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PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/transportation]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.







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OCTOBER 29, 1997

Printed for the use of the

Committee on Transportation and Infrastructure





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OCTOBER 29, 1997

Printed for the use of the

Committee on Transportation and Infrastructure

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BUD SHUSTER, Pennsylvania, Chairman

THOMAS E. PETRI, Wisconsin
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
JAY KIM, California
STEPHEN HORN, California
BOB FRANKS, New Jersey
JOHN L. MICA, Florida
SUE W. KELLY, New York
RAY LaHOOD, Illinois
FRANK RIGGS, California
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CHARLES F. BASS, New Hampshire
JACK METCALF, Washington
ROY BLUNT, Missouri
JOSEPH R. PITTS, Pennsylvania
JOHN R. THUNE, South Dakota
CHARLES W. ''CHIP'' PICKERING, Jr., Mississippi
JON D. FOX, Pennsylvania
J.C. WATTS, Jr., Oklahoma

NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
ROBERT E. WISE, Jr., West Virginia
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BOB CLEMENT, Tennessee
ELEANOR HOLMES NORTON, District of Columbia
PAT DANNER, Missouri
JAMES E. CLYBURN, South Carolina
BOB FILNER, California
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
BILL PASCRELL, Jr., New Jersey
JAY W. JOHNSON, Wisconsin
JAMES P. McGOVERN, Massachusetts
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TIM HOLDEN, Pennsylvania

Subcommittee on Water Resources and Environment

SHERWOOD L. BOEHLERT, New York, Chairman

JOHN R. THUNE, South Dakota Vice Chairman
THOMAS E. PETRI, Wisconsin
JAY KIM, California
STEPHEN HORN, California
BOB FRANKS, New Jersey
SUE W. KELLY, New York
FRANK RIGGS, California
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BUD SHUSTER, Pennsylvania
(Ex Officio)

ROBERT A. BORSKI, Pennsylvania
JAY JOHNSON, Wisconsin
ROBERT E. WISE, Jr., West Virginia
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
BILL PASCRELL, Jr., New Jersey
JAMES P. McGOVERN, Massachusetts
NICK J. RAHALL II, West Virginia
(Ex Officio)


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    Browner, Carol, Administrator, Environmental Protection Agency

    Chasis, Sarah, Senior Attorney, Natural Resources Defense Council

    Florini, Karen, Senior Attorney, Environmental Defense Fund

    Garcia, Terry D., Acting Assistant Secretary for Oceans and Atmosphere, National Oceanic and Atmosphereic Administration, U.S. Department of the Interior and the U.S. Department of Agriculture

    Garvey, Carol, Wilson, MD, MPH, Health Officer, Montgomery County Department of Health and Human Services, on behalf of the National Association of County and City Health Officials

    Helmke, Hon. Paul, Mayor, Fort Wayne, IN

    Luke, William D., Jr., President, Delaware Olds, Inc., on behalf of the National Automobile Dealers Association

    Reilly, Bernard J., Corporate Counsel, Dupont Company, on behalf of the Chemical Manufacturers Association
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    Stewart, Richard, Professor of Law, New York University School of Law, New York, NY

    Subra, Wilma, President, Subra Company, Inc

    Tulou, Christophe, Secretary, Delaware Department of Natural Resources and Environment Control

    Weichsel, John, Town Manager, City of Southington, Connecticut

    Williams, Barbara, Owner, Sunnyray Restaurant, Gettysburg, PA


    Barcia, Hon. James A., of Michigan

    Boehlert, Hon. Sherwood L., of New York

    Goodling, Hon. William F., of Pennsylvania

    Thune, Hon. John R., of South Dakota


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    Browner, Carol

    Chasis, Sarah

    Florini, Karen

    Garcia, Terry D

    Garvey, Carol Wilson

    Helmke, Hon. Paul

    Luke, William D., Jr

    Reilly, Bernard J

    Stewart, Richard

    Subra, Wilma

    Tulou, Christophe A.G

    Weichsel, John

    Williams, Barbara
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    Borski, Hon. Robert, a U.S. Representative in Congress from Pennsylvania, submitted, ''Excerpts from Public Comments regarding EPA Municipal Solid Waste Settlement Policy''

Browner, Carol, Administrator, Environmental Protection Agency:

Examples of instances over the past 4 years in which Administrator Browner or her staff expressed EPA's desire to ''get the little guy out'' of the Superfund liability web and/or explained the methods by which EPA has reduced the liability burden on small parties

QFR response

    Florini, Karen, Senior Attorney, Environmental Defense Fund, report, Hazardous Waste Characteristics Scoping Study, U.S. Environmental Protection Agency Office of Solid Waste, November 15, 1996

    Reilly, Bernard J., Corporate Counsel, Dupont Company, on behalf of the Chemical Manufacturers Association, responses to questions from Rep. Boehlert

    Tulou, Christophe A.G., Secretary, Delaware Department of Natural Resources and Environmental Control, on behalf of the National Governors' Association, responses to post hearing questions
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William's, Barbara, Owner, sundry Restaurant, Gettysburg, PA, newspaper articles from the Gettysburg Times:

''Littlestown Rejects Latest Superfund Settlement'', by Robert Holt, September 10, 1997

''Superfund Cleanup Construction for Adams Won't Begin Until March'', by Robert Holt, September 24, 1997

''Superfund Settlement Awaits Judge's Approval'', by Robert Holt


    Cavaney, Red, President and CEO, American Petroleum Institute, statement

    du Moulin, Richard T., Chairman, Marine Transport Lines, Inc., INTERTANKO, statement

    Hei, Diane VanDe, Executive Director, Association of Metropolitan Water Agencies, statement

    National Association of Manufacturers, statement

    National Association of Realtors, statement

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    Sullivan, John H., Deputy Executive Director, Government Affairs Office, American Water Works Association, statement

    Trilling, Barry J., Attorney and Partner, Pepper, Hamilton, and Sheetz, on behalf of the National Association of Industrial and Office Properties




U.S. House of Representatives,

Subcommittee on Water Resources and Environment,

Committee on Transportation and Infrastructure,

Washington, DC.

    The committee met, pursuant to notice, at 1:13 p.m., in room 2167, Rayburn House Office Building, Hon. Sherwood Boehlert (chairman of the subcommittee) presiding.

    Mr. BOEHLERT [presiding]. We're going to hold off just a couple of minutes. We have some members en route and we want to make certain we have full attendance here as we start this very important hearing.
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    Ladies and gentlemen, let the committee come to order for, what I think will be, an historic major step forward in our determined effort to reform Superfund.

    Before we have any opening statements from either the Chair or members of the minority, I'd like to set the stage for what we are about by showing a video. It's a portion of a program that appeared on ''60 Minutes'' on Sunday evening last. I think it's very illustrative of the problem we face and the problem we are trying to solve. So with that brief introduction, we will show this excerpt. It will last about 12 minutes.

    Then we will go to opening statements. I will open first. My distinguished minority leader, Mr. Borski, will go next and, out of courtesy, I will recognize the ranking member of the full committee, Mr. Oberstar. He will be preempted only by the chairman, if he should appear before then. And then we'll give everyone an opportunity for opening statements.

    We are very fortunate to have as our lead witness the Administrator of the Environmental Protection Agency, Administrator Browner, who I would like to make Secretary Browner, because I believe the environment is sufficiently important to warrant Cabinet-level status with the title and all the accouterments that go with it. And I've been a long time advocate of that.

    But first, let's go to the video.

    [Video shown.]

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    Mr.BOEHLERT. Thank you. We have a vote on. What I intend to do is have my opening statement, and recess for the vote, and come back with Mr. Borski opening up.

    But if you're wondering why I'm so energized about reforming Superfund, much of the answer lies in that excerpt we saw from this past Sunday's ''60 Minutes'' program.

    The current Superfund program is not serving the environment or the public as well as it should. There are those who will tell you that Superfund is broken, that's it's not doing any good, that the administration is not doing anything to clean up toxic waste sites. I am not among those who say that.

    The Superfund program is improving, not as rapidly as I would like, but is improving. The Administrator fairly says that they have made some administrative changes that have improved it, and I applaud the Administrator for doing that, and I have done so publicly. We want like to codify some of those changes. But the fact of the matter is, we need to do a better job with respect to Superfund, and the way to do that is to have meaningful, sensible Superfund reform.

    Now this is not a cosmetic hearing. This is not a hearing for all of us to get up here and make statements so we can get good press back home and say, ''Aren't those guys wonderful down in Washington? They're reforming Superfund.''

    This is going to be a meaningful hearing. We genuinely want to hear from the witnesses. We are going to very carefully consider what the witnesses have to say. We'll make some adjustments.
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    I have a bill that I have introduced. It's called SAFE, which stands for Superfund Acceleration, Fairness, and Efficiency Act. Now I have not been to the top of the mountain; I have not seen the Promised Land; I do not have all the answers to all the questions. But I know that, just like the World Series, someone has to throw out the first pitch. And for year after year, too many people have stood around talking about Superfund reform and have not done anything about it.

    We're going to do something about it. This subcommittee is going to do something about it. Not only are we going to have this very important hearing this week to get very valuable input, we're going to have a markup next week. We are going to move forward. The issue is too important not to do so. Now, I have a rather lengthy statement that a very capable staff has written and it reads magnificently.


    But I'm going to submit that for the record.

    [The prepared statement of Mr. Boehlert follows:]

    [Insert here.]

    Mr. BOEHLERT. I will tell you this: Those of us who are privileged to serve in public office, and probably Chairman Oberstar has been here the longest and I say that out of respect—we receive a lot of awards. People give us silver plaques and certificates, and it's sort of gratifying; you feel good about it. Of all the awards I 've received, the one I value the most is the totally awesome Environmental Voting Record Award from the Kids Against Pollution. I value that award made out of construction paper by 12-, 13-, 14-year-old kids because it has so much significance.
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    Let me tell you what we are about up here. We are about working and striving for a cleaner, healthier, safer environment, not just for ourselves, but for our kids. And Mr. Borski and I, who've worked so closely for so long, we haven't got his endorsement yet of the bill. I would hope that I have his endorsement, but I respect him and I value his input.

    And I am looking very much forward to the testimony of Administrator Browner. I've talked to her at some length. I mean, if she's coming up here just to trash the bill, we might as well make it a short hearing. But if you're coming up here to be positive and constructive and say how we can work together, I look forward to that.

    With that, let's go into a brief recess. Go over and vote, and come back.


    Mr. BOEHLERT. Ladies and gentlemen, I apologize for what's happening.

    Unfortunately, we don't have as much comity in the House of Representatives as we do on this committee. We are going through a series of votes that are likely to keep us detained for at least 30 to 45 minutes and I apologize for that.

     I know what your schedule is like, but I have to take leave to go over and vote. If I could control the Floor, I would hold all votes until the end of this very important hearing because there's nothing more important to me and I think all of us in this room that know what we're about. But the fact of the matter is, the House is working its will, and sometimes it does so in an embarrassing way.
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    Do you have any question about that? I think you understand fully.

    Ms. BROWNER. I do understand, Mr. Chairman.

    Mr. BOEHLERT. So, we going to recess now for 30 minutes? Okay? Hopefully, we'll be back——

    Ms. BROWNER. You wouldn't expect us to be—if I leave for 30 minutes, is that——

    Mr. BOEHLERT. We will miss you, but we will welcome you back.


    Yes, I think you'll be safe to do so.

    Ms. BROWNER. Okay.

    Mr. BOEHLERT. Because, also, we're going to—as soon as we get back, we're going to have some opening statements, obviously, from Mr. Borski and Mr. Oberstar.

    Ms. BROWNER. Okay.

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    Mr. BOEHLERT. Okay, thank you. We continue in recess.


    Mr. BOEHLERT. The hearing will resume and here's what we're going to do out of courtesy to our witness:

    Mr. Borski will give his opening statement; then we will hear from Ms. Browner. Then, after we complete her statement and questions, we will then give our other colleagues an opportunity for an opening statement. But I think in all fairness, we can all appreciate the fact that Ms. Browner has a very demanding schedule, and we have kept her far too long, in view of the circumstances, and she has other things to do.

    So with that, let me recognize, and I want to be fair to everybody, unless I hear some strong objections to that approach. All right, fine, we'll hear from Mr. Borski; then we will go directly to Ms. Browner for a statement and questions; then our colleagues will be given an opportunity for opening statements, which we hope can be rather brief because, quite frankly, most of us have staked out where we're coming from. This is a learning exercise. We want to know where the Administration and others are coming from, so that we can reason together.

    Mr. Borski.

    Mr. BORSKI. I thank you very much, Mr. Chairman, and let me first thank you for scheduling this hearing.

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    It seems as though we've certainly had a number of hearings on Superfund, and I know that you and I share a common hope that we are nearing the end of the reauthorization effort.

    First of all, Mr. Chairman, I want to commend you for the bipartisanship you have demonstrated in developing your proposal. Both you and your staff have been available virtually night and day to narrow differences and to work towards a bipartisan solution: the Superfund Reauthorization. And I acknowledge and appreciate your continuing willingness to work with us towards achieving that bipartisan goal.

    As I have stated before, my primary objective is a consensus bill with the result of fair, faster, and more efficient cleanups. I hope to continue to work with you towards that end.

    I also wish to associate myself with your remarks, Mr. Chairman, about our Administrator. Administrator Browner deserves a great deal of credit for her accomplishments in the area of Superfund. However, I am convinced, and I believe you are as well, that she has done all that she can do administratively. We need to finish the task of making Superfund faster, fairer, and more efficient through the legislative process.

    Mr. Chairman, the bipartisan approach which you have pursued on Superfund Reauthorization is the only route to achieving our mutual goals. If history has taught us anything, it is that there can be no successful environmental legislation without broad bipartisan support of this committee and the House leadership.

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    And, Mr. Chairman, I have always believed that liability reform is a critical first step in Superfund reform. You and I both support changes to the Superfund Liability Program, but we do not yet agree on what those changes should be.

    Our task has been to find a common ground among ourselves and the various stakeholders. I believe that your proposal has narrowed the differences among the stakeholders, but I also believe that work remains. We are not there yet, in my view.

    Mr. Chairman, if we cannot agree on liability reform, I do not believe that we can agree on a comprehensive bill. And with all due respect, Mr. Chairman, you have offered a proposal for liability reform which I find to be too broad.

    While I acknowledge your movement away from a site carve-out, I believe that your proposal continues to allow too many parties who contribute hazardous waste to a Superfund site, and who have the ability to pay their share of cleanup costs, to be excused from their responsibilities.

    Therefore, let me explain what I support in liability reform. The focus of Superfund liability reform should be on parties and the type of waste sent to the sites. I believe that small businesses of fewer than 50 employees and annual revenues less than $3 million should be exempt from liability at Superfund sites, based upon their presumed inability to pay. The exception would be if their waste contributes significantly to the cost of the response, or the party fails to cooperate in the cleanup. I believe this will more than address the typical small business, which has five employees and $350,000 in annual sales.

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    I believe that any party who contributes less than 1 percent of the waste of the site be provided an opportunity to settle their liability under strict time lines. The 1 percent threshold should be flexible, depending upon the circumstances of the site; the agency should be required to make timely offers of settlement under procedures consistent with the amendment you, Mr. Chairman, offered in the 103rd Congress on behalf of the small business community.

    I propose that the liability for your municipal solid waste and domestic sewage sludge be limited. And it is my understanding that the administration's proposed policy for MSW and sludge has been widely praised by municipal groups. I have a summary of their contents and ask they be made part of the record.

    Mr. BOEHLERT. Without objection.

    [The information follows:]

    [Insert here.]

    Mr. BORSKI. I believe that it should be the basis for resolving issues of liability for MSW. We should allow limitations to apply prospectively, if a municipality is willing to implement a household hazardous waste collection program.

    We should also provide a complete exemption for MSW from residents, small businesses, and small non-profit organizations, so that business owners such as Barbara Williams are no longer held hostage in the Superfund system by large corporate polluters.
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    We should clarify the definition of MSW to ensure that high-volume, low-toxicity waste having the same characteristics of MSW, regardless of its source, will be subject to the same treatment as traditional MSW. Any such treatment would also be accompanied by requirements for hazardous waste.

    We should enact liability exemptions for parties who are generators or transporters of scrap paper, plastic, glass, textiles, metals, or spent lead acid, nickel cadmium, and other batteries. These parties should not be liable under Superfund if they meet certain standards which would demonstrate that the activity was a legitimate recycling transaction.

    Parties who contribute very small amounts of materials containing hazardous substances should be exempt from liability, unless their waste contributes significantly through the course of the response. These levels should be set at 200 pounds or 110 gallons of materials containing hazardous substances, pollutants, or contaminants.

    I propose that all other remaining parties associated with the hazardous substance, pollutants, or contaminants be subject to a fair share allocation process whereby a neutral third party will allocate shares of responsibility among the parties.

    Funding by the trust fund or orphan share funding must be included in allocation. The fund payment should consist of all shares associated with insolvent or defunct parties, and the shares of parties whose liability have been extinguished or limited, and a pro rata share of unattributable liability shares.

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    Finally, Mr. Chairman, brownfields all over the Nation are being bypassed for redevelopment because of concerns about potential liability for hazardous waste cleanup. These brownfields are excellent candidates for future commercial and industrial use to revitalize communities, provide jobs, and protect undeveloped property from develop.

    I propose that cities be provided with financial assistance to identify and assess brownfields, and to assist in the cleanup of brownfields. The responsibility for cleanup must be clearly established, so that a prospective purchaser of a brownfield can be assured of no liability for contamination which the purchaser did not cause or contribute to. Liability reform is, of course, closely related to funding of the program.

    Mr. Chairman, the recurring criticism of cleanup is that cleanups take too long. Therefore, all liability exemptions should be dependent on funding a pace of cleanup that accommodates the current backlog of sites awaiting cleanup. The President's proposal is to expedite cleanups by 2000, for which funding has not yet been approved.

    I cannot support any proposal which could result in the transfer of cleanup dollars to liability forgiveness dollars. Funding must accommodate the base program, plus the 500 additional sites by 2000, before there can be funding for liability relief. I must stress that liability relief simply cannot cause a slowdown in the pace of cleanup. Citizens have lived with Superfund sites in their neighborhood for too long.

    Mr. Chairman, I have always supported a signable bill. I believe that this proposal will allow the liability title of the bill to be signed. If we can agree, then we should move on to remedy selection and remaining titles of the bill. If we cannot, I would respectfully suggest that we recognize our inability to resolve our differences on a comprehensive bill, and consider moving a bill which addresses the liability issues on which we can come to agreement. This must be the last Congress where hundreds of small parties, such as Barbara Williams, are held hostage in the Superfund liability system.
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    I look forward to continuing working with you, Mr. Chairman, and look forward to hearing the testimony of our guests today.

    Mr. BOEHLERT. I want to thank Mr. Borski for his opening statement.

    I must say I am very encouraged by his opening statement because it indicates that most of what he is saying is in support of the base bill that I have offered. So that is a cause for great encouragement. Some of what he says has been said for the first time, so I'm very anxious to examine his proposals.

    I would point out that, at first blush, it would appear that we are all very interested in taking the Barbara Williamses of the world out, but I'm not sure you get there because you don't deal with the question of past cost.

    But I want to examine it very carefully because what you're saying indicates that we have an agreement in principle basically, right down the way, and that's good. We want to get the small person out. We want to end this mindless litigation as much as humanely possible. We want to make certain that the ''bad guys'' really do have to pay, and we want to make certain that we get meaningful reform.

    With that, let me recognize the ranking member of the full committee for a brief introduction. He is not going to have his opening statement; he's going to abide by the earlier agreement that we let Ms. Browner go forward, and then he will have the opening statement after her testimony and questions.
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    But I'm pleased to recognize distinguished ranking member, Mr. Oberstar.

    Mr. OBERSTAR. Thank you, Mr. Chairman.

    [Mr. Barcia's prepared statement follows:]

    [Insert here.]

    Mr. BOEHLERT. Thank you very much.

    Now it's my pleasure to welcome as our first witness, the distinguished Administrator of the Environmental Protection Agency, Carol Browner.

    Ms. Browner, you may proceed as you wish.


    Ms. BROWNER. Thank you, Mr. Chairman, and I want to thank all of the members of the subcommittee for the opportunity to testify here this afternoon.

    Mr. Chairman, this is the third time this year that I have come to Capitol Hill to testify on this most critical issue facing the American people. As you yourself know, I have appeared before this subcommittee several times over the past almost 4 1/2 years now to discuss reform of the Nation's toxic waste cleanup program.
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    Mr. Chairman, I want to be clear. I'm not complaining about coming here. I will gladly come here each and every day. I will be here tomorrow; I will be here Friday; I will even come on Saturday, if that is what it takes to get a bill that we can all agree on, a bill that will literally work for the American people. It is that important to me; it is that important to this administration.

    Let me be clear with all the members of this committee. We are strongly committed to working with this subcommittee, with others in the Congress, to enact Superfund reform legislation in the 105th Congress.

    We want to build on the administration's own successes in making the Superfund program operate faster, fairer, and more efficiently. We want to rid America's communities of the hazardous waste sites. We don't think any child should have to grow up next to a toxic waste dump.

    Also Mr. Chairman, we want to protect the ''little guys,'' the small businesses, the Mom-and-Pop operations, that we all agree have become unfairly entangled in Superfund litigation.

    On that score, Mr. Chairman, I want to thank you, and I want to thank Mr. Borski, for your leadership on reform of Superfund. And I want to commend Congressman Barcia for his efforts, the bill that he has introduced.

    I truly believe that, by working together, we can get a bill. I believe we can achieve our common goal of a Superfund program that cleans up more toxic waste sites faster, does a better job of protecting the health of our citizens, and returning the land to communities for productive use.
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    However, at the same time, we must be careful not to undermine the significant progress we have already achieved in improving the Superfund Program. The program we run today at EPA is fundamentally different from the program of 7, 8, 10, or 12 years ago. Let me just spend a brief moment talking about the progress we have made in the day-to-day operation of this program.

    Thanks to a series of administrative reforms, Superfund now provides significantly faster cleanups at lower cost. On average, we have cut more than 2 years off the time it takes to clean up the average site, and we are well on our way of achieving our goal of saving even more time.

    Thanks to our administrative reforms, the Superfund program is faster. It is fairer. We have completed construction at a total of 343—343—Superfund sites in just the last 4 years. That is more than in the prior 12 years combined. More than 85 percent of all of the Superfund sites are now cleaned up or are in the midst of cleanup activities. Eighty-five percent of the sites were either done, or we're currently out in the field working.

    However, the job is not done. The President has committed us to doubling the current pace of cleanup, so that by the year 2000, we will have completed construction at 900 toxic waste sites, and we need Congress to help us in this effort. We still need Congress to supply the necessary funding so we can meet this goal of 900 cleanups by the year 2000.

    Now, Mr. Chairman, you began the hearing by showing a ''60 Minutes'' segment. I want to be very clear about what we saw in that piece, the issues that were raised by ''60 Minutes.'' They are the very same issues that have frustrated me in the Superfund program from day one.
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    We have tried to solve the problem of the little people from day one. The owner of the diner who sends mashed potatoes to the local dump should not have to worry about being sued by large corporate polluters who are responsible for the contamination of that site. Innocent landowners, churches, Girl Scouts troops, small storefront businesses should not have to wonder if they will find themselves brought into the Superfund net by large corporate polluters.

    Unfortunately, this is what happens; this is what has happened; and this is what will continue to happen if we don't all rewrite this law. It is a tragedy. It is wrong. It is a flaw in the current law. We have to fix it.

    Now, at EPA, we have been doing everything we possibly can under the current law. We have literally stepped in to protect thousands of small parties from the large parties. But you need to understand something. We are doing it with our hands tied behind our backs. We are doing it in a way that doesn't really work for anybody because we are constrained by a bad law.

    We all agree this was never intended. We all agree that we need legislation to stop it from happening again, and that is why we have been so eager, year-in and year-out, to work with you, and to find some way of preventing this from happening. We will do our best, but our best will always be less than we all want, unless we can join together and rewrite the liability sections of this law, at a minimum.

    The case we saw in the ''60 Minutes'' segment, Keystone landfill in Pennsylvania, is a compelling reason why it is so important for all of us to literally roll up our sleeves and come to an agreement on a Superfund reform bill, a bill that would prevent small parties from finding themselves trapped.
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    Now, Mr. Chairman, as I understand the proposal that Mr. Borski detailed, he briefly outlined, as I understand it, it would, in fact, protect the Barbara Williamses of the world. As we understand it, it would speak to the very real problems of the small parties, the very thing that all of us want to see fixed.

    We believe that those who are really responsible, not the small parties and certainly not the taxpayers of this country, should have to bear the cost of cleaning up the hazardous waste sites. This is a vitally important principle, and it is one that is part of the original Superfund law that we should retain.

    Mr. Chairman, with respect to the bill which you introduced, I want to be very, very clear. Make no mistake about it, we believe it is a good faith effort to address those areas of the Superfund program that need improvement.

    And, Mr. Chairman, we do appreciate your efforts. You, yourself, used a baseball analogy. You suggested you were throwing out the first pitch. I would say to you, we agree, we're all finally on the same field. That is progress.

    We certainly appreciate the fact that the concerns that we have raised over the last several months about co-disposal have been recognized. The elimination of the co-disposal carve-out proposal is one that we welcome. We are concerned that the bill's broad liability exemptions could have the effect of shifting cleanup costs from the larger responsible parties, the larger polluters, to the taxpayers. We are concerned that the bill could create many new opportunities for litigation—we don't need more lawyers; we need fewer lawyers in this program—and that the effect of more litigation could be to delay cleanup efforts by literally re-opening longstanding cleanup settlements with a mandatory process.
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    We're also concerned that we would not be able to adequately address the treatment of the most highly toxic or highly mobile toxic waste, and thus, perhaps fail to ensure what we all know needs to be done, which is protect public health and the environment.

    Mr. Chairman, we would also like to thank you for your efforts to speak to the issue of contaminated ground water, particularly, the way in which you addressed the concern that we had about containing contaminated ground water. We are concerned, however, that the bill may not ensure the treatment of the sources of the ground water contamination, and we think that is particularly important. We think if we fail to address the actual sources, what's causing the ground water to become contaminated, it will be virtually impossible to restore ground water to beneficial uses, which may ultimately include drinking water.

    Finally, I want to spend a moment just speaking to the role of States in this process of Superfund. We are concerned, as we understand the bill, that it would inappropriately limit our ability to work in partnership with the States. You know, if we've learned anything over the last 25 years of public health and environmental efforts in this country, it is the need for honest partnerships; it is the need to recognize that no two States are the same; the resources they commit, laws, their expertise vary dramatically. Please allow us the flexibility to work in partnership with States to bring to the challenge of toxic waste cleanup the strength that we each have to focus on what each of us can best do to see these sites cleaned up.

    Having said that, Mr. Chairman, let me conclude with this thought: We do have our differences, but they are not insurmountable. I believe that we can reach an agreement. I think if we can take time for an in-depth, expedited albeit, but in-depth dialog, if we can take the thoughts of Mr. Borski, if we can look at how best to structure this program so it operates in a sensible manner on a day-to-day basis, we can, in fact, see Superfund reform this year.
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    We fully agree on the broad goal of making this program work better for America. We fully agree that public health must be protected, that small, innocent parties should not be part of this program; they must be taken out of the liability net, and we are willing to work with you to achieve that.

    Thank you.

    Mr. BOEHLERT. Thank you very much, Madam Administrator. I appreciate the spirit of that statement, and I appreciate, once again, renewing your expressed interest to work cooperative to fashion a bill that is going to be signable.

    This is not just some exercise in public relations. This is a determined effort to get something constructive before the President, so he can sign it, so that we can get on with the job of cleaning up our Nation's toxic waste sites.

    Now in the interest of time and efficiency, I would now ask the Acting Assistant Secretary for Oceans and Atmosphere, Terry Garcia, join Administrator Browner at the table for purposes of responding to questions.

    Mr. Garcia, welcome to the subcommittee. We appreciate your presence and look forward to continuing the working relationship we have with NOAA on natural resource damages and other issues. If you care to make a brief comment before we turn to questions, feel free to do so at this time.

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    Mr. GARCIA. Thank you, Mr. Chairman. I'll try to be very brief.

    I want to begin by thanking you for the hard work the committee has put into developing this bill, as well as to applaud the committee's recognition that restoration has to be the goal of the natural resource damages (NRD) program. Last year the administration submitted to Congress a proposal for the reform of the NRD provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). That proposal, we believe, addresses the obligation of the trustees to protect and restore natural resources, as well as the legitimate interest of responsible parties to focus efforts on restoration of injured resources rather than quantification of resource values in litigation.

    We propose making the measure of damages the cost of restoration, not the monetized value of the injured resource or lost services, opening the process to the public and the responsible parties, amending the statute of limitations to assure that NRD claims are not filed prematurely.

    The proposal is designed to change the fundamental structure of CERCLA's NRD claim provisions from litigation-driven tort claims to open resource management decisions. Our proposal reflects the actual practice and experience of the Federal trustees.

    H.R. 2727 responds to much of what we have suggested. However, there are still areas where we feel further work is required. These areas, if not addressed, we believe limit our ability to effectively address damages to natural resources and compensate the public fully for its losses, as well as creates incentives for further litigation and delay.
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    As set forth in the administration's principles on Superfund reform, the NRD provisions must be predicated upon, one, clarifying that NRD claims are based upon restoration costs rather than upon monetized values; two, that claims are presented in a timely and orderly fashion, thus, discouraging premature and unnecessary litigation; and, three, that the authority of natural resource trustees to restore fully our Nation's natural resources is not jeopardized.

    Mr. Chairman, thank you for this opportunity. We look forward to working with the committee in addressing these concerns.

    Mr. BOEHLERT. Thank you very much, Mr. Garcia, and I do appreciate it.

    Let me start off with the questioning, and I will adhere to the 5-minute rule, and that apply to the Chair as well as everyone else.

    First of all, I appreciate your willingness to continue the cooperation. Let me say that we're determined to go forward next week with the markup in subcommittee, which means that I would hope that your staff will continue to be available, on call at any time, to work this out. This very capable staff up here has been working for a long time on this subject. While the rest of us, the Members, were off having our August recess, the staff was here working. While we were doing our Columbus Day politicking, the rest of the staff was here working. So let's give a well round of applause to the staff for their able professionalism and hard work.

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    That's it. Now it seems to me we both want to get small businesses out.

    Ms. BROWNER. Yes.

    Mr. BOEHLERT. That makes a lot of sense because that's a disproportionate share of the total litigation. But it further seems to me that mine is a little bit broader than yours, but you concentrate only on ability to pay, and I concentrate on ability to pay, as well as small contributors. And I think mine is a better proposal. Why isn't it a better proposal?

    Ms. BROWNER. We have several concerns in the details of your proposal. We think one of the results of your proposal will be more litigation around particular sites. For example, you suggest that waste no more toxic than municipal solid waste would be exempt. That would require something that we do not do at sites today, which is to go out and locate every toxicity stream and to fingerprint it. The amount of records we would need from companies is far greater than anything we ask for today.

    Also, the members should know that, at sites today where you may have several parties who are trying to figure out how much each of them should pay, they don't go through this process. This is not something the private parties are doing today. So that would be——

    Mr. BOEHLERT. Understand where we're coming from now. What we say with our exemption—and, incidentally, it's an exemption that we can pay for because we don't want to raise any more taxes, and we're a little bit upset that people have been getting a free ride since December 31, 1995. The big guys have not been paying any tax, and we've got to have reform before that tax is renewed. So that's the revenue stream we need.
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    But we essentially say, you exempt small businesses of 75 or fewer employees, and $3 million or less in revenue or less than a 3 percent profit margin, and that we also would exempt de minimis contributors, those who contribute less than 1 percent of the highly toxic waste to the site. Now that says to me, that not only deals with ability to pay; that just gets a much broader group out. That's the group most responsible for all the litigation. Those are the Barbara Williamses of the world.

    Ms. BROWNER. Mr. Chairman, we couldn't agree more with the need to take Barbara Williams out, but, as we understand your proposal, you go well beyond that. For example, you would take out the owner and operator of the site. Now these were people who went into business, who made business decisions about whether to put double liners in or single liners in, who made decisions about which waste to accept. We don't have any problem with them being treated in a fair manner, using their ability to pay, but to simply say on the front end, even though you chose to be in a business dealing with hazardous waste, you're out——

    Mr. BOEHLERT. Yes, but I'm only going to take them out if they meet all of the criteria. Let me tell you something. I've got a provision in there for reachback. We're not going to let any sucker off that is really guilty of violating the spirit of this law, but we——

    Ms. BROWNER. Why would we take an owner—an owner—of a site, why on the face of the law would we pull an owner of a toxic dump, out?

    Mr. BOEHLERT. My answer is, if they didn't contribute to the problem, why would we keep them in?
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    Ms. BROWNER. They ran a site. We don't disagree with you that some of these owners meet the definition of a small business. We are the first to agree with you on that front. But why not manage the owner? Right now—we're not talking about Barbara Williams. She didn't own that site.

    Mr. BOEHLERT. Right.

    Ms. BROWNER. We think she should be out on the face of it. But for the category of people who did own a site, who took hazardous waste, who made business decisions, who sold their site to WMX for millions of dollars——

    Mr. BOEHLERT. The owners we want to take out are the people who did not take——

    Ms. BROWNER. ——why should they be out on the face of it?

    Mr. BOEHLERT. But the people we want to take out, the owners, are the ones who did not accept hazardous waste.

    Ms. BROWNER. That's not our understanding of your proposal.

    Mr. BOEHLERT. Then that's one of the reasons why we want to have a good dialog, because let me assure you—I mean, I've got an obligation to those Kids Against Pollution—let me assure you, any of those big violators out there, I don't care what size they are, I want to get them. But I want to end this mindless litigation. I want to make certain that we get the small business person and the minimal contributor to the problem out.
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    Ms. BROWNER. We don't disagree. I think we all agree Barbara Williams should be out. I mean, we could write that bill tomorrow, and we could pass it, and we could all agree to it, and we'd be done, and we would like nothing better than to see that happen.

    Now we're done with that——

    Mr. BOEHLERT. Right.

    Ms. BROWNER. ——category of people. The next category are the large contributors to these landfills. For lack of a better word, let's just use ''landfills,'' these multi-party sites, the people who were running large industrial facilities, generating large volumes of toxic waste, and they happened to be hauling it over to a landfill as opposed to putting it in the back 40 of their industrial facility. We would all agree they shouldn't be treated any differently because they happened to go to a landfill versus a keep it on site. We would agree with that.

    So that then leaves us——

    Mr. BOEHLERT. And we keep them in; you acknowledge that. We keep them in——

    Ms. BROWNER. That, then, leaves us with a category of parties that may have generated a lot of hazardous waste, may have owned one of these landfills at some point in time, who happened to also fit your definition of fewer than 75 employees being automatically out. All we're saying to you is, rather than by act of law taking them out, let us look at whether or not they can pay some of the cost for the waste they dump, the toxic waste, and the cleanup associated with it. They may come out if they don't have any resources. We saw the gentleman in the ''60 Minutes'' piece. If he doesn't have any money, then he won't have to pay. But if he sold that site and made a couple of million dollars off the sale of it, then asking him to pay his fair share doesn't seem unreasonable.
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    Mr. BOEHLERT. Hey, we've got agreement. We're in good shape because we agree on principle that we want to get the small business out. Now we're beginning to argue on some of the nuances.

    Ms. BROWNER. Well, but we would argue that a small business who merely took garbage to a site should be out.

    Mr. BOEHLERT. Good.

    Ms. BROWNER. A small business that had a large quantity of toxic material should be required to pay their fair share, but not all of the costs——

    Mr. BOEHLERT. I couldn't agree more. Now we're really—we're cooking here because I agree with that.

    Ms. BROWNER. But, Mr. Chairman, your bill takes out the owner-operator of one of these sites. If you own the site, you're out.

    Mr. BOEHLERT. No, no. No, no, no, no, no. Read that bill. See, sometimes we get so stuck in a given position that we fail to see the forest for the trees. We've got a reachback provision. You want to get that sucker, and we'll get him. So that's good.

    I see my——

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    Ms. BROWNER. But if you can only reach back in time, you're going to create more litigation. Don't we want less litigation?

    Mr. BOEHLERT. Hey, listen, Madam Chair, we're only talking about a few people here now. Now wait a minute.

    Ms. BROWNER. No.

    Mr. BOEHLERT. Oh, yes, we're not talking about a whole universe there.

    Ms. BROWNER. No. We would——

    Mr. BOEHLERT. What we're talking about is getting 60-70,000 small business people out who sent mashed potatoes and things like that. You and I agree on that. So that's good.

    Now I would refer you to page 112, your staff—and you don't have to go over it right now, Carol; I understand that. But look at 112, de minimis parties, where we talk about how we deal with this specifically, and, boy, you'll see some good guidance. So we're on the same wave length. We're not far apart.

    Ms. BROWNER. If you agree that someone who operated, owned, a toxic waste dump should pay their fair share of the cleanup cost, you're right; we're on the same wave length. I don't, with all due respect, believe your bill does that.
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    Mr. BOEHLERT. Let me tell you, if they let toxic waste in, I want to get them. If they let mashed potatoes in, I want to get them out. So, boy, we're—now we've got a debate over toxic waste versus mashed potatoes. I think we're moving in the right direction. We are really cooking here.

    Ms. BROWNER. Mr. Chairman, we would just ask perhaps that your staff could take a look at page 112 of your bill, where it says, ''limitation on liability,'' line 17, ''owner or operator.''

    Mr. BOEHLERT. Yes, I've got it right here.

    Ms. BROWNER. We read that to mean that they're not——

    Mr. BOEHLERT. Hey, I'm like Paul Harvey; I want the rest of the story. You don't just read that one line; you've got to read the rest of it.

    Ms. BROWNER. Well, I'm more than happy to raise another concern we have with your liability proposal. And one of the issues that I think we are actually close on, and I think Mr. Borski spoke to this, is: How do you define a small business? And this is something—there are numerous definitions in law; the Small Business Administration has its own definitions; NFIB has its own definitions.

    We agree with you that defining it by number of employees is important, and defining it by revenue is important. You also have a profit. You say define it by profit, and we've talked to a lot of people about this, and what they tell us is that's not as reliable as using revenue; that it is very easy to manipulate the profit line. So don't make our lives more complicated by having numerous definitions, and we're arguing with people, was it 3 percent profit; was it 4 percent profit? Do it simply. I mean, if you want to argue with us, is it 50 people, is it 75 people—let's have that discussion, but, please, let's stay on revenue as the definition and not the profit, because that we will litigate. We will end up in very unfortunate situations that none of us want to be in.
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    Mr. BOEHLERT. Well, it's an ''and/or'' situation. So I think that I am most encouraged by your response to my questions because we're after the same universe, and we want to get them out, and I hope the headlines in tomorrow's papers say that Boehlert and Browner agreed on that we want the mashed potatoes to be thrown out. Thank you very much.

    Mr. Oberstar?

    Mr. OBERSTAR. Well, I'm afraid the headline in tomorrow's paper is going to be more about the stock market than this committee hearing.


    Ms. BROWNER. That's right.

    Mr. OBERSTAR. Mr. Chairman, I want to put a little perspective on what we are about today. I sat on this committee in 1978 when the probe of Love Canal began, after a local epidemic of curious illnesses, complaints of strange odors, led people to what was at the time a school yard and a residential housing area. No one knew what literally or figuratively might crawl out of that swamp.

    As we were trying to figure out what to do with this unique and then largely unknown public health menace, drums of hazardous waste began popping up through the soil of what became known as ''The Valley of the Drums.''

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    The Butler Mine in Pennsylvania overflowed after getting large amounts of illegally dumped hazardous waste for years. Poisons pushed out of the mine, into the Susquehanna River.

    This committee worked with EPA to develop legislation. But even as we were working at it—I was one of the first authors of the Comprehensive Environmental Response Compensation and Liability Response Act of 1980, CERCLA—we were getting other reports elsewhere around the country. Towns were tracking down the reason for foul-tasting water and foul-smelling air, and smells in their basements. They became frantic for the health of their children. Like a hideous monster, the sins of the past were being visited upon the present. People wanted action. They wanted the sites cleaned up. They wanted it done now. We moved in the legislative arena into an unknown area. We charted a course that was perhaps more unknown than Columbus' own course across the Atlantic.

    I'm not embarrassed in the least that we passed that legislation. I think it was a stroke for the right and for the good. Superfund is the ultimate case of the sins of the past being visited upon the present. We engaged in a massive initiative to clean up the soils and cleanse the ground water of toxins that were dumped for generations, in some cases carelessly; in some cases they thought carefully—but, nonetheless, dumped.

    We knew then, if we didn't do a careful job, if we left it for future generations, that we would have wasted money and effort, and left a horrid legacy for our own children to inherit. As it arises out of the past, however, Superfund forces us to look to the future. What will happen to what we leave in the ground, to what we leave in the water? Who will stand guard over the contaminated sites for decades to come? Where will the institutional memory lie in the future? Could everyone have forgotten what happened at Love Canal? And yet people did—because a school yard was built over part of Love Canal. No one thought that would happen. A new generation came along and forgot the past.
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    Certainly, Superfund is not perfect—obviously. There are changes that we all agree need to be made, such as the one that you have engaged in discussions with Ms. Browner about, getting small businesses out. We had a situation in my district, the Arrowhead Refinery site, where there was a comparable case, only in one case the evidence was even smaller than the restaurant in question in the ''60 Minutes'' piece—one quart of oil, and we don't know if that one quart was sold to the truck driver to use in his truck or was given to the truck driver to dump in the site. Nobody even knows that, but this widow of a small gas station owner was trapped in the entangling web. It took a lot of work to get her free.

    Those are complex situations, but today there is a great deal more expertise than back in 1980. We know a great deal more about how to address this matter. This administration has moved to the issue of cleanup. Nearly 500 sites have been cleaned up; another 500 ready to go. We need the money to move ahead.

    But I have also some principles. Cost must be treated as a factor, but a factor only, not the dominating factor. Cost should be kept low, but cost should not be the driving force behind remedy selection.

    The Superfund should be fair. It should be fair to those local area residents whose health is at risk because they want that site cleaned up. It should be fair to the American people who have lost a piece of their heritage, have lost their present and maybe their future as well. It must be fair to small companies that contributed little and can't afford to pay the costs of huge, expensive cleanups. But it should be fair to those within the Superfund world, those who already have paid. It should be fair to all contributors to the fund who want the job completed, want to see that, having paid their fair share, others do the same.
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    So that is the mission, as I see it here. But, as the old adage goes, the devil is in the details, and your exchange now with our Administrator shows just how one person's reading of words may have a different meaning than another person's reading of those words. We cannot proceed unless we all are on the same page and have the same understanding of all terms.

    You've set forth a fair course of action. You've engaged with our side in an open dialog from the very beginning of the year. I directed our members and staff to start with a clean piece of paper; that we would not start with preconceived notions; we would not have a bill hidden in our back pocket; we would start with open concepts and discuss with you and work toward a bill. If we can get a bipartisan bill on which we are all agreed, it is in the public interest that we put politics aside.

    Now, Mr. Chairman, you have sort of laid down the challenge, set the marker before us with a bill. So now I think it is incumbent on our side to set forth principles and begin to fill in the blanks. This hearing is a step in that direction, and I look forward to proceeding, as we have done in the past, in a constructive, authoritative, and fair and equitable basis.

    Mr. BOEHLERT. Thank you very much, Mr. Oberstar, and I like the spirit of your remarks and we look forward to continuing—this is not just starting, but continuing—a productive, bipartisan working relationship, and I think this committee, in particular, is noted for the bipartisanship that produces a product that I think is worthy of passage by the House and the whole wide range of areas, and best serves the interest of the American people. So thank you so much.
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    Let me turn now to Mr. Thune.

    Mr. THUNE. Thank you, Mr. Chairman, and I have a statement which I would ask unanimous consent be included in the record, which I won't read in its entirety.

    Mr. BOEHLERT. Without objection, so ordered.

    [The prepared statement of Mr. Thune follows:]

    [Insert here.]

    Mr. THUNE. But I credit you and the distinguished ranking member, Mr. Borski, and the staffs on both sides of the aisle on what I think is an important effort. It's getting us a long way down the road toward not only reauthorization, but the reforms that you have talked about for some time, certainly important to the many small businesses like the Barbara Williams of the world, who have to deal with the consequences of what we do here.

    I'm glad to hear the agreement here this afternoon as well, because it seems like we're making progress. Even though there is evidently some semantic difference here in terms of principle, it seems to me at least that on the issue of what constitutes the type of contributors that we want to get out of the equation, there seems to be rather broad agreement.

    I would just simply pose a question of Ms. Browner. In response to the questions before the committee in March, you had indicated that the EPA has been working diligently in reducing the number of small parties from the liability system, and today you reiterated that point by stating that some 14,000 small contributors, or 66 percent, have been eliminated in the past 4 years.
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    Coming back to this point about the definition in the chairman's bill here, what is different from the small party contributors that you state have been removed from the process and the small party exemptions that you say is going to increase liability and cleanup time in H.R. 2727?

    Ms. BROWNER. At the large landfill sites, I think it's easiest to sort of think about three categories of parties. One is the homeowner or the small businesses who sent garbage. We think they should be out. Those are the ones that we have been working very diligently to take out at sites across the country.

    There is a second category of parties who sent some amount of hazardous or toxic waste. Perhaps they owned a garage where they repaired cars; they had batteries. They have an amount of hazardous waste. And what we have recommended there is that if it less than a certain amount, they should be out; if it is more than a certain amount, then they would be entitled to an expedited settlement, based on their ability to pay their fair share. No one should be put out of business. I mean, that's not what this should be about. But where you had an ongoing business where you dealt in hazardous materials, you should be able to come through an expedited settlement and, based on your ability to pay, contribute to the cleanup cost.

    The final category of parties are the larger parties that generated the vast majority of the toxic materials at the site, industrial facilities, perhaps the owner, the operator of the site. And in those instances, obviously, they should be part of a fair share allocation system.

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    So in the case of Barbara Williams—and we're more than happy to explain to you exactly what we've done at Barbara Williams' site to show you how it plays out at a real site, but in that case to take out all of the small parties—the only way we can do it under the current law is to offer settlements. Now we have offered settlements at Keystone. We have settled with 187 of the tiny, tiny parties. We have offered to settle with 376 of the third and fourth parties.

    You need to remember something about these sites. EPA didn't suggest that Barbara Williams should pay anything for the cleanup of this site. There were 11 parties who produced the large quantities of toxic wastes at the sites. Those are the only parties with which EPA filed any kind of legal document. Those 11 parties turned around, brought in another 100-plus; those 100 plus turned around and brought in another 300-plus. We don't agree with that. We have actively worked against that. We have a policy against it. We tell people not to do it.

    This shows you the chart. The top 11 are the only people we were interested in at this site, because that was where the large amounts of toxic waste came from. They, then, went after 168; the 168 then went after 589. What we're doing is, under a not so great provision in the law, settling with all of those people below the 11. We have to file it with the court. We have to find them. It's a very difficult process. We don't think they should be part of this. That bottom 589 should not be part of this process. You should draw a bright line in the statute.

    Mr. THUNE. And it seems to me that that's what the bill attempts to do, and this process, I suspect—and I'd be curious to know of those 14,000 small contributors, how many of them were removed after having to engage in time-consuming, expensive——
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    Ms. BROWNER. We don't litigate with those parties. The point I'm trying to make is EPA is not filing lawsuits against those parties. It's the large parties that are going after the small parties. When a small party is pursued by a large party, we come in and offer to stand between them and the large party to protect them, but the only way we can do that under the current law is if they settle with us—in some instances, for a dollar in some instances for more.

    The only way you can change that—and we all want to change it—is by changing the law. I am doing the best I can with a not so great provision in the law. We're getting them out. We've gotten 14,000 out and we're going through the sites and we're doing it.

    You know, I don't fault someone like Barbara Williams for saying, ''Yeah, but I don't even want that from you. Why did I ever find myself in the middle of this?'' I agree. There's nothing in the law right now that can allow me to say to Barbara Williams, ''You're right. You're off the hook,'' because I didn't go after her; EPA didn't go after her. The 11 big guys went after her, and the only way I can protect her from them is if she'll settle out with us. You have to change the law.

    Mr. BOEHLERT. Thank you very much. You just gave eloquent testimony to why we should change the law, and that's exactly what we're going to do, because you offered settlement to small businesses, 187 of them out of a universe of how many? And 187, they paid $4 million. So small businesses——

    Ms. BROWNER. Those 187 were $1 each—$1. But it's a bookkeeping nightmare, and I don't doubt they feel like they've been wronged. They should feel like they've been wronged; the law is wrong.
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    Mr. BOEHLERT. Right. That's why we've got to change the law, because 167 of those small settlements were about $4 million.

    Let me ask you, what settlement was Barbara Williams offered? I mean, was she going to get out for $1? She would have grabbed it and said, ''Thank you very much.''

    Ms. BROWNER. Barbara Williams was offered a settlement; she has declined to take it. Other parties——

    Mr. BOEHLERT. Well, but that's——

    Ms. BROWNER. ——in that category have taken the settlement.

    Mr. BOEHLERT. In all fairness, Madam Administrator, it was for thousands of dollars.

    Ms. BROWNER. Mr. Chairman, I agree with you; take her out. Change the law. Pass a law today.

    Mr. BOEHLERT. That's exactly what we're doing.

    Ms. BROWNER. You know, I don't think Barbara Williams should have ever been part of this system, but I got a bad law, with all due respect, from Congress, which I have now worked 4 1/2 years to get changed, and the only thing I can do right now is to offer her a settlement. I don't like it. I don't think it's appropriate, but I'm doing what I can with a bad law. Help me change the law.
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    Mr. BOEHLERT. Thank you very much, and that's exactly what we're going to do, because you know what's happened in this town for year after year, month after month, week after week? People have talked at each other and around each other. This committee, this subcommittee, is going to move, and we're ready to go.

    Mr. Borski?

    Ms. BROWNER. I want to be clear about something, Mr. Chairman. Only a handful of small parties were taken out prior to this administration. Okay? So it's not as if this administration hasn't tried very hard to address the small party issue.

    Mr. BOEHLERT. And let me, in response, make something very clear: I am not an administration basher. I am one of your unabashed fans. So that you know.


    Mr. BORSKI. Not so to speak——

    Mr. BOEHLERT. So to speak. And I have acknowledged repeatedly and publicly that under your leadership the Environmental Protection Agency has been constructive in moving forward to address this problem. I want to help you move forward faster.

    Thank you very much.

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    Mr. Johnson?

    Mr. JOHNSON OF WISCONSIN. Thank you, Mr. Chairman. I think you just had the headline for tomorrow morning's paper: You're one of the unabashed fans of the EPA.


    That's the headline tomorrow morning.

    And I want to thank you also, as other members have, for having this hearing, for submitting this bill, because it obviously has great concern to me, to my area of the country. We have a particular concern that I will ask about in a minute.

    I want to get back to—we all saw the ''60 Minutes'' piece, and I'm particularly interested since I was a TV reporter for 30 years, and it would be far from me to criticize Mike Wallace's job, but I think there was a question, and you brought it in there, that might have been left out: Who is it that brought that lawsuit? Who is it that was named on the lawsuit against Sun Ray Restaurant?

    Ms. BROWNER. I'll read you the names of the companies who filed the lawsuit: the ESAB Group, the SKF, USA, Inc., Kemper Industries. It's not EPA. I mean, the point is, as I think you've noticed or noted, EPA is not pursuing these small parties. We've had a policy against doing so, actually adopted by a prior administration, which we then reiterated. These parties in this particular case, almost 700 parties found themselves brought into Superfund not by EPA, but by the largest parties at the site.
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    Mr. JOHNSON OF WISCONSIN. So it's nice to do government bashing sometimes, but in this case it wasn't EPA's intent to widen the net to bring in these——

    Ms. BROWNER. No, not at all. In fact, we wouldn't have even known about these smaller parties in this pyramid here—if the large top 11 hadn't gone and found them; they would not be parties, we would have been familiar with.

    Mr. JOHNSON OF WISCONSIN. Let me go to the situation in my area I think you're familiar with, and another question that's trying to be resolved. You, I'm sure, are aware of the Fox River between Green Bay and Appleton in my district in northeast Wisconsin. It's been the subject of a natural resource damage assessment process in order to clean up PCBs that are at the bottom of the Fox River. A major problem has occurred with this process. It's the lack of the definitive guidance as to which trustee in the cleanup action should be designated as the lead trustee. It's resulted in endless confusion and more delay in implementing the cleanup plan for this Fox River. I'm hopeful that the reauthorization of the Superfund, maybe in this bill, would contain a mechanism to provide for the designation of the lead trustee in the situation where trustees themselves, as in this case, couldn't agree who the lead trustee should be.

    My question, Madam Browner, is whether you think that H.R. 2727 adequately addresses, how it addresses, this trusteeship lead issue.

    Ms. BROWNER. If I might turn to Mr. Garcia—EPA is not a trustee for natural resource damages in the Superfund law. The trustee agencies, I think as you're aware are, are the Department of the Interior, NOAA, and others. And Mr. Garcia is here on behalf of the trustee, the natural resource trustee agencies.
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    Mr. GARCIA. Congressman, the specific situation that you're referring to, I believe is that we have entered into an agreement with the co-trustees to resolve that problem. In answer to your specific question, no, I don't think that the bill addresses the issue of conflicts of trustees. In fact, I think that the way the bill is drafted right now that it might, in fact, lead to conflict——

    Mr. BOEHLERT. Mr. Garcia, if I may interrupt, we specifically provide for the lead trustee to coordinate this whole effort. Our bill does that, and I will be glad to have my staff refer you to the specific section that covers that.

    Mr. GARCIA. We'd be happy to sit down and discuss it with you, Mr. Chairman.

    Mr. BOEHLERT. Super.

    Mr. JOHNSON OF WISCONSIN. And I guess the question is ''How do we determine who the lead trustee is?'' Is that addressed in the bill?

    Mr. BOEHLERT. It is; yes, it is.

    Mr. JOHNSON OF WISCONSIN. Okay. Because, it is obviously a problem that we haven't been able to get who the lead trustee is, and I see that my time is just about up. Just one other quick question, Mr. Garcia.

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    Mr. BORSKI. Mr. Chairman, I think Mr. Garcia may want to answer; I don't know if he does.

    Mr. BOEHLERT. Oh, I am sorry.

    Mr. GARCIA. I was making the point, and we have submitted a detailed critique of the bill for the record, but we are concerned with the manner in which the bill designates lead trustees. Right now, we have a cooperative process that works. We designate the administrative trustee based upon who has the expertise for a particular site in a particular State, and it has worked. We fear that the proposal in the bill would lead to increased conflict and delay. And, so, we would be happy to sit down. I think that we can resolve this with the staff, and we would be happy to sit down and talk about it, but we don't think that the road that we are going down right now is the appropriate one.

    Mr. BOEHLERT. Thank you very much, Mr. Johnson. I would like to point out that Governor Thompson supports the provision in the bill that we have, and when Mr. Garcia says that the present system is working, I would like to point out that it has failed miserably in the Fox River situation. And we are trying to get something that is going to work in a positive, constructive way.

    Mr. Horn—Mr. Horn.

    Mr. HORN. Thank you very much, Mr. Chairman. It is nice to hear the testimony, and I am glad some agreement is coming. I hope these agreements aren't simply based on the fact that ''60 Minutes'' covered this example, and that seems to motivate people. So, what I would like to suggest is, having heard that the Administrator has long favored getting the smaller customers out of there, I have got two questions: The first is, ''Why don't you go in and settle with these small customers in dumps across America with $1, immunizing them from further lawsuits?''
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    Ms. BROWNER. That is what we do. We have settled with 14,000 of these parties. That is exactly what we have been doing for the last 4 years—exactly.

    Mr. HORN. How many do you think are out there in this category?

    Ms. BROWNER. Well, again, because we are not out looking for them, it is the people at the top of the pyramid over here who look for them. When they are located, we then come in and offer the protection. We don't think they should ever be found, so we are not out looking for them. It takes someone else to find them. And, I don't think you want us out there looking for them. I mean, hopefully, people will stop engaging in this kind of behavior, and we will change the law, or we'll convince enough of them to stop engaging in it. But, that is exactly what we do. We cash them out for $1.

    Mr. HORN. Okay. What I would like is an exhibit at this point you could have your staff prepare, where either you or your predecessors in previous administrations have said we'd like to change the law to get this type of small customer out of the situation.

    Ms. BROWNER. Mr. Horn, I will provide you with my testimony of the last 4 years. I am quite certain that virtually each and every time I have testified I have asked Congress to do this precise thing.

    Mr. HORN. Yes. I just want the precise sentences and the date, that's all I want.
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    Ms. BROWNER. Okay.

    [The information follows:]

    [Insert here.]

    Mr. HORN. Now, let me move to something that has long concerned me, and the premise to this is, does the President regard you as his principal spokesman on matters of the environment?

    Ms. BROWNER. Well, there is the Vice President.


    Mr. HORN. Well, he doesn't report to the President in that sense, but, how about the Administrator? Are you seen within the administration as the principal spokesman on the environment?

    Ms. BROWNER. I am certainly seen as the spokesperson on the issues of concern to the Environmental Protection Agency, yes. There are many environmental issues, such as natural resource damages, which aren't legally under my jurisdiction. But, in terms of clean air, clean water, public health, drinking water, yes.

    Mr. HORN. Well, what I am curious about—and maybe this is a false analogy, because maybe the law hasn't provided you with that authority, and maybe it should—when you look at the Director of the Central Intelligence Agency, that person, or that position, was created to coordinate across the administration intelligence information regardless of where that was, and I am curious if you have ever played a role in getting Energy and Defense in the same room, and trying to find out where are they on some of their cleanups.
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    Ms. BROWNER. Many, many, many times, yes. We do play that coordinating role, not just on those issues, but other issues where we have the lead statutory responsibility. I think it is really one of the hallmarks of this administration, our willingness to work across department and agency lines.

    Mr. HORN. Well, I would hope you would be doing that. My impression of those two agencies are, frankly, that they have dragged their feet over the years in cleanup. I would be curious to know what your impression is.

    Ms. BROWNER. Maybe silence is the better form of diplomacy at this point.


    Mr. HORN. I take it you agree with me in this silent sort of way.

    Ms. BROWNER. No. I think that, within their resources, both the Department of Defense and Department of Energy have been doing their best to deal with some of the most complicated hazardous waste sites in the country. I think the Department of Defense, for example, deserves a huge amount of credit for what they are doing at base closures, in terms of dealing with the hazardous waste sort of remnants of these operations. I mean, they are getting them cleaned up. They are getting the bases turned over, or transferred to the communities. I think, you know, that is something when we began the process 4 years ago everyone thought we would never be able to do in a timely manner, and by working in partnership we are doing it. Not every site is done, but it is happening.
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    Mr. HORN. I'd like, Mr. Chairman, an exhibit in this point of the record as to the number of surplus properties of the Department of Defense that have been cleaned up environmentally since 1993, and how many are still to be out there. Because I think the Administrator has a major role to play in coordinating that effort. And, if they are short on money, they ought to let us know it.

    Mr. BOEHLERT. Sure, is that something that you would feel comfortable to coordinate?

    Ms. BROWNER. Yes, we would be more than happy to do that.

    [The information follows:]

    [Insert here.]

    Ms. BROWNER. I mean, one of the things we did, Mr. Horn, in working with the Department of Defense on base closures was there had originally been a policy that said if there was sort of any contamination on any part of the base, nothing could transfer. And we were able to recognize that that just didn't make sense. There was no common sense in that. So, what we would do is partition off, with the Department of Defense, the area where the contamination was isolated, and allow the rest of it to transfer, and then get the cleanup done. If we could get it done in time for the original transfer, it would all happen at once, and, if not, we at least wouldn't hold anything up. We would be more than happy to show you how that is working at sites.
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    Mr. HORN. I'd appreciate that. Thank you very much.

    Mr. BOEHLERT. Thank you. Thank you, Mr. Horn.

    Mr. PASCRELL. The subcommittee is following the practice of first-come first-serve, and so those who are here early and are patient will be rewarded with their timeliness and patience.

    Mr. PASCRELL. Thank you, Mr. Chairman.

    Ms. Browner, I have some questions and I want to direct them to you, please, and if you will answer them to the best of your ability.

    Do you think that we have turned the corner in moving away from a prosecutorial mode towards abatement in your Department?

    Ms. BROWNER. Abatement in Superfund?

    Mr. PASCRELL. The abatement of problems instead of prosecuting folks. Are we moved—have we turned the corner? Is that the direction that we are going in? Do you accept that direction if it is?

    Ms. BROWNER. Are you asking about—I just want to make sure I understand your question—the agency at large or Superfund specifically?
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    Mr. PASCRELL. Both.

    Ms. BROWNER. I think that we have been given a variety of tools and laws, and we try to use them to the best of our ability, given the situation as we find it. We do take enforcement actions where there are violations. I just met with a group of small business people, up in Rhode Island, on Monday of this week, who were encouraging us to take enforcement actions where some of the members of their industry were not meeting standards. They are business people; they are making an investment in better technology. They want to make sure that their competitor isn't getting a break. In other situations there are other tools that are more appropriate.

    Mr. PASCRELL. I think it's very important, wouldn't you agree with me, if the Department is going to take the position, or have a philosophical bent to go after folks, as compared to trying to help folks remedy problems? I mean, I am being very general now to give you some leeway. I have read what you have written, and I have also listened to what you said before you got the position, and since. And it seemed to me that you are a breath of fresh air. Now, maybe I am reading you wrong. It would seem to me that you certainly want to implement the law, carry the law out. We make the law; we will change the law, obviously. But that, philosophically, you feel that perhaps we should be doing more in abating problems? That is the interpretation I got from what you're saying. I am correct in saying that?

    Ms. BROWNER. Yes. I believe, and I have always believed, that preventing the problems in the first instance is the best thing we can possibly do. Once we are into an enforcement action—for example, the pollution is out there. That is not a good situation for the people of that community. But I don't mean to read anything into your question. I think my responsibility is to use, to the best of our ability, the appropriate tools to protect public health and the environment. In most instances, that will be working in partnership to find the best solution. There will, unfortunately, always be those situations where an enforcement action is appropriate.
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    Mr. PASCRELL. Where enforcement is appropriate, I don't believe you will find anyone on this committee—it is a question of how we interpret law, and whether or not we can live with the law that has been written. If it has caused inconvenience to folks who intended no injustice, who intended no harm to the environment or to their neighbors, there is a big difference. So, we can all strongly be for the environment. In New Jersey, we have dealt with this. I believe that we have looked at our environmental laws, looked to that part of the law which deals with our worst situations, and have attempted to be facilitators, and in many places partners in cleaning up. Because, if we have these laws, and are not cleaning up any pieces of property, but we say we have these laws and we pound our chest, and we send subpoenas out, and we send all kinds of accusations out; what we have accomplished is paperwork, but we haven't cleaned up the environment or improved the quality of life in cities or in suburban or rural areas.

    Now, from what I've heard, this is where you are heading. You're heading in a direction of trying to be a facilitator, more than anything else. Am I interpreting what you are saying correctly?

    Ms. BROWNER. Within the Superfund program our number one priority is to get the sites cleaned up to protect public health, absolutely. And the best way to do that is through a facilitated process in the vast majority of situations, with a good law—with the right law.

    Mr. PASCRELL. Is the present law a good law, in your regard?

    Ms. BROWNER. I think we have to be careful. I think there are parts of the present law that are very good. And, I think most important is the fact that, with the passage of Superfund 15, 16 years ago, we took an entirely different view about how we treated toxic and hazardous waste. That is extremely important. There is no doubt in my mind that this law has prevented the creation of many, many new Superfund sites. We should not ignore the fact that telling people they would be held responsible—accountable—for the disposal of their hazardous waste, their toxic waste, led to a very different attitude about how they would treat that waste. It caused them to become far more responsible. That is a very good thing.
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    Mr. PASCRELL. One of the things I have a concern about is how this new bill is going to be—finally, look, when we are done here next week, is the community right-to-know provisions, which have been left out. Now, I think that to—while we need elasticity, we need flexibility, we need to be facilitators, and we want to abate problems. On the other hand, the community has a right to know. Do they not, Administrator?

    Ms. BROWNER. It is, I believe, moral, ethical, and should be a legal right. It is their air, their water, their health.

    Mr. PASCRELL. Why would we leave it out of this bill then?

    Ms. BROWNER. We would—we have been using the existing right-to-know authorities to expand public access to information. We would welcome any further ability to expand that. We think it is very important what we are looking at creating here for pubic health and environmental protection is a more flexible, a more dynamic system, and it should be; that is where technology takes us today. But, if you are going to do that, you had better have a set of checks and balances in the system. And the best check and balance, in my opinion, is giving the public access to information.

    Mr. BOEHLERT. We agree. Now the gentleman's time has expired. We have been quite generous; you see the red light on.

    Mr. PASCRELL. Mr. Chairman, I have other questions. I will ask them later.
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    Mr. BOEHLERT. Yes, and, community right-to-know, we have no disagreement on that, and we have a section in the bill, and the staff will refer you to that. And we have existing law that deals with community right-to-know, and I am very supportive of existing law.

    Mr. Mascara, since we have—we'll go two Democrats in a row, since we have more Democrats here than Republicans.

    Mr. MASCARA. That's because Bob Borski twisted our arm.


    No, I am just jesting. Thank you.

    I'll go to Madam Administrator. Thank you for coming, delighted to have you here today.

    I made some notes while you were responding to some of the questions, and I will restate those: ''I got a bad law from Congress.'' ''I am constrained by bad law.'' I am just wondering whether or not—and I have heard several times today that the agencies, the implementing agencies, laws passed by the Congress oftentimes exceeds and differs from the original intent of Congress. I am wondering whether or not some of the agencies—not only yours, across the board—have made bad regulations, and bad rules that became law through adjudication, and what responsibility that your agency, and all agencies, here in Washington, D.C., should take for exacerbating the problem by passing bad rules and bad regulations?
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    Ms. BROWNER. First, let me begin by making a general comment. When we have adopted a regulation, pursuant to congressional authority, and have subsequently had a court interpret that regulation in a way that we do not think is in keeping with Congress, we have come back to Congress and asked you to change the law, to work with us to clarify our position. We have done that in Superfund.

    We thought, for example, that banks that loan money on sites shouldn't find themselves liable. We adopted a regulation essentially to protect lenders. We were litigated. We went all the way, I think, to the Supreme Court on that; we lost. The Court said Congress didn't give you that kind of authority; go to Congress and get the law fixed was the underlying message, and we came here and we worked with you and we were able to address a portion of that.

    So, we have been very, very willing to come back. In this case, and I presume what you are asking about is this pyramid we detail over here, how are these small parties coming in. That is not the result of a regulation. It is fair to say it is perhaps, in part, a result of how judges have interpreted the law. I don't think anyone in Congress intended this, but the fact is this is where we find—all of us—find ourselves today, which is a judge lets those 11 parties sue the 168 parties, and then the judge lets 168 parties sue the 589. They read the law and they see authority within the law for this kind of behavior. It is not behavior that results from a rule that EPA has adopted. In fact, we have a written policy objecting to this.

    But, regardless of how we got here, I think we can all agree it is time to fix it; this isn't what anyone intended. It is a provision in the law that is, I think, bad—or, maybe you would suggest that has been interpreted badly. It is a problem, and we should fix it.
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    Mr. MASCARA. So the eight major firms then are responsible for all of these people that are being sued?

    Ms. BROWNER. Yes.

    Mr. MASCARA. Did the EPA at any time say ''Wow, this wasn't our intention.''?

    Ms. BROWNER. Oh, yes. We tried, but they have rights—judges have found that they have rights under the current law. That is why you have to rewrite it. We went to court and tried to stop this. We went on behalf of the parties and tried to stop it. I mean, just to show you how bizarre the whole thing gets: when we offered these settlement agreements to parties at the sites, do you know we have to get that approved by the judge. We actually have to file it in court, and get the judge to approve it. So, we are back in court now on behalf of these parties saying here is what we have been able to agree with all of them, please recognize this as a settlement and now we will defend them against any other actions by the 11 parties.

    Oh, and the 11 parties are challenging it. I mean, let's just be clear about this. The 11 parties are saying ''No'' to this agreement that we have reached with the small parties.

    Mr. MASCARA. I just wanted to clear up—there seems to be an ecclesiastical tendency here to do hand-washing with Pontius Pilate, and we should all admit that we are culpable. Much of this took place before you became Administrator.
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    Ms. BROWNER. But, the prior administration had a written policy against this kind of behavior by the 11 parties. The fact of the matter is, unless we rewrite the law, judges are going to continue to allow this to happen, and the 11 parties are going to continue to fight us when we try and prevent it, and they are going to prevail in some instances. There is a flaw in the law we should fix.

    Mr. MASCARA. Thank you. Thank you, Mr. Chairman.

    Mr. BOEHLERT. Thank you very much. Mr. Horn.

    Mr. HORN. Thank you very much, Mr. Chairman. Madam Administrator, I have got two questions here that relate to the settlement. I am looking at The Gettysburg Times for September 10, 1997. In it they discuss the feelings of the school directors of the Littlestown School, and what this quote is, ''I don't think we should pay it.'' They said, ''It's just plain extortion,'' and the paper goes on to note that the settlement offer had dropped from $180,000 to $67,000 last year, and was $55,000 only a few weeks ago. Now, you have led us to believe in this testimony that you believe, and you are willing to settle when individuals, such as Mrs. Williams, who I guess Mr. Boehlert would classify as ''depositing mashed potatoes, but not toxic waste'' on this dump; that you would be willing for $1, and do that to similarly situated persons.

    Now, as I understand it, EPA is still asking Mrs. Williams to pay thousands of dollars as a settlement, and I am informed by Mrs. Williams that they have offered to protect her by paying over $20,000. Now, I don't have $20,000 in the bank, so $20,000 sounds like a fortune to me. One dollar doesn't sound like a fortune, and what I am wondering is, are you willing to make the offer to Mrs. Williams and similarly situated people, but the settlement will be for $1?
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    Ms. BROWNER. There are many parties where we have made $1 offer. For parties that sent more than simply, like their household garbage, may have sent a larger amount of garbage, we have worked among those parties to find a fair amount of money representing what it will cost to close the landfill. That is what we can do under the current situation. You can help us by changing the law. But, under the current situation we have to look at a variety of facts, and we try and make these offers in good faith. I mean, we have been trying to do this for 4 years at this particular site, and, unfortunately, as I pointed out the 11 big parties—the 11 top parties—have been fighting, and fighting, and fighting our efforts.

    Mr. HORN. Well, you mentioned the 14,000, so you, without us changing the law, felt that you had the discretion to do that, and to immunize them from further lawsuits by the big people that want to have everybody else in the same pain that they are. It sounds to me, that you—

    Ms. BROWNER. They all paid. I mean, we want to be clear about it. That's the problem with the current law. They had to pay an amount of money. There had to be a ''cash settlement'' in order for us to provide the protection, and what we are asking you to do is for those people, like Barbara Williams, who simply sent municipal waste, draw a bright line in the statute.

    Mr. HORN. But, the fact is, you could let them off for $1.

    Ms. BROWNER. No, not all, no; not under the current situation; that's the problem.
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    Mr. HORN. Well, it sounds like you didn't get enough money out of the big toxic polluters, so you are trying to——

    Ms. BROWNER. We are not going after Barbara Williams. EPA has not filed a document against Barbara Williams; the big parties have, and under what they are doing they could get an awful lot more, arguably. And we are trying to protect her. Now, I completely understand why she hasn't taken it. I completely understand, but under the law that's what I can do.

    Mr. HORN. Am I correctly informed that Mrs. Williams has been given an offer by EPA to settle for $20,000?

    Ms. BROWNER. I am not trying to be difficult. We have been told by the Justice Department that I cannot comment on the specific dollar amount. If she wants to comment on it, then I am more than happy to talk about it, but it is an offer that has been made—you should also know, in this case, the judge refused to allow us to enter dollar settlements. We have a judge who said ''No'' to something we wanted to do, because the 11 parties didn't want it.

    Mr. HORN. You are now telling us some judge has said you can't make dollar settlements?

    Ms. BROWNER. In this particular case, we have a judge—it doesn't happen in every case—who has denied us the ability for all of the parties that we would have sought a dollar settlement, the ability to do that.
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    Mr. HORN. What does that judge feel is the minimum you can settle?

    Ms. BROWNER. For some parties—remember, there are two sides in the courtroom. There are the 11 parties who want to get how much they pay down. EPA thinks the 11 parties should essentially pay the whole thing. We are in there with the judge who is listening to the 11 parties saying, ''Judge, let us cash these people out, or some number of these people out at a dollar,'' and the judge is listening to the 11 parties and saying ''Yes'' to some and ''No'' to others, because the judge believes the arguments of the 11 parties based on the current law. You can fix that by changing the law.

    Mr. HORN. Well, in other words, you can't settle for $1?

    Ms. BROWNER. We have settled—sometimes it's zero. It, in part, depends on what the 11 people, the 11 big parties will agree to; some of them are cooperative, and they agree, some are not cooperative, and it, in part, depends on what a judge would allow us to do.

    Mr. BOEHLERT. Thank you very much. You have just given eloquent testimony with this exchange to the need for the bill that we have introduced, because we will stick with the 11 people, and we will get all the rest out, or almost all the rest out. And that is what you want, and that's what we want.

    Ms. BROWNER. Mr. Chairman——
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    Mr. BOEHLERT. ——with the exception, with the exception, of those who are clearly guilty of being bigger contributors——

    Ms. BROWNER. Mr. Chairman, under your bill you would take some of the 11 out, with all due respect. Under your bill, some of the 11 would come out. So we have a small disagreement, but we can fix it.

    Mr. BOEHLERT. Yes, well, we'll think about it.

    Ms. BROWNER. Yes, the owner/operator in the 11 would come out.

    Mrs. Tauscher.

    Mrs. TAUSCHER. I want to thank the chairman for his leadership on this issue. It is always great to see Administrator Browner in. Administrator Garcia, thank you for being here.

    I have two quick questions, I am under pressure for a vote. Administrator Browner, what are your views on H.R. 2727's provisions, which excludes from the drinking water definition sources of ground water that display a certain threshold of contamination? Is this threshold reasonable?

    Ms. BROWNER. I'm not sure I understand the technical part of the question, but quickly, I believe the concern is that there is a definition of drinking water, as we understand the bill which allows us to only require a certain level of cleanup if the ground water is a current drinking water supply.
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    Mrs. TAUSCHER. Right.

    Ms. BROWNER. And we are concerned about ground water that is not a current drinking water supply——

    Mrs. TAUSCHER. That going forward could potentially be?

    Ms. BROWNER. Yes.

    Mrs. TAUSCHER. Yes.

    Ms. BROWNER. Yes, we have a concern that the bill doesn't speak to that ground water.

    Mrs. TAUSCHER. I share those concerns. Secondarily, the bill also contains a provision to protect contiguous landowners from Superfund liability that occurs through contaminant migration. Do you support this provision?

    Ms. BROWNER. If it is done properly, yes. I mean, the issue is if someone's pollution migrates onto someone else's property, what happens to that landowner. And, as long as it doesn't become a loophole for responsible parties, we are fine. If it becomes a loophole, then we have a problem.

    Mrs. TAUSCHER. And third, quickly. Community right-to-know is a very important issue in my district. It is your understanding that it is not addressed in this bill?
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    Ms. BROWNER. I think there are really two issues about communities. One is the question of community participation in clean-up plans; there is a provision in here that allows states to seek delegation. We don't think there is adequate community participation, public participation in that. In terms of the more traditional community right to know, like the Toxics Release Inventory Program, the chairman suggests that there is a provision; we would support any provision that would get the public greater access to public information.

    Mrs. TAUSCHER. Very quickly, for Mr. Horn. In my district—I am the only district in the country with two national labs in it, and we have the Livermore National Laboratory. One of the most successful collaboration between the Department of Energy and the EPA is the cleanup of the plume at the Livermore Lab, which was not only mitigated on an accelerated basis, but with new technology developed at the lab. So, congratulations on that, and we really appreciate your hard work on that. Now, I am going to vote.

    Ms. BROWNER. Yes, thank you.

    Mr. BOEHLERT. I want to thank Mrs.Tauscher. She has particularly helpful in this committee trying to fashion Superfund reform, and I really appreciate your input. Thank you very much. I really want to know—you suggested that we would exempt some of those 11. Boy, I don't want to exempt some of those 11, unless they have contributed only municipal solid waste. So, I would appreciate if your staff would share with us—it doesn't have to be right now; you know I don't expect you to perform miracles—but, share with us why you think that we would be involved in getting some of those 11, that you have identified as major industrial generators.
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    Ms. BROWNER. As we understand it, you would take out—in that 11 is the owner, the original owner/operator of the site, the person who actually set it up, and as we understand it, you remove the owner/operator.

    Mr. BOEHLERT. Only if the owner/operator took only garbage. You know, if he took only garbage——

    Ms. BROWNER. Mr. Chairman, with all due respect, using ability to pay, using fair share allocation, we will get to the same place with less litigation. You will get there with more litigation.

    Mr. BOEHLERT. I got page 112 of this bill, under the de minimis parties, ''The small business concern is an owner or operator or former owner or operator of a facility or vessel and the hazardous substances disposed of at a facility are vesseled during the small business concerns ownership or operation contributed significantly or contributed significantly to the cost of response or to natural resources damages at the facility or vessel.'' I would refer you to that.

    I've got to go vote.

    Ms. BROWNER. Mr. Chairman——

    Mr. BOEHLERT. I've got 3 minutes and 20 seconds left.

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    Ms. BROWNER. Okay, I am scheduled to be in the Senate for a Superfund meeting.

    Mr. BOEHLERT. Why would you go to the JVs when you are with the varsities?


    Ms. BROWNER. Well, and I would like to answer questions for Mr. Borski.

    Mr. BOEHLERT. He's going to be back momentarily, and so is Mr. Thune, who will assume the chair, and then he will immediately recognize Mr. Borski.

    Ms. BROWNER. Thank you, and Mr. Boehlert, in closing, you referenced us to page 112. We would ask your staff to explain page 114: ''An owner or operator at a facility and they shall not be liable''——

    Mr. BOEHLERT. If, then you got the ''if,'' the conditions where that owner/operator should not be liable, that's real important.

    Ms. BROWNER. He was running a dump of toxic waste, why by act of law would you exempt him?

    Mr. BOEHLERT. Paul Harvey wants the rest of this story. Now I am down to 2 minutes.
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    Mr. THUNE [presiding]. The hearing will reconvene, come back to order, and the Chair would recognize Mr. Borski. Mr. Barcia?

    Mr. BARCIA. Yes, thank you very much.

    I'd like to begin, of course, by thanking Administrator Browner for her presence here today, and of course compliment the Chair and the ranking member on calling this hearing. And I do want to commend Administrator Browner for your taking the initiative to improve the Superfund program through administrative reforms. And as hard as I think it is in terms of the effort and challenges you face, I believe that we do need additional congressional activity to assist you in those efforts and to address some other inherent program problems with the program.

    I do also want to remind the people listening here at the hearing today of this debate, that until the taxes lapsed some 2 year, the business community was paying to fund the program, and some of those costs certainly are not recoverable. They've already been paid for. But I believe that, Administrator Browner, you are on record as saying that much of the cost was passed onto consumers in the form of higher prices for products, and I believe, therefore, then, it is critical that we do everything we can to reduce costs to the program and the business community as well, and that they are providing funds to provide for these cleanups.

    I believe that one way to do this is to reduce third-party contribution litigation, and to make sure that liability relief is affordable within the Superfund revenues, and that any increases in liability relief should be accompanied by practical reforms of remedy selection, which includes many of your administrative reforms.
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    So, therefore, I guess I would ask, if we don't reform cleanups and selection of remedy, remedy selection, how can we get smaller stakeholders out of the process, as we were discussing earlier in Chairman Boehlert's comments relative to the individuals that were learned about through the recent program on ''60 Minutes''?

    Ms. BROWNER. We will continue to do as we are doing, and it will not be as streamlined as I think we would all like it to be. It will, I think, cause people, you know, considerable pain and angst, which it should not. I mean, the easiest way to do this is to just draw an absolutely clear, bright line in the law defering who's in and who's out.

    We've spent, I think, now 4 years looking at how you would draw that line to make it as absolutely solid as possible, and unfortunately, I think while the chairman has tried to meet us in that respect, the way in which the line is drawn we think will be litigated; we think it will end up in more delays, and could in some bizarre situations end up with more parties feeling trapped. We've got to agree on how to draw the brightest, sharpest, strongest possible line.

    Mr. BARCIA. Just one follow-up comment, if I could, Mr. Chairman, and that would be that later during my opening statement, after departure, I'll be talking about House Resolution 2750. One of the provisions that perhaps we differ slightly from the chairman's bill is in the area of allowing greater flexibility within your administration to consider newer, more cost-effective technologies for cleaning up sites. And I know many times we've talked ecologic, and there are many companies both in the United States and beyond the United States that have newer technologies now that can address PCBs and other hazardous contaminants that can be cleaned up and incinerated now at much less of a cost. I think ultimately that will be beneficial because with those limited revenues that we have to work with, we'll be able to clean up more sites if we can do that.
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    So I want to thank you for that and say that I hope that provision is ultimately in whatever Superfund reform legislation passes the House.

    Ms. BROWNER. Thank you.

    Mr. THUNE. Mr. Blumenauer?

    Mr. BLUMENAUER. Thank you, Mr. Chairman. I have, I guess, two brief comments, and then one question for the Administrator.

    First, I want to align myself with the comment raising concerns about having people kicked out of the provisions of this bill based on the profitability of the company. Putting aside for the moment the potential for manipulating the degree of profit, particularly for closely-held businesses, and the potential litigation that you referenced, it just seems to me that it's positively un-American to tax a more efficient company, penalize them more than you do a less efficient one. That seems to me positively un-American, antithetical to capitalism, and the wrong message to send to American business. I would seriously urge that the committee staff, the majority, our Chair look at that, because I just don't think that belongs in our statute. And I'm willing to go at that at greater length, but I just think it's really the wrong way to go.

    I also strongly—I felt I'm sure Ms. Williams was ready to jump when the Administrator and the Chair said, ''We agree on the mashed potato problem,'' and I was ready to second the motion right there and move the bill to the floor. This has been heard in the 103rd Congress, the 104th Congress, the 105th Congress. I've been here less than 2 years, and there is no reason to hold small businesses hostage to the other machinations that go on. So I hope that we can move forward with the bipartisan spirit that's been evidenced here between the Chair and the ranking member, but if we can't, or if smart, well-intentioned people interpret some of these provisions differently, I hope before we do this again that we don't drag these people back, the administration back, and go through this ritual. Let's at least pass something, so we're not going to be embarrassed for the next year or 2, and we don't have answers for people, and we just have bizarre television features and a lot of finger-pointing.
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    And so I appreciate this common bond that's been fashioned, and I would hope that we could agree on at least that, and then we can build from there. And if some of the special interests know that we're going to move with at least this little piece, I think some people who have been dragging their feet might get on board, and we could make a lot more progress a lot faster. If they think we're going to pass incremental reform, I think we'll get the big bill faster.

    My question, Administrator Browner, dealt with provisions that were at the end of your testimony, where you talked about the potential, again, well-intentioned, where there may actually be more litigation, more delay, more concerns in terms of the interplay of these forces which sound good, but are going to require your team to do a lot more work, do things you haven't done, and may actually restrict flexibility.

    I know in my State of Oregon we feel like we're moving ahead on some cleanup; we're pretty proud of some projects. We don't want something that's going to tie our hands in the name of what nationally might be a step forward. We don't want to penalize anybody who's being more aggressive.

    Could you elaborate on your comments——

    Ms. BROWNER. We are concerned that litigation, greater litigation, could flow from this. For example, as we read the chairman's proposal, we could litigate whether a party had met RCRA small quantity generator standards; we could litigate whether or not RCRA standards were in place, when they came in place, when the party did this or that, what hazardous waste satisfies the description of waste no more toxic than municipal solid waste. We can't tell you the answer to that today. So once we come up with an answer, which will be for every single toxic waste stream you might find at a landfill, I promise you we will litigate that answer. I mean, the list sort of goes on and on and on.
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    And I don't want to suggest to anybody that new legislation doesn't bring with it some amount of litigation—obviously, it does—but I think we have an absolute responsibility where we know it will arise, where we have a strong thought that it will arise, to do our level best to prevent it, and we are extremely concerned about the kind of litigation we will be in under some of these proposals.

    You made an interesting point—if the chairman and I can both read a bill, with all of our very, very smart colleagues and staff, and have such different views of what the bill will do at a site like Keystone, imagine what the lawyers can do with it. Imagine.


    I mean, we're both people who want to solve the same problem, and yet we have fundamentally different readings of the provisions as we now find them. I think owner/operators are out; he says they're not. I think we have to do the toxicity of waste streams; he says we don't. I think—the list goes on and on. I mean, there's something wrong on the face of it if I can't read it, if my staff can't read it and say, ''You're right, these people are out.''

    Mr. BLUMENAUER. Okay, thank you.

    Mr. THUNE. Mr. Poshard?

    Mr. POSHARD. Thank you, Mr. Chairman.
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    Madam Administrator, you've been here a long time, and we have votes on the floor. I just want to take a couple of minutes.

    I know we're all frustrated with the kinds of situations like Gettysburg and Mrs. Williams' situation, and I know that you folks have been working to get those folks out. But I just have a couple of things.

    Lest we leave here with some idea that we haven't made great progress in this area of Superfund, let me give you guys a little bit of a positive feedback. I thought the work that the EPA accomplished on the Craborchard National Wildlife Refuge Superfund site in my district was tremendous. I thought incorporating community response, following through on all the things that you told people locally you would do was great. The response that the agency has given also on the Lawrenceville oil refinery site in my district is another example of that. I think you folks are to be commended.

    I know we've had some—I think we have to continue to have dialog over particulate matter and the Clean Water Act and these kinds of things to get it straight, but doggone it, on this issue of Superfund this agency ought to really be commended on some of the steps that they've taken, because I've seen the firsthand results of it.

    Now just real quickly, the future of incineration in cleaning up sites—yes, no, indifferent?

    Ms. BROWNER. What we've tried to do is work with, as you point out, communities to determine what is the most sensible, the most cost-effective, the most practical——
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    Mr. POSHARD. So you're not ruling that out?

    Ms. BROWNER. We don't rule things in or out. We sit down with the community. We share the scientific information. We give them a grant if they want to hire their own scientific experts.

    We're trying to move beyond the days of sort of simply doing something and saying to the community, ''This is right and trust us.'' The community has a real role to play in this.

    So in terms of particular technologies, particular solutions, we want the public's health protected; we want the environment protected. We'll work with the community.

    Mr. POSHARD. Okay. One other thing that I've appreciated—it's not been so much in my area, in the rural area of Illinois, but especially in the Chicago area, is the approach taken on brownfields, the flexibility that we're enabling the States to have, the tax incentives, and the showcase communities, and so on. The future of that? Are we progressing?

    Ms. BROWNER. We certainly think we are making progress. We certainly appreciate all of the support for the tax incentive. It's now part of the balanced budget agreement. I think that's a huge victory for brownfield sites, but we would hope that any Superfund legislation, whether that becomes small or big, would include the authority to create the brownfields revolving loan program, low-interest rate loan program. You may have some sites where, quite frankly, capital is hard on the front end; let's set up a little mechanism with the cities, with the States, to provide that sort of start-up capital to get the cleanups done, to get the redevelopment, let them pay it back, and then we'll loan it out to someone else. There's also an issue of voluntary cleanup which is separate from brownfields——
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    Mr. POSHARD. Right.

    Ms. BROWNER. ——and I'm not speaking to that here, but brownfields we think is a hugely successful program put forward by the President and really doing a lot to address these sites across the country.

    Mr. POSHARD. I have some other questions that I'll submit in writing.

    Ms. BROWNER. Thank you.

    Mr. POSHARD. Thank you.

    Mr. THUNE. Mr. Borski?

    Mr. BORSKI. Thank you very much, Mr. Chairman.

    Madam Administrator, I think you've answered some of these, and I'm disappointed that the chairman's not here right now, but I do think it's important, at least for the record, that we discuss a little bit the liability proposals that I have suggested earlier today and what the chairman's proposals are.

    It has been my goal from the outset to have a signable bill, and if we just focus for a minute on liability, and if you heard enough of what I was saying earlier, is that something that you would agree to and recommend to the President, that——
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    Ms. BROWNER. Yes.

    Mr. BORSKI. ——that liability provisions be signed?

    Ms. BROWNER. Absolutely. Yes.

    Mr. BORSKI. And, conversely, the chairman's proposals on liability, I know he thinks we're very close, and I respect that and I want to work with him. Would you recommend that that proposal be signed by the President?

    Ms. BROWNER. Not at this point in time, no. You know, Mr. Borski, if I might, I mean, what I find very attractive in what you detailed, is it's simple. It's how many gallons, how many pounds, how many people, what were your revenues? That's not debatable for most people. That's a simple set of facts. You answer them; you're out. The profit is useful in that we will litigate, I promise you, what is 3 percent profit. To the best of our knowledge, there is no statute—and we may be wrong about this—that uses profit for small business definition. Some use revenues, and profit has been discussed before and it's not been used before. But that's a highly debatable issue, and I promise you, we'll say to some company, well, you're profits were at ''X,'' and they'll say, ''No, they're at 'Y,''' and we'll all be in court—and you won't like it

    You do it very simply. It is revenues. It is number of employees. It is number of pounds. It is number of gallons. That's the way to do it. It's bright; it's clear.

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    Mr. BORSKI. Thank you very much, Madam Administration. And, Mr. Chairman, I have no further questions, except to thank our Administrator for a long, sometimes difficult, day. Sometimes we do talk past each other and not listen so well. But I think it is important if we note differences, and what's accomplishable here and what isn't. Thank you very much. Thank you, Mr. Chairman.

    Ms. BROWNER. If I might, Mr. Chairman, in closing—or did you have another question? I apologize; I'm confused. Did you have a question?

    Mr. THUNE. I have one——

    Ms. BROWNER. Okay.

    Mr. THUNE. ——for Mr. Garcia, but go ahead.

    Ms. BROWNER. Well, go ahead.

    Mr. THUNE. All right. Mr. Garcia, it's my understanding the NRD provisions in H.R. 2727 are consistent with many of the administration's NRD provisions. Would you agree that these provisions reflect a compromise position?

    Mr. GARCIA. As I indicated in my opening statement and in the written testimony, we think that you have come a long way, but there are still concerns.

    The administration presented a proposal, and the proposal had certain fundamental principles or ideas. The first one was that we have to make the environment and the public whole as a result of a discharge. Second, that there are two components to making the public whole. One is primary restoration, bringing the resource back to its baseline condition, the condition it enjoyed prior to the incident; and, two, compensating the public for the loss of the use of that resource from the time of the injury until it is restored.
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    We presented a proposal, furthermore, that said you can do this without having to monetize the injury, without having to go out with a calculator and tote up the damages and present a bill to the responsible party. Rather, you can do it with the measure of damages being the cost of the restoration project. And we feel that that restoration-based approach allows us to capture all of the values.

    One of the problems with the bill that we have in front of us is that it appears to limit the ability of trustees to recover all of those values. It limits our ability to address all of the resources or to restore all of the resources that have been injured.

    Furthermore, it appears that the bill, the way it is drafted, encourages further delay and litigation by not dealing with the problem with the statute of limitations, as well as the issue on record review.

    Mr. THUNE. Ms. Browner, do you want to conclude?

    Ms. BROWNER. Yes, just a brief word in closing. I want to leave here being very clear about the fact that I think we have broad agreement on where we want to be ultimately. I think the devil is in the details. I want to be clear, and I wish Mr. Boehlert were here, that some of the details that we have seen put forward in this bill are very troubling to us, and ultimately we probably will not support them, cannot support them.

    Having said that, I would hope that we can all be mindful of where we want to end, go back to the drawing board—I think Mr. Borski has put forward an idea that is very reasonable, very responsible in meeting a set of shared objectives, and lets see if we can't, as Mr. Borski suggests, at least get this liability piece done, at least deal with the Barbara Williams of the world, at least take this out of the hands of judges who may or may not agree with all of us, take it out of the courtroom. So we are ready, willing, and able. I am personally willing to come back for any meeting to see if we can't get this done, and see something passed sooner rather than later.
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    Mr. THUNE. I would simply say—and, again, I wish the chairman were here because I do think that he's put a great deal of effort into this already, and I think there have been a number of these discussions. It seems, when it's all said and done, more gets said than done, and I think we're at a point where it's time to move forward with something that brings greater clarity, more definition, to some of these issues. I think that his bill certainly moves us in that direction, and we would hope, I guess, that we can get something that we can move forward in the process here that will, in fact, address an issue that has been long overdue.

    I thank you, and we will at this point allow the panel to move on, and call the second panel forward. I've got to go vote, but I was hoping the Chair would be back. All right, we're going to recess temporarily. We'll call the second panel as soon as we have members here.

    Mr. BOEHLERT. Ready to go.

    Our second panel consists of the Honorable Paul Helmke, the mayor of Fort Wayne, Indiana, representing the U.S. Conference of Mayors. Representing the National Governor's Association, the Honorable Christophe Tulou, Secretary, Department of Natural Resources and Environmental Control, State of Delaware. For the City of Southington, Mr. John Weischel, Town Manager. And from the National Association of County and City Health Officials, Dr. Carol Garvey, Health Officer of Montgomery Department of Health and Human Services.

    We'll go in the order that you were introduced. Mayor, you will be first. Let me indicate to you that your statements will appear on the record at this juncture in you entirety. We would hope that you might be able to capsulize what you have to say, but because you've waited so long, we'll be extra generous with the time.
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    Mayor, you start off.


    Mayor HELMKE. Thank you, Mr. Chairman, and I'll keep my comments very brief. First of all, my name is Paul Helmke. I'm the mayor of Fort Wayne, Indiana. That's in the Fourth District of Indiana, Fourth Congressional District. And I'm president of the U.S. Conference of Mayors. It's good to see Congressman Johnson here; he's a former resident of Fort Wayne too. And when he talks about his TV career, it started in radio back in the Fort Wayne area too. So it's good to see you, Congressman.

    Let me make a few quick points. We're very happy to see this debate today in this legislation. Mayors have been at the center of the brownfields issue for a number of years. Brownfields basically are occurring in our cities and our urban areas, from whether it's the abandon gas station or dry cleaner to the large industrial site. We are very concerned about brownfields. We feel that this legislation is very important. We hope that it spurs some conclusive action during this session of Congress, to deal with the changes in Superfund law, and in particular to deal with the brownfields issue. It's something that is crucial. We do pledge our support; the Nation's mayors pledge our support to you and others to get the bipartisan reform of Superfund through if at all possible. It's something that we can't wait any longer.
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    Let me make three quick points. Number one, brownfields are crucial to us because they're in every city and town in this country, and we feel that brownfields in effect are one of the unintended consequences of the Superfund legislation. What happened with Superfund—a number of good things happened. But one of the bad things that happened with Superfund is we recreated in effect dead zones in our cities and towns. A lot of areas that perhaps are dirty but not dangerous, developers have stayed away from, investors have stayed away from, local governments have stayed away from, because of the fear of liability from the Superfund legislation. And that these dead zones exist in every one of our communities.

    We want obviously to see these not created in the future. We want to see responsible parties paying, but we want to see something happening to those dead zones. We don't feel that it's a success to wait 10 years and find out that someone's paying; we want something to happen to those dead zones as quickly as possible. It's important because it ties into so many of our other issues. It ties into the welfare to work issue. If we can redevelop these properties—the brownfield sites—then we're much more likely to get welfare recipients moving to jobs because the jobs will be closer to them.

    It deals with neighborhood and community revitalization. When there's an empty industrial site or an abandoned gas station across the street for someone, it affects their housing values, it affects their quality of life. It ties into the whole transportation system, the urban sprawl issue. If we keep developing greenfields and not brownfields, we're going to continue to have air pollution problems, we're going to have a lot of problems, so brownfields are crucial.

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    My city alone, we had one brownfield site recently. It used to be something called the Bowser Pump site—a large site. We've been working for a long time to get it redeveloped. We located our police headquarters right next to it to help the area, one of the poorest census tracks in the State of Indiana. But bad things happen in these brownfields.

    Somebody brought in 600,000-plus tires; somebody started the tires on fire. We had to evacuate the police building; had to evacuate the neighborhoods. Brownfields become, not just dead zones, but dangerous zones, because they attract crime, they attract illegal dumping, they cause other health and safety problems. We need to deal with brownfields.

    There's two things that I think are very important about the legislation that you've proposed. One is the liability reform, and I think this is very crucial. Your legislation provides responsible and much needed liability reform to protect innocent parties, both public and private, who are trying to invest in the clean-up and redevelopment of brownfields.

    That is crucial. We can't get folks coming in to take these properties. The site that I just mentioned in Fort Wayne, they haven't paid the taxes. The county doesn't even want to take the title through the tax sale, because they're concerned what liability they might pick up if they own it. We can't find someone to come in to do a park, or to do a commercial development, or a housing development, until they know that they're protected from liability.

    Go after the bad guys, go after the polluters, figure out which ones are mash potatoes, and which ones are something more serious. But let's move forward with innocent third parties purchasers so they can do something on these properties. The liability protection is the most crucial thing that we seek.
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    The last point I wanted to make is that, in addition we need a partnership; we need the resources that are available here. We feel a portion of the Superfund dollars should be used to help with these brownfields clean-ups. The one suggestion we might have for the legislation is that it not just be Superfund legislation, but that additional language be in the bill that might allow such sums as necessary from general revenues in the future be made available for assessment and remediation.

    Again, we want to turn these properties around to make life better for our citizens. The bottom line is, we don't want the dead zones in our properties. As a nation we've proven that we can recycle glass, we can recycle plastic, we can recycle aluminum. Let's start recycling land, it's crucial to the future of our country. Thank you very much.

    Mr. BOEHLERT. Thank you very much, Mayor. It will comfort you and your colleagues and the U.S. Conference of Mayors, to know that there's very little disagreement between Mr. Borski and the Democrats, and me and the Republicans, on this very important issue of brownfields. Most of us are privileged to represent cities of varying sizes, from the big guys in Philadelphia, to the little guys in Utica, New York, Rome, New York, and we want to feel responsibly—with brownfields, and I very much appreciate your statement and the support of the U.S. Conference of Mayors.

    Mayor HELMKE. It's something. I think it's both Republicans and Democrats, small communities, large cities, from the Chicagos and the Detroits, down to the smaller towns in any of your districts. They're really affected, and we're all here to help support you to get some of these changes made.
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    Mr. BOEHLERT. Thank you very much.

    Mr. Secretary.

    Mr. TULOU. Thank you, Mr. Chairman and Members of the Committee. My name is Christophe Tulou. I am the secretary of the Delaware Department of Natural Resources and Environmental Control. I'm offering testimony on behalf of the National Governors Association. I'm also here representing Governor Tom Carper, who sends his best personal regards to you, Mr. Chairman.

    Mr. BOEHLERT. Governor Carper's a classmate of ours; Mr. Borski's and mine.

    Mr. TULOU. Mr. Chairman, first of all, I want to commend you for embarking on the kind of bipartisan negotiation that are absolutely needed to develop a bill that the President can sign; state support, the open process that you used to craft this legislation, and we greatly appreciate your leadership and open-mindedness.

    NGA also is very encouraged by the direction of this bill. We believe that despite many good administrative reforms, legislation is absolutely necessary, and we see your bill as a significant step for resolving many of the concerns expressed by EPA and the states.

    Although we have had only a limited time to review the bill, as you mentioned our statements will be considered for the record, and I would like mine included.
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    I'm going to walk through very quickly some of the particular points of concern and support that we have with regards to the legislation, beginning with remedy selection environmental standards.

    Governors believe that changes to remedy selection should result in more cost-effective clean-ups, a simpler, more streamlined process for selecting remedies, and more results-oriented approach. The bill significantly moves in this direction.

    Now on the issue of state standards, as you know requiring state applicable standards to apply to both NPL and state clean-ups is of great importance to the governors. Failing to require the consistent application of state standards will result in two levels of protectiveness in the states; one for NPL sites and one for non-NPL sites. We suggest the addition of language to your bill to explicitly ensure that state-applicable standards consistently apply to all NPL sites.

    The governors agree that it is important to consider different types of land use when determining clean-up standards. The inclusion of provisions to provide for state and local control in making determinations of foreseeable land uses is appreciated. Also, the use of state applicable standards and the opportunity for state and local authorities to determine which groundwater is suitable for drinking, are essential during the remedy selection process.

    The governors recognize that there are some records of decision that should be reopened because of cost considerations or technical impracticability. However, we are concerned about a flood of petitions to open these rods, and we believe governors should be given the opportunity to concur with any decision to reopen a rod in their state.
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    We agree very substantially with the comments of Mr. Helmke on the issue of brownfields revitalization. We simply would re-emphasize the preeminence of states in dealing with contaminated sites across the country. We're dealing with tens of thousands of sites that are not on the NPL, and we have in many of our states—Delaware included—developed highly successful voluntary clean-up programs that have enabled these sites to be remediated quickly with minimal government involvement.

    On the issue of liability, states believe that voluntary clean-up programs in brownfields redevelopment are still being hindered by a pervasive fear of federal reliability. We strongly support the provisions in H.R. 2727 that encourage potentially responsible parties and prospective purchasers to voluntarily clean up sites. In particular, we greatly appreciate and strongly support precluding subsequent federal enforcement at sites where clean up has occurred under state programs, and by providing liability protections for prospective purchasers and owners of properties contiguous to contaminated sites.

    The governors also strongly support your efforts, Chairman Boehlert, to provide sites with a variety of options that enhance their role in this program. We appreciate the bill's inclusion of appropriate and necessary options that allow for maximum flexibility to meet each state's needs and objectives. We especially support the concept of authorization that allow states to operate their programs in lieu of the federal program.

    However, we are disappointed with language in the authorization section that prevents a state from using its own liability laws. Allowing a state to use its own liability laws will create consistency in the application of clean-up laws in all sites within a state. A default denial for pending state authorization applications is also problematic. We prefer language that provides for default approval of a state authorization application to prevent expenditures of limited resources on litigation.
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    Other very important provisions are those that prohibit EPA from withdrawing delegation and authorization on a site by site basis, and those that allow states to apply for delegation or authorization for federal facilities on the NPL.

    The governors applaud provisions to hold federal facilities to the same process and standard of compliance as private parties, and to this end we encourage you to provide a clear waiver of sovereign immunity for federal facilities. We also applaud the inclusion of a provision requiring the governor's concurrence before a site, and his or her state may be added to the NPL. We also applaud the 10 percent state cost share for both remedial action and operations and maintenance.

    On natural resource damages, we believe that that title of the bill represents a delicate balance among the competing interest, and offers a workable compromise to several of the most difficult issues in natural resource damages. Many important changes were made to this title consistent with NGA recommendations. In particular, we commend the committee for emphasizing a restoration. We regret emphasizing restoration as the primary goal in giving state trustees the right of first refusal to be lead decisionmakers at NPL sites.

    Removing from the trust fund the prohibition on funding natural resource damage assessments, and creating an effective date to protect claims and lawsuits already filed, are also provisions that we have long advocated. We do recommend that the bill extend the statute of limitations to 3 years from the completion of a damaged assessment, and maintain a record review based on arbitrary and capricious standard instead of trial de novo on those denials.

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    NGA also supports retention of non-use damages. As we understand, the bill non-use values would be calculated as part of a cost-benefit analysis when considering the restoration alternatives, and we believe this may be a reasonable and workable compromise.

    In conclusion, I would like to thank you again for your hard work on this important reform legislation, and for providing me with the opportunity to communicate the views of NGA and Governor Carper on Superfund reform. We look forward to working with you to address the improvements you have suggested, but reiterate our belief that this bill represents a responsible, sensible step forward. We hope members of both parties will join with you in advancing a bill that the President can sign into law.

    Mr. BOEHLERT. Mr. Weichsel, we're going to bypass you, and I'm going to explain why in a moment; because Congresswoman Nancy Johnson has been your advance person, and she has badgered this committee, and she is one of your strong supporters in terms of your testimony.

    She wanted the privilege of introducing you, but she is now tied up in an important matter on the Ways and Means Committee, and we're trying to extract her from that, so she can fulfill the function of introducing you, knowing that you have someone working very hard on your behalf.

    Dr. Garvey, we'll go to you.

    Dr. GARVEY. Thank you, and good afternoon, Mr. Chairman, Members of the Subcommittee. I'm Carol Wilson Garvey, MD, MPH. I'm the health officer for Montgomery County, Maryland, and I'm very pleased to represent the National Association of County and City Health Officials, NACCHO, which serves all 3,000 of the Nation's local health departments. These agencies are on the front lines in protecting and promoting the health of their communities.
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    We are honored to have this opportunity to comment on the public health and communication participation aspects of the Superfund program, and on the revisions proposed in Title II of H.R. 2727, which go a long way towards strengthening public health and community participation in Superfund.

    We're also very grateful for the attention you have given to the role of public health departments in Superfund. We wish to emphasize several aspects of the public health role. Number one, Superfund is a public health program. Certainly its underlying purpose is to prevent disease and disability due to toxic exposures: adverse health outcomes, such as neurological damage, birth defects, and cancer. Identifying and reducing potential health hazards due to toxic contaminants and hazardous waste sites is just as important as such traditional public health measures as vaccinating children or requiring safe food handling.

    Although public health involvement in Superfund site assessment and remediation has been built into the program from the beginning, primarily through the activities of the Agency for Toxic Substances and Disease Registry, the full potential for public health approaches to improve the efficiency and effectiveness of the Superfund, has never been fully realized.

    To achieve this potential, the Superfund program must require early, strong, and meaningful involvement of public health agencies and experts at local hazardous waste sites. The second point is that early public health participation is essential in addressing these sites. H.R. 2727 recognizes this by requiring consultation with local public health officials at the time of site inspection and encouraging the completion of public health assessments prior to the choice of remedial activities.
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    Local public health agencies know the demographic and cultural characteristics of the community, and they know the other health problems of the community. This knowledge can be critical when dealing with the myriad of problems caused by hazardous waste sites. A local health department can also help alleviate community concerns when it is found that health hazards do not exist.

    In my own State of Maryland, the Cecil County Health Department has had a long and successful involvement and partnership with the community at the Galaxy Spectron site. We appreciate that H.R. 2727 explicitly enables consistent local public health involvement in on site Superfund activities, but we would suggest also that notification of state and local public health authorities be required whenever it becomes known that release of a hazardous substance is either threatened or has occurred.

    Point three, community involvement is integral to a public health approach. Community residents have knowledge that nobody else has: how a site has been used in the past, who has lived near the site, and who has moved away. Information such as this is essential to the conduct of studies that help us to understand both the short-term and long-term health effects associated with a hazardous waste site. We believe that Title II of H.R. 2727 will strengthen and promote community participation in Superfund, and we appreciate your understanding of the importance of this aspect of the program.

    The last point is that the Superfund must support the use of public health tools and address public health practices. Data collection, research, ongoing disease, surveillance, health education and health promotion, must be adequately supported to enable Superfund to achieve its purpose of protecting the health of communities.
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    The Agency for Toxic Substances and Disease Registry, ATSDR, is the cornerstone of the public health activity in the Superfund program; it needs expanded authority and flexibility in conducting site-specific public health assessments, health studies, surveillance, and registries.

    H.R. 2727 has updated ATSDR provisions in some important ways, particularly in revising the section concerning substance profiles that reflect the lessons learned during the agency's earlier years. We support these provisions, and would encourage an additional provision to increase flexibility at the stage of preliminary public health assessment, so that ATSDR's resources can be allocated in the most efficient manner possible.

    We also believe that the statutory definition of health assessment has become outdated and should be revised to reflect the best current public health practice. ATSDR has invested in building the capacities of state and local health departments to respond to hazardous waste issues, thus increasing our nation's ability to meet public health concerns related to hazardous waste. An identified need is community health education, particularly education aimed at teaching community residents near hazardous waste sites how to mitigate or prevent exposure to hazardous substances. Another need is to help community residents, through education and referrals, to obtain environmental health services through existing health facilities and health delivery systems.

    We hope that Superfund reauthorization legislation will support and promote these important public health functions. We look forward to the opportunity to explore these issues further with the subcommittee.
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    Mr. Chairman, NACCHO will be happy to provide any additional information for the record that you would find useful. We thank you for your keen understanding of the critical role of public health and Superfund, and thank you for the opportunity to testify.

    Mr. BOEHLERT. Thank you very much, particularly for your very positive statement. I appreciate it. We look forward to continuing to work with you as we move the process forward.

    Well, Mr. Weichsel, I guess Ms. Johnson is not here yet. When she does come in, we'll ask that she be allowed to join you at the table, and say some nice things about your good work.

    Mr. WEICHSEL. That's very kind. But I think we don't want to hold up the hearing, so with your indulgence I will proceed then, if that's okay.

    Mr. BOEHLERT. By all means proceed.

    Mr. WEICHSEL. Let me start by very quickly—I notice that Administrator Browner was three and a half hours beyond the five minute limit, so I hope I might get a minute or two more if I just run over.

    Let me rebut two points that she made that I'd like the committee to think about. She had indicated that her agency was knocking out the small fries. Well, in our Superfund site there are 350 PRPs, and they were all cited in by the EPA. So, one has to look at that statement. Now possibly, I don't know, maybe in more recent times they are changing, but certainly there's thousands of people who've been cited by EPA, not by the Big Eleven that was pointed out to before.
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    My remarks will answer a comment she made several times. She said, ''Why would anyone exempt owner operator?'' ''Why would anyone exempt owner operator?''

    With your indulgence, my remarks—and you have of course a somewhat lengthier presentation, and I'll try to give a summary that I hope will answer that question.

    Mr. BOEHLERT. That is a very good question, but before you present it to us, Ms. Johnson has just arrived, and I would like to extend a courtesy of letting her say a couple of nice things about you, and then we'll come back for the answer to that very important question.

    Ms. Johnson.

    Ms. JOHNSON. My message is simple; everything he say is true.

    I am very pleased to introduce the town manager of Southington, Connecticut. He probably has as much experience in this area on the ground running as anyone in America. This is a town with two Superfund sites. They have had long experience. They've been involved in the old process and the new process, and they are living, breathing evidence that this body needs to step up to the bat and hit a home run in Superfund reform.

    I heard the earlier part when the administrator was here, and all those individual people and all those individual businesses that we are destroying are really a matter of deep concern to me. I don't think we in the Congress sometimes understand that we're about to wipe out, in these Superfund areas, the small subcontractor that is absolutely critical to America's industrial base.
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    If you think the big titans like Pratt & Whitney can continue to produce engines, if we soak the capital out of companies that did everything according to the law, disposed of their refuse the way we told them to, and all these little tiny companies who had very little role in this—if we destroy them, we do deep-seated damage to the industrial capacity of our nation.

    So this isn't just about the Barbara—I've forgotten her last name—the mashed potatoes lady that you were talking about earlier. This just isn't just about all the little people who do get hurt, and they do get hurt. What is also at risk is America's industrial base, as well as the core of our inner cities that are unable—and Southington is a perfect example—unable to reuse old manufacturing lands because we haven't dealt with the brownfields issue. So not only on Superfund, but on brownfields, we will never have a strong manufacturing sector, or bring back our cities, if we don't do something about Superfund reform.

    I am encouraged by what I heard this morning. I'm happy to work with you, but I am very pleased to have Mr. Weichsel here to shed a bit of light on this from the point of view of the taxpaying municipality, and all the individual, ordinary, hard-working folks for whom a $35,000 settlement in an era like we've been through in Connecticut, of terrible depression, is not de minimis. So there are a lot of problems. I'm just glad he's here, and thank you for courtesy in letting me introduce him.

    Mr. BOEHLERT. Thanks for your usual effervescence.

    Mr. WEICHSEL. Thank you very much, Congresswoman.
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    Mr. BOEHLERT. Mr. Weichsel, you see what I mean when I talk about Congresswoman Johnson? She and I were classmates with Mr. Borski——

    Mr. WEICHSEL. Oh, okay, classmates.

    Mr. BOEHLERT. ——and I've come to know her. Let me tell you, you couldn't have a more effective advocate in Washington, D.C. for Superfund reform, or for that matter, anything that's good public policy than Ms. Johnson.

    Ms. Johnson, I'd like you to meet Ms. Barbara Williams of Gettysburg, Pennsylvania. She is going to be a witness in a next panel. And we thank her for being, for being so patient. We thank you for that dynamic introduction. We've come to expect that from you.

    Mr. Weichsel, you may proceed.

    Mr. WEICHSEL. Now you see why we always elect her as Congressperson from our district. I cannot live up to that buildup, but I will do the best I can.

    Mr. Chairman, I'd like to thank you—and of course Nancy—and other Members of the Subcommittee, for the opportunity to testify on Superfund. Having appeared before you subcommittee in the past, and hearing your previous public statements on the municipal owner/operated problem, I must admit I'm somewhat surprised, and a little disappointed, that H.R. 2727 does not provide adequate relief for the municipal co-disposal situation.

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    For anyone to characterize this as a carve-out would not be accurate. Our members are public agencies who provide a public service in accordance with the law. While of course we prefer comprehensive liability reform for all parties—both private and public—we would respectfully request that you at least reinsert the co-disposal exemption that has been contained in your previous Superfund discussions, and I believe in previous drafts.

    Moreover, it would be simply inequitable to relieve generators and transporters of municipal waste from liability without providing similar relief to the owners and operators who are willing to provide a public service in taking the waste. Unfortunately, your legislation does not solve our liability problem.

    For some reason the concept of eliminating retroactive liability is not politically correct in this city, so we have to deal with what is acceptable, and we're prepared to do it, and your bill goes a long way to doing that, a very long way. And I want to personally commend you and your colleagues, who I know are working on a bipartisan basis. And there is a few little steps that we have to go forward with.

    Congress should guarantee every citizen who lives near a Superfund site, a law that will remove the risk from the site in an expeditious manner. Seventeen years of clean-up delays, inefficiencies, and enormous transaction costs resulting from Superfund's retroactive strict joint and several liabilities system should be enough to convince everyone of the need for comprehensive reform.

    The present site-by-site fundraising system is at the heart of the problems with Superfund, and any legislative proposal that fails to address this key element will allow the blame game to continue for people who obey the law, as Congresswoman Johnson just indicated, at the time of their actions.
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    For example, actions undertaken by a local government, such as our own, such as operating a dump/landfill, may cost the government, and in turn its local taxpayers, millions of dollars, even though it was in the public interest for the government to provide that waste disposal facility. People in our situation did not make money as the administrator said—millions of dollars. We didn't make any money; we spent money to maintain it. We never charged—and my colleagues, Hutchinson, Kansas, Hastings, Nebraska, and throughout the country, they ran open dumps, as you know going back historically, and then landfills, and I doubt one in a thousand charged. So we were not, ''making money'' as the administrator seems to think owner operators were doing. Munis must be viewed differently.

    I would like to briefly share with you the experiences that we in Southington have faced with Superfund. We have a population of 38,000. We operated a traditional open burning, and then later a state-monitor sanitary landfill on a 10 acre site, called Old Southington Landfill. It was just an orphan site for about 30 years. In 1949 our ancestors took it over, and it was closed in 1967; closed in 1967. That was 13 years before Superfund was passed.

    In the later years the State of Connecticut Health Department made quarterly inspections, and indicated everything was in order. As the town dump, the site received all residential, commercial, and industrial waste products. Obviously in those days there was nobody thinking of splitting up that type of waste. It was a dump, and everybody brought their refuse there, including Pratt-Whitney, as Nancy has mentioned, and little people.

    By today's standard, no municipality accepts some of the industrial waste Southington did, however, the town did a public service that accepted waste products from local employers and the public at large at no charge, while complying with all applicable laws. The dump/landfill closed 13 years before there was a Superfund law, and Southington is now being presented with grandiose clean-up schemes that may ultimately cost in the range of $35 to 95 million; $35 to 95 million. I know in this building that's probably not a great deal of money, but where I work, that really is a lot of money. You had a Senator who made a comment about the size of money many years ago.
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    Consultants hired by Southington have indicated that it would be impossible to clean up the water below the old dump to drinking water standards for centuries. In addition, the area has been classified GB, so that it could not be used for drinking water in any event. But that's not only Superfund being applied retroactively, but it may cost tens of millions of dollars, and will not achieve one of its main alleged purposed, making the groundwater safe for human consumption.

    Future land use has not been considered, and I know in your bill I'm delighted to see you're talking about that, and that's excellent, that's excellent. But as we stand today, the PRPs have indicated that the 10 acres involved will remain vacant, forever wild. Nonetheless, the EPA claims that the land could be rezoned residential; someone could build a house on this Superfund site. Yeah, right. After millions of dollars on pollution, someone would build a house there; sure. And a private well, of all things, could be illegally drilled—never mind the health officials—drilled instead of legally connecting to the water system; the public water system. The town protestations that this would never be allowed are simply ignored. In other words, we have terrible unreality in the remedy selection. And again, in your bill, Mr. Chairman, you have good indication that the EPA will be directed to be more flexible. Now we're hearing from the administrator that she says they are. So far we have not seen that, but your bill would go a long way to doing that.

    In addition, I must say Superfund has spawned third party lawsuits. The PRPs are being sued by on-site homeowners, off-site neighbors for diminution of value. All of this happens because since 1987—10 years—that's why Nancy thinks I'm an expert. I've been at this 10 years. When Old Southington landfill was designated as a Superfund site, no clean up has occurred. Instead millions have been spent on consultants and lawyers. Southington followed all applicable laws and rules. It is inconsistent with the polluter-pay principle to call a town like Southington a polluter.
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    Thank you very much for your courtesy. I know I'm a little bit over.

    Mr. BOEHLERT. Thank you very much. You were worth waiting for.

    Mr. WEICHSEL. Thank you.

    Mr. BOEHLERT. Let me ask my colleagues—we're going to deviate a little bit from normal procedure. The mayor has a flight he has to catch, so I would ask if anyone has any specific question to address to Mayor Helmke, please let me know.

    I have one.

    Mayor, Administrator Browner's written testimony—she didn't say this, but it's in her written testimony; said that grantees will find brownfield grant program requirements difficult to meet. She suggests that some of the criteria for evaluating grant applications may be too prescriptive.

    We don't want to do that. In fact, removing prescriptiveness from the statute is a constant theme under H.R. 2727. So what do you think are the appropriate criteria for evaluating an application for assessment grants, and what are the appropriate criteria for evaluating a remediation grant?

    Mayor HELMKE. Clearly, we don't want it to be impossible to be able to get these grants or cities aren't going to be able to take steps to clean up the brownfields. I think in reading, it didn't seem overly prescriptive to me, but certainly if we can make it clear, that cities are going to be eligible.
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    To me the main thing is, is there a need? Does the city have the capability to put together a plan? Have they worked on it? And are they going to follow through? And basically that's it; need, capability, and a plan that they're going to follow through with. And perhaps the criteria that are written in the bill can be rewritten to show that flexibility. I felt the flexibility was intended when I read it, but certainly we don't want somebody down the road, in the courts or elsewhere, to throw this up as a roadblock to getting the grant money.

    Mr. BOEHLERT. Well, thank you very much. And we sent a craft in our bill and consultation with the mayors across America. So we'll keep your advice in mind. We thought we did, but we'll take another look at it, and we'll work with the Conference of Mayors.

    You are excused, because you have to go catch your flight. Thank you very much for your very valuable testimony. Good luck to you, and we'll be back to you.

    Mayor HELMKE. Okay. Thank you for your cooperation.

    Mr. BOEHLERT. Well, before proceeding—and I'm going to honor—have the 5-minute rule apply to me like everyone else. But before proceeding with my questions—and this will be taken out of my 5 minutes—I'd would like to acknowledge Mr. Barcia for a moment to discuss the provisions he has included in his Superfund bill, which would place a cap on municipal liability for cities who own or operate landfills that become Superfund sites. And I'm interested in the municipal liability cap provision, and I'll ask Mr. Barcia to explain it.

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    Mr. BARCIA. Thank you very much, Mr. Chairman.

    I want to again thank you, Mr. Chairman, for inviting these distinguished panel guests today to share their insight into the challenges that local communities face across the country, much like my own hometown of Bay City, Michigan, which also has a very toxic—I think it's ranked fourth or fifth in the Midwest in terms of the toxicity of a landfill.

    It was owned and operated by the municipal government in my hometown, and back in 1952 it was polluted as a result of—or contaminated as a result of some transformers that were laden with PCBs, were placed in some of the cells of that landfill. Consequently, we have a lot of PCBs that are leaking from the island, which the landfill is located on—the middle of the Saginaw River, into the river, to the Bay, and out into Lake Huron, contaminating the sport fish, and of course the water in general with PCBs.

    So I want to say that, Mr. Chairman, in House Resolution 2750, we have included caps on municipal liability for municipal solid waste. And I would be happy to work with you to see if we could incorporate the language that we have in House Resolution 2750. And what that language says, into your legislation, Mr. Chairman, the municipal generators and transporters would be capped at 10 percent; the small municipal owners and operators would be capped at 10 percent if the population of the municipality was under 100,000; and for large municipal owners and operators of 100,000 in population, would be capped at 20 percent. And we feel this is somewhat of a fair allocation in terms of the size of the municipally owned and operated landfill.

    So, Mr. Chairman, that I guess would pretty much summarize what we've included on the municipal liability provision in 2750. And with your indulgence, I would look forward to working with you on this provision as the process moves forward.
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    Mr. BOEHLERT. That cap provision is not something that just came out of the blue, it's something we dealt with before for municipalities, and I kind of like that idea, because it gives some certainties to the communities.

    You've got a 10 percent cap on municipalities, owner operators, for a community of 100,000 or less?

    Mr. BARCIA. Yes. That would be the line of demarcation; 20 percent for municipalities over 100,000 population.

    Mr. BOEHLERT. And the balance would come from the fund?

    Mr. BARCIA. Yes.

    Mr. BOEHLERT. That's something that I find very attractive. I think that indicates the type of thing we can sort of work out across the center aisle here. I like it a lot, and so we'll talk some more about that.

    I would assume, Mr. Weichsel, that you kind of like that idea too.

    Mr. WEICHSEL. Mr. Chairman and sir, certainly that would be a great deal better than where we are today. But I am constrained to say that I would prefer what I've suggested. I think that the owner/operators feel like us, who are totally innocent, I don't know why we would pay $6 or 7 million. That's still quite a slug of money. And I'm not ungracious. I know in this world one doesn't get what one wants, and compromise is important, and maybe that is the final solution. But if you're going to give municipalities, who sent the refuse to another town, an exemption, I don't see why the fellows who did the heavy lifting, which is us, who had to handle it, why we wouldn't get a similar exemption. I'm somewhat at a lost to understand why you wouldn't give us a similar exemption to them.
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    Mr. BOEHLERT. Well, we're going to work this thing out. I find it attractive. Quite frankly, as you look at this whole law, there are a lot of people who really acted in good faith, and did something that was legal at the time, and now are being forced to pay for doing something that at the time was legal. And I can understand where they're coming from, but on the other hand, people who didn't participate at all, had no involvement whatsoever, shouldn't be made to pay either.

    So, I'm sympathetic to your plight, and I'm enamored with his proposal, and I think we can work something out that will be constructive, and that will get us some forward movement, some progress in this whole thing. The bottom line is, everybody up here feels the same way. We don't want to let people off the hook who are really the culprits. I think we all agree on who we want to get—and I don't mean to use that as a pejorative—but who we want to step up to the plate and accept some responsibility. And I think we can pretty much agree on who we want to get out of this whole massive liability and litigation scheme. So we're going to operate, and we're going to move forward.

    So, Mr. Barcia, thank you so much for your contribution.

    Mr. LoBiondo.

    Mr. LOBIONDO. No.

    Mr. BOEHLERT. No question.

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    Mr. Johnson.

    Mr. JOHNSON OF WISCONSIN. Thank you, Mr. Chairman, I just have a question for Mr. Tulou. Apparently, it's been EPA's policy, a mandate by riders on some appropriations bills in some years, that the EPA get the concurrence of a governor of a state before placing a site in that state on the NPL list.

    In this proposal, H.R. 2727, Section 506, it seems to legislate a requirement for the concurrence of governors before the site can be listed, and it also appears to provide that exemption for governors who take no response within 12 months.

    Your comment on this area. I know you mentioned a little bit in your previous testimony.

    Mr. TULOU. We support that provision. We feel very strongly governors should have a say in those decisions.

    Mr. JOHNSON OF WISCONSIN. And there's been cooperativeness from the governors.

    There was a time that this was a policy I believe under—Were there any problems when it was a part of the appropriations bill, where the governors concurred or didn't concur?

    Mr. TULOU.
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    I'm not aware of any problems.

    Mr. JOHNSON OF WISCONSIN. This bill also provides some additional funding ostensibly for covering the costs of providing some liability relief. Some would say that there might not be an adequate firewall to protect clean-up dollars. Does this cause you any concern, that money in the grand scheme of things, might be diverted from clean up to paying responsible parties for settling these liability claims?

    Mr. TULOU. That is a concern. There's only a certain amount of money out there it seems to deal with these problems, and we have expressed—the National Governors Association has expressed fairly consistently a concern, that in dealing with liability issues that the states not end up shouldering an additional amount of that burden, or that the fund itself isn't overly compromised in its ability to deal with clean up of orphan sites, and the responsibilities the fund was created to discharge.

    Mr. JOHNSON OF WISCONSIN. All right. Thank you very much. That's all the questions I have, Mr. Chairman.

    Mr. BOEHLERT. Anyone else have anything?

    [No response.]

    Thank you very much. Your testimony is very much appreciated. It's very helpful to us in connection with our deliberations. I particularly wish to thank all of you for the kind words you've had to say about H.R. 2727. Not perfect by any stretch of the imagination; still needs some further massaging. And we're going to work cooperatively with everyone to develop the best possible bill, but we're not going to wait any longer. People have a right to expect Congress to act, and we're going to act.
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    Thank you so much.

    Mr. WEICHSEL. And thank you.

    Mr. BOEHLERT. All right. The third panel, and final panel of the day, it's my pleasure to introduce the following people: Representing the National Federation of Independent Business, the much-mentioned and much-loved Barbara Williams, from SunnyRay Restaurant, Gettysburg, Pennsylvania. Representing the National Automobile Dealers Association, Mr. William D. Luke, who's president of Delaware Olds, Inc. And we won't show you for that plug. From the Subra Company, Ms. Wilma Subra. From the Chemical Manufacturers Association, Mr. Bernard J. Reilly, Corporate Counsel. He's with the DuPont Company. From the Environmental Defense Fund, Ms. Karen Florini; she's a senior attorney. From the NRD Coalition, Mr. Richard B. Stewart, Professor of Law, New York University School of Law. And from the Natural Resources Defense Council, Ms. Sarah Chasis.

    Your statements will appear in the record in their entirety. We would ask that you would try to summarize what you have to say, and I'll give everyone a chance to sort of adjust your seats and get there.

    And the co-star of the ''60 Minutes'' series just entered the room, Mr. Bill Goodling. And Mr. Goodling, we've already introduced the witnesses. We would ask that you be given time to introduce Ms. Barbara Williams, because we know that you have been a very strong advocate for the change that she is recommending, and one who is constantly after this committee to get going, and we're getting going.
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    Mr. Goodling.

    Mr. GOODLING. I thank the chairman for yielding. I won't speak specifically about Barbara Williams problem, because she will do very well speaking for herself. But I do want to bring to the attention of the committee that Barbara Williams is only one of 700 small businesses; 700 families in the 19th congressional district, that have lived under this for 10 years, and spent thousands, and thousands, and thousands of dollars getting attorneys. Even the 180 that supposedly Carol is ready to give a dollar settlement, has spent thousands and thousands of dollars on attorney fees, with no guarantee of anything. The judge has been sitting on those 180, while the fees continue to add up, and add up.

    And Barbara—just to show you how silly they act in her case. If you're running a restaurant, the one thing you don't want around the outside of the restaurant is a bunch of refuge lying all over the place, and expect people to come in, and want to purchase food in your restaurant. So, she gets two dumpsters to make sure that doesn't happen. They decide that as a matter of fact she filled two dumpsters every week. She probably didn't even fill one. But what she filled it with is exactly the same thing that you and the same thing that I take from our kitchen, and dispose into a dump, or into the trash. Exactly the same; chicken bones, corn, pie crust, et cetera.

    Now, the real tragedy, as I said, is—no, I don't wish this on all of you. But if every member of Congress would go through what I've gone through in the last 10 years—and what I've gone through is nothing in relationship to what these people have gone through—you would understand, we have to act quickly.
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    I've been waiting for a comprehensive bill for a long time. I've spoken to Carol Browner, I don't know how many times, and she always tells me, we need a legislative fix. And I always tell her, but every time it's mentioned, you talk about vetoing it. If they need a legislative fix to get these third and fourth party people out of something that they did because they had to do it, because the municipalities, because the state, and because the Federal Government told them that's the way it had to be done.

    [The prepared statement of Mr. Goodling follows:]

    [Insert here.]

    Mr. BOEHLERT. Well, thank you for that introduction, and I really appreciate your special interest in this, because both Mr. Borski and I can attest to the fact that you're constantly after this committee to get moving.

    Ms. Williams, you're the first witness. I just want you to know, that I would not have contributed to your problem, because I always eat my pie crust.

    Ms. Williams.

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    Ms. WILLIAMS. I appreciate that, sir. It's rather sad that after 16 years of trying to serve fine food to my loyal customers, that I have become more widely known for what I have thrown out than for the food that they have eaten.

    Good afternoon, Mr. Chairman and Members of the Committee. Thank you very much for this opportunity. I am Barbara Williams. My business is SunnyRay Restaurant in Gettysburg, Pennsylvania.

    My restaurant is the kind of place where the retired gentlemen come in every morning to eat a $1.99 breakfast, and discuss politics. I have been a member of the NFIB since 1982, and I am very grateful for their support. Across the country small business owners are realizing, we can't afford not to use our voices and our votes to demand better government. I speak out and fight, not only the unjust burden of this lawsuit, but the injustice of a landfill on the national priority list over 10 years with still no clean-up construction started.

    What is the Superfund law accomplishing? The attorneys are making a fortune, small businesses are unfairly burdened, and the contamination isn't cleaned up. I want clean air and water for myself and the generations that will follow me. I and other small businesses are not the enemy of the environment. Your wonderful idea of cleaning up the environment through EPA and CERCLA doesn't work. Your intentions were not followed. You legislated for results, but you got bureaucracy, regulations, and litigation. Legions of environmental attorneys, not environmental solutions, were created.

    Under the current interpretation of CERCLA, over 700 others and I are considered potentially responsible parties. Polluter pays is a great sound byte, but how does it work in the real world? We aren't businesses which regularly produce hazardous or toxic waste. We legally put out the trash, according to local and state regulations. We threw out the same trash every person in this country creates. My trash didn't become toxic because I put it into a big green dumpster in my parking lot, instead of a little green garbage bag on the sidewalk. If I am a polluter, then every person in this country is a polluter.
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    When a bridge needs to be repaired, we don't guess who drove across it for the last 20 years, and then bill them for repairs; we just fix it. And that's what we need to do with Superfund sites that accepted municipal solid waste for small businesses and individuals. Just fix it.

    President Kennedy said, ''We choose to go to the moon in this decade.'' Less than 7 years later, Neil Armstrong set foot on the moon. Keystone landfill has been a Superfund site for over a decade. It is a national disgrace that we can send a man to the moon in less time than we can clean up one landfill in Pennsylvania.

    The SAFE Act appears to extinguish all claims against myself and others, who should never had been brought into Superfund to begin with. It appears to provide badly needed exemptions for small businesses and contributors of municipal solid waste. But I have learned how critical the wording of a bill can be. My concern is that others will not see it so clearly. My fear is that others will challenge your intentions, and that the current course of litigation will continue.

    What will you choose to do? If you all choose to do nothing, you will continue the Superfund legacy of taking too much time, spending too much money, and achieving too few results. If you choose to amend Superfund, you will clean up the environment, and reform the burden of liability on small businesses.

    I am one American citizen crying out against injustice. Are the regulations more important than rights and results? When Lincoln came to Gettysburg, he expressed concern for our system of government of the people, by the people, for the people. My concern is that we are perilously close to losing the government Lincoln described, not because of outside enemies, but because of an ever-growing, all powerful bureaucracy.
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    I choose to stand against injustice and waste. I choose to speak out, but the future depends on you. What do you choose to do?

    Ms. Browner talks about the EPA didn't sue me. The EPA knew when they sued the 11 generator defendants at Keystone, that the law would allow them to sue others. And we all know if lawyers can sue someone else, they're going to. The EPA put a loaded gun in the hand of the 11 generator defendants, and they let them pull the trigger. This is not the first time the small people like me have been brought in; this has been done in cases across the country. The EPA didn't protect me then, and I'm sorry, but I don't have any faith that they'll protect me now.

    Thank you.

    Mr. BOEHLERT. Thank you very much for that very moving testimony. We want to encourage you that we are going to move. We are not going to be satisfied with inaction; we've had that too long. Now is the time for action.

    Mr. Luke.

    Mr. LUKE. Thank you. Mr. Chairman and Members of the Subcommittee, my name is William D. Luke, Jr., and I am the owner of Delaware Olds, Inc., at Wilmington, Delaware. On behalf of myself and the National Automobile Dealers Association, I would like to thank you for this opportunity to testify today on the impact of EPA's flawed Superfund program on small businesses. At the present time I am mired in litigation at the Burke's Superfund site in Douglasville, Pennsylvania.
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    In 1993 the U.S. Government commenced a lawsuit against a number of major waste generators, alleging violations of the Superfund law at the Burke's site, which operated as an oil and solvent recycling facility from the 1930s until 1985. In turn, these major waste generators sued several hundred smaller potentially responsible parties, and I was one of the several dealers named as a PRP.

    Delaware Olds is just one of 20 dealerships identified as a contributor by the testimony of a former truck driver for a company that had transported used oil to the Burke site. Based only on his recollection, he estimated the period of time, during which he believed he had picked up used oil, as well as the amount he collected.

    My alleged contribution was initially estimated at 22,400 gallons over the period of 1959 to 1981, however, that amount was reduced for settlement purposes to 17,920 gallons; a figure which I still dispute, given my knowledge of the number of oil changes before under my dealership, and my storage capacity on the premises.

    Unfortunately, EPA has based my contribution to the site on questionable evidence and extrapolation. Because of this process I was left with having to prove a negative to reduce my liability, and of course it is literally impossible to meet that burden of proof. As a result, my liability at the site has been set at an $100,000, based on my alleged contribution. I am utterly amazed at the legal entanglements I have endured. It is especially galling, given the fact that I sent my used oil to be recycled, and relied on authorized used oil handlers.

    In the vast majority of Superfund sites, where automobile dealers have been designated as PRPs, liability has been centered around efforts to recycle rather than dump used oil. What seemed to be an environmentally responsible act at the time, has turned out to be a nightmare.
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    In my case the $100,000 of clean-up liability I was assessed is an absolutely travesty of justice. It is impossible to prove that I didn't contribute the huge amounts of oil that was alleged. Something is clearly wrong with a system that forces a small business to bear the burden of proof that it didn't contribute an alleged amount of waste, especially when there are few, if any, reliable records.

    The legislation you had sponsored, Mr. Chairman, is a step in the right direction toward providing liability relief for those who sent their used oil to a recycler. As I understand it, your bill includes used oil recycling and de minimis provisions that could help many auto dealers like myself, as well as other small contributors.

    My only concern is with the burdens of proof that these provisions place on small contributors. For example, the bill provides that a small business dealer, such as myself, would have to prove by a preponderance of the evidence, that the used oil sent to be recycled was not mixed with other hazardous materials. I did not mix my used oil with any other material, but it would be impossible for me to prove it. The used oil in question no longer exists to be tested. Once again, I would be required to prove a negative. I sincerely hope that this can be corrected.

    Also regarding de minimis contributors, it is critical that the EPA be required to establish that a contributor to a site was more than de minimis. If this burden of proof is not placed on the EPA, the contributor once again is placed in the impossible position of having to prove a negative.

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    I have experienced this exact situation, and unless the burden of proof problem is fixed, the EPA can easily circumvent all the good work of this committee. In my view it should be assumed that all contributors are de minimum, unless the government can establish, by clear and convincing evidence, that the contribution was greater than the 1 percent, which is an accepted definition of de minimis. This fix would result in a giant step toward restoring equity to the process.

    In closing, I don't know what steps I could have taken to be more environmentally responsible. This law simply must be changed to restore equity to the program, and to prevent parties from being penalized for acting responsibly. I strongly urge the subcommittee to exclude from liability those persons who sent their used oil to recycling or refining facilities. Please don't allow the law to continue punishing persons who are not themselves negligent, and who made sincere efforts to act in an responsible manner.

    Thank you again, Congressman Boehlert, for the opportunity to express my views.

    Mr. BOEHLERT. Thank you very much, I do appreciate it. And we're looking carefully at the burden of proof provision of the bill.

    Ms. Subra.

    Ms. SUBRA. Good evening. Thank you for this opportunity to testify. My name is Wilma Subra. I'm from Louisiana, and I work with citizens groups who live on and around Superfund sites throughout the United States. I have served as a technical advisor to the National Commission on Superfund, and I am a technical advisor under the TAG program at eight Superfund sites in Louisiana and Texas.
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    The remedy section of the bill is not adequate to protect problems associated with public health and the environment, and is not acceptable to communities living on and near Superfund sites. The preference for treatment and permanent remedies no longer exist. The section does not even ensure that the treatment of hot spots will occur. Reasonable costs factors can be used to prevent the selection of a protective remedy. Too much reliance is also placed on containment and institutional controls. Uncontaminated groundwater will be allowed to become contaminated.

    Grassroots communities throughout the United States do not want to merely limit their exposure to Superfund sites; they have already been exposed to these sites. They want to prevent exposure. The strengthening of the remedy section must be performed in order to protect human health and the environment, and prevent future exposure.

    There's a requirement that site-specific human health risk assessment should be required to be completed during the remedy investigation. This should be added; that it is required to be completed during the remedial investigation phase of the site evaluation, and it should be done in order for the appropriate data to be available for the feasibility phase.

    All too often the human health assessments are not completed until after the RIFS phase has been completed and the rod issued. The Agriculture Street landfill Superfund site in New Orleans was a city-operated dump, from 1909 to 1965. On top of the old dump—on top of the 95 acres of old dump, the city—yes, the city—actually developed 47 acres as private and public housing, recreation facilities, and even an elementary school on top of the dump.
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    The rod was issued in September of this year, and provided for containment, by removing 2 feet of waste soil mixture, and replacing it with 2 feet of permeable soil. Containment was permeable soil, not a clay cap. The people wanted to be relocated, but will be required to continue to live on top of the hazardous waste.

    Last week the ATSER and Louisiana Department of Health released a health consultation on the site. A statistically significant increase in breast cancers was identified. The landfill area had a 60 percent excess incidence of breast cancer. This information should have been available before the feasibility study was performed, before the proposed plan was developed and the rod issued. The people now have an even greater need to be relocated. The data was presented to the community last night at a meeting by these agencies, and the people are extremely upset.

    In the area of public participation, the community participation section provides mechanisms for additional public participation and access to information in many areas of the Superfund process. In order for the public to be able to take advantage of these opportunities, they must be able to understand and respond to the large volume of technical information. The TAG process is critical to enable the citizens to participate in a meaningful way.

    In the area of state roles, the transfer of authority from the EPA to the states to perform the Superfund program would work for a few states. But the wholesale transfer of the Superfund program to a large number of states will have negative impact on the overall program. As currently proposed, the state delegation process appears to make states feel obligated to apply. A large number of states do not have the appropriate financial and technical resources to perform the program.
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    In Louisiana, the state program has only sufficient financial resources to perform small emergency removals when bowels are dumped along roadsides, and to provide federally required oversight at the 14 Superfund sites in the state. Little or no resources are available to evaluate the more than 500 potential sites, or to perform remediation at confirmed sites. Fifty-seven confirmed hazardous waste sites have sat waiting through two fiscal years for clean up, and still resources are not available. When sites pose an imminent and substantial threat, the state has to look to the EPA to step in and do the financial, and perform emergency removal actions.

    The state role portion of the bill for delegation and authorization lacks specific criteria for EPA to use as a basis for evaluating state qualifications. It lacks a process for EPA oversight. EPA is actually prohibited from including terms and conditions as part of the delegation. It lacks a mechanism to ensure that a state will be able to maintain sufficient financial resources, and actually perform the program.

    Financial resources can be wiped out by a state legislative body. If a major industrial facility locates in a state, the facility and the consulting firms it hires can hire away all the technical expertise that the state has, and leave the state program without sufficient technical resources.

    The bill establishes an unacceptable automatic approval process. If the EPA does not approve or disapprove an application, the state is automatically granted the program. EPA must be given an opportunity to completely evaluate a state application, and act accordingly.

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    And earlier you asked something about governor concurrence. A facility may be added only to the NPL site if the governor concurs. Such a requirement is inappropriate. The failure of a governor to concur often stop Superfund investigation processes, and puts an additional financial and technical burden on an already over-burdened state agency. In addition, the non-concurrence prolongs the exposure of the citizens living and working on or near the sites or consuming aquatic wildlife contaminated by the site.

    In the State of Louisiana, our governor has only concurred at one proposed NPL site. The concurrence occurred at Southern Shipbuilding site at Slidell, where the waste was designated to be transported to an incinerator already existing at the Bayou Bonfouca Superfund site, and the same contractors were going to be used. The sites which did not receive concurrence by the governor have had little or not progress towards remediation of the waste, and continue to impact human health in the environment.

    I'd like to thank you for this opportunity to testify, and the grassroots community looks forward to working with you, to work out these issues, and move forward. Thank you.

    Mr. BOEHLERT. Thank you very much. And I know you were part of the stakeholders' meetings. I'd like to point out that we do deal with hot spots, contrary to what you might be led to believe, so I think there might be a misreading of the bill. And both you and Ms. Florini have expressed concerns about language that does not require protection of uncontaminated groundwater, if the water has no beneficial use. I think that's a misreading of the provision.

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    It does not use a current or reasonably anticipated use determination. It is based on the characteristics of the water itself. Now, counsel—and we discussed this on both sides, and we thought the language was very clear, so maybe we can make it even clearer, but we want to make certain we address that concern.

    Next, Mr. Reilly.

    Mr. REILLY. Good evening, Mr. Chairman and Members of the Subcommittee. My name is Bernie Reilly. I'm corporate counsel for the DuPont Company. I'm pleased to be here today to testify on behalf of the Chemical Manufacturers Association, of which DuPont is a member. We're in the front line in cleaning sites where we have significant involvement. I'm also pleased to note that I did not sue Ms. Williams at the Keystone site, nor any other restaurant, nor will we ever do that, or the Girls Scouts.

    Mr. Chairman, we commend you on the leadership that you've demonstrated on the important issue of Superfund reform, by introducing H.R. 2727. This bill represents a thoughtful and balanced solution to many of the problems that have plagued the Superfund program for years. It is our hope your bill garners significant bipartisan support in the coming weeks.

    Together with the themes we seen in Representatives Barcia and Dooley's proposal, we believe the foundation has been created for meaningful, comprehensive Superfund reform in this Congress.

    For a number of years now one clear message has been delivered by all stakeholders, including President Clinton and EPA Administrator Browner; Superfund is broken, and needs to be significantly improved through legislative action. And another message also has emerged. The nearly 5-year Superfund reauthorization debate has gone on long enough. All of us have talked the talk, we now must walk the walk, by enacting a Superfund law that is fair and efficient, gets clean-ups done, and reduces litigation.
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    Today, I will speak briefly about the liability and remedy titles of your bill. Our comments and other provisions of the bill are in our written statement.

    Mr. Chairman, the fundamental unfairness of Superfund's joint and several liabilitiy standard results in high transaction costs, and seemingly endless negotiations and contention of which we've heard a lot today. This standard is responsible for Superfund's well-deserved reputation as a breeding ground for litigation. It has contributed to delays in clean-ups and excessive remediation costs.

    Your bill reforms Superfund's joint and several liabilities system by establishing a fair share liability system. It provides for full allocations at many facilities, and where the liability has not been fully resolved at existing sites, your bill will at least assure some funding, short of a full allocation.

    We recognize that there are parties caught up in Superfund's liability web that are ill equipped to deal with it. We acknowledge the need to address this problem. Your bill provides relief to small business, small share parties, and municipalities from Superfund liability. These exemptions will place a burden on the fund.

    Mr. Chairman, in order for liability to reform to be fair, there must be adequate funding for the fund. Your bill provides $550 million a year. We are concerned that Orphan Share fund decreases under your bill in later years, just when a significant number of allocations will be completed, and funds will be needed the most.

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    Turning to remedy. There's no doubt that changes to remedy selection are needed to speed clean-ups, ensure they are protective, and reduce wasteful spending. And of course, we did note that among the other lessons on the video this afternoon, the Keystone site apparently has been in the course of 10 years, fenced, and nothing else.

    Your bill addresses these concerns. First, the bill requires that remedies protect human health and the environment. It also calls for site-specific risk assessments, and realistic considerations of land and water use. Second, the bill eliminates the most troubling artificial impediments to sensible remedy decisions. It removes the existing preferences for permanence and treatment, which has driven expensive treatment-based remedies, regardless of their need for the desires of the communities. Your bill puts all protective remedies on an equal playing field. The bill also responds to concerns expressed by some, that Congress should maintain a preference for treatment of so-called hot spots. This formulation marks real progress toward bridging the gap between the various stakeholders on this difficult issue. CMA is concerned that the proposed hot spot definition is based partially on concepts of inherent risks, without regard to the potential for exposure. We think these concerns can be addressed.

    As you know, CMA has been a vocal supporter of protecting uncontaminated groundwater. We see that position in your bill. It takes a balanced approach to this issue. It also provides a sound framework for addressing contaminated groundwater. We think further clarification is warranted to ensure that EPA, the states, and PRPs, have the ability to deal with groundwater protection and remediation in a flexible and realistic manner.

    In closing, Mr. Chairman, I want to commend you and the entire subcommittee, again, for your hard work on this issue, and your thoughtful, practical proposal. After many years of considering Superfund's problems, we believe that your bill, along with a proposal put forth by Representatives Barcia and Dooley, tracks a clear path toward enactment of a comprehensive Superfund reauthorization bill this Congress. We look forward to working you with you to help you achieve this goal.
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    Mr. BOEHLERT. Thank you very much, and particularly for the guidance you're giving us on the Orphan Share, and the timing of the allocation. I think maybe you have a point there, and we're going to take another look at that.

    Ms. Florini.

    Ms. FLORINI. Thank you, Mr. Chairman. Good evening. On behalf of the Environmental Defense Fund, thank you for another opportunity to testify.

    In our view your bill is very much a mixed bag. The good news is that we support many of the bill's concepts, such as clean-up objectives that recognize the value of groundwater and land as very important resources, and the need to tailor the liability system to avoid the continuation of the abuses of the contribution system that many large polluters have indulged in. Overall, we regard this bill as significantly more positive, and less extreme than many of the vehicles on Superfund reauthorization that have been circulated in the prior Congress. That's the good news.

    Mr. BOEHLERT. Your time has expired.

    Ms. FLORINI. I'd better talk fast then.

    Mr. BOEHLERT. Oh, go ahead.

    Ms. FLORINI. We do however have a few problems, which are detailed in my 18-page, single-spaced written testimony. I will summarize a couple of them. In all seriousness, we do appreciate the efforts that you and your staff have made, but we really do think there are some pretty serious problems left.
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    First, we think SAFE's clean-up provisions really don't do the trick on groundwater. In fact I use the analogy of Dr. Jekyll and Mr. Hyde. I think there are some very good provisions on groundwater in there, and then I think there are a lot of ''unless'' and ''accept'' clauses that undo most of the good that has been done. And we're also very concerned about the way that the treatment language is phrased.

    Second, the bill's liability provisions, though we agree with the general conceptual approach you are now taking, we think in many instances are just unworkable in their details, and that they will end up creating more litigation in some instances than they are terminating.

    Third, we think that the firewall between the liability relief dollars and the clean-up dollars, though something we are glad to see in there, is necessary but not sufficient. At the moment there is nothing in the bill as far as we can tell—and I will acknowledge that I am not an expert on appropriations language; I don't know very many people who are—that actually assures adequate dollars for clean-up. That is a very great concern to us.

    Fourth, and finally, the state role provisions we believe may significantly undercut public participation, and we also have a concern about the way the community outreach provisions are structured.

    I just want to note that to make SAFE a truly pro environment bill, we would actually need to look at adding a number of important components. For example, expanding community right to know, more aggressive protection for children, and providing greater consideration of environmental justice issues. These and other issues were addressed in the principles released last week, by Congressman Pallone and his colleagues, and we would commend them to your attention.
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    Turning to the bill as it now exists, as I mentioned, we're very worried about some of the remedy provisions. Let me just talk briefly about the treatment issues. Fundamentally, there's two ways to go at it; by treating it or by containing it on site. Containment involves guessing about what will happen at a site over the future, and how people will act at the site, or if the containment materials will fail, other natural disasters will occur. Or whether people would be so silly as to put roads and utility conduits, and other kinds of activities through trenches full of hazardous waste. The situation I have just described is what happened at Love Canal.

    People do silly things, in other words. We should take out an insurance policy for the future that says, with regard to particularly toxic and highly mobile materials, we are going to treat them. Unfortunately, the bill's preference for treatment is dysfunctional. It would force EPA to show that a threat is so substantial, that it would be imprudent to contain the material rather than treat it, or so mobile that it cannot reliably be contained. These phrases assume away the very uncertainties about containment that necessitate a treatment preference in the first place. And such, the bill provides EPA with a Catch-22, and assurances for communities that are merely illusory.

    I agree with much of what has been said here today about the absolute folly of suing people who threw away their garbage, including Ms. Williams. However, we've got some concerns about some of the provisions that are actually in your bill. For example, the de minimis toxicity language, in reference to concentrations of hazardous substances that are no greater than, and no more toxic than, municipal solid waste, is a lawyer's full employment act. I thought that's what we were trying to get away from here. Once more, I do not believe that science today can answer the question at all, forget about the lawyers.
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    We have a number of other concerns about the bill which are detailed in my written testimony. Thank you for this opportunity, and I will be happy to respond to questions.

    Mr. BOEHLERT. Thank you very much. And just let me assure you that, one, we very much appreciate the second half of your presentation, after I said your time had expired, because that's instructive and it's helpful. I want to assure you, the last thing we want to do is significantly undercut community participation. And that's not my style, and that's not this subcommittee's style. So we'll work on that language.

    Some other areas I think that may be just subject to a different interpretation of what you're saying. And some of areas, I think you've sort of made us think twice, and we'll look at it. So I really appreciate your testimony. Thank you so very much.

    Ms. Chasis.

    Ms. CHASIS. Good evening. My name is Sarah Chasis. I'm a senior attorney with the Natural Resources Defense Council, and director of its water and coastal program. And my testimony will focus on Title VI and VII of your bill that focus on the natural resource damage issues. And again, as Ms. Florini has said, we in the environmental community are very appreciative of your efforts here, and we recognize you have made significant progress, as compared to prior bills, in this areas as well as in others. We remain very concerned however about the effect of these titles on the ability of trustees to recover natural resource damages, both from hazardous releases and from oil spills. And we are concerned that there are provisions which the states and the environmental community have sought regarding the statute of limitations, and record review, which are not contained in the bill.
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    A concern everyone has had with Superfund is excessive litigation. We urge you to remember that every change will itself insite litigation. Thus, we recommend that your operating principle be not to change the law, unless it is necessary to fix a demonstrated problem. Many of the changes in these two titles in our view do not meet this criterion. Examples include Section 603, Defining Resources for Which Trustees May Seek Damages; 604, on Lead Decisionmaking Trustee; 605 on Causation; and 611 on Double Recovery.

    None of these addresses demonstrated problems, or problems that have not already been resolved, either administratively or judicially. And I know there was reference to Fox River as an example in the lead decisionmaking trustee context, but my understanding is that has come to a resolution in a memorandum of understanding among the trustees and EPA.

    Sections 612 and 708 would unreasonably circumscribe restoration of natural resources. This is one of our very major concerns with the bill. Polluters would be totally free of liability for damages to pristine and ecologically important resources, just because those resources are not currently used by the public.

    The company responsible for a major oil spill in the ocean that killed hundreds of thousands of seabirds or dolphins, that no one currently ''uses'', would have no liability for restoration of those resources. The only exception would be, if the birds or dolphins were endangered or threatened under the Endangered Species Act or the damaged resources were in a National Marine Sanctuary.

    Additionally, for resources that do have some public use, the measure of restoration would be limited to restoration of that use only, not restoration of the full biological value of the damaged resources. Thus, if it were determined, for example, that PCBs in the Hudson River, resulting from General Electric's past discharges were adversely affecting bird populations, General Electric would only be liable for restoration of enough birds for birdwatching, not restoration of the full bird population. This approach contrasts sharply with the approach under current law, which provides for restoration of the damaged resource to the condition that it was in prior to the damage.
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    Under sections 606 and 705, the bill also would significantly circumscribe liability for losses that occurred prior to restoration or in the absence of restoration, if, for example, restoration proves infeasible or not cost-effective. Damages to resources that are not currently used, but which may be very valuable from a biodiversity or ecological standpoint would go uncompensated. Nor could trustees recover for damages relating to the impairment of important national symbols, such as the Grand Canyon or bald eagles, under this provision. Tribal values related to salmon, which in some Native American cultures are of religious importance, would also not be compensable.

    Section 608 and section 707 provide for de novo judicial review of all aspects of a determination or assessment of damages for injury to natural resources. In addition, the bill would eliminate the current provision that gives a rebuttable presumption to any determination by the trustees of damages.

    Thus, there is no, absolutely no, deference given the trustee's assessment. Despite repeated requests of Federal and State trustees, judicial review is not limited to the administrative record.

    In our view, as a result, this bill actually encourages further lengthy and expensive litigation, prolongs the timeframe for restoration, and provides, with one exception, little incentive for the trustees to develop a public record with opportunity for public notice and comment. The one exception, and it is one that we agree with and support, is the provision that says, if a party has information that it has not made available in the administrative proceeding, it is precluded subsequently from introducing that or offering that into evidence at trial. We support that provision. Our concern is that that alone is not likely to provide sufficient incentive to trustees to go through the time and expense of compiling a public record, given the fact that all the issues will have to be relitigated in court.
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    We oppose the provisions permitting self-appointment of one of the trustees as the lead decisionmaking trustee. If there is more than one trustee that has responsibility for resources, that trustee should not be arbitrarily shut out of the decisionmaking process. Efforts by one sovereign to assert such authority are bound to meet with opposition and probable litigation. We recommend that, in lieu of a decisionmaking trustee, the concept of a lead administrative trustee be incorporated into the legislation.

    Finally, Mr. Chairman, we are troubled by the provision that requires that in the selection among restoration alternatives the preference be given to those for which the incremental benefits are shown to exceed the incremental costs. We think this is a very difficult, time-consuming task that inevitably will give less emphasis to environmental values and will lead to the selection of the least costly, rather than the most ecologically-effective, restoration option.

    In conclusion, we stand ready to work with you, Mr. Chairman, and the other members of the committee to try to resolve these issues, but we do think they are significant.

    Mr. BOEHLERT. Thank you very much, and I think your testimony is significant. I want you to know that we not only permit public input, we require it. And I would refer to page 257 of the bill, to the subsection entitled ''public participation.'' That is something that's sacred to me. So we'll be talking more to you as we go over the next seven days because we're moving; this train is moving and we want you to be a passenger.

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    Ms. CHASIS. Thank you.

    Mr. BOEHLERT. Mr. Stewart.

    Mr. STEWART. Thank you, Mr. Chairman. I am Richard Stewart. I have taught environmental law, for 25 years at Harvard Law school for many years, and now at NYU, and the last 10 years I've been closely involved academically and professionally in the development of natural resource damages law. From 1989 to 1991, I was the Assistant Attorney General for Environment and Natural Resources in the Justice Department, taking the lead on a number of major NRD cases.

    Based on all of my experience, I can only agree with the Department of Interior that the existing NRD program is broken because, in Interior's own words, ''it creates conflict instead of restoration.''

    The chairman and the committee should be commended for recognizing the need to fix the NRD program, and the coalition believes there are a number of very important beneficial reform measures in title 6. I would just note two we think are especially important.

    One, a reasonable, workable definition of the objective of restoration that will avoid the cleanup one, cleanup two, problem that's created when trustees come in after EPA has decided a level of cleanup is environmentally protective, and then require additional cleanup in the guise of restoration.

    And I should note about the preservation concerns that Ms. Chasis has raised. I think the Chair and the committee and the staff should be commended for the special provisions in the bill that address wilderness areas, endangered species, that those special preservation values are recognized.
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    The second, I think, major contribution is to eliminate some of the elements of surplus recoveries that trustees seek over and above the cost of restoration. These claims for surplus create enormous conflict, high transaction costs, and delay restoration.

    Now the coalition has a number of technical concerns we would like to work out with your—discuss with your staff. We have a number of substantive concerns that are spelled out in my written testimony. I only want to mention three in the time remaining.

    First, we urge you to eliminate past lost use recoveries along with other surplus recoveries over and above restoration. Ms. Browner is fond of using the example that if my car is smashed up and I have to rent another car, I ought to get compensated for that. That's appealing, but completely misleading about trustees calculate past lost use. We're not talking about out-of-pocket losses as in the example.

    For example, there's a theory of consumer surplus, that if people pay $5 to visit a wilderness area and a survey elicits answers that they might pay as much as $100 to visit that wilderness area, though they never paid it, the government claims $95 for every wilderness user. That's what we're talking about. I think it's unrealistic; it's artificial; it just creates conflict.

    We believe lost use should be taken into account in restoration by interim measures to provide the public with resource uses and benefits in the interim, when permanent restoration is obtained, but not looking back on the past with these wholly wooly economic theories of loss.
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    The second substantive concern we would particularly raise is to eliminate section 106 unilateral order authority which was granted to Federal resource trustees by President Clinton by Executive Order. There was never any real need shown for this grant, and it simply creates an open route that trustees can use to circumvent the reforms in the NRD program that you have put in title 6, since trustees can just use the 106 route and evade all the procedures and substantive criteria that you have included.

    The third particular substantive issue we would raise, we think there's a need to fix the statute-of-limitations problem. By one theory or another, the trustees have urged interpretations of the existing statute that would effectively eliminate any limitations period for NRD claims. It's 17 years since CERCLA was enacted, and it's time to cut off stale claims.

    There are a number of other substantive concerns that are set forth in our written submission. We think title 6 is an excellent beginning on reforming the NRD program. We urge you to address the substantive concerns that we've identified.

    Thank you, Mr. Chairman.

    Mr. BOEHLERT. Thank you very much, Mr. Stewart. I want to thank all of you for being very valuable resources. Some of my colleagues have indicated, as have counsel, that we're going to have some questions we would subsequently submit to you in writing, and we would ask for a timely response.

    For those of you who view the glass as only half full, we're going to spend some more time with you to address your particular concerns.
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    I want you all to know—tell the gang up at SunnyRay Restaurant that we're going to win one for the gang at SunnyRay Restaurant, so we can continue to have those $1.99 breakfast specials.

    But this is a very important subject. We have gone at it in a very thoughtful, I think deliberative, way. The Senate opted to introduce its Superfund reform bill the first month of this new session, amid much fanfare and top priority: We're going to move on it. Well, nothing has happened. A lot of the stakeholders had some legitimate gripes with the Senate bill and said, ''Nobody asked me.'' We have not done that. Before we came up with a draft bill, we have consciously reached out; we have spent literally hundreds of dollars of consulting everybody on this bill, and we have developed what I think is a very good product, and I appreciate those of you who have been enthusiastic in your support, and I welcome the constructive criticisms from those of you who do not find it in your heart to yet be that enthusiastic in your support. But we're moving, and next week we're going to have a markup on this bill. The time for action on Superfund reform is here; this is the place, and we're going to do it.

    Thank you all so very much. This hearing is now adjourned.

    [Whereupon, at 6:26 p.m., the subcommittee adjourned subject to the call of the Chair.]

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