulting from a discharge of oil.
public's lost use of the resource after Superfund was enacted (December 11, 1980);
and the Oxley bill offers the cost of temporary restoration methods, a potentially
cheaper alternative. Using different terms for the same concept, H.R. 3000 bars
recovery for "non-use values," the more traditional phrase, and H.R. 2727 excludes
the recovery of "psychological damages," defined as "damages based on how a
person or group of persons feels about or perceives a resource." While S. 8
authorizes the consideration of a resource's "unique intrinsic values" in selecting
restoration measures, it does not provide for separate recovery of monetary damages
for losses associated with non-use values.
Injury assessment would be based on site-specific conditions and restoration
requirements, and performed in accordance with generally accepted scientific
methodologies under the two House bills. S. 8 calls for amended injury assessment
regulations to be issued within 2 years that incorporate similar provisions. H.R.
2727 requires that the injury assessment process allow for reasonable public
participation; any information that is not made available at the time the public record
is compiled would not be admissible in any subsequent judicial or administrative
The Boehlert bill states that any court review of an injury assessment would be
in a new trial, as opposed to a "record review" in which the only evidence permitted
would be that in the administrative record compiled during the decision-making
process, a circumstance that industry feels would be unfair to them; EPA, however,
prefers record review. CERCLA is unclear on the subject, and the other bills do not
The two House bills require a trustee to select a range of possible restoration
alternatives that are feasible and cost-effective, and to give preference to ones where
the incremental costs are justified by the incremental benefits, and that can be
achieved in a timely manner. S. 8's language is parallel to them, and requires natural
recovery to be considered among the alternatives. As noted previously, the Senate
bill also allows a trustee to consider a resource's "unique intrinsic values" to justify
expedited or enhanced restoration measures, provided the incremental costs are
reasonable, and H.R. 3000 authorizes the temporary replacement of the lost services
of the injured natural resources.
Under the two House bills, for injured biological resources protected under the
Wilderness Act or the Marine Protection, Research, and Sanctuaries Act, restoration
would be measured by the reinstatement of populations of the resource to the
condition that would have existed had the release not occurred. For those protected
by the Endangered Species Act, restoration may be measured by compliance with a
recovery plan under that act.
S. 8 creates a pilot program allowing the Governor of Idaho to determine
cleanup plans for the Coeur d'Alene basin, and all three bills make the natural
resources title inapplicable to any trial which began before July 1, 1997, which
applies to the Clark Fork River case, State of Montana v. Atlantic Richfield Co.