Superfund and Brownfields in the 107th Congress

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
Future funding of the program is a basic
signed H.R. 2869 (P.L. 107-118), which
issue, as the taxing authority that supported
formally established EPA’s brownfields pro-
the Superfund trust fund ended in 1995. Con-
gram, and provided relief from Superfund
gress has appropriated larger amounts from
liability for small businesses. The Act creates
the Treasury since FY1999 as the trust fund
a $200 million per year brownfield cleanup
balance has declined. The FY2002 appropria-
program (including $50 million for cleanup of
tion for the Superfund program is $1.27 bil-
petroleum-contaminated sites); provides $50
lion, (P.L. 106-377).
million for state programs; and relieves liabil-
ity for contiguous property owners, prospec-
CERCLA’s broad liability scheme has
tive purchasers, and innocent landowners. It
been one of the most difficult issues. The
also provides liability relief for small busi-
average cost of cleaning up a site is about $20
nesses and others who disposed of small
million, a large enough amount to often make
amounts of hazardous waste, and allows
it worthwhile for parties to pursue legal means
businesses to make a financial settlement for
to spread the costs rather than to settle. So at
a lesser amount in cases of financial hardship.
large sites, where it is not unusual for there to
The Senate passed S. 606 on November 20,
be over a hundred potentially responsible
2002 to establish an Ombudsman. The House
parties, there can be a commensurate amount
passed H.R. 2941 under suspension on June 4,
of expensive negotiation and litigation. Such
2002, a bill to make HUD brownfield grants
situations can be especially burdensome for
more accessible, especially to smaller commu-
small businesses and other minor parties.
nities. The Senate Environment and Public
Works Committee reported S. 1079 on April
The law’s cleanup standards and remedy
25, providing funds for the Economic Devel-
selection procedures are also controversial.
opment Administration’s brownfield program.
Requirements for treatment, permanence, and
the application of both federal and state regu-
The Superfund Act’s formal name is the
lations have led to what some critics charac-
Comprehensive Environmental Response,
terize as overly strict risk assessment, and
Compensation, and Liability Act, or CERCLA
increased costs and delay at many sites.
(P.L. 96-510, as amended). It is the principal
Environmental groups, on the other hand,
federal program for cleaning up hazardous
strongly support cleanup remedies that mini-
waste sites. As of December 2002, 809 non-
mize remaining on-site pollution rather than
federal sites (61%) placed on the Superfund’s
remedies that, while designed to limit human
National Priorities List (NPL) had been re-
and environmental exposure, leave wastes on
moved to the Construction Completed List.
site. Business interests also want to cap the
Program critics say it is slow, ineffective, and
amount of natural resource damages that can
expensive. Program supporters acknowledge
be assessed against them.
that the statute needs to be updated, but argue
that Superfund cleanups have prevented wide-
A number of states are seeking a full
spread health and environmental exposures
delegation to them of the authorities in CER-
and have created strong incentives for more
CLA, including remedy selection, control over
careful hazardous waste management.
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. November 30, 1998,
GAO/RCED-99-22.
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 low-
and 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 anthrax-
contaminated 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. 107-
448), 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: Assessing Nonmarket Values through
Contingent Valuation. 21 p.
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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